author: Me. Chief Justice Burgee

text:
    ADDINGTON v. TEXAS
    No. 77-5992.
    Argued November 28, 1978
    Decided April 30, 1979

      Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.

      Martha L. Boston, by appointment of the Court, 436 U. S. 916, argued the cause for appellant. With her on the brief were Robert Plotkin and Paul R. Friedman.

      James F. Hury, Jr., argued the cause and filed a brief for appellee.

      Joel I. Klein argued the cause and filed a brief for the American Psychiatric Assn, as amicus curiae urging affirmance.

        Ronald M. Soskin filed a brief for the National Center for Law and the Handicapped as amicus curiae urging reversal.
      Briefs of amici curiae were filed by William J. Scott, Attorney General, Bernard Carey, Alan Grischke, Special Assistant Attorney General, and Henry A. Hauser for the State of Illinois; and by John Townsend Rich for the National Assn, for Mental Health et al.

   Me. Chief Justice Burgee

delivered the opinion of the Court.

The question in this case is what standard of proof is required by the Fourteenth Amendment to the Constitution in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital.

I

On seven occasions between 1969 and 1975, appellant was committed temporarily, Tex. Rev. Civ. Stat. Ann., Arts. 5547-31 to 5547-39 (Vernon 1958 and Supp. 1978-1979), to various Texas state mental hospitals and was committed for indefinite periods, Arts. 5547-40 to 5547-57, to Austin State Hospital on three different occasions. On December 18, 1975, when appellant was arrested on a misdemeanor charge of “assault by threat” against his mother, the county and state mental health authorities therefore were well aware of his history of mental and emotional difficulties.

Appellant’s mother filed a petition for his indefinite commitment in accordance with Texas law. The county psychiatric examiner interviewed appellant while in custody and after the interview issued a Certificate of Medical Examination for Mental Illness. In the certificate, the examiner stated his opinion that appellant was “mentally ill and require [d] hospitalization in a mental hospital.” Art. 5547-42 (Vernon 1958).

Appellant retained counsel and a trial was held before a jury to determine in accord with the statute:

“(1) whether the proposed patient is mentally ill, and if so
“(2) whether he requires hospitalization in a mental hospital for his own welfare and protection or the protection of others, and if so
“(3) whether he is mentally incompetent.” Art. 5547-51 (Vernon 1958).

The trial on these issues extended over six days.

The State offered evidence that appellant suffered from serious delusions, that he often had threatened to injure both of his parents and others, that he had been involved in several assaultive episodes while hospitalized and that he had caused substantial property damage both at his own apartment and at his parents’ home. From these undisputed facts, two psychiatrists, who qualified as experts, expressed opinions that appellant suffered from psychotic schizophrenia and that he had paranoid tendencies. They also expressed medical opinions that appellant was probably dangerous both to himself and to others. They explained that appellant required hospitalization in a closed area to treat his condition because in the past he had refused to attend outpatient treatment programs and had escaped several times from mental hospitals.

Appellant did not contest the factual assertions made by the State’s witnesses; indeed, he conceded that he suffered from a mental illness. What appellant attempted to show was that there was no substantial basis for concluding that he was probably dangerous to himself or others.

The trial judge submitted the case to the jury with the instructions in the form of two questions:

“1. Based on clear, unequivocal and convincing evidence, is Frank O’Neal Addington mentally ill?
“2. Based on clear, unequivocal and convincing evidence, does Frank O’Neal Addington require hospitalization in a mental hospital for his own welfare and protection or the protection of others?”

Appellant objected to these instructions on several grounds, including the trial court’s refusal to employ the “beyond a reasonable doubt” standard of proof.

The jury found that appellant was mentally ill and that he required hospitalization for his own or others’ welfare. The trial court then entered an order committing appellant as a patient to Austin State Hospital for an indefinite period.

Appellant appealed that order to the Texas Court of Civil Appeals, arguing, among other things, that the standards for commitment violated his substantive due process rights and that any standard of proof for commitment less than that required for criminal convictions, i. e., beyond a reasonable doubt, violated his procedural due process rights. The Court of Civil Appeals agreed with appellant on the standard-of-proof issue and reversed the judgment of the trial court. Because of its treatment of the standard of proof, that court did not consider any of the other issues raised in the appeal.

On appeal, the Texas Supreme Court reversed the Court of Civil Appeals’ decision. 557 S. W. 2d 511. In so holding the Supreme Court relied primarily upon its previous decision in State v. Turner, 556 S. W. 2d 563 (1977), cert. denied, 435 U. S. 929 (1978).

In Turner, the Texas Supreme Court held that a “preponderance of the evidence” standard of proof in a civil commitment proceeding satisfied due process. The court declined to adopt the criminal law standard of “beyond a reasonable doubt” primarily because it questioned whether the State could prove by that exacting standard that a particular person would or would not be dangerous in the future. It also distinguished a civil commitment from a criminal conviction by noting that under Texas law the mentally ill patient has the right to treatment, periodic review of his condition, and immediate release when no longer deemed to be a danger to himself or others. Finally, the Turner court rejected the “clear and convincing” evidence standard because under Texas rules of procedure juries could be instructed only under a beyond-a-reasonable-doubt or a preponderance standard of proof.

Reaffirming Turner, the Texas Supreme Court in this case concluded that the trial court’s instruction to the jury, although not in conformity with the legal requirements, had benefited appellant, and hence the error was harmless. Accordingly, the court reinstated the judgment of the trial court.

We noted probable jurisdiction. 435 U. S. 967. After oral argument it became clear that no challenge to the constitutionality of any Texas statute was presented. Under 28 U. S. C. § 1257 (2) no appeal is authorized; accordingly, construing the papers filed as a petition for a writ of certiorari, we now grant the petition.

II

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.

In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.

The intermediate standard, which usually employs some combination of the words "clear,” "cogent,” “unequivocal” and “convincing,” is less commonly used, but nonetheless “is no stranger to the civil law.” Woodby v. INS, 385 U. S. 276, 285 (1966). See also C. McCormick, Evidence § 320 (1954); 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof. Similarly, this Court has used the “clear, unequivocal and convincing” standard of proof to protect particularly important individual interests in various civil cases. See, e. g.; Woodby v. INS, supra, at 285 (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization) ; Schneiderman v. United States, 320 U. S. 118, 125, 159 (1943) (denaturalization).

Candor suggests that, to a degree, efforts to analyze what lay jurors understand concerning the differences among these three tests or the nuances of a judge’s instructions on the law may well be largely an academic exercise; there are no directly relevant empirical studies. Indeed, the ultimate truth as to how the standards of proof affect decisionmaking may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a “standard of proof is more than an empty semantic exercise.” Tippett v. Maryland, 436 F. 2d 1153, 1166 (CA4 1971) (Sobeloff, J., concurring in part and dissenting in part), cert, dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U. S. 355 (1972). In cases involving individual rights, whether criminal or civil, “[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.” 436 F. 2d, at 1166.

Ill

In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976); Speiser v. Randall, 357 U. S. 513, 525-526 (1958).

A

This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U. S. 715 (1972); Humphrey v. Cady, 405 U. S. 504 (1972); In re Gault, 387 U. S. 1 (1967); Specht v. Patterson, 386 U. S. 605 (1967). Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena “stigma” or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.

The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings.

The expanding concern of society with problems of mental disorders is reflected in the fact that in recent years many states have enacted statutes designed to protect the rights of the mentally ill. However, only one state by statute permits involuntary commitment by a mere preponderance of the evidence, Miss. Code Ann. § 41-21-75 (1978 Supp.), and Texas is the only state where a court has concluded that the preponderance-of-the-evidence standard satisfies due process. We attribute this not to any lack of concern in those states, but rather to a belief that the varying standards tend to produce comparable results. As we noted earlier, however, standards of proof are important for their symbolic meaning as well as for their practical effect.

At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.

The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.

B

Appellant urges the Court to hold that due process requires use of the criminal law’s standard of proof — “beyond a reasonable doubt.” He argues that the rationale of the Winship holding that the criminal law standard of proof was required in a delinquency proceeding applies with equal force to a civil commitment proceeding.

In Winship, against the background of a gradual assimilation of juvenile proceedings into traditional criminal prosecutions, we declined to allow the state’s “civil labels and good intentions” to “obviate the need for criminal due process safeguards in juvenile courts.” 397 U. S., at 365-366. The Court saw no controlling difference in loss of liberty and stigma between a conviction for an adult and a delinquency adjudication for a juvenile. Winship recognized that the basic issue— whether the individual in fact committed a criminal act — was the same in both proceedings. There being no meaningful distinctions between the two proceedings, we required the state to prove the juvenile’s act and intent beyond a reasonable doubt.

There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense. Unlike the delinquency proceeding in Winship, a civil commitment proceeding can in no sense be equated to a criminal prosecution. Cf. Woodby v. INS, 385 U. S., at 284-285.

In addition, the “beyond a reasonable doubt” standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the “moral force of the criminal law,” In re Winship, 397 U. S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.

The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free. Patterson v. New York, 432 U. S. 197, 208 (1977). The full force of that idea does not apply to a civil commitment. It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction, 5 J. Wigmore, Evidence § 1400 (Chadboum rev. 1974). However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient’s condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. See Chodoff, The Case for Involuntary Hospitalization of the Mentally Ill, 133 Am. J. Psychiatry 496, 498 (1976); Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Arch. Gen. Psychiatry 329, 334 (1974). It cannot be said, therefore, that it is much better for a mentally ill person to “go free” than for a mentally normal person to be committed.

Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question — did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. See O’Connor v. Donaldson, 422 U. S. 563, 584 (1975) (concurring opinion); Blocker v. United States, 110 U. S. App. D. C. 41, 48-49, 288 F. 2d 853, 860-861 (1961) (opinion concurring in result). See also Tippett v. Maryland, 436 F. 2d, at 1165 (Sobeloff, J., concurring in part and dissenting in part); Note, Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv. L. Rev. 1288, 1291 (1966); Note, Due Process and the Development of “Criminal” Safeguards in Civil Commitment Adjudications, 42 Ford. L. Rev. 611, 624 (1974).

The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for “factfinding” is a “reasonable medical certainty.” If a trained psychiatrist has difficulty with the categorical “beyond a reasonable doubt” standard, the untrained lay juror — or indeed even a trained judge — who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care. See ibid. Such “freedom” for a mentally ill person would be purchased at a high price.

That practical considerations may limit a constitutionally based burden of proof is demonstrated by the reasonable-doubt standard, which is a compromise between what is possible to prove and what protects the rights of the individual. If the state was required to guarantee error-free convictions, it would be required to prove guilt beyond all doubt. However, “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Patterson v. New York, supra, at 208. Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.

That some states have chosen — either legislatively or judicially — to adopt the criminal law standard gives no assurance that the more stringent standard of proof is needed or is even adaptable to the needs of all states. The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum. See Monahan & Wexler, A Definite Maybe: Proof and Probability in Civil Commitment, 2 Law & Human Behavior 37, 41-42 (1978); Share, The Standard of Proof in Involuntary Civil Commitment Proceedings, 1977 Detroit College L. Rev. 209, 210. We conclude that it is unnecessary to require states to apply the strict, criminal standard.

C

Having concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable-doubt standard is not required, we turn to a middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state. We note that 20 states, most by statute, employ the standard of “clear and convincing” evidence; 3 states use “clear, cogent, and convincing” evidence; and 2 states require “clear, unequivocal and convincing” evidence.

In Woodby v. INS, 385 U. S. 276 (1966), dealing with deportation, and Schneiderman v. United States, 320 U. S., at 125, 159, dealing with denaturalization, the Court held that “clear, unequivocal, and convincing” evidence was the appropriate standard of proof. The term “unequivocal,” taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases. The issues in Schneiderman and Woodby were basically factual and therefore susceptible of objective proof and the consequences to the individual were unusually drastic — loss of citizenship and expulsion from the United States.

We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term “unequivocal” is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases.

We noted earlier that the trial court employed the standard of “clear, unequivocal and convincing” evidence in appellant’s commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the “clear and convincing” standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court. Accordingly, we remand the case for further proceedings not inconsistent with this opinion.

Vacated and remanded.

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

       See Kulko v. California Superior Court, 436 U. S. 84 (1978); Hanson v. Denckla, 357 U. S. 235 (1958); May v. Anderson, 345 U. S. 528 (1953). As in those cases, we continue to refer to the parties as appellant and appellee. See Kulko v. California Superior Court, supra, at 90 n. 4.

       Compare Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B. U. L. Rev. 507 (1975) (reasonable doubt represented a less strict standard than previous common-law rules), with May, Some Rules of Evidence, 10 Am. L. Rev. 642 (1875) (reasonable doubt constituted a stricter rule than previous ones). See generally Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L. J. 1299 (1977).

       There have been some efforts to evaluate the effect of varying standards of proof on jury factfinding, see, e. g., L. S. E. Jury Project, Juries and the Rules of Evidence, 1973 Crim. L. Rev. 208, but we have found no study comparing all three standards of proof to determine how juries, real or mock, apply them.

       The State of Texas confines only for the purpose of providing care designed to treat the individual. As the Texas Supreme Court said in State v. Turner, 556 S. W. 2d 563, 566 (1977):
      “The involuntary mental patient is entitled to treatment, to periodic and recurrent review of his mental condition, and to release at such time as he no longer presents a danger to himself or others.”

       Haw. Rev. Stat. § 334-60 (b) (4) (I) (Supp. 1978); Idaho Code § 66-329 (i) (Supp. 1978); Kan. Stat. Ann. §59-2917 (1976); Mont. Rev. Codes Ann. § 38-1305 (7) (Supp. 1977); Okla. Stat., Tit. 43A, § 54.1 (C) (Supp. 1978); Ore. Rev. Stat. §426.130 (1977); Utah Code Ann. §64r-7-36 (6) (1953); Wis. Stat. § 51.20 (14) (e) (Supp. 1978-1979); Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271, 372 N. E. 2d 242 (1978); Proctor v. Butler, 117 N. H. 927, 380 A. 2d 673 (1977); In re Hodges, 325 A. 2d 605 (D. C. 1974); Lausche v. Commissioner of Public Welfare, 302 Minn. 65, 225 N. W. 2d 366 (1974), cert. denied, 420 U. S. 993 (1975). See also In re J. W., 44 N. J. Super. 216, 130 A. 2d 64 (App. Div.), cert. denied, 24 N. J. 465, 132 A. 2d 558 (1957); Denton v. Commonwealth, 383 S. W. 2d 681 (Ky. App. 1964) (dicta).

       Ariz. Rev. Stat. Ann. § 36-540 (1974); Colo. Rev. Stat. § 27-10-111 (1) (Supp. 1976); Conn. Gen. Stat. § 17-178 (c) (1979); Del. Code Ann., Tit. 16, §5010 (2) (Supp. 1978); Ga. Code §88-501 (u) (1978); Ill. Rev. Stat., ch. 911/2, §3-808 (Supp. 1977); Iowa Code §229.12 (1979); La. Rev. Stat. Ann. §28:55E (West Supp. 1979); Me. Rev. Stat. Ann., Tit. 34, § 2334 (5) (A) (1) (1978); Mich. Stat. Ann. §14.800 (465) (1976); Neb. Rev. Stat. §83-1035 (1976); N. M. Stat. Ann. §43-1-11C (1978); N. D. Cent. Code § 25-03.1-19 (1978); Ohio Rev. Code Ann. § 5122.15 (B) (Supp. 1978); Pa. Stat. Ann., Tit. 50, § 7304 (f) (Purdon Supp. 1978-1979); S. C. Code § 44-17-580 (Supp. 1978); S. D. Comp. Laws Ann. § 27A-9-18 (1977); Vt. Stat. Ann., Tit. 18, §7616 (b) (Supp. 1978); Md. Dept, of Health & Mental Hygiene Reg. 10.21.03G (1973); In re Beverly, 342 So. 2d 481 (Fla. 1977).

       N. C. Gen. Stat. § 122-58.7 (i) (Supp. 1977); Wash. Rev. Code § 71.05.310 (1976); State ex rel. Hawks v. Lasaro, 157 W. Va. 417, 202 S. E. 2d 109 (1974).

       Ala. Code § 22-52-10 (a) (Supp. 1978); Tenn. Code Ann. § 33-604 (d) (Supp. 1978).

       See Webster's Third New International Dictionary 2494 (1961).

       We noted earlier the court’s holding on harmless error. See supra, at 422.


source: Caselaw Access Project

author: Mr. Justice Blackmun

license: Public Domain

text:
    JAPAN LINE, LTD., et al. v. COUNTY OF LOS ANGELES et al.
    No. 77-1378.
    Argued January 8, 1979
    Decided April 30, 1979

      Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and BreNnan, Stewart, White, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting statement, post, p. 457.

      Peter L. Briger argued the cause for appellants. With him on the briefs were Sheldon S. Cohen and Reed M. Williams.

      James Dexter Clark argued the cause for appellees. With him on the briefs was John H. Larson.

      Kent L. Jones argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Assistant Attorneys General Babcock and Ferguson, Leonard Schaitman, and Ernest J. Brown.

      Briefs of amici curiae urging reversal were filed by Cary J. Torre and Arthur K. Mason for Aer Lingus et ah; by Edward A. McDermott and Allen R. Snyder for the Council of European and Japanese National Shipowners’ Assns.; and by James W. McGrath for Sea Land Service, Inc.
      Briefs of amici curiae urging affirmance were filed by Evelle J. Younger, Attorney General, Ernest P. Goodman, Assistant Attorney General, and Philip C. Griffin and Patti S. Kitching, Deputy Attorneys General, for the State of California; and by William D. Dexter for the Multistate Tax Commission.
      Briefs of amici curiae were filed by George S. Lapham, Jr., and Kathleen 0. Argiropoulos for Air New England, Inc., et ah; by Jay D. Howell, Jr., for the city of Houston; and by Dennis J. Kenny for the Institute of International Container Lessors, Ltd.

   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the question whether a State, consistently with the Commerce Clause of the Constitution, may impose a nondiscriminatory ad valorem property tax on foreign-owned instrumentalities (cargo containers) of international commerce.

I

The facts were “stipulated on appeal,” App. 29, and were found by the trial court, id., at 33-36, as follows:

Appellants are six Japanese shipping companies; they are incorporated under the laws of Japan, and they have their principal places of business and commercial domiciles in that country. Id., at 34. Appellants operate vessels used exclusively in foreign commerce; these vessels are registered in Japan and have their home ports there. Ibid. The vessels are specifically designed and constructed to accommodate large cargo shipping containers. The containers, like the ships, are owned by appellants, have their home ports in Japan, and are used exclusively for hire in the transportation of cargo in foreign commerce. Id., at 35. Each container is in constant transit save for time spent undergoing repair or awaiting loading and unloading of cargo. All appellants’ containers are subject to property tax in Japan and, in fact, are taxed there.

Appellees are political subdivisions of the State of California. Appellants’ containers, in the course of their international journeys, pass through appellees’ jurisdictions intermittently. Although none of appellants’ containers stays permanently in California, some are there at any given time; a container’s average stay in the State is less than three weeks. Ibid. The containers engage in no intrastate or interstate transportation of cargo except as continuations of international voyages. Id., at 30. Any movements or periods of nonmovement of containers in appellees’ jurisdictions are essential to, and inseparable from, the containers’ efficient use as instrumentalities of foreign commerce. Id., at 35-36.

Property present in California on March 1 (the “lien date” under California law) of any year is subject to ad valorem property tax. Cal. Rev. & Tax. Code Ann. §§ 117, 405, 2192 (West 1970 and Supp. 1979). A number of appellants’ containers were physically present in appellees’ jurisdictions on the lien dates in 1970, 1971, and 1972; this number was fairly representative of the containers’ “average presence” during each year. App. 35. Appellees levied property taxes in excess of $550,000 on the assessed value of the containers present on March 1 of the three years in question. Id., at 36. During the same period, similar containers owned or controlled by steamship companies domiciled in the United States, that appeared from time to time in Japan during the course of international commerce, were not subject to property taxation in Japan, and therefore were not, in fact, taxed in that country. Id., at 35.

Appellants paid the taxes, so levied, under protest and sued for their refund in the Superior Court for the County of Los Angeles. That court awarded judgment in appellants’ favor. Id., at 39-40. The court found that appellants’ containers were instrumentalities of foreign commerce that had their home ports in Japan where they were taxed. The federal courts, however, in the trial court’s view, had “consistently held that vessels which are instrumentalities of foreign eom-merce and engaged in foreign commerce can be taxed in their home port only.” Id., at 24. This rule, said the court, was necessary to avoid multiple taxation, id., at 23; whereas apportionment of taxes can be used to prevent duplicative taxation in interstate commerce, apportionment is “not practical” when one of the taxing entities is a foreign sovereign. In such cases, “[t]here is no tribunal that can adjudicate [competing] rights unless it be the International Court and to invoke its services jurisdiction must be consented to by all parties.” Id., at 24. The application of appellees’ taxes in derogation of the “home port doctrine,” the court concluded, subjected international commerce to multiple taxation and thus was unconstitutional under the Commerce Clause. In so holding, the court followed Scandinavian Airlines System, Inc. v. County of Los Angeles, 56 Cal. 2d 11, 363 P. 2d 25, cert. denied, 368 U. S. 899 (1961) (hereinafter SAS) (ruling that ad valorem property tax levied by California upon aircraft owned, based, and registered abroad and used exclusively in international commerce, was unconstitutional under the Commerce Clause).

The Court of Appeal reversed. 132 Cal. Rptr. 531 (1976). The court appeared to conclude that SAS had been effectively overruled by Sea-Land Service, Inc. v. County of Alameda, 12 Cal. 3d 772, 528 P. 2d 56 (1974). In Sea-Land, the Supreme Court of California had criticized the home port doctrine and labeled it “anachronistic,” and had upheld apportioned property taxation of containers owned by a domestic corporation and used in both intercoastal and foreign commerce. Id., at 787, 528 P. 2d, at 66. The Court of Appeal rejected appellants’ arguments that a different result was required here in view of their containers’ foreign ownership and exclusively international use. The court likewise dismissed any argument as to multiple taxation. “[T]he possibility of international double taxation of instrumentalities of foreign commerce,” it concluded, is “no reason to limit the local power to tax them upon a nondiscriminatory apportioned basis.” 132 Cal. Rptr., at 533.

The California Supreme Court granted a hearing of the case and it, too, reversed the judgment of the Superior Court, essentially adopting the opinion of the Court of Appeal. 20 Cal. 3d 180, 571 P. 2d 254 (1977). It concluded that “the threat of double taxation from foreign taxing authorities has no role in commerce clause considerations of multiple burdens, since burdens in international commerce are not attributable to discrimination by the taxing state and are matters for international agreement.” Id., at 185, 571 P. 2d, at 257. Deeming the containers’ foreign ownership and use irrelevant for purposes of constitutional analysis, id., at 186, 571 P. 2d, at 257-258, the court rejected appellants’ Commerce Clause challenge and sustained the validity of the tax as applied.

Appellants appealed. We postponed consideration of our jurisdiction to the hearing on the merits. 436 U. S. 955 (1978).

II

This Court has appellate jurisdiction to review a final judgment rendered by the highest court of a State in which a decision could be had “where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.” 28 U. S. C. § 1257 (2). In this case, appellants drew in question the validity of California’s ad valorem property tax, contending that the tax, as applied to their containers, was repugnant to the Commerce Clause and various treaties, and the California Supreme Court sustained the validity of the tax. Under these circumstances, this Court’s appellate jurisdiction would seem manifest.

Appellees suggest that the California courts did not in reality uphold the tax statute against constitutional attack, but simply refused to extend to appellants a constitutional immunity from taxation. Motion to Dismiss or Affirm 2. Appellees’ suggested recharacterization is unpersuasive. Appellants squarely challenged the constitutionality of the tax statute, as applied, and the California Supreme Court just as squarely sustained its validity, as applied. We have held consistently that a state statute is sustained within the meaning of § 1257 (2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds. E. g., Cohen v. California, 403 U. S. 15, 17-18 (1971); Warren Trading Post v. Arizona Tax Comm’n, 380 U. S. 685, 686, and n. 1 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 61 n. 3 (1963) ; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 288-290 (1921). We conclude that we have appellate jurisdiction of this case.

Ill

A

The “home port doctrine” was first alluded to in Hays v. Pacific Mail S. S. Co., 17 How. 596 (1855). In Hays, California sought to impose property taxes on oceangoing vessels intermittently touching its ports. The vessels’ home port was New York City, where they were owned, registered, and based; they engaged in intercoastal commerce by way of the Isthmus of Panama, and remained in California briefly to unload cargo and undergo repairs. This Court held that the ships had established no tax situs in California:

“We are satisfied that the State of California had no jurisdiction over these vessels for the purpose of taxation; they were not, properly, abiding within its limits, so as to become incorporated with the other personal property of the State; they were there but temporarily, engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid.” Id., at 599-600.

Because the vessels were properly taxable in their home port, this Court concluded, they could not be taxed in California at all.

The “home port doctrine” enunciated in Hays was a corollary of the medieval maxim mobilia sequuntur personam (“movables follow the person,” see Black’s Law Dictionary 1154 (rev. 4th ed. 1968)) and resulted in personal property being taxable in full at the domicile of the owner. This theory of taxation, of course, has fallen into desuetude, and the “home port doctrine,” as a rule for taxation of moving equipment, has yielded to a rule of fair apportionment among the States. This Court, accordingly, has held that various instrumen-talities of commerce may be taxed, on a properly apportioned basis, by the nondomiciliary States through which they travel. E. g., Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18 (1891); Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169 (1949); Braniff Airways, Inc. v. Nebraska State Bd. of Equalization, 347 U. S. 590 (1954). In discarding the “home port” theory for the theory of apportionment, however, the Court consistently has distinguished the case of oceangoing vessels. E. g., Pullman’s Palace, 141 U. S., at 23-24 (approving apportioned tax on railroad rolling stock, but distinguishing vessels “engaged in interstate or foreign commerce upon the high seas”); Ott, 336 U. S., at 173-174 (approving apportioned tax on barges navigating inland waterways, but “not reach [ing] the question of taxability of ocean carriage”) ; Braniff, 347 U. S., at 600 (approving apportioned tax on domestic aircraft, but distinguishing vessels “used to plow the open seas”). Relying on these cases, appellants argue that the “home port doctrine,” yet vital, continues to prescribe the proper rule for state taxation of oceangoing ships. Since containers are “functionally a part of the ship,” Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F. 2d 800, 815 (CA2 1971), appellants conclude, the containers, like the ships, may be taxed only at their home ports in Japan, and thus are immune from tax in California.

Although appellants' argument, as will be seen below, has an inner logic, we decline to cast our analysis of the present case in this mold. The “home port doctrine” can claim no unequivocal constitutional source; in assessing the legitimacy of California’s tax, the Hays Court did not rely on the Commerce Clause, nor could it, in 1854, have relied on the Due Process Clause of the Fourteenth Amendment. The basis of the “home port doctrine,” rather, was common-law jurisdiction to tax. Given its origins, the doctrine could be said to be “anachronistic”; given its underpinnings, it may indeed be said to have been “abandoned.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 320 (1944) (Stone, C. J., dissenting) . As a theoretical matter, then, to rehabilitate the “home port doctrine” as a tool of Commerce Clause analysis would be somewhat odd. More importantly, to hold in this case that the “home port doctrine” survives would be to prove too much. If an oceangoing vessel could indeed be taxed only at its home port, taxation by a nondomiciliary State logically would be barred, regardless of whether the vessel were domestically or foreign owned, and regardless of whether it were engaged in domestic or foreign commerce. In Hays itself, the vessel was owned in New York and was engaged in interstate commerce through international waters. There is no need in this case to decide currently the broad proposition whether mere use of international routes is enough, under the “home port doctrine,” to render an instrumentality immune from tax in a nondomiciliary State. The question here is a much more narrow one, that is, whether instrumentalities of commerce that are owned, based, and registered abroad and that are used exclusively in international commerce, may be subjected to apportioned ad valorem property taxation by a State.

B

The Constitution provides that “Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3. In construing Congress' power to “regulate Commerce . . . among the several States,” the Court recently has affirmed that the Constitution confers no immunity from state taxation, and that “interstate commerce must bear its fair share of the state tax burden.” Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S. 734, 750 (1978). Instrumentalities of interstate commerce are no exception to this rule, and the Court regularly has sustained property taxes as applied to various forms of transportation equipment. See Pullman’s Palace, supra (railroad rolling stock); Ott, supra (barges on inland waterways); Braniff, supra (domestic aircraft). Cf. Central Greyhound Lines v. Mealey, 334 U. S. 653, 663 (1948) (motor vehicles). If the state tax “is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State,” no impermissible burden on interstate commerce will be found. Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977); Washington Revenue Dept., 435 U. S., at 750.

Appellees contend that cargo shipping containers, like other vehicles of commercial transport, are subject to property taxation, and that the taxes imposed here meet Complete Auto’s fourfold requirements. The containers, they argue, have a “substantial nexus” with California because some of them are present in that State at all times; jurisdiction to tax is based on “the habitual employment of the property within the State,” Braniff, 347 U. S., at 601, and appellants’ containers habitually are so employed. The tax, moreover, is “fairly apportioned,” since it is levied only on the containers’ “average presence” in California. The tax “does not discriminate,” thirdly, since it falls evenhandedly on all personal property in the State; indeed, as an ad valorem tax of general application, it is of necessity nondiscriminatory. The tax, finally, is “fairly related to the services provided by” California, services that include not only police and fire protection, but also the benefits of a trained work force and the advantages of a civilized society.

These observations are not without force. We may assume that, if the containers at issue here were instrumentalities of purely interstate commerce, Complete Auto would apply and be satisfied, and our Commerce Clause inquiry would be at an end. Appellants’ containers, however, are instrumentalities of foreign commerce, both as a matter of fact and as a matter of law. The premise of appellees’ argument is that the Commerce Clause analysis is identical, regardless of whether interstate or foreign commerce is, involved. This premise, we have concluded, must be rejected. When construing Congress’ power to “regulate Commerce with foreign Nations,” a more extensive constitutional inquiry is required.

When a State seeks to tax the instrumentalities of foreign commerce, two additional considerations, beyond those articulated in Complete Auto, come into play. The first is the enhanced risk of multiple taxation. It is a commonplace of constitutional jurisprudence that multiple taxation may well be offensive to the Commerce Clause. E. g., Evco v. Jones, 409 U. S. 91, 94 (1972); Central R. Co. v. Pennsylvania, 370 U. S. 607, 612 (1962); Standard Oil Co. v. Peck, 342 U. S. 382, 384-385 (1952); Ott, 336 U. S., at 174; J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, 311 (1938). In order to prevent multiple taxation of interstate commerce, this Court has required that taxes be apportioned among taxing jurisdictions, so that no instrumentality of commerce is subjected to more than one tax on its full value. The corollary of the apportionment principle, of course, is that no jurisdiction may tax the instrumentality in full. “The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile. . . . Otherwise there would be multiple taxation of interstate operations.” Standard Oil Co. v. Peck, 342 U. S., at 384-385; Braniff, 347 U. S., at 601. The basis for this Court’s approval of apportioned property taxation, in other words, has been its ability to enforce full apportionment by all potential taxing bodies.

Yet neither this Court nor this Nation can ensure full apportionment when one of the taxing entities is a foreign sovereign. If an instrumentality of commerce is domiciled abroad, the country of domicile may have the right, consistently with the custom of nations, to impose a tax on its full value. If a State should seek to tax the same instrumentality on an apportioned basis, multiple taxation inevitably results. Hence, whereas the fact of apportionment in interstate commerce means that “multiple burdens logically cannot occur,” Washington Revenue Dept., 435 U. S., at 746-747, the same conclusion, as to foreign commerce, logically cannot be drawn. Due to the absence of an authoritative tribunal capable of ensuring that the aggregation of taxes is computed on no more than one full value, a state tax, even though “fairly apportioned” to reflect an instrumentality’s presence within the State, may subject foreign commerce “ ‘to the risk of a double tax burden to which '[domestic] commerce is not exposed, and which the commerce clause forbids.’ ” Evco v. Jones, 409 U. S., at 94, quoting J. D. Adams Mfg. Co., 304 U. S., at 311.

Second, a state tax on the instrumentalities of foreign commerce may impair federal uniformity in an area where federal uniformity is essential. Foreign commerce is preeminently a matter of national concern. “In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power.” Board of Trustees v. United States, 289 U. S. 48, 59 (1933). Although the Constitution, Art. I, § 8, cl. 3, grants Congress power to regulate commerce “with foreign Nations” and “among the several States” in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater. Cases of this Court, stressing the need for uniformity in treating with other nations, echo this distinction. In approving state taxes on the instrumentalities of interstate commerce, the Court consistently has distinguished oceangoing traffic, supra, at 442; these cases reflect an awareness that the taxation of foreign commerce may necessitate a uniform national rule. Indeed, in Pullman’s Palace, the Court wrote that the “ Vehicles of commerce by water being instruments of intercommunication with other nations, the regulation of them is assumed by the national legislature/ ” 141 U. S., at 24, quoting Railroad Co. v. Maryland, 21 Wall. 456, 470 (1875). Finally, in discussing the Import-Export Clause, this Court, in Michelin Tire Corp. v. Wages, 423 U. S. 276, 285 (1976), spoke of the Framers’ overriding concern that “the Federal Government must speak with one voice when regulating commercial relations with foreign governments.” The need for federal uniformity is no less paramount in ascertaining the negative implications of Congress’ power to “regulate Commerce with foreign Nations” under the Commerce Clause.

A state tax on instrumentalities of foreign commerce may frustrate the achievement of federal uniformity in several ways. If the State imposes an apportioned tax, international disputes over reconciling apportionment formulae may arise. If a novel state tax creates an asymmetry in the international tax structure, foreign nations disadvantaged by the levy may retaliate against American-owned instrumentalities present in their jurisdictions. Such retaliation of necessity would be directed at American transportation equipment in general, not just that of the taxing State, so that the Nation as a whole would suffer. If other States followed the taxing State’s example, various instrumentalities of commerce could be subjected to varying degrees of multiple taxation, a result that would plainly prevent this Nation from “speaking with one voice” in regulating foreign commerce.

For these reasons, we believe that an inquiry more elaborate than that mandated by Complete Auto is necessary when a State seeks to tax the instrumentalities of foreign, rather than of interstate, commerce. In addition to answering the nexus, apportionment, and nondiscrimination questions posed in Complete Auto, a court must also inquire, first, whether the tax, notwithstanding apportionment, creates a substantial risk of international multiple taxation, and, second, whether the tax prevents the Federal Government from “speaking with one voice when regulating commercial relations with foreign governments.” If a state tax contravenes either of these precepts, it is unconstitutional under the Commerce Clause.

C

Analysis of California's tax under these principles dictates that the tax, as applied to appellants’ containers, is impermissible. Assuming, arguendo, that the tax passes muster under Complete Auto, it cannot withstand scrutiny under either of the additional tests that a tax on foreign commerce must satisfy.

First, California’s tax results in multiple taxation of the instrumentalities of foreign commerce. By stipulation, appellants’ containers are owned, based, and registered in Japan; they are used exclusively in international commerce; and they remain outside Japan only so long as needed to complete their international missions. Under these circumstances, Japan has the right and the power to tax the containers in full. California’s tax, however, creates more than the risk of multiple taxation; it produces multiple taxation in fact. Appellants’ containers not only “are subject to property tax ... in Japan,” App. 32, but, as the trial court found, “are, in fact, taxed in Japan.” Id., at 35. Thus, if appellees’ levies were sustained, appellants “would be paying a double tax.” Id., at 23.

Second, California’s tax prevents this Nation from “speaking with one voice” in regulating foreign trade. The desirability of uniform treatment of containers used exclusively in foreign commerce is evidenced by the Customs Convention on Containers, which the United States and Japan have signed. See n. 10, supra. Under this Convention, containers temporarily imported are admitted free of “all duties and taxes whatsoever chargeable by reason of importation.” 20 U. S. T., at 304. The Convention reflects a national policy to remove impediments to the use of containers as “ir struments of international trafile.” 19 U. S. C. § 1322 (a). California’s tax, however, will frustrate attainment of federal uniformity. It is stipulated that American-owned containers are not taxed in Japan. App. 35. California’s tax thus creates an asymmetry in international maritime taxation operating to Japan’s disadvantage. The risk of retaliation by Japan, under these circumstances, is acute, and such retaliation of necessity would be felt by the Nation as a whole. If other States follow California’s example (Oregon already has done so), foreign-owned containers will be subjected to various degrees of multiple taxation, depending on which American ports they enter. This result, obviously, would make “speaking with one voice” impossible. California, by its unilateral act, cannot be permitted to place these impediments before this Nation’s conduct of its foreign relations and its foreign trade.

Because California’s ad valorem tax, as applied to appellants’ containers, results in multiple taxation of the instrumentalities of foreign commerce, and because it prevents the Federal Government from “speaking with one voice” in international trade, the tax is inconsistent with Congress’ power to “regulate Commerce with foreign Nations.” We hold the tax, as applied, unconstitutional under the Commerce Clause.

D

Appellees proffer several objections to this holding. They contend, first, that any multiple taxation in this case is attributable, not to California, but to Japan. California, they say, is just trying to take its share; it should not be foreclosed by Japan’s election to tax the containers in full. California’s tax, however, must be evaluated in the realistic framework of the custom of nations. Japan has the right and the power to tax appellants’ containers at their full value; nothing could prevent it from doing so. Appellees’ argument may have force in the interstate commerce context. Cf. Moorman Mfg. Co. v. Bair, 437 U. S. 267, 277, and n. 12 (1978). In interstate commerce, if the domiciliary State is “to blame” for exacting an excessive tax, this Court is able to insist upon rationalization of the apportionment. As noted above, however, this Court is powerless to correct malapportionment of taxes imposed from abroad in foreign commerce.

Appellees contend, secondly, that any multiple taxation created by California’s tax can be cured by congressional action or by international agreement. We find no merit in this contention. The premise of appellees’ argument is that a State is free to impose demonstrable burdens on commerce, so long as Congress has not pre-empted the field by affirmative regulation. But it long has been “accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation . . . affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests.” Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769 (1945). Accord, Hughes v. Oklahoma, ante, at 326, and n. 2; Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 328 (1977). Appellees’ argument, moreover, defeats, rather than supports, the cause it aims to promote. For to say that California has created a problem susceptible only of congressional — indeed, only of international — solution is to concede that the taxation of foreign-owned containers is an area where a uniform federal rule is essential. California may not tell this Nation or Japan how to run their foreign policies.

Third, appellees argue that, even if California’s tax results in multiple taxation, that fact, after Moorman, is insufficient to condemn a state tax under the Commerce Clause. In Moorman, the Court refused to invalidate Iowa’s single-factor income tax apportionment formula, even though it posed a credible threat of overlapping taxation because of the use of three-factor formulae by other States. See also the several opinions in Moorman in dissent. 437 U. S., at 281, 282, and 283. That case, however, is quite different from this one. In Moorman, the existence of multiple taxation, on the record then before the Court, was “speculative,” id., at 276; on the record of the present case, multiple taxation is a fact. In Moorman, the problem arose, not from lack of apportionment, but from mathematical imprecision in apportionment formu-lae. Yet, this Court consistently had held that the Commerce Clause “does not call for mathematical exactness nor for the rigid application of a particular formula; only if the resulting valuation is palpably excessive will it be set aside.” Northwest Airlines, Inc. v. Minnesota, 322 U. S., at 325 (Stone, C. J., dissenting). Accord, Moorman, 437 U. S., at 274 (citing cases). See Hellerstein, State Taxation Under the Commerce Clause: An Historical Perspective, 29 Vand. L. Rev. 335, 347 (1976). This case, by contrast, involves no mere mathematical imprecision in apportionment; it involves a situation where true apportionment does not exist and cannot be policed by this Court at all. Moorman, finally, concerned interstate commerce. This case concerns foreign commerce. Even a slight overlapping of tax — a problem that might be deemed de minimis in a domestic context — assumes importance when sensitive matters of foreign relations and national sovereignty are concerned.

Finally, appellees present policy arguments. If California cannot tax appellants’ containers, they complain, the State will lose revenue, even though the containers plainly have a nexus with California; the State will go uncompensated for the services it undeniably renders the containers; and, by exempting appellants’ containers from tax, the State in effect will be forced to discriminate against domestic, in favor of foreign, commerce. These arguments are not without weight, and, to the extent appellees cannot recoup the value of their services through user fees, they may indeed be disadvantaged by our decision today. These arguments, however, are directed to the wrong forum. “Whatever subjects of this [the commercial] power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.” Cooley v. Board of Wardens, 12 How. 299, 319 (1852). The problems to which appellees refer are problems that admit only of a federal remedy. They do not admit of a unilateral solution by a State.

The judgment of the Supreme Court of California is reversed.

It is so ordered.

Substantially for the reasons set forth by Justice Manuel in his opinion for the unanimous Supreme Court of California, 20 Cal. 3d 180, 571 P. 2d 254, Mr. Justice Rehnquist is of the opinion that the judgment of that court should be affirmed.

       “A container is a permanent reusable article of transport equipment. .. durably made of metal, and equipped with doors for easy access to the goods and for repeated use. It is designed to facilitate the handling, loading, stowage aboard ship, carriage, discharge from ship, movement, and transfer of large numbers of packages simultaneously by mechanical means to minimize the cost and risks of manually processing each package.” Simon, The Law of Shipping Containers, 5 J. Mar. L. & Com. 507, 513 (1974).
      See Customs Convention on Containers, Art. I (6), May 18,1956, [1969] 20 U. S. T. 301, 304, T. I. A. S. No. 6634. Although containers may be as small as 1 cubic meter (35.3 cubic feet), 49 CFR §420.3 (c)(5) (1977), they are typically 8 feet high, 8 feet wide, and between 8 and 40 feet long. Simon, 5 J. Mar. L. & Com., at 510.

       The opinion of the Superior Court is not officially reported.

       The Court of Appeal also rejected, 132 Cal. Rptr., at 534, appellants’ argument that California’s tax was prohibited by Art. XI, §§ 1 and 4, and by Art. XXII, § 2, of the Treaty of Friendship, Commerce and Navigation Between the United States of America and Japan, Apr. 2, 1953, [1953] 4 U. S. T. 2063, T. I. A. S. No. 2863 (providing that Japanese nationals residing in the United States may not be subjected to payment of taxes “more burdensome than those borne by” United States nationals, and according Japan “most favored nation” status). Appellants repeat this argument here, and we reject it. The provisions appellants cite interdict discrimination against Japanese nationals; there is no evidence that California has treated Japanese containers differently from domestic containers for purposes of applying its property tax.
      The Court of Appeal likewise rejected, 132 Cal. Rptr., at 533, appellants’ argument that California’s tax constituted an indirect “Duty of Tonnage” proscribed by U. S. Const., Art. I, § 10, cl. 3. Appellants repeat this argument here; in view of oür disposition, we do not reach it. The Court of Appeal noted that appellants did not challenge California’s tax on due process grounds. See 132 Cal. Rptr., at 532 n. 2. Although appellants proffer a due process challenge here, we need not reach it either.

       The California Supreme Court also rejected appellants’ argument that California’s tax constituted “Imposts or Duties” proscribed by U. S. Const., Art. I, § 10, cl. 2. 20 Cal. 3d, at 186-188, 571 P. 2d, at 258-259. Appellants reiterate this argument here; in view of our disposition, we do not consider it. In their petition for rehearing, appellants argued that the tax contravened Art. Ill, §§ 1 and 2 of the General Agreement on Tariffs and Trade (GATT), 61 Stat. A18 (providing that “imported products” may not be subjected to heavier taxes, or to less favorable treatment, than like products of domestic origin). Pet. for Rehearing 35-40. The court rejected this latter argument sub silentio. 20 Cal. 3d, at 190. Appellants repeat this argument here, and we deem it frivolous. Assuming, arguendo, that appellants’ containers, as instrumentalities of commerce entering this country subject to re-exportation, could be labeled “imported products” within the meaning of GATT, the provisions on which appellants rely prohibit only discriminatory treatment. As noted in n. 3, supra, there is no evidence that California has treated Japanese containers differently from domestic containers for purposes of applying its property tax.

       The “home port doctrine” was reaffirmed, as to oceangoing vessels, in Morgan v. Parham, 16 Wall. 471, 476-477 (1873), and in Southern Pacific Co. v. Kentucky, 222 U. S. 63, 69 (1911). It was applied to vessels moving in inland waters in St. Louis v. Ferry Co., 11 Wall. 423 (1871), and in Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, 421-423 (1906).

       See, e. g., Note, 49 Calif. L. Rev. 968, 970-971 (1961); Note, State Taxation of International Air Transportation, 11 Stan. L. Rev. 518, 522, and n. 19 (1959); Page, Jurisdiction to Tax Tangible Movables, 1945 Wis. L. Rev. 125, 143-144.

       Accordingly, we do not reach questions as to the taxability of foreign-owned instrumentalities engaged in interstate commerce, or of domestically owned instrumentalities engaged in foreign commerce. Cf. Sea-Land Service, Inc. v. County of Alameda, 12 Cal. 3d 772, 528 P. 2d 56 (1974) (domestically owned containers used in intercoastal and foreign commerce held subject to apportioned property tax); Flying Tiger Line, Inc. v. County of Los Angeles, 51 Cal. 2d 314, 333 P. 2d 323 (1958) (domestically owned aircraft used in foreign commerce held subject to apportioned property tax).

       By taxing property present on the “lien date,” California roughly apportions its property tax for mobile goods like containers. For example, if each of appellants’ containers is in California for three weeks a year, the number present on any arbitrarily selected date would be roughly %2 of the total entering the State that year. Taxing %s of the containers at full value, however, is the same as taxing all the containers at %2 value. Thus, California effectively apportions its tax to reflect the containers’ “average presence,” i. e., the time each container spends in the State per year.

       As noted above, the trial court found that appellants’ containers are “instrumentalities of foreign commerce” that are “used constantly and exclusively for the transportation of cargo for hire in foreign commerce.” App. 35, 36.

       Appellants’ containers entered the United States pursuant to the Customs Convention on Containers, see n. 1, supra, which grants containers “temporary admission free of import duties and import taxes and free of import prohibitions and restrictions,” provided they are used solely in foreign commerce and are subject to re-exportation. 20 U. S. T., at 304. Similarly, 19 CFR § 10.41a (a) (3) (1978) designates containers “instruments of international traffic,” with the result that they “may be released without entry or the payment of duty” under 19 U. S. C. § 1322 (a). See 19 CFR § 10.41a (a) (1) (1978). A bilateral tax Convention between Japan and the United States associates containers with the vehicles that carry them, and provides that income “derived by a resident of a Contracting State . . . from the use, maintenance, and lease of containers and related equipment ... in connection with the operation in international traffic of ships or aircraft ... is exempt from tax in the other Contracting State.” Convention Between the United States of America and Japan for the Avoidance of Double Taxation, Mar. 8, 1971, [1972] 23 U. S. T. 967, 1084-1085, T. I. A. S. No. 7365.

       Oceangoing vessels, for example, are generally taxed only in their nation of registry; this fact in part explains the phenomenon of “flags of convenience” (a term deemed derogatory in some quarters), whereby vessels are registered under the flags of countries that permit the operation of ships “at a nominal level of taxation.” See B. Boczek, Flags of Convenience 5, 56-57 (1962). Aircraft engaged in international traffic, apparently, are likewise “subject to taxation on an unapportioned basis by their country of origin.” Note, 11 Stan. L. Rev., supra n. 6, at 519, and n. 11. See, e. g., SAS, 56 Cal. 3d, at 17, and n. 3, 363 P. 2d, at 28, and n. 3.

         E. g., The Federalist No. 42, pp. 279-283 (J. Cooke ed. 1961) (Madison) ; 3 M. Farrand, The Records of the Federal Convention of 1787, p. 478 (1911) (Madison). See Note, State Taxation of International Air Carriers, 57 Nw. U. L. Rev. 92, 101, and n. 42 (1962); Note, 11 Stan. L. Rev., supra n. 6, at 525-526, and n. 29; Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 465-475 (1941) (concluding, after an exhaustive survey of contemporary materials: “Despite the formal parallelism of the grants, there is no tenable reason for believing that anywhere nearly so large a range of action was given over commerce 'among the several states’ as over that 'with foreign nations.’ ” Id., at 475).

        E. g., Buttfield v. Stranahan, 192 U. S. 470, 492-493 (1904) (“exclusive and absolute” power of Congress over foreign commerce); Bowman v. Chicago & N. R. Co., 125 U. S. 465, 482 (1888) (“It may be argued [that] the inference to be drawn from the absence of legislation by Congress on the subject excludes state legislation affecting commerce with foreign nations more strongly than that affecting commerce among the States. Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation”); Henderson v. Mayor of New York, 92 U. S. 259, 273 (1876) (regulation “must of necessity be national in its character” when it affects “a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected”); Gibbons v. Ogden, 9 Wheat. 1, 228-229 (1824) (Johnson, J., concurring). See also Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932). In National League of Cities v. Usery, 426 U. S. 833 (1976), the Court noted that Congress’ power to regulate interstate commerce may be restricted by considerations of federalism and state sovereignty. It has never been suggested that Congress’ power to regulate foreign commerce could be so limited.

       The policies animating the Import-Export Clause and the Commerce Clause are much the same. In Michelin, the Court noted that the Import-Export Clause met three main concerns: “[T]he Federal Government must speak with one voice when regulating commercial relations with foreign governments . . . ; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States . . . were prohibited from levying taxes on [goods in transit].” 423 U. S., at 285-286 (footnotes omitted). Abel, see n. 12, supra, observed that the Commerce Clause was directed to similar concerns. See 25 Minn. L. Rev., at 448, and n. 67, 452, and n. 81, 456-457, and n. 110 (need to deal in unified manner with foreign nations); id., at 446-451 (need to preserve federal revenue); id., at 448-449, and nn. 69-70, 470-471, 472-473 (need to prevent disharmony among States on account of import duties). In Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978), we noted that the third Michelin factor — preserving harmony among the States — -mandated the same inquiry as to the effect of a state tax as the Interstate Commerce Clause. See id., at 754-755. In this case, similarly, the first Michelin factor — the need to speak with one voice when regulating commercial relations with foreign governments — mandates the same inquiry as to the effect of a state tax as the Foreign Commerce Clause. In Washington Revenue Dept., the Court, holding that the state tax at issue did not prevent “speaking with one voice,” noted: “No foreign business or vessel is taxed.” 435 U. S., at 754.

       See Note, Developments in the Law — Federal Limitations on State Taxation of Interstate Business, 75 Harv. L. Rev. 953, 986 (1962) (noting the difficulty of allocating “international bridge time” for aircraft engaged in international commerce, with consequent risk of multiple taxation from overlapping apportionment formulae, and concluding that apportioned state taxation of foreign-owned aircraft should be forbidden).

       Cf. Chy Lung v. Freeman, 92 U. S. 275, 279 (1876) (invalidating California’s bond requirement for Chinese immigrants):
      “[I]f this plaintiff and her twenty companions had been subjects of the Queen of Great Britain, can any one doubt that this matter would have been the subject of international inquiry, if not of a direct claim for redress? Upon whom would such a claim be made? Not upon the State of California; for, by our Constitution, she can hold no exterior relations with other nations. It would be made upon the government of the United States. If that government should get into a difficulty which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union?”

       The stipulation of facts, App. 32, like the trial court’s finding, id., at 35, states that “[a]ll containers of [appellants] are subject to property tax and are, in fact, taxed in Japan.” The record does not further elaborate on the nature of Japan’s property tax. Appellants have uniformly insisted, Brief 9; Tr. of Oral Arg. 3, that Japan’s property tax is unap-portioned, i. e., that it is imposed on the containers’ full value, and we so understand the trial court’s finding. Although appellees do not seriously challenge this understanding, Brief 10-11, and n. 2, amicus curiae Multistate Tax Commission suggests that the record is inadequate to establish double taxation in fact: Japan, amicus says, may offer “credits ... for taxes paid elsewhere.” Brief 8. Amicus provides no evidence to support this theory. Both the Solicitor General, Brief for United States as Amicus Curiae 19 n. 9, and the Department of State, id., at 17a, assure us that Japan taxes appellants’ containers at their “full value,” and we accept this interpretation of the trial court’s factual finding.
      Because California’s tax in this case creates multiple taxation in fact, we have no occasion here to decide under what circumstances the mere risk of multiple taxation would invalidate a state tax, or whether this risk would be evaluated differently in foreign, as opposed to interstate, commerce. Compare Moorman Mfg. Co. v. Bair, 437 U. S. 267, 276-277 (1978), and Washington Revenue Dept., 435 U. S., at 746, with, e. g., Central R. Co. v. Pennsylvania, 370 U. S. 607, 615 (1962); Ott v. Mississippi Barge Line Co., 336 U. S. 169, 175 (1949); and Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 326 (1944) (Stone, C. J., dissenting).

       Retaliation by some nations could be automatic. West Germany’s wealth tax statute, for example, provides an exemption for foreign-owned instrumentalities of commerce, but only if the owner’s country grants a reciprocal exemption for German-owned instrumentalities. Vermogen-steuergesetz (VStG), Art. 1, §2(3), reprinted in I Bundesgesetzblatt (BGB1) 950 (Apr. 23, 1974). The European Economic Community (EEC), when apprised of California’s tax on foreign-owned containers, apparently determined to consider “suitable counter-measures.” Press Release, Council of the European Communities, 521st Council Meeting— Transport (Luxembourg, June 12,1978), p. 21.

       Ore. Op. Atty. Gen. No. 7709 (Jan. 31, 1979) (citing decision below).

       Appellees’ reliance on Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 (1948), is also misplaced. In that case, the appellant, a Michigan corporation, transported passengers from Detroit to an amusement park on an island in the Province of Ontario; the appellant refused to accept Negro passengers and was prosecuted under a Michigan civil rights statute. In sustaining the statute’s application against Commerce Clause attack, the Court emphasized that the appellant conducted "foreign commerce” in name only. The sole business on the island was the amusement park, and it catered solely to American patrons. There were “no established means of access from the Canadian shore to the island,” id., at 36, and the island was “economically and socially ... an amusement adjunct of the city of Detroit.” Id., at 35. The “highly closed and localized manner” in which the business was run insulated it “from all commercial or social intercourse and traffic with the people of another country usually characteristic of foreign commerce.” Id., at 36. The Court noted that the possibility of conflicting Canadian regulation was “so remote that it [was] hardly more than conceivable,” id., at 37, and concluded that, on the facts of the case, it was "difficult to imagine what national interest or policy, whether of securing uniformity in regulating commerce affecting relations with foreign nations or otherwise, could reasonably be found to be adversely affected by applying Michigan’s statute to these facts or to outweigh her interest in doing so.” Id., at 40.

        Bob-Lo is consistent with both the analysis and the result in the present case. Whereas in Bob-Lo the risk that foreign commerce would be burdened by inconsistent international regulation was “remote,” the risk that foreign commerce will be burdened by international multiple taxation here has been realized in fact. And whereas the Michigan statute posed no threat at all to the Federal Government’s ability to “speak with one voice” in regulating foreign trade, the impairment of federal uniformity worked by California’s statute is substantial.


author: Per Curiam.

text:
    TOLL, PRESIDENT, UNIVERSITY OF MARYLAND v. MORENO et al.
    No. 77-154.
    Argued February 22, 1978
    Question certified April 19, 1978
    Decided April 30, 1979
   Per Curiam.

This decision supplements Elkins v. Moreno, 435 U. S. 647 (1978), decided last Term. Respondents in Elkins represented a class of nonimmigrant alien residents of Maryland who either held or were financially dependent upon a person who held a “G-4 visa/’ that is, a nonimmigrant visa granted to “officers, or employees of . . . international organizations, and the members of their immediate families” pursuant to 8 U. S. C. § 1101 (a)(15)(G)(iv). Respondents were not granted “in-state” status for tuition purposes at the University of Maryland because they were conclusively presumed by the University to be nondomiciliaries of the State. Respondents brought suit against the University and its President, alleging that the University’s failure to grant respondents in-state status violated various federal laws, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Supremacy Clause. The District Court held for respondents on the ground that the University’s procedures for determining in-state status violated principles established in Vlandis v. Kline, 412 U. S. 441 (1973), and the Court of Appeals affirmed. Moreno v. University of Maryland, 420 F. Supp. 541 (Md. 1976), affirmance order, 556 F. 2d 573 (CA4 1977).

In Elkins v. Moreno, supra, we held that “[bjecause petitioner makes domicile the ‘paramount’ policy consideration and because respondents’ contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis as limited by Salfi to those situations in which a State ‘purport [s] to be concerned with [domicile, but] at the same time den[ies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue.’ Weinberger v. Salfi, 422 U. S. [749,] 771 [1975].” 435 U. S., at 660. Since the applicability of Vlandis depended on whether respondents could in fact become Maryland domicili-arles, we certified, pursuant to Subtit. 6 of Tit. 12 of the Md. Cts. & Jud. Proc. Code (1974), the following question to the Maryland Court of Appeals:

“Are persons residing in Maryland who hold or are named in a visa under 8 U. S. C. § 1101 (a) (15) (G) (iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland?” Elkins v. Moreno, supra, at 668-669.

On June 23, 1978, approximately two months after the decision in Elkins the Board of Regents of the University of Maryland unanimously adopted “A Resolution Clarifying the Purposes, Meaning, and Application of the Policy of the University of Maryland for Determination of In-State Status for Admission, Tuition, and Charge-Differential Purposes, Insofar as It Denies In-State Status to Nonimmigrant Aliens.” In this resolution, the Board of Regents stated, inter alia:

“Purposes and Interests of In-State Policy. The Board of Regents finds and declares that the policy approved on September 21, 1973, insofar as it denies in-state status to nonimmigrant aliens, serves a number of substantial purposes and interests, whether or not it conforms to the generally or otherwise applicable definition of domicile under the Maryland common law, including but not limited to:
“(a) limiting the University’s expenditures by granting a higher subsidy toward the expenses of providing educational services to that class of persons who, as a class, are more likely to have a close affinity to the State and to contribute more to its economic well-being;
“(b) achieving equalization between the affected classes of the expenses of providing educational services;
“(c) efficiently administering the University’s in-state determination and appeals process; and
“(d) preventing disparate treatment among categories of nonimmigrants with respect to admissions, tuition, and charge-differentials.
“Reaffirmation of In-State Policy. Regardless of whether or not the policy approved by the Board of Regents on September 21, 1973, conforms with the generally or otherwise applicable definition of domicile under the Maryland common law, the Board of Regents reaffirms that policy because it intends and deems it to serve a number of substantial purposes and interests, including but not limited to those set forth above.”

On February 21, 1979, the Maryland Court of Appeals unanimously answered our certified question in the negative, stating that “[s]ince nothing in the general Maryland law of domicile renders G-4 visa holders, or their dependents, incapable of becoming domiciled in this State, the answer to the certified question is ‘No.’ ” Toll v. Moreno, 284 Md. 425, 444, 397 A. 2d 1009, 1019. The Maryland Court of Appeals also declined to consider the implications of the Board of Regents’ clarifying resolution, because, although the resolution represented a change of the University’s position, the implications of that change were beyond the scope of the certified question. Id., at 436-437, 397 A. 2d, at 1014-1015.

The Attorney General of Maryland now requests that this case “be restored to the Supreme Court’s active docket for further briefing and argument . . . .” We must deny this request because the Board of Regents’ clarifying resolution has fundamentally altered the posture of the case. Our decision in Elkins rests on the premise that “the University apparently has no interest in continuing to deny in-state status to G-4 aliens as a class if they can become Maryland domiciliarles since it has indicated both here and in the District Court that it would redraft its policy To accommodate’ G-4 aliens were the Maryland courts to hold that G-4 aliens can” acquire such domicile. 435 U. S., at 661. After the clarifying resolution, this premise no longer appears to be true. And if domicile is not the “paramount” policy consideration of the University, this case is no longer “squarely within Vlandis as limited by Salfi . . . Id., at 660. The clarifying resolution thus raises new issues of constitutional law which should be addressed in the first instance by the District Court. We therefore vacate the judgment of the Court of Appeals and remand to the District Court for further consideration in light of our opinion and judgment in Elkins, the opinion and judgment of the Maryland Court of Appeals in Toll, and the Board of Regents’ clarifying resolution of June 23, 1978.

So ordered.

      The order certifying the question to the Maryland Court of Appeals was dated April 25, 1978.


author: Per Curiam. Mr. Justice Marshall,

text:
    SMITH et al. v. ARKANSAS STATE HIGHWAY EMPLOYEES, LOCAL 1315, et al.
    No. 78-1223.
    Decided April 30, 1979
   Per Curiam.

In grievance proceedings initiated by employees of the Arkansas State Highway Department, the State Highway Commission will not consider a grievance unless the employee submits his written complaint directly to the designated employer representative. The District Court for the Eastern District of Arkansas found that this procedure denied the union representing the employees the ability to submit effective grievances on their behalf and therefore violated the First Amendment. 459 F. Supp. 452 (1978). The United States Court of Appeals for the Eighth Circuit affirmed. 585 F. 2d 876 (1978). We disagree with these holdings; finding no constitutional violation in the actions of the Commission or its individual members, we grant certiorari and reverse the judgment of the Court of Appeals.

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members. NAACP v. Button, 371 U. S. 415 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961). The government is prohibited from infringing upon these guarantees either by a general prohibition against certain forms of advocacy, NAACP v. Button, supra, or by imposing sanctions for the expression of particular views it opposes, e. g., Brandenburg v. Ohio, 395 U. S. 444 (1969); Garrison v. Louisiana, 379 U. S. 64 (1964).

But the First Amendment is not a substitute for the national labor relations laws. As the Court of Appeals for the Seventh Circuit recognized in Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F. 2d 456 (1972), the fact that procedures followed by a public employer in bypassing the union and dealing directly with its members might well be unfair labor practices were federal statutory law applicable hardly establishes that such procedures violate the Constitution. The First Amendment right to associate and to advocate “provides no guarantee that a speech will persuade or that advocacy will be effective.” Id., at 461. The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See Pickering v. Board of Education, 391 U. S. 563, 574-575 (1968); Shelton v. Tucker, 364 U. S. 479 (1960). But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

In the case before us, there is no claim that the Highway Commission has prohibited its employees from joining together in a union, or from persuading others to do so, or from advocating any particular ideas. There is, in short, no claim of retaliation or discrimination proscribed by the First Amendment. Rather, the complaint of the union and its members is simply that the Commission refuses to consider or act upon grievances when filed by the union rather than by the employee directly.

Were public employers such as the Commission subject to the same labor laws applicable to private employers, this refusal might well constitute an unfair labor practice. We may assume that it would and, further, that it tends to impair or undermine — if only slightly — the effectiveness of the union in representing the economic interests of its members. Cf. Hanover Township, supra.

But this type of “impairment” is not one that the Constitution prohibits. Far from taking steps to prohibit or discourage union membership or association, all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do.

The judgment of the Court of Appeals is therefore reversed.

It is so ordered.

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

Mr. Justice Marshall,

dissenting.

Now this Court is deciding vital constitutional questions without even a plenary hearing. I dissent.

This Court has long held that the First Amendment protects the right of unions to secure legal representation for their members. Mine Workers v. Illinois State Bar Assn., 389 U. S. 217, 221-222 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1, 8 (1964); see Transportation Union v. State Bar of Michigan, 401 U. S. 576 (1971); NAACP v. Button, 371 U. S. 415 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961). Based on this precedent and on Arkansas’ recognition of public employees’ right to organize and join a union, Potts v. Hay, 229 Ark. 830, 315 S. W. 2d 826 (1958), the Court of Appeals concluded that the First Amendment also encompasses respondent union’s right to file grievances on behalf of its members. If under Mine Workers and Railroad Trainmen a public employer may not refuse to entertain a grievance submitted by a union-salaried attorney, it is not immediately apparent why the employer in this case should be entitled to reject a grievance asserted by the union itself.

I decline to join a summary reversal that so cavalierly disposes of substantial First Amendment issues.

       This suit was brought by the Arkansas State Highway Employees, Local 1315, and eight of its individual members, after the Commission refused to consider grievances submitted by the union on behalf of two of its members. The facts in these two cases are not in dispute:
      “[E]ach employee sent a letter to Local 1315, explaining the nature of their grievance and requesting the union to process the grievances on their behalf. In each case the union forwarded the employee’s letter to the designated employer’s representative and included its own letter stating that it represented the employees and desired to set up a meeting. The employer’s representative did not respond to the union’s letter. Thereafter each employee filed a written complaint directly with the employer representative. Local 1315 represented each employee at subsequent meetings with the employer representative.” 585 F. 2d, at 877.
      The individual Commissioners of the Arkansas State Highway Commission and the Director of the State Highway Department were named as defendants, and are the petitioners in this Court.

       See Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F. 2d 456, 461 (CA7 1972), quoting Indianapolis Education Assn. v. Lewallen, 72 LRRM 2071, 2072 (CA7 1969) (“there is no constitutional duty to bargain collectively with an exclusive bargaining agent”).

       The union does represent its members at all meetings with employer representatives subsequent to the filing of a written grievance. See n. 1, supra. The “impairment” is thus limited to the requirement that written complaints, to be considered, must initially be submitted directly to the employer representative by the employee. There appears to be no bar, however, on the employee’s securing any form of advice from his union, or from anyone else. Cf. Mine Workers v. Illinois State Bar Assn., 389 U. S. 217 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1 (1964).

      Moreover, summary reversal seems to me an especially inappropriate means of resolving conflicts between the United States Courts of Appeals. Compare Arkansas State Highway Employees Local 1315 v. Smith, 585 F. 2d 876 (CA8 1978), with Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F. 2d 456 (CA7 1972).


text:
    WILKINS v. UNITED STATES
    No. 78-5885.
    Decided April 30, 1979
   Per Curiam.

The pro se petitioner was convicted in a Federal District Court on criminal charges, 422 F. Supp. 1371 (ED Pa. 1977), and the Court of Appeals for the Third Circuit affirmed the convictions on June 9, 1977, by judgment order. 559 F. 2d 1210. This petition, filed on December 14, 1978, is therefore 17 months out of time as a conventional petition for certiorari under this Court’s Rule 22 (2).

But this is not a conventional petition for certiorari. The petitioner states that he asked his court-appointed lawyer to file a timely petition for certiorari and that in September 1977 he received an assurance from the lawyer that this request had been honored. In July 1978, the petitioner wrote to the Clerk of this Court to inquire about his case and learned that no such petition had ever been filed. He then wrote several letters to his lawyer, but the letters were never answered. All these factual allegations are supported by the petitioner’s affidavit and by the affidavits of his wife and his minister.

The petition now before us presents a single question:

“What remedy is available for petitioner when court-appointed attorney failed and refused to file timely petition for writ of certiorari in defiance of the petitioner’s written request that same be done?”

The answer to that question is to be found in the Criminal Justice Act of 1964, 18 U. S. C. §§ 3006A (c), 3006A (d)(6), and 3006A (g). The Solicitor General interprets these provisions to mean that a person whose federal conviction has been affirmed is entitled to a lawyer’s help in seeking certiorari here. Indeed, the Courts of Appeals for all of the Circuits provide in their rules or in plans adopted pursuant to the Criminal Justice Act that a court-appointed lawyer must, if his client wishes to seek review in this Court, represent him in fifing a petition for certiorari. Had the petitioner presented his dilemma to the Court of Appeals by way of a motion for the appointment of counsel to assist him in seeking review here, the court then could have vacated its judgment affirming the convictions and entered a new one, so that this petitioner, with the assistance of counsel, could file a timely petition for certiorari. Cf. Doherty v. United States, 404 U. S. 28 (1971); Schreiner v. United States, 404 U. S. 67 (1971).

The Solicitor General has recommended that we grant cer-tiorari, vacate the judgment, and remand this case to the Court of Appeals so that a timely petition for certiorari to review the appellate judgment can be filed. Even though this petitioner, unlike the claimants in the Doherty and Schreiner cases, did not first apply to the Court of Appeals for relief, we agree with the suggestion of the Solicitor General.

The Court of Appeals, the Solicitor General, and this Court all have a strong interest in ensuring that lawyers appointed to aid in digents discharge their responsibilities fairly. Yet this prisoner’s story of his appointed lawyer’s indifference to his legitimate request for help is all too familiar. The petitioner’s decision to apply directly to this Court for relief is under these circumstances understandable. Accordingly, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for further proceedings, including the reentry of its judgment affirming the petitioner’s convictions and, if appropriate, appointment of counsel to assist the petitioner in seeking timely review of that judgment in this Court.

It is so ordered.

Petitioner having made no substantive challenge to the judgment of the Court of Appeals in his petition for certio-rari, Mr. Justice Rehnquist dissents from the Court’s action in vacating that judgment.

Because Mr. Justice Stevens believes the Court of Appeals is the forum in which petitioner’s allegations should be evaluated in the first instance, he would not vacate that court’s judgment summarily.

Mr. Justice Powell took no part in the decision of this case.

      The Criminal Justice Act Plan adopted by the Court of Appeals for the Third Circuit provides:
      “If, after an adverse decision by the Court of Appeals, a review by the Supreme Court of the United States is to be sought, the appointed attorney shall prepare a petition for certiorari and other necessary and appropriate documents in connection therewith.” See A Plan for the United States Court of Appeals for the Third Judicial Circuit Pursuant to the Criminal Justice Act of 1964, § III — 6 (effective Sept. 1, 1971).
      For comparable provisions or rules in effect in other Circuits, see generally United States Courts of Appeals Rules, 28 U. S. C. A. (Supp. 1978). See also plans under the Criminal Justice Act adopted by the Courts of Appeals for the Fourth, the Seventh, and the District of Columbia Circuits.