author: Mr. Justice Rehnquist Mr. Justice Stevens, Mr. Justice Brennan, Mr. Justice Stewart,

text:
    JUIDICE et al., JUDGES v. VAIL et al.
    No. 75-1397.
    Argued November 30, 1976
    Decided March 22, 1977

      Rehnquist, J., delivered the opinion of the Court in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 339. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 341. Stewart, J., filed a dissenting opinion, post, p. 347.

      A. Seth Greenwald, Assistant Attorney General of New York, argued the cause for appellants. With him on the briefs were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.

      Jane E. Bloom argued the cause for appellees. With her on the brief were John D. Gorman, Joseph J. Levin, Jr., and Morris Dees.

        Carl G. Dworkin filed a brief for the New York State Consumer Protection Board as amicus curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Appellee Harry Vail, Jr., is a judgment debtor who was held in contempt of court by the County Court of Dutchess County, N. Y., and who thereafter sought to have the statutory provisions authorizing contempts enjoined as unconstitutional in an action brought under 42 U. S. C. § 1983 in the United States District Court for the Southern District of New York. The state-court proceedings against Vail were found by the District Court to be in most respects representative of those against the other named appellees as well.

Vail defaulted on a credit arrangement with the Public Loan Co., and in January 1974, a default judgment for $534.36 was entered against him in the City Court of Poughkeepsie, N. Y. Three months later, when the judgment remained unpaid, Vail was served with a subpoena requiring him to attend a deposition so as to give information relevant to the satisfaction of the judgment. The subpoena required him to appear at the office of the creditor’s attorney on May 28, a little more than a month after the date on which it was served, and stated, as is required by N. Y. Civ. Prac. Law § 5223 (McKinney 1963), that “failure to comply . . . is punishable as a contempt of court.”

Vail did not appear for the deposition. Nearly two months after the scheduled deposition date, appellant Juidice, a Justice of the Dutchess County Court, issued an order requiring Vail to appear in that court on August 13 to show cause why he should not be punished for contempt. Vail failed to appear for that hearing. On August 30, appellant Juidice entered an order holding Vail in contempt and imposing a fine in the amount of $250 plus costs. Vail failed to pay the fine. On September 23, appellant Juidice issued an ex parte commitment order, and Vail was arrested and jailed pursuant to this order on October 1. He was released the following day when he paid the fine which had been imposed by the order.

Shortly thereafter, Vail, who had ignored for a period of more than nine months every stage of the state-court proceedings in which he had been a defendant, became a plaintiff in an action brought in the United States District Court. He and his coplaintiffs there sought to enjoin, on behalf of a class of judgment debtors, the use of the statutory contempt procedures authorized by New York law and employed by appellant justices on the ground that the procedures leading to imprisonment for contempt of court violated the Fourteenth Amendment to the United States Constitution. As they never appeared in the New York courts, they obviously did not raise these constitutional claims in the state-court proceedings. The contentions made before the District Court, however, could have been raised by appellees in the state courts, as a defense to the ongoing proceedings. Had the County Court ruled against these contentions, appellees could have appealed to the Appellate Division of the Supreme Court. They chose, by resorting to the federal courts, not to avail themselves of this forum afforded them by the State of New York. We must decide whether, with the existence of an available forum for raising constitutional issues in a state judicial proceeding, the United States District Court could properly entertain appellees’ § 1983 action in light of our decisions in Younger v. Harris, 401 U. S. 37 (1971), and Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). We hold that it could not.

I

A three-judge District Court was convened in response to appellees’ complaint and the action was later certified as a Fed. Rule Civ. Proc. 23 (b) (2) class action. The class was defined to include “all persons who have been, or are presently subject to the civil contempt proceedings contained in the challenged sections of the Judiciary Law.” App. to Jurisdictional Statement 18a. At the same time the District Court rendered an opinion granting partial summary judgment to the appellees and

“declaring that Sections 756, 757, 770, 772, 773, 774 and 775 of the Judiciary Law of the State of New York are unconstitutional on their face and permanently enjoining the operation of said statutes against plaintiffs and members of their class, namely, all persons who have been or are presently subject to civil contempt proceedings pursuant to the above sections of the Judiciary Law . . . .” Id., at 20a.

Appellants in this Court challenged the District Court’s failure to abstain on Younger grounds as well as its decision on the merits. We noted probable jurisdiction, 426 U. S. 946, and since we agree with appellants’ first contention we do not reach the merits of the constitutional dispute.

Although raised by neither of the parties, we are first obliged to examine the standing of appellees, as a matter of the case-or-controversy requirement associated with Art. III, to seek injunctive relief in the District Court. North Carolina v. Rice, 404 U. S. 244 (1971); O’Shea v. Littleton, 414 U. S. 488, 493-498 (1974). At the time this lawsuit was commenced, or the additional appellees added, the named appellees, except Patrick Ward and Joseph Rabasco, had already been imprisoned pursuant to the contempt order, and, again excepting Ward and Rabasco, had been released after payment of the court-imposed fine. Ward had not been imprisoned, but alleged that he was “in imminent danger of being imprisoned pursuant to the Order of Contempt . . ." Complaint ¶ 55. A temporary restraining order, which has remained in effect throughout this lawsuit, was issued by the District Court, enjoining the State from incarcerating Ward pursuant to the contempt order. Rabasco similarly alleged the threat of imprisonment after the issuance by the state court of an order to show cause which he has not complied with. The District Court restrained further state proceedings against Rabasco.

All of the named appellees, except Ward and Rabasco, then, having been released from jail, no longer had a live controversy with appellants or other New York State officials as to either the contempt citation or the short periods of incarceration which would entitle them to injunctive relief. These New York supplemental proceedings, which follow judgments on a debt, differ in this respect from the Ohio State proceedings involved in Huffman, supra. In Huffman, the Ohio State court had closed down the federal plaintiff’s movie house for a period of time in the future. Although its decree had become final at the time the federal plaintiff instituted its federal action, the effect of the decree continued. 420 U. S., at 598. That plaintiff accordingly had the requisite standing. O’Shea v. Littleton, supra, at 495-496. Here, however, once the period of incarceration is served or the fine paid, the effect of the orders imposing a fine or commitment has expended itself. And, in the case where the payment of the fine satisfies the entire judgment, not only the orders in the supplemental proceedings but the original judgment as well is rendered functus officio. As the complaint does not allege, and as the District Court did not find, that these appellees were threatened with further or repeated proceedings, only Ward and Rabasco had the necessary standing to seek injunctive relief. See Ellis v. Dyson, 421 U. S. 426 (1975); Steffel v. Thompson, 415 U. S. 452 (1974). Appellees Ward and Rabasco do have standing, since they are subject to pending proceedings in the state courts. Since Ward and Rabasco have standing, and since their standing, unlike that of the plaintiff in Steffel v. Thompson, supra, is predicated on the existence of a pending, and not merely a threatened, proceeding, we deal with appellants’ Younger contentions.

The District Court decided that our holdings in Younger and Huffman did not mandate dismissal of the complaint in this case, because the action sought to be enjoined in Younger was a criminal prosecution, and the action sought to be enjoined in Huffman was for the abatement of a civil nuisance and therefore closely akin to a criminal proceeding. This was not an implausible reading of our holdings in those cases, since in Huffman, the most recent of the two, we had reserved the applicability of abstention to civil cases generally in this language:

“Informed by the relevant principles of comity and federalism, at least three Courts of Appeals have applied Younger when the pending state proceedings were civil in nature. See Duke v. Texas, 477 F. 2d 244 (CA5 1973); Lynch v. Snepp, 472 F. 2d 769 (CA4 1973); Cousins v. Wigoda, 463 F. 2d 603 (CA7 1972). For the purposes of the case before us, however, we need make no general pronouncements upon the applicability of Younger to all civil litigation. It suffices to say that for the reasons heretofore set out, we conclude that the District Court should have applied the tests laid down in Younger in determining whether to proceed to the merits of appellee’s prayer for relief against this Ohio civil nuisance proceeding.” 420 U. S., at 607.

We now hold, however, that the principles of Younger and Huffman are not confined solely to the types of state actions which were sought to be enjoined in those cases. As we emphasized in Huffman, the “ 'more vital consideration’ ” behind the Younger doctrine of nonintervention lay not in the fact that the state criminal process was involved but rather in

“ 'the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.’ ” Huffman, 420 U. S., at 601, quoting Younger, 401 U. S., at 44.

This is by no means a novel doctrine. In Ex parte Young, 209 U. S. 123 (1908), the watershed case which sanctioned the use of the Fourteenth Amendment to the United States Constitution as a sword as well as a shield against unconstitutional conduct of state officers, the Court said:

“But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. Taylor v. Taintor, 16 Wall. 366, 370; Harkrader v. Wadley, 172 U. S. 148.” Id., at 162.

These principles apply to a case in which the State’s contempt process is involved. A State’s interest in the contempt process, through which it vindicates the regular operation of its judicial system, so long as that system itself affords the opportunity to pursue federal claims within it, is surely an important interest. Perhaps it is not quite as important as is the State’s interest in the enforcement of its criminal laws, Younger, supra, or even its interest in the maintenance of a quasi-criminal proceeding such as was involved in Huffman, supra. But we think it is of sufficiently great import to require application of the principles of those cases. The contempt power lies at the core of the administration of a State’s judicial system, cf. Ketchum v. Edwards, 153 N. Y. 534, 539, 47 N. E. 918, 920 (1897). Whether disobedience of a court-sanctioned subpoena, and the resulting process leading to a finding of contempt of court, is labeled civil, quasi-criminal, or criminal in nature, we think the salient fact is that federal-court interference with the State’s contempt process is “an offense to the State’s interest . . . likely to be every bit as great as it would be were this a criminal proceeding,” Huffman, supra, at 604. Moreover, such interference with the contempt process not only “unduly interfere[s] with the legitimate activities of the Stat[e],” Younger, supra, at 44, but also “can readily be interpreted ‘as reflecting negatively upon the state court’s ability to enforce constitutional principles,’ ” Huffman, supra, at 604.

The District Court relied upon our decision in Gerstein v. Pugh, 420 U. S. 103 (1975), to justify its refusal to dismiss appellees’ suit, and it spoke of the possibility that a debtor in the position of appellees might be “thrown in jail without an actual hearing” (emphasis added). But Gerstein explained the reason for the inapplicability of Younger to that case in a way which clearly distinguishes it from this:

“The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris, 401 U. S. 37 (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.” 420 U. S., at 108 n. 9. (Emphasis added.)

Here it is abundantly clear that appellees had an opportunity to present their federal claims in the state proceedings. No more is required to invoke Younger abstention. There is no support in Gerstein or in our other cases for the District Court's belief that the state courts must have an actual hearing (to which a recalcitrant defendant would presumably be brought by force) in order for Younger and Huffman to apply. Appellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings, Gibson v. Berryhill, 411 U. S. 564, 577 (1973), and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate. Presumptively, therefore, the principles which underlie Younger call for dismissal of the action.

II

We noted in Huffman that Younger principles do not apply, even where otherwise applicable,

“in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is ‘ “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” ’ ” Huffman, 420 U. S., at 611.

We think it wholly impossible to say that the New York statutes in question here met the second part of this exception. Nor is the first part of the exception either alleged in appellees’ complaint or proved by their evidence. While some paragraphs of the complaint could be construed to make such allegations as to the creditors, there are no comparable allegations with respect to appellant justices who issued the contempt orders. This exception may not be utilized unless it is alleged and proved that they are enforcing the contempt procedures in bad faith or are motivated by a desire to harass. Cf. Cameron v. Johnson, 390 U. S. 611, 619 (1968). There are neither allegations, proof, nor findings to that effect here.

We conclude that the District Court erred in enjoining enforcement of the New York Judiciary Law’s contempt procedures for the reasons of federalism and comity enunciated in Younger and Huffman. Its judgment is accordingly

Reversed.

Mr. Justice Stevens,

concurring in the judgment.

The major premise underlying the Court’s holding in Younger v. Harris, 401 U. S. 37, is that a court of equity should not act when the moving party has an adequate remedy at law. Consistently with Younger, a court of equity may have a duty to act if the alternative legal remedy is inadequate. Indeed, the major premise underlying the Court’s holding in Mitchum v. Foster, 407 U. S. 225, is a recognition of the unfortunate fact that state proceedings are sometimes inadequate to vindicate federal rights.

The ultimate question in this case concerns the constitutionality of New York procedures designed to discover the assets of delinquent judgment debtors. If, as appellees’ contend, these procedures violate the Due Process Clause of the Fourteenth Amendment, they cannot provide an adequate remedy for appellees’ federal claim. For the federal remedy that appellees seek is protection against being required to participate in an unconstitutional judicial proceeding. Even ultimate success in such a proceeding would not protect them from the harm they seek to avoid. The challenged state procedures, therefore, cannot themselves provide an adequate remedy for the alleged federal wrong. By hypothesis, in a case such as this, Younger abstention is inappropriate.

I am less certain about the possible applicability of Pullman abstention, Railroad Comm’n v. Pullman Co., 312 U. S. 496, on which Mr. Justice Stewart relies. I am persuaded, however, that we know enough about the way the New York procedure is actually administered to form a reliable opinion about its validity. I believe, therefore, we have a duty to reach the merits.

As the Court’s recitation of the facts demonstrates, the New York procedure provides for adequate notice and gives the debtor adequate opportunities to be heard. Moreover, there is no denial of the impecunious debtor’s right to counsel because proof of indigency, which would necessarily precede any appointment of counsel, would also provide a defense to a contempt charge. The New York procedure does not, therefore, deny the judgment debtor due process of law. Accordingly, I concur in the Court’s judgment.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

I dissent. My earlier dissent in Huffman v. Pursue, Ltd., 420 U. S. 592, 613-618 (1975), details the grounds for my disagreement with the Court’s extension of Younger principles to any state civil proceedings, including the form they take in Huffman and the instant case, and no purpose would be served in restating those reasons here. I repeat, however, my strong disagreement with the process begun in Huffman, carried to the extreme in last Term’s Paul v. Davis, 424 U. S. 693 (1976), and furthered today, of stripping all meaningful content from 42 U. S. C. § 1983. For, as I have said before: “Even if the extension of Younger v. Harris to pending state civil proceedings can be appropriate in any case . . . it is plainly improper in the case of an action by a federal plaintiff, as in this case, grounded upon 42 U. S. C. § 1983,” 420 U. S., at 616. Congress created this cause of action over a century ago, and at the same time expressly charged the federal judicial system with responsibility for the vindication and enforcement of federal rights under it against unconstitutional action under color of state law “whether that action be executive, legislative, or judicial,” Mitchum v. Foster, 407 U. S. 225, 240 (1972) (emphasis in original). In congressional contemplation, the pendency of state civil proceedings was to be wholly irrelevant. “The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights . . . .” Id., at 242. “Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.” Id., at 239. That statute, and the Judiciary Act of 1875, 18 Stat. 470, which granted the federal courts general federal-question jurisdiction, completely altered Congress’ pre-Civil War policy of relying on state courts to vindicate rights arising under the Constitution and federal laws. These statutes constituted the lower federal courts “ 'the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.’ ” Steffel v. Thompson, 415 U. S. 452, 464 (1974) (emphasis in original).

“In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States.' . . . 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum. . . .' ” Zwickler v. Koota, 389 U. S. 241, 248 (1967). This is true notwithstanding the possibility of review by this Court of state decisions, for “even when available by appeal rather than only by discretionary writ of certiorari, [that possibility] is an inadequate substitute for the initial District Court determination . . . to which the litigant is entitled in the federal courts.” England v. Louisiana State Bd. of Medical Examiners, 375 U. S. 411, 416 (1964).

In requiring the District Court to eject the federal plaintiff from the federal courthouse and to force him to seek vindication of his federal rights in pending state proceedings, the Court effectively cripples the congressional scheme enacted in § 1983. The crystal clarity of the congressional decision and purpose in adopting § 1983, and the unbroken line of this Court’s cases enforcing that decision, expose Huffman and today’s decision as deliberate and conscious floutings of a decision Congress was constitutionally empowered to make. It stands the § 1983 remedy on its head to deny the § 1983 plaintiff access to the federal forum because of the pendency of state civil proceedings where Congress intended that the district court should entertain his suit without regard to the pendency of the state suit. Rather than furthering principles of comity and our federalism, forced federal abdication in this context undercuts one of the chief values of federalism— the protection and vindication of important and overriding federal civil rights, which Congress, in § 1983 and the Judiciary Act of 1875, ordained should be a primary responsibility of the federal courts.

Mitchum v. Foster, supra, buttresses this conclusion. Mitchum held that § 1983 comes within the “expressly authorized” exception of 28 U. S. C. § 2283 so as to permit a federal district court in a § 1983 suit to stay a proceeding in a state court. The process begun in Huffman and furthered today of cutting back the remedies available in federal court under § 1983 plainly reintroduces much of the rigidity of § 2283, thus realizing the prophecy that if Younger were extended to civil cases, “the significance of Mitchum for those seeking relief from state civil proceedings would largely be destroyed, and the recognition of section 1983 as an exception to the Anti-Injunction Statute would have been a Pyrrhic victory.” The Supreme Court, 1971 Term, 86 Harv. L. Rev. 50, 217-218 (1972).

Today’s decision extends Huffman, which labeled the state nuisance proceeding “in important respects . . . more akin to a criminal prosecution than are most civil cases.” 420 U. S., at 604., By contrast the underlying suits in the New York courts here were collection suits typically involving small loans, and usually terminating in default judgments. Further, whereas in Huffman state officials were parties in the state-court suit, here those suits are between purely private parties. Whatever the importance of the State’s direct interest in Huffman in closing theaters exhibiting alleged obscene films, one must strain hard to discover any comparable state interest here in having federal rights adjudicated in a state rather than a federal forum. Thus Huffman’s “quasi-criminal” rationale and today’s reliance on state “contempt power” are revealed to be only covers for the ultimate goal of denying § 1983 plaintiffs the federal forum in any case, civil or criminal, when a pending state proceeding may hear the federal plaintiff’s federal claims. This is nothing less than plain refusal to enforce the congressional direction, and for all practical purposes reduces Mitchum v. Foster to an empty shell.

Moreover, a requirement that the § 1983 plaintiff present his constitutional challenge in a suit between purely private parties pending in a state court may not be viewed as an unmixed blessing by the States. When Younger v. Harris, 401 U. S. 37 (1971), was decided, purely private state-court suits were seen as posing entirely different considerations from criminal prosecutions. Id., at 55, and n. 2 (Stewart, J., concurring). Pending state criminal proceedings have always been viewed as paradigm cases involving paramount state interests. Huffman, 420 U. S., at 613-614 (Brennan, J., dissenting). But remitting the decision of the constitutionality of state statutes to state civil proceedings between purely private parties may actually run counter to state interests. If the State may not be heard in the state civil case, defense of the constitutionality of its statute would be solely in the hands of a party having neither the State’s resources, expertise, nor governmental interest in sustaining the validity of the statute. A dilemma would be posed even for officials of a State like New York having procedures that permit, N. Y. Civ. Prac. Law § 1012 (b) (McKinney 1976), and in some cases require, N. Y. Exec. Law § 71 (McKinney 1972), state intervention in suits raising constitutional challenges to state statutes. They must choose whether to intervene in countless private lawsuits brought all over the State implicating the constitutionality of state statutes, or not to intervene and risk adverse decisions having effects far beyond the interests of the particular private parties. By contrast, a § 1983 suit in federal court necessarily names the State or its officials as defendants, and the litigation focuses squarely on the issue of the validity of the statute, with the State defending its own interest directly.

Perhaps the process of eviscerating § 1983 should not come as a surprise. This Court in a series of decisions in other contexts has shaped the doctrines of jurisdiction, justiciability, and remedy so as increasingly to bar the federal courthouse door to litigants with substantial federal claims. See Rizzo v. Goode, 423 U. S. 362 (1976); Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26 (1976); Warth v. Seldin, 422 U. S. 490 (1975); O’Shea v. Littleton, 414 U. S. 488 (1974). The determination to keep § 1983 litigants out of the federal courthouse if they can be remitted to a state court, reflected not only in Huffman and today’s decision but in other decisions, e. g., Hicks v. Miranda, 422 U. S. 332 (1975), hardly serves the values of federalism, any more than did last Term’s decisions that so circumscribed the centuries-old remedy of habeas corpus as to weaken drastically the federal courts’ ability to safeguard individuals from unconstitutional imprisonment. Stone v. Powell, 428 U. S. 465 (1976); Francis v. Henderson, 425 U. S. 536 (1976).

These decisions have in common that they have been rendered in the name of federalism. But they have given this great concept a distorted and disturbing meaning. Under the banner of vague, undefined notions of equity, comity, and federalism, the Court has embarked upon the dangerous course of condoning both isolated, Paul v. Davis, 424 U. S. 693 (1976), and systematic, Rizzo v. Goode, supra, violations of civil liberties. Such decisions hardly bespeak a true concern for equity. Nor do they properly reflect the nature of our federalism. “Adopting the premise that state courts can be trusted to safeguard individual rights, the Supreme Court has gone on to limit the protective role of the federal judiciary. But in so doing it has forgotten that one of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens. Federalism is not served when the federal half of that protection is crippled.” Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 502-503 (1977). I dissent.

Mr. Justice Stewart,

dissenting.

The District Court found New York’s statutorily specified civil contempt procedures constitutionally inadequate. It reached that conclusion without the benefit of a state-court construction of the statute’s procedural requirements; without consideration of whether the procedural infirmities found were limited to the class of subpoenaed civil debtors who originally filed suit; without, indeed, a determination as to whether the challenged procedures accurately reflect statewide New York practice, or were instead confined to Dutchess County. Constitutional adjudication in the face of such legal and factual imponderables is foolhardy: The subject matter of the suit is unclear, and the very need for constitutional adjudication is uncertain.

When a federal district court confronts such uncertainty in state law, its proper course is to abstain from final resolution of the federal issues until the state courts have been accorded an opportunity authoritatively to interpret the state statutory scheme being challenged. Railroad Comm’n v. Pullman Co., 312 U. S. 496. The state-court construction may obviate or significantly modify the federal questions seemingly presented, thus avoiding “unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.” Harman v. Forssenius, 380 U. S. 528, 534. Those considerations were sacrificed here, when the District Court nevertheless proceeded to measure the ambiguous provisions of state law against the Due Process Clause of the Fourteenth Amendment.

Even though the prerequisites of Pullman abstention are clearly met in this case, the Court rejects a routine application of that established doctrine in favor of a novel extension of the Younger-Huffman line of “abstention” cases. Younger v. Harris, 401 U. S. 37; Huffman v. Pursue, Ltd., 420 U. S. 592. That is a departure from prior cases, which have not reached the Younger question when grounds for Pullman abstention were clear. See, e. g., Carey v. Sugar, 425 U. S. 73; Harrison v. NAACP, 360 U. S. 167.

Both types of “abstention,” of course, serve the common goal of judicial restraint as a means of avoiding undue federal interference with state goals and functions. But there is a significant difference in result between the two. Under Pullman abstention, the federal court may retain jurisdiction pending state-court interpretation of an ambiguous statute, while under Younger it may not. The Pullman approach thus has the advantage of not altogether foreclosing access to federal courts to vindicate federal rights, while still avoiding needless friction in federal-state relations.

Viewing this case as a paradigm for Pullman abstention, I would set aside the judgment of the District Court and direct it to retain jurisdiction pending a definitive construction of the statutes in question by the courts of New York.

       There originally were three named plaintiffs. Subsequent to the bringing of this suit, five additional named plaintiffs were added. We conclude, infra, at 331-333, that not all of the named plaintiffs had the requisite standing to seek the relief sought.

       The issuance of the subpoena is authorized by N. Y. Civ. Prac. Law §§ 5223 and 5224 (McKinney 1963). These subpoenas are issued by the creditor’s attorney, acting, however, as an officer of the court, cf. N. Y. Civ. Prac. Law § 2308 (a) (McKinney 1974).

       N. Y. Jud. Law § 757 (1) (McKinney 1975) .

       §§ 770, 772, 773. The fine was payable to the Public Loan Co. in reduction of its judgment.

       § 756.

       See n. 14, infra.

       See N. Y. Civ. Prac. Law § 5701 (a) (2) (McKinney 1963); Rudd v. Rudd, 45 App. Div. 2d 22, 356 N. Y. S. 2d 136 (1974).

       Since we find that the District Court erred in reaching the merits of the injunctive claim, we need not decide whether the District Court’s action in granting partial summary judgment was proper, when neither party had moved for summary judgment and when the state defendants had not yet answered the complaint.

       While several of the named appellees, upon payment of the fine, had satisfied the underlying default judgment, this is not true in all of the cases. Appellee Vail, for example, owed, pursuant to the default judgment, $534.36. His payment of the contempt fine of $250 plus costs, did not satisfy the full default judgment. As to him, and the other appellees similarly situated, since the underlying action on the debt, to which the contempt proceedings were ancillary, had not ended, it is conceivable that the prospect of further contempt orders in the underlying action could have given Vail the requisite constitutional standing to seek to enjoin the contempt processes as unconstitutional. But standing cannot be based on such speculative conjectures which are neither alleged nor proved. Since the complaint does not allege the likelihood, or even the possibility, of future contempt orders, none of the appellees, excepting Ward and Rabasco, have standing. O’Shea v. Littleton, 414 U. S. 488, 493-499 (1974); Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973).

       The District Court read Younger as applying “to civil proceedings only when intervention would disrupt the very interests which would underlie a state’s criminal laws.” Vail v. Quinlan, 406 F. Supp. 951, 958.

       Neither Ex parte Young, nor the cases cited by it, expressly premised this conclusion on § 5 of the Judiciary Act of 1793, 1 Stat. 335, or its successor sections (now 28 U. S. C. § 2283). These cases, rather, are “an application of the reason underlying the Act,” Toucey v. New York Life Ins. Co., 314 U. S. 118, 135 (1941), and reflect the applicability, wholly independent of a statutory codification, of the longstanding policies which inhere in the notions of comity and federalism, see Younger, 401 U. S., at 43-45; 1 J. Kent, Commentaries on American Law *411-412.

       Contempt in these cases, serves, of course, to vindicate and preserve the private interests of competing litigants, People ex rel. Munsell v. Court of Oyer and Terminer, 101 N. Y. 245, 247-249, 4 N. E. 259, 259-261 (1886), but its purpose is by no means spent upon purely private concerns. It stands in aid of the authority of the judicial system, so that its orders and judgments are not rendered nugatory, Ketchum v. Edwards, 153 N. Y. 534, 539, 47 N. E. 918, 920 (1897) (“The interest in maintaining respect for the action of courts, and of orderly jurisprudence, forbids that litigants should be permitted, under plea of hardship or injustice, real or pretended, to nullify or set at nought orders or decrees, however improvidently made, even if it may seem certain that the court acted in granting them under misapprehension or mistake”); cf. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 443 (1911); King v. Barnes, 113 N. Y. 476, 21 N.E. 182 (1889).

       As we did in Huffman, we save for another day the question of “the applicability of Younger to all civil litigation,” 420 U. S., at 607.

       The most propitious moment would have been at the hearing on the order to show cause. Even after the order of contempt had been issued, a motion to vacate pursuant to N. Y. Civ. Prac. Law § 5015 (McKinney Supp. 1976-1977) was available, and it would have been possible to seek a stay or a temporary restraining order on the fine and commitment, see N. Y. Civ. Prac. Law § 2201 (McKinney 1974); Rudd v. Rudd, 45 App. Div. 2d 22, 356 N. Y. S. 2d 136 (1974). Should the state courts ultimately have sustained the validity of the state statutory system, appellees would have had final recourse, available as of right, to this Court, 28 U. S. C. § 1257 (2).

       It does not appear settled in New York whether persons faced with civil contempt will be assigned counsel if indigent, see Rudd v. Rudd, supra; but cf. In re Smiley, 36 N. Y. 2d 433, 330 N. E. 2d 53 (1975) (no inherent power in courts to direct provision of counsel or to require the compensation of retained counsel in private suits; no “risk of loss of liberty or grievous forfeiture”). In any case, the relevant datum is that the due process contentions concerning assigned counsel, as with the other contentions, could have been presented to the New York State courts by the same parties or their attorneys who, instead, chose to ignore the pending state-court proceedings by filing this suit in federal court.

       Appellees Vail and McNair, apart from their request for declaratory and injunctive relief, also sought damages for alleged past violations of their constitutional rights stemming from the brief periods of incarceration. Appellants, however, are no longer involved in this aspect of the lawsuit, having been dismissed by the District Court on grounds of judicial immunity. Appellees have not challenged the District Court’s dismissal of the state-court justices from those counts, and none of the parties here have addressed the issue of the availability of damages to these appellees. The issue of damages is therefore not before us, and we intimate no opinion as to the applicability of Younger-Huffman principles to a § 1983 suit seeking only such relief in the District Court. Cf. Monroe v. Pape, 365 U. S. 167 (1961); Huffman v. Pursue, Ltd., 420 U. S., at 607 n. 19, 609 n. 21.

       “The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U. S., at 43-44.

       “Those who opposed the Act of 1871 [the forerunner of 42 U. S. C. § 1983] clearly recognized that the proponents were extending federal power in an attempt to remedy the state courts’ failure to secure federal rights. The debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.
      “This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.” Mitchum v. Foster, 407 U. S., at 241-242.
      In a footnote the Court quoted this comment by Congressman Coburn:

        “ 'The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. . .' Cong. Globe, 42d Cong., 1st Sess., 460 (1871).” Id., at 241 n. 31.

       The appellees argue that the procedures violate their due process rights because no proper notice of the fact that the noncooperating debtor is subject to incarceration for his actions is provided, because the procedures do not require a hearing with the debtor present prior to a finding of contempt and incarceration, and because the procedures do not provide for the right to counsel. If we assume that appellees are correct in their claim that they have a constitutional right to an actual hearing prior to incarceration, and that defects in the notice prevent the merits of that claim from being adjudicated in the state courts until after the incarceration has occurred, by hypothesis the state procedure cannot be adequate because appellees will have suffered the harm they seek to avoid before the state proceeding is concluded. Cf. Gerstein v. Pugh, 420 U. S. 103, 108 n. 9.

       Perhaps another way to make the same point is to suggest that fidelity to the rationale of Younger would require the District Court to decide the merits of appellees’ claims in order to decide whether to abstain.

      I suspect that the purported disclaimer that “[a]s we did in Huffman, we save for another day the question of ‘the applicability of Younger to all civil litigation . . . ,' " ante, at 336 n. 13, is tongue in cheek, and that “save” in today’s disclaimer is a signal that merely the formal announcement is being postponed.

      The record suggests that the courts of New York City may apply the statutes in question in quite a different manner.


source: Caselaw Access Project

author:
Mr. Justice Stevens Mr. Justice White, Mr. Justice Blackmun, Mr. Justice Brennan. Mr. Justice Marshall
      Mr. Justice Rehnquist,

license: Public Domain

text:
    GARDNER v. FLORIDA
    No. 74-6593.
    Argued November 30, 1976
    Decided March 22, 1977

      Stevens, J., announced the Court’s judgment and filed an opinion, in which Stewart and Powell, JJ., joined. Burger, C. J., concurred in the judgment. White, J., post, p. 362, and Blackmun, J., post, p. 364, filed opinions concurring in the judgment. Brennan, J., filed a separate opinion, post, p. 364. Marshall, J., post, p. 365, and Rehnquist, J., post, p. 371, filed dissenting opinions.

      Charles H. Livingston argued the cause for petitioner. With him on the briefs were James A. Gardner, Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam.

      Wallace E. Allbritton, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Robert L. Shevin, Attorney General.
   Mr. Justice Stevens

announced the judgment of the Court and delivered an opinion, in which Mr. Justice Stewart and Mr. Justice Powell joined.

Petitioner was convicted of first-degree murder and sentenced to death. When the trial judge imposed the death sentence he stated that he was relying in part on information in a presentence investigation report. Portions of the report were not disclosed to counsel for the parties. Without reviewing the confidential portion of the presentence report, the Supreme Court of Florida, over the dissent of two justices, affirmed the death sentence. 313 So. 2d 675 (1975). We conclude that this procedure does not satisfy the constitutional command that no person shall be deprived of life without due process of law.

I

On June 30, 1973, the petitioner assaulted his wife with a blunt instrument, causing her death. On January 10, 1974, after a trial in the Circuit Court of Citrus County, Fla., a jury found him guilty of first-degree murder.

The separate sentencing hearing required by Florida law in capital cases was held later on the same day. The State merely introduced two photographs of the decedent, otherwise relying on the trial testimony. That testimony, if credited, was sufficient to support a finding of one of the statutory aggravating circumstances, that the felony committed by petitioner “was especially heinous, atrocious, or cruel.”

In mitigation petitioner testified that he had consumed a vast quantity of alcohol during a day-long drinking spree which preceded the crime, and professed to have almost no recollection of the assault itself. His testimony, if credited, was sufficient to support a finding of at least one of the statutory mitigating circumstances.

After hearing this evidence the jury was instructed to determine by a majority vote (1) whether the State had proved one of the aggravating circumstances defined by statute, (2) whether mitigating circumstances outweighed any such aggravating circumstance, and (3) based on that determination, whether the defendant should be sentenced to life or death.

After the jury retired to deliberate, the judge announced that he was going to order a presentence investigation of petitioner. Twenty-five minutes later the jury returned its advisory verdict. It expressly found that the mitigating circumstances outweighed the aggravating circumstances and advised the court to impose a life sentence. App. 131.

The presentence investigation report was completed by the Florida Parole and Probation Commission on January 28, 1974. On January 30, 1974, the trial judge entered findings of fact and a judgment sentencing petitioner to death. His ultimate finding was that the felony “was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs the mitigating circumstance, to-wit: none.” Id., at 138. As a preface to that ultimate finding, he recited that his conclusion was based on the evidence presented at both stages of the bifurcated proceeding, the arguments of counsel, and his review of “the factual information contained in said pre-sentence investigation.” Ibid.

There is no dispute about the fact that the presentence investigation report contained a confidential portion which was not disclosed to defense counsel. Although the judge noted in his findings of fact that the State and petitioner’s counsel had been given “a copy of that portion [of the report] to which they are entitled,” ibid., counsel made no request to examine the full report or to be apprised of the contents of the confidential portion. The trial judge did not comment on the contents of the confidential portion. His findings do not indicate that there was anything of special importance in the undisclosed portion, or that there was any reason other than customary practice for not disclosing the entire report to the parties.

On appeal to the Florida Supreme Court, petitioner argued that the sentencing court had erred in considering the presentence investigation report, including the confidential portion, in making the decision to impose the death penalty. The per curiam opinion of the Supreme Court did not specifically discuss this contention, but merely recited the trial judge’s finding, stated that the record had been carefully reviewed, and concluded that the conviction and sentence should be affirmed. The record on appeal, however, did not include the confidential portion of the presentence report.

Justice Ervin and Justice Boyd dissented on several grounds. They regarded the evidence as sufficient to establish a mitigating circumstance as a matter of law, and also concluded that it was fundamental error for the trial judge to rely on confidential matter not provided to the parties. They stated, in part:

“Additionally, it appears from the record that there was a 'confidential’ portion of the PSI report made available to the trial judge which was not provided to either Appellant or Appellee. In fact, it is unclear from the record whether this Court has been provided the 'confidential’ portion thereof for our review, a critical final step between conviction and imposition of the death penalty—one of the safeguards outlined in Dixon. [State v. Dixon, 283 So. 2d 1 (1973).] What evidence or opinion was contained in the 'confidential’ portion of the report is purely conjectural and absolutely unknown to and therefore unrebuttable by Appellant. We have no means of determining on review what role such 'confidential’ information played in the trial judge’s sentence, and thus I would overturn Appellant’s death sentence on the basis of this fundamental error alone.” 313 So. 2d, at 678 (emphasis in original).

Petitioner’s execution was stayed pending determination of the constitutionality of the Florida capital-sentencing procedure. Following the decision in Proffitt v. Florida, 428 U. S. 242, holding that the Florida procedure, on its face, avoids the constitutional deficiencies identified in Furman v. Georgia, 408 U. S. 238, the Court granted certiorari in this case, 428 U. S. 908, to consider the constitutionality of the trial judge’s use of a confidential presentence report in this capital case.

II

The State places its primary reliance on this Court’s landmark decision in Williams v. New York, 337 U. S. 241. In that case, as in this, the trial judge rejected the jury’s recommendation of mercy and imposed the death sentence in reliance, at least in part, on material contained in a report prepared by the court’s probation department. The New York Court of Appeals had affirmed the sentence, rejecting the contention that it was a denial of due process to rely on information supplied by witnesses whom the accused could neither confront nor cross-examine.

This Court referred to appellant’s claim as a “narrow contention,” id., at 243, and characterized the case as one which

“presents a serious and difficult question . . . relat[ing] to the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant.” Id., at 244.

The conviction and sentence were affirmed, over the dissent of two Justices.

Mr. Justice Black’s opinion for the Court persuasively reasons why material developed in a presentence investigation may be useful to a sentencing judge, and why it may not be unfair to a defendant to rely on such information even if it would not be admissible in a normal adversary proceeding in open court. We consider the relevance of that reasoning to this case in Part III of this opinion. Preliminarily, however, we note two comments by Mr. Justice Black that make it clear that the holding of Williams is not directly applicable to this case.

It is first significant that in Williams the material facts concerning the defendant’s background which were contained in the presentence report were described in detail by the trial judge in open court. Referring to this material, Mr. Justice Black noted:

“The accuracy of the statements made by the judge as to appellant’s background and past practices was not challenged by appellant or his counsel, nor was the judge asked to disregard any of them or to afford appellant a chance to refute or discredit any of them by cross-examination or otherwise.” Ibid.

In contrast, in the case before us, the trial judge did not state on the record the substance of any information in the confidential portion of the presentence report that he might have considered material. There was, accordingly, no similar opportunity for petitioner’s counsel to challenge the accuracy or materiality of any such information.

It is also significant that Mr. Justice Black’s opinion recognized that the passage of time justifies a re-examination of capital-sentencing procedures. As he pointed out:

“This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions—even for offenses today deemed trivial.” Id., at 247-248.

Since that sentence was written almost 30 years ago, this Court has acknowledged its obligation to re-examine capital-sentencing procedures against evolving standards of procedural fairness in a civilized society.

III

In 1949, when the Williams case was decided, no significant constitutional difference between the death penalty and lesser punishments for crime had been expressly recognized by this Court. At that time the Court assumed that after a defendant was convicted of a capital offense, like any other offense, a trial judge had complete discretion to impose any sentence within the limits prescribed by the legislature. As long as the judge stayed within those limits, his sentencing discretion was essentially unreviewable and the possibility of error was remote, if, indeed, it existed at all. In the intervening years there have been two constitutional developments which require us to scrutinize a State’s capital-sentencing procedures more closely than was necessary in 1949.

First, five Members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. Gregg v. Georgia, 428 U. S. 153, 181-188 (opinion of Stewart, Powell, and Stevens, JJ.); see id., at 231-241 (Marshall, J., dissenting); Furman v. Georgia, 408 U. S., at 286-291 (Brennan, J., concurring), 306-310 (Stewart, J., concurring); see id., at 314-371 (Marshall, J., concurring). From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.

Second, it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. Mempa v. Rhay, 389 U. S. 128; Specht v. Patterson, 386 U. S. 605. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. See Witherspoon v. Illinois, 391 U. S. 510, 521-523.

In the light of these developments we consider the justifications offered by the State for a capital-sentencing procedure which permits a trial judge to impose the death sentence on the basis of confidential information which is not disclosed to the defendant or his counsel.

The State first argues that an assurance of confidentiality to potential sources of information is essential to enable investigators to obtain relevant but sensitive disclosures from persons unwilling to comment publicly about a defendant’s background or character. The availability of such information, it is argued, provides the person who prepares the report with greater detail on which to base a sentencing recommendation and, in turn, provides the judge with a better basis for his sentencing decision. But consideration must be given to the quality, as well as the quantity, of the information on which the sentencing judge may rely. Assurances of secrecy are conducive to the transmission of confidences which may bear no closer relation to fact than the average rumor or item of gossip, and may imply a pledge not to attempt independent verification of the information received. The risk that some of the information accepted in confidence may be erroneous, or may be misinterpreted, by the investigator or by the sentencing judge, is manifest.

If, as the State argues, it is important to use such information in the sentencing process, we must assume that in some cases it will be decisive in the judge's choice between a life sentence and a death sentence. If it tends to tip the scales in favor of life, presumably the information would be favorable and there would be no reason why it should not be disclosed. On the other hand, if it is the basis for a death sentence, the interest in reliability plainly outweighs the State’s interest in preserving the availability of comparable information in other cases.

The State also suggests that full disclosure of the presentence report will unnecessarily delay the proceeding. We think the likelihood of significant delay is overstated because we must presume that reports prepared by professional probation officers, as the Florida procedure requires, are generally reliable. In those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material. Or if the disputed matter is of critical importance, the time invested in ascertaining the truth would surely be well spent if it makes the difference between life and death.

The State further urges that full disclosure of presentence reports, which often include psychiatric and psychological evaluations, will occasionally disrupt the process of rehabilitation. The argument, if valid, would hardly justify withholding the report from defense counsel. Moreover, whatever force that argument may have in noncapital cases, it has absolutely no merit in a case in which the judge has decided to sentence the defendant to death. Indeed, the extinction of all possibility of rehabilitation is one of the aspects of the death sentence that makes it different in kind from any other sentence a State may legitimately impose.

Finally, Florida argues that trial judges can be trusted to exercise their discretion in a responsible manner, even though they may base their decisions on secret information. However acceptable that argument might have been before Furman v. Georgia, it is now clearly foreclosed. Moreover, the argument rests on the erroneous premise that the participation of counsel is superfluous to the process of evaluating the relevance and significance of aggravating and mitigating facts. Our belief that debate between adversaries is often essential to the truth-seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.

Even if it were permissible to withhold a portion of the report from a defendant, and even from defense counsel, pursuant to an express finding of good cause for nondisclosure, it would nevertheless be necessary to make the full report a part of the record to be reviewed on appeal. Since the State must administer its capital-sentencing procedures with an even hand, see Proffitt v. Florida, 428 U. S., at 250-253, it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed. Without full disclosure of the basis for the death sentence, the Florida capital-sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia. In this particular case, the only explanation for the lack of disclosure is the failure of defense counsel to request access to the full report. That failure cannot justify the submission of a less complete record to the reviewing court than the record on which the trial judge based his decision to sentence petitioner to death.

Nor do we regard this omission by counsel as an effective waiver of the constitutional error in the record. There are five reasons for this conclusion. First, the State does not urge that the objection has been waived. Second, the Florida Supreme Court has held that it has a duty to consider "the total record,” Swan v. State, 322 So. 2d 485, 489 (1975), when it reviews a death sentence. Third, since two members of that court expressly considered this point on the appeal in this case, we presume that the entire court passed on the question. Cf. Boykin v. Alabama, 395 U. S. 238, 240-242, and n. 3. Fourth, there is no basis for presuming that the defendant himself made a knowing and intelligent waiver, or that counsel could possibly have made a tactical decision not to examine the full report. Cf. Estelle v. Williams, 425 U. S. 501, 507-508. Fifth, since the judge found, in disagreement with the jury, that the evidence did not establish any mitigating circumstance, and since the presentence report was the only item considered by the judge but not by the jury, the full review of the factual basis for the judge’s rejection of the advisory verdict is plainly required. For if the jury, rather than the judge, correctly assessed the petitioner’s veracity, the death sentence rests on an erroneous factual predicate.

We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.

IV

There remains only the question of what disposition is now proper. Petitioner’s conviction, of course, is not tainted by the error in the sentencing procedure. The State argues that we should merely remand the case to the Florida Supreme Court with directions to have the entire presentence report made a part of the record to enable that court to complete its reviewing function. That procedure, however, could not fully correct the error. For it is possible that full disclosure, followed by explanation or argument by defense counsel, would have caused the trial judge to accept the jury’s advisory verdict. Accordingly, the death sentence is vacated, and the case is remanded to the Florida Supreme Court with directions to order further proceedings at the trial court level not inconsistent with this opinion.

Vacated and remanded.

The Chief Justice concurs in the judgment.

Mr. Justice White,

concurring in the judgment.

In Woodson v. North Carolina, 428 U. S. 280 (1976), the Court addressed the question whether the mandatory death penalty imposed under the statute involved in that case was consistent with the Eighth Amendment’s prohibition against cruel and unusual punishments. The plurality opinion stated:

“The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.” Id., at 287. (Emphasis added.)

In holding that the failure to conduct the sort of post-trial sentencing proceeding which Florida law requires, and which was conducted in this case, rendered North Carolina’s mandatory death penalty statute unconstitutional, the plurality said:

“[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U. S. [86,] 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Id., at 304-305. (Emphasis added.)

The issue in this case, like the issue in Woodson v. North Carolina, supra, “involves the procedure” employed by the State in selecting persons who will receive the death penalty. Here the sentencing judge indicated that he selected petitioner Gardner for the death penalty in part because of information contained in a presentence report which information was not disclosed to petitioner or to his counsel and to which petitioner had no opportunity to respond. A procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the “character and record of the individual offender,” id., at 304, fails to meet the “need for reliability in the determination that death is the appropriate punishment” which the Court indicated was required in Woodson, supra, at 305. This conclusion stems solely from the Eighth Amendment’s ban on cruel and unusual punishments on which the Woodson decision expressly rested, and my conclusion is limited, as was Woodson, to cases in which the death penalty is imposed. I thus see no reason to address in this case the possible application to sentencing proceedings—in death or other cases—of the Due Process Clause, other than as the vehicle by which the strictures of the Eighth Amendment are triggered in this case. For these reasons, I do not join the plurality opinion but concur in the judgment.

Mr. Justice Blackmun,

concurring in the judgment.

Given the judgments of the Court in Woodson v. North Carolina, 428 U. S. 280 (1976), and in Roberts v. Louisiana, 428 U. S. 325 (1976), each attained by a plurality opinion of Justices Stewart, Powell, and Stevens, in combination with respective concurrences in the judgment by Justices Brennan and Marshall, I concur in the judgment the Court reaches in the present case.

Mr. Justice Brennan.

I agree for the reasons stated in the plurality opinion that the Due Process Clause of the Fourteenth Amendment is violated when a defendant facing a death sentence is not informed of the contents of a presentence investigation report made to the sentencing judge. However, I adhere to my view 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 (1976) (Brennan, J., dissenting). I therefore would vacate the death sentence, and I dissent from the Court’s judgment insofar as it remands for further proceedings that could lead to its imposition.

Mr. Justice Marshall

dissenting.

Last Term, this Court carefully scrutinized the Florida procedures for imposing the death penalty and concluded that there were sufficient safeguards to insure that the death sentence would not be “wantonly” and “freakishly” imposed. Proffitt v. Florida, 428 U. S. 242 (1976). This case, however, belies that hope. While I continue to believe that the death penalty is unconstitutional in all circumstances, see Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), and therefore would remand this case for resentencing to a term of life, nevertheless, now that Florida may legally take a life, we must insist that it be in accordance with the standards enunciated by this Court. In this case I am appalled at the extent to which Florida has deviated from the procedures upon which this Court expressly relied. It is not simply that the trial judge, in overriding the jury’s recommendation of life imprisonment, relied on undisclosed portions of the presentence report. Nor is it merely that the Florida Supreme Court affirmed the sentence without discussing the omission and without concern that it did not even have the entire report before it. Obviously that alone is enough to deny due process and require that the death sentence be vacated as the Court now holds. But the blatant disregard exhibited by the courts below for the standards devised to regulate imposition of the death penalty calls into question the very basis for this Court’s approval of that system in Proffitt.

In Proffitt v. Florida, supra, this Court gave its approval to the new death penalty statute of Florida, but very carefully spelled out its reasons for doing so. The joint opinion of Justices Stewart, Powell, and Stevens (hereafter joint opinion) noted in particular that “[t]he Florida Supreme Court has stated . . . that ‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ,' Tedder v. State, 322 So. 2d 908, 910 (1975),” 428 U. S., at 249, and that the Florida “statute requires that if the trial court imposes a sentence of death, ‘it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) [t]hat sufficient [statutory] aggravating circumstances exist . . . and (b) [t]hat there are insufficient [statutory] mitigating circumstances ... to outweigh the aggravating circumstances.’ [Fla. Stat. Ann.] § 921.141 (3) (Supp. 1976-1977).” Id., at 250. In addition, the joint opinion, concerned that Florida provided no “specific form of review,” found assurance in the fact that

“[s]ince, however, the trial judge must justify the imposition of death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to ‘[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . . If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ State v. Dixon, 283 So. 2d 1, 10 (1973).” Id., at 251. (Emphasis added.)

After studying the performance of the Florida Supreme Court in reviewing death cases, this Court satisfied itself that these guarantees were genuine and that “the Florida court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency,” id., at 258-259, and “has in effect adopted the type of proportionality review mandated by the Georgia statute” upheld in Gregg v. Georgia, supra. 428 U. S., at 259. The joint opinion placed great emphasis on this factor, reasoning that “because of its statewide jurisdiction, [the Florida Supreme Court] can assure consistency, fairness, and rationality in the evenhanded operation of the state law.” Id., at 259-260.

In the present case, however, the Florida Supreme Court engaged in precisely the “cursory or rubber-stamp review” that the joint opinion in Proffitt trusted would not occur. Id., at 259. The jury, after considering the evidence, recommended a life sentence:

“We, the Jury, have heard evidence, under the sentencing procedure in the above cause, as to whether aggravating circumstances which were so defined in the Court’s charge, existed in the capital offense here involved, and whether sufficient mitigating circumstances are defined in the Court’s charge to outweigh such aggravating circumstances, do find and advise that the mitigating circumstances do outweigh the aggravating circumstances.
“We therefore advise the Court that a life sentence should be imposed herein upon the defendant by the Court.” App. 131.

The judge, however, ignored the jury’s findings. His statutorily required written findings consisted of:

“[T]he undersigned concludes and determines that aggravating circumstances exist, to-wit: The capital felony was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs [sic] the mitigating circumstance, to-wit: none; and based upon the records of such trial and sentencing proceedings makes the following findings of facts, to-wit:
“1. That the victim died as a result of especially heinous, atrocious and cruel acts committed by the defendant, the nature and extent of which are reflected by the testimony of Dr. William H. Shutze, District Medical Examiner of the Fifth Judicial Circuit of the State of Florida, as follows: [followed by a list of 11 injuries to the deceased].” Id., at 138-139.

The Florida Supreme Court affirmed with two justices dissenting. The per curiam consisted of a statement of the facts of the murder, a verbatim copy of the trial judge’s “findings,” a conclusion that no new trial was warranted, and the following “analysis”:

“Upon considering all the mitigating and aggravating circumstances and careful review of the entire record in the cause, the trial court imposed the death penalty for the commission of the afore-described atrocious and heinous crime.
“Accordingly, the judgment and sentence of the Circuit Court are hereby affirmed.
“It is so ordered.” 313 So. 2d 675 (1975).

From this quotation, which includes the entire legal analysis of the opinion, it is apparent that the State Supreme Court undertook none of the analysis it had previously proclaimed to be its duty. The opinion does not say that the Supreme Court evaluated the propriety of the death sentence. It merely says the trial judge did so. Despite its professed obligation to do so, the Supreme Court thus failed “to determine independently” whether death was the appropriate penalty. The Supreme Court also appears to have done nothing “to guarantee” consistency with other death sentences. Its opinion makes no comparison with the facts in other similar cases. Nor did it consider whether the trial judge was correct in overriding the jury’s recommendation. There was no attempt to ascertain whether the evidence sustaining death was “so clear and convincing that virtually no reasonable person could differ,” supra, at 366. Indeed, it is impossible for me to believe that that standard can be met in this case.

As the plurality notes, ante, at 352, there are two mitigating factors that could apply to this case and apparently were found applicable by the jury: “The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance” and “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla. Stat. Ann. §§ 921.141 (6) (b) and (f) (Supp. 1976). The purpose of these two categories is, as Justice Ervin observed in dissent below, “ ‘to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.’ [State v. Dixon, 283 So. 2d 1, 10 (1973)].” 313 So. 2d, at 679.

I agree with Justice Ervin that petitioner is such a person. It is undisputed that he had been drinking virtually the entire day and night prior to the killing. Both court-appointed psychiatrists found that petitioner was an alcoholic and that “had he not been under the influence of alcohol at the time of the alleged crime, he would have been competent, knowing right from wrong and being capable of adhering to the right.” App. 11, 19. Furthermore, his actions after the murder—falling asleep with his wife’s dead body, seeking his mother-in-law’s help the next morning because his wife did not appear to be breathing properly, weeping when he realized she might be dead, and waiting for the police to come with no attempt to escape—are consistent with his being temporarily mentally impaired at the time of the crime. In light of these facts, it is not surprising that the jury found that the mitigating circumstances outweighed the aggravating.

Clearly, this is not a case where the evidence suggesting death is “so clear and convincing that virtually no reasonable person could differ.” Had the Florida Supreme Court examined the evidence in the manner this Court trusted it would, I have no doubt that the jury recommendation of life imprisonment would have been reinstated. As Justice Ervin observed:

“This was a crime of passion in a marital setting in which the excessive use of alcohol was a material factor resulting in the homicide. As I read our statutes, this type of crime does not merit the death penalty because the discretion exercised to impose that penalty here extends beyond the discretion the statutes repose in governmental officials for such purpose. I do not believe that the statutes contemplate that a crime of this nature is intended to be included in the heinous category warranting the death penalty. A drunken spree in which one of the spouses is killed traditionally has not resulted in the death penalty in this state.” 313 So. 2d, at 679.

In Proffitt, a majority of this Court was led to believe that Florida had established capital-sentencing procedures that would “assure that the death penalty will not be imposed in an arbitrary or capricious manner.” 428 U. S., at 253. This case belies that promise and suggests the need to reconsider that assessment.

Mr. Justice Rehnquist,

dissenting.

Had I joined the plurality opinion in last Term’s Woodson v. North Carolina, 428 U. S. 280 (1976), I would join the concurring opinion of my Brother White in this case. But if capital punishment is not cruel and unusual under the Eighth and Fourteenth Amendments, as the Court held in that case, the use of particular sentencing procedures, never previously held unfair under the Due Process Clause, in a case where the death sentence is imposed cannot convert that sentence into a cruel and unusual punishment. The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed. I would therefore affirm the judgment of the Supreme Court of Florida.

       Fla. Stat. Ann. § 921.141 (Supp. 1976). This Court upheld the constitutionality of the statute in Proffitt v. Florida, 428 U. S. 242.

       Fla.Stat. Ann. § 921.141 (5) (h) (Supp. 1976).

       The statute provides, in part:
      “(6) Mitigating circumstances.—Mitigating circumstances shall be the following:

      “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

      “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla. Stat. Ann. §§921.141 (6) (b), (f) (Supp. 1976).

       Florida Rules Crim. Proc. 3.710-3.713 authorize the presentence investigation. The Rules apply to all cases in which the trial court has discretion in sentencing, and make no reference to the special capital-sentencing procedure at issue here.

       In an appendix to its brief in this Court, the State has printed a copy of the confidential portion of the presentence report. Petitioner contests its authenticity. He also argues, alternatively, that we should not review its contents because it was not made a part of the certified record in the state courts or in this Court; that consideration of the contents of the report in the first instance in this Court flouts the procedural regularity mandated for capital sentencing by Furman v. Georgia, 408 U. S. 238, and Proffitt v. Florida; or that, not having had an opportunity to present evidence to rebut the confidential portion of the report, it would be unfair and improper to require him to address its contents in this Court. Reply Brief for Petitioner 2-3.
      It is not a function of this Court to evaluate in the first instance the possibly prejudicial impact of facts and opinions appearing in a pre-sentence report. We therefore do not consider the contents of the appendix to the State’s brief.

       In fact, the only reference in the record to the confidential portion was the inference to be drawn from the ambiguous mention of the “ 'portion ... to which they are entitled,’ ” supra, at 353, in the judge’s written findings of fact issued on the day sentence was announced.

        Gregg v. Georgia, 428 U. S. 153, 171-173, 179-181; Furman v. Georgia, supra, at 299-300 (Brennan, J., concurring); McGautha v. California, 402 U. S. 183, 197-203; Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15.

       See Williams v. New York, 337 U. S. 241, 251-252.

       The fact that due process applies does not, of course, implicate the entire panoply of criminal trial procedural rights.
      “Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. ... Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 U. S. 471, 481.

       Our presumption that the reports are normally reliable is, of course, not inconsistent with our concern about the possibility that critical unverified information may be inaccurate and determinative in a particular case.

         Furman v. Georgia, 408 U. S., at 313-314 (White, J., concurring). This argument is inconsistent with the basis upon which the Florida capital-sentencing procedure was upheld, Proffitt v. Florida, 428 U. S., at 254.

       The Supreme Court of Florida decided petitioner’s case before our decision in Proffitt v. Florida, supra, and before its own consideration of Proffitt, 315 So. 2d 461 (1975), or of Tedder v. State, 322 So. 2d 908 (1975). Therefore, we cannot join Mr. Justice Marshall’s criticism of the Florida courts for their failure to follow the teaching of those cases.

      See also Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); and Gregg v. Georgia, 428 U. S. 153 (1976).

      The plurality responds, ante, at 361 n. 12, that it cannot criticize the Florida courts because the decision in petitioner’s case preceded both our decision in Proffitt and the Florida Supreme Court’s' decision in Proffitt and Tedder. It conveniently ignores the fact that petitioner’s case came after several key Florida death penalty cases, most notably State v. Dixon, 283 So. 2d 1 (1973), in which the Florida Supreme Court “guaranteed” that its review would insure similar results in similar cases. Proffitt v. Florida, 428 U. S. 242, 261 (1976), quoting State v. Dixon, supra, at 10.
      More significantly, however, the plurality does not so much as question the procedure followed here and does nothing to insure that Florida will not again condemn this man to die in blatant disregard of its own rules. Compliance with Proffitt requires that on remand the trial judge give full consideration to the mitigating circumstances in the case and, if he again rejects the jury’s recommendation of life imprisonment, his reasons “ ‘be so clear and convincing that virtually no reasonable person could differ.’ ” 428 U. S., at 249. On review, the Florida Supreme Court must evaluate the facts itself and perform the comparative analysis it failed to do previously. It may be that my Brothers in the majority believe these requirements to be so obvious as not to need mention. Nevertheless, where a man’s life is at stake, such blind faith is just not enough even after the decision in Proffitt.