author: Justice White

text:
    JAMES v. KENTUCKY
    No. 82-6840.
    Argued February 28, 1984
    Decided April 18, 1984

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting statement, post, p. 352. Marshall, J., took no part in the decision of the case.

      C. Thomas Hectus argued the cause and filed a brief for petitioner.

      Penny R. Warren, Assistant Attorney General of Kentucky, argued the cause for respondent. With her on the brief were David L. Armstrong, Attorney General, and Robert L. Chenoweth, Assistant Deputy Attorney General.
   Justice White

delivered the opinion of the Court.

In Carter v. Kentucky, 450 U. S. 288 (1981), we held that a trial judge must, if requested to do so, instruct the jury not to draw an adverse inference from the defendant’s failure to take the stand. In this case, the Kentucky Supreme Court found that the trial judge was relieved of that obligation because defense counsel requested an “admonition” rather than an “instruction.”

I

Petitioner Michael James was indicted for receipt of stolen property, burglary, and rape. James had been convicted of two prior felonies — forgery and murder — and the prosecution warned that were James to take the stand it would use the forgery conviction to impeach his testimony. During voir dire, defense counsel asked the prospective jurors how they would feel were James not to testify. After a brief exchange between counsel and one member of the venire, the trial judge interrupted, stating: “They have just said they would try the case solely upon the law and the evidence. That excludes any other consideration.” App. 30. With that, voir dire came to a close. James did not testify at trial.

At the close of testimony, counsel and the judge had an off-the-record discussion about instructions. When they returned on the record, James’ lawyer noted that he objected to several of the instructions being given, and that he “requests that an admonition be given to the jury that no emphasis be given to the defendant’s failure to testify which was overruled.” Id., at 95. The judge then instructed the jury, which returned a verdict of guilty on all counts. At a subsequent persistent felony offender proceeding, the jury sentenced James to life imprisonment in light of his two previous convictions.

On appeal, James argued that the trial judge’s refusal to tell the jury not to draw an adverse inference from his failure to testify violated Carter v. Kentucky, supra. The Kentucky Supreme Court conceded that Carter requires the trial judge, upon request, to instruct the jury not to draw an adverse inference. 647 S. W. 2d 794, 795 (1988). The court noted, however, that James had requested an admonition rather than an instruction, and there is a “vast difference” between the two under state law. He “was entitled to the instruction, but did not ask for it. The trial court properly denied the request for an admonition.” Id., at 795-796. We granted certiorari, 464 U. S. 913 (1983), to determine whether petitioner’s asserted procedural default adequately supports the result below. We now reverse.

II

In Carter we held that, in order fully to effectuate the right to remain silent, a trial judge must instruct the jury not to draw an adverse inference from the defendant’s failure to testify if requested to do so. James argues that the essence of the holding in Carter is that the judge must afford some form of guidance to the jury, and that the admonition he sought was the “functional equivalent” of the instruction required by Carter. The State responds that the trial judge was under no obligation to provide an admonition when under Kentucky practice James should have sought an instruction. An examination of the state-law background is necessary to understand these arguments.

A

Kentucky distinguishes between “instructions” and “admonitions.” The former tend to be statements of black-letter law, the latter cautionary statements regarding the jury’s conduct. See generally Webster v. Commonwealth, 508 S. W. 2d 33, 36 (Ky. App.), cert. denied, 419 U. S. 1070 (1974); Miller v. Noell, 193 Ky. 659, 237 S. W. 373 (App. 1922). Thus, “admonitions” include statements to the jury requiring it to disregard certain testimony, Perry v. Commonwealth, 652 S. W. 2d 655, 662 (Ky. 1983); Stallings v. Commonwealth, 556 S. W. 2d 4, 5 (Ky. 1977), to consider particular evidence for purposes of evaluating credibility only, Harris v. Commonwealth, 556 S. W. 2d 669, 670 (Ky. 1977); Lynch v. Commonwealth, 472 S. W. 2d 263, 266 (Ky. App. 1971), and to consider evidence as to one codefen-dant only, Ware v. Commonwealth, 537 S. W. 2d 174, 177 (Ky. 1976). The State Rules of Criminal Procedure provide that at each adjournment the jury is to be “admonished” not to discuss the case. Ky. Rule Crim. Proc. 9.70 (“Admonition”). See generally 1 J. Palmore & R. Lawson, Instructions to Juries in Kentucky 16-20, 397-404 (1975) (hereinafter Palmore).

Instructions, on the other hand, set forth the legal rales governing the outcome of a case. They “state what the jury must believe from the evidence ... in order to return a verdict in favor of the party who bears the burden of proof.” Webster v. Commonwealth, supra, at 36. The judge reads the instructions to the jury at the end of the trial, and provides it a written copy. Ky. Rule Crim. Proc. 9.54(1). After Carter, Kentucky amended its Criminal Rules to provide that, if the defendant so requests, the instructions must state that he is not compelled to testify and that the jury shall not draw an adverse inference from his election not to. Rule 9.54(3).

The substantive distinction between admonitions and instructions is not always clear or closely hewn to. Kentucky’s highest court has recognized that the content of admonitions and instructions can overlap. In a number of cases, for example, it has referred to a trial court’s failure either to instruct or to admonish the jury on a particular point, indicating that either was a possibility. E. g., Caldwell v. Commonwealth, 503 S. W. 2d 485, 493-494 (1972) (“instructions” did not contain a particular “admonition,” but the “failure to admonish or instruct” was harmless); Reeves v. Commonwealth, 462 S. W. 2d 926, 930, cert. denied, 404 U. S. 836 (1971). See also Bennett v. Horton, 592 S. W. 2d 460, 464 (1979) (“instructions” included the “admonition” that the jury could make a certain setoff against the award); Carson v. Commonwealth, 382 S. W. 2d 85, 95 (1964) (“The fourth instruction was the usual reasonable doubt admonition”). The court has acknowledged that “sometimes mát-ters more appropriately the subject of admonition are included with or as a part of the instructions.” Webster v. Commonwealth, supra, at 36.

In pre-Carter cases holding that a defendant had no right to have the jury told not to draw an adverse inference, Kentucky’s highest court did not distinguish admonitions from instructions. See, e. g., Luttrell v. Commonwealth, 554 S. W. 2d 75, 79-80 (1977) (“instruction”); Scott v. Commonwealth, 495 S. W. 2d 800, 802 (“written admonition,” “admonition”), cert. denied, 414 U. S. 1073 (1973); Green v. Commonwealth, 488 S. W. 2d 339, 341 (1972) (“instruction”); Dixon v. Commonwealth, 478 S. W. 2d 719 (1972) (“an instruction admonishing the jury”); Jones v. Commonwealth, 457 S. W. 2d 627, 630 (1970) (“admonition” during another witness’ testimony), cert. denied, 401 U. S. 946 (1971); Roberson v. Commonwealth, 274 Ky. 49, 50, 118 S. W. 2d 157, 157-158 (1938) (“admonition”), citing Hanks v. Commonwealth, 248 Ky. 203, 205, 58 S. W. 2d 394, 395 (App. 1933) (“instruction”). A statement to the jury not to draw an adverse inference from the defendant’s failure to testify would seem to fall more neatly into the admonition category than the instruction category. Cautioning the jury against considering testimony not given differs little from cautioning it not to consider testimony that was. However, the Kentucky Criminal Rules treat it as an instruction. See n. 4, supra.

One procedural difference between admonitions and instructions is that the former are normally oral, while the latter, though given orally, are also provided to the jury in writing. See generally 1 Palmore, ch. 12. However, this distinction is not strictly adhered to. As the cases cited above indicate, “admonitions” frequently appear in the written instructions. See also id., at 21 (“An ‘admonition’. . . need not be in writing. However, it is not error to give such admonition in writing as an instruction”); id., at 17. Conversely, instructions may be given only orally if the defendant waives the writing requirement. Brief for Respondent 25; Tr. of Oral Arg. 31, 38-39. The State contends, though without citing any authority, that the instructions must be all in writing or all oral, and that it would have been reversible error for the trial judge to have given this “instruction” orally. Yet the Kentucky Court of Appeals has held, for example, that there was no error where the trial court, after reading the written instructions, told the jury orally that its verdict must be unanimous, a statement normally considered an “instruction.” Freeman v. Commonwealth, 425 S. W. 2d 575, 579 (1968). And in several cases the Court of Appeals has found no error where the trial court gave oral explanations of its written instructions. E. g., Allee v. Commonwealth, 454 S. W. 2d 336, 342 (1970), cert. dism’d sub nom. Green v. Kentucky, 401 U. S. 950 (1971); Ingram v. Commonwealth, 427 S. W. 2d 815, 817 (1968). Finally, given Kentucky's strict contemporaneous-objection rule, see, e. g., Webster v. Commonwealth, 508 S. W. 2d, at 36; Reeves v. Commonwealth, supra, at 930; Ky. Rule Crim. Proc. 9.54(2), it would be odd if it were reversible error for the trial court to have given a Carter instruction orally at the defendant’s request. See also Weichhand v. Garlinger, 447 S. W. 2d 606, 610 (Ky. App. 1969) (harmless error to give oral admonition where written instruction was requested and appropriate).

B

There can be no dispute that, for federal constitutional purposes, James adequately invoked his substantive right to jury guidance. See Douglas v. Alabama, 380 U. S. 415, 422 (1965). The question is whether counsel’s passing reference to an “admonition” is a fatal procedural default under Kentucky law adequate to support the result below and to prevent us from considering petitioner’s constitutional claim. In light of the state-law background described above, we hold that it is not. Kentucky’s distinction between admonitions and instructions is not the sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights. Cf. Barr v. City of Columbia, 378 U. S. 146, 149 (1964). Carter holds that if asked to do so the trial court must tell the jury not to draw the impermissible inference. To insist on a particular label for this statement would “force resort to an arid ritual of meaningless form,” Staub v. City of Baxley, 355 U. S. 313, 320 (1958), and would further no perceivable state interest, Henry v. Mississippi, 379 U. S. 443, 448-449 (1965). See also NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 293-302 (1964). “Admonition” is a term that both we and the State Supreme Court have used in this context and which is reasonable under state law and normal usage. As Justice Holmes wrote 60 years ago: “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U. S. 22, 24 (1923).

C

The State argues that this is more than a case of failure to use the required magic word, however. It considers James’ request for an admonition to have been a deliberate strategy. He sought an oral statement only in order to put “less emphasis on this particular subject, not before the jury, not in writing to be read over and over, but to have been commented upon and passed by.” Tr. of Oral Arg. 39-40. James, now represented by his third attorney, seems to concede that the first attorney did seek an oral admonition. He does not argue that the trial court had to include the requested statement in the instructions, though he suggests that it could have done so, and that he would have been happy with either a written or an oral statement. Brief for Petitioner 23-25.

We would readily agree that the State is free to require that all instructions be in writing; and to categorize a no-adverse-inference statement as an instruction. The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the inference if the defendant so requests; but it does not afford the defendant the right to dictate, inconsistent with state practice, how the jury is to be told. Cf. Taylor v. Kentucky, 436 U. S. 478, 485-486 (1978). In Lakeside v. Oregon, 435 U. S. 333 (1978), we held that the judge may give a no-adverse-inference instruction over the defendant's objection. Given that, the State may surely give a written instruction over the defendant’s request that it be oral only. And if that is so, the State can require that if the instruction is to be given, it be done in writing. For reasons similar to those set out in Lakeside, we do not think that a State would impermissibly infringe the defendant’s right not to testify by requiring that if the jury is to be alerted to it, it be alerted in writing. See generally Cupp v. Naughten, 414 U. S. 141, 146 (1973).

This is not a case, however, of a defendant attempting to circumvent such a firm state procedural rule. For one thing, as the discussion in Part II-A, supra, indicates, the oral/written distinction is not as solid as the State would have us believe. Admonitions can be written and instructions oral, and the Kentucky Supreme Court has itself used the term “admonition” in referring to instructions that “admonish.” In addition, our own examination of the admittedly incomplete record reveals little to support the State’s view of petitioner’s request. The single passing reference to an “admonition” is far too slender a reed on which to rest the conclusion that petitioner insisted on an oral statement and nothing but.

Apart from this one use of the term, there is absolutely nothing in the record to indicate any such insistence. Indeed, other indications are to the contrary. Before going off the record, defense counsel stated that he had “a matter in regards to the instructions.” Tr. of Hearing (Jan. 19,1982), p. 3 (emphasis added). Returning to the record, he noted that he “object[ed] to several of the instructions being given to the jury” and that his request for “an admonition” to the jury regarding the defendant’s failure to testify had been overruled. The court below inferred from these two statements that counsel had sought an oral statement apart from the instructions. Yet the statements could also be a shift from an objection to what was being said to the jury (“the instructions being given”), to an objection to what was not (“requests an admonition . . . which was overruled”). It is also possible that counsel sought both a written and an oral statement and was denied on both counts.

Where it is inescapable that the defendant sought to invoke the substance of his federal right, the asserted state-law defect in form must be more evident than it is here. In the circumstances of this case, we cannot find that petitioner’s constitutional rights were respected or that the result below rests on independent and adequate state grounds.

III

Respondent argues that even if there was error, it was harmless. It made the same argument below, but the Kentucky Supreme Court did not reach it in light of its conclusion that no error had been committed. We have not determined whether Carter error can be harmless, see Carter, 450 U. S., at 304, and we do not do so now. Even if an evaluation of harmlessness is called for, it is best made in state court before it is made here. The case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Justice Marshall took no part in the decision of this case.

Justice Rehnquist dissents for the reasons stated in his dissenting opinion in Carter v. Kentucky, 450 U. S. 288, 307-310 (1981).

       The charges grew out of three separate incidents, all involving Donna Richardson. Richardson testified that on April 23, 1980, her house was broken into and a gun taken from under her pillows. A week later, she came home to find that a pane of glass had been removed from her back door, the locks undone, and her pillows messed up. On May 6, James, her next-door neighbor, asked to use her telephone to call a doctor. When Kichardson let him in and began dialing, he put a gun to her side, tied her up, brought her to his house, and raped her.
      James had the stolen pistol in his possession when arrested, hence the charge of receiving stolen property. His fingerprint was found on the missing pane of glass, hence the charge of burglary.

       We rejected similar logic with regard to the instructions themselves in Carter v. Kentucky, 450 U. S. 288 (1981):
      “Kentucky also argues that in the circumstances of this case the jurors knew they could not make adverse inferences from the petitioner’s election to remain silent because they were instructed to determine guilt ‘from the evidence alone,’ and because failure to testify is not evidence. The Commonwealth’s argument is unpersuasive. Jurors are not lawyers; they do not know the technical meaning of ‘evidence.’ They can be expected to notice a defendant’s failure to testify, and, without limiting instruction, to speculate about incriminating inferences from a defendant’s silence.” Id., at 303-304.

       The relevant portion of the transcript reads, in its entirety, as follows: “JUDGE MEIGS: Call your witness. You have closed, I am sorry.

        “MR. PEALE [defense counsel]: We have closed and has [sic] a matter in regards to the instructions.
      “OFF THE RECORD.
      “MR. PEALE: Note that the defendant objects to several of the instructions being given to the jury.
      “JUDGE MEIGS: Overruled.
      “MR. PEALE: The defendant requests that an admonition be given to the jury that no emphasis be given to the defendant’s failure to testify which was overruled.
      “JUDGE MEIGS: Ladies and gentlemen of the jury, these are your instructions. . . .” Tr. of Hearing (Jan. 19, 1982), pp. 3-4.

         That Rule provides:
      “The instructions shall not make any reference to a defendant’s failure to testify unless so requested by him, in which event the court shall give an instruction to the effect that he is not compelled to testify and that the jury shall not draw any inference of guilt from his election not to testify and shall not allow it to prejudice him in any way.”

       Indeed, such a statement is substantively indistinguishable from an “admonition” given in this very case. When James was brought into court for the persistent-felony-offender hearing, he was in handcuffs. After requesting and being denied a mistrial, his attorney asked: “Can we at least have an admonition to the jury, your Honor?” The judge obliged, telling the jury it was “admonished not to consider the fact that the defendant was brought into the courtroom shackled and handcuffed. That should have nothing to do, no bearing at all, on your decision in this case.” 5 Tr. 4.

       See Bruno v. United States, 308 U. S. 287, 294 (1939) (Court unwilling to assume “that jurors, if properly admonished, neither could nor would heed the instructions of the trial court” not to draw an improper inference).

       When asked at oral argument whether his “basic argument [is] that your client was entitled to an instruction because he had requested something almost like an instruction or that he was entitled to an admonition because he had requested an admonition,” petitioner’s counsel answered that his “basic argument is that he was entitled to an admonition, at the very least.” Tr. of Oral Arg. 25.

       Whether Kentucky has in fact done so is not clear. See supra, at 348.

       Neither of the trial lawyers was involved in the appeal. Thus, appellate counsel and the appellate court were working from the same un-elaborated record that is before us.


source: Caselaw Access Project

author: Justice Blackmun

license: Public Domain

text:
    LIMBACH, TAX COMMISSIONER OF OHIO v. HOOVEN & ALLISON CO.
    No. 83-96.
    Argued February 22, 1984
    Decided April 18, 1984

      Blackmun, J., delivered the opinion for a unanimous Court.

      Richard C. Farrin, Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the briefs was Anthony J. Celebrezze, Jr., Attorney General.

      Michael A. Nims argued the cause for respondent. With him on the brief was Charles H. Moellenberg, Jr

         James F. Gossett filed a brief for the International Association of Assessing Officers as amicus curiae urging reversal.

   Justice Blackmun

delivered the opinion of the Court.

In Hooven & Allison Co. v. Evatt, 324 U. S. 652 (1945) (Hooven I), this Court passed upon the constitutionality of Ohio’s application of a nondiscriminatory ad valorem personal property tax to imported fibers still in their original packages. The result there was unfavorable to the State. In this case, the Tax Commissioner of Ohio asks us to sustain the application of the same nondiscriminatory ad valorem personal property tax to like fibers, still in their original packages, imported by the same manufacturer. The case thus presents, primarily, an issue of preclusion framed in terms of collateral estoppel.

I

The Hooven & Allison Company (Hooven) is a domestic manufacturer of cordage products made from natural fibers. These fibers — hemp, sisal, jute, manila, and the like — are not grown in the United States and must be imported. Upon their arrival in this country, the imported fibers are transported by rail to Hooven’s plant in Xenia, Ohio, where they are stored in their original packages for future use in Hooven’s manufacturing process.

In accord with Ohio Rev. Code Ann. §5711.16 (1980), Hooven timely filed personal property tax returns for 1976 and 1977. In those returns, Hooven listed these original-package imported fibers as “imports,” but deducted their value from the total value of its manufacturing inventory. The following written explanation was given:

“The inventories represent fibers imported by the taxpayer from foreign countries, held in the original packages in its warehouses in Xenia prior to being used in manufacturing cordage, and when they are removed therefrom or placed in the production line in the factory, such imported fibers so used, or removed from the original package, are thereupon transferred to the Goods in Process and are included in the taxable inventories in Xenia City.” Joint Record in the Supreme Court of Ohio 11.

In taking this deduction, Hooven relied expressly on this Court’s 1945 decision in Hooven 1. In that decision, the Court, by a closely divided vote, ruled that subjecting Hooven’s imported original-package raw materials to Ohio personal property taxation would be in violation of the Import-Export Clause of the United States Constitution, Art. I, § 10, cl. 2.

The Tax Commissioner of Ohio, however, for each of the two years in question, disallowed the deduction and added back into Hooven’s taxable manufacturing inventory the imported raw materials held for future use in manufacturing. Hooven’s asserted property tax liability for each of those years, accordingly, was increased.

Upon application for review, the Tax Commissioner sustained the increased assessments. She rejected federal constitutional arguments advanced by Hooven, as well as an additional argument that, by the decision in Hooven I, she was collaterally estopped from levying the increased assessments. The Tax Commissioner in so ruling relied on Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976).

Hooven then appealed to the Ohio Board of Tax Appeals, advancing the same collateral-estoppel and federal constitutional issues. That Board reversed the Tax Commissioner. App. to Pet. for Cert. A-10. It ruled that the Commissioner was collaterally estopped by the decision in Hooven I. It noted that the parties were the same as those in Hooven I; that the issue as to the taxability of original-package raw materials was also the issue in Hooven I; that the raw materials and the type of taxation were identical to those involved in Hooven I; that Hooven I has not been “reversed” by this Court “and thus, has the force and effect of law”; and that, under the doctrine of collateral estoppel, litigation of the issue was barred “and the exemption from taxation was improperly held to be unavailable.” App. to Pet. for Cert. A-23. The Board rejected the Tax Commissioner’s argument that the decision in Michelin implicitly had overruled Hooven I. The Board did not reach or consider the constitutional issues, observing that it lacked jurisdiction to do so. App. to Pet. for Cert. A-20; see S. S. Kresge Co. v. Bowers, 170 Ohio St. 405, 166 N. E. 2d 139 (1960), appeal dism’d, 365 U. S. 466 (1961).

Hooven and the Tax Commissioner each filed a notice of appeal to the Supreme Court of Ohio, the taxpayer doing so in order to preserve the constitutional issues, and the Tax Commissioner pressing the collateral-estoppel issue. The Supreme Court of Ohio affirmed the ruling of the Ohio Board of Tax Appeals. Hooven & Allison Co. v. Lindley, 4 Ohio St. 3d 169, 447 N. E. 2d 1295 (1983). That court, in a unanimous per curiam opinion, ruled that principles of collateral estoppel prohibited the Tax Commissioner from assessing personal property taxes upon Hooven’s imported raw materials held in the original containers for future use in manufacturing. It acknowledged the presence of Michelin but noted that this Court had not overruled Hooven I in Michelin, although it had not hesitated expressly to overrule Low v. Austin, 13 Wall. 29 (1872). Thus, the Ohio court observed, this Court’s “action — or inaction — must be accorded conclusive effect, at least in regard to its intent in reappraising its earlier ruling in Hooven 4 Ohio St. 3d, at 172, 447 N. E. 2d, at 1298. The court then “decline[d] to address the [federal] constitutional issues raised by Hooven in its appeal.” Id., at 173, 447 N. E. 2d, at 1299.

We granted certiorari. 464 U. S. 813 (1983).

HH HH

In Low v. Austin, supra, this Court, in an opinion by Justice Field, unanimously enunciated the “original-package” doctrine, although perhaps not for the first time, see Brown v. Maryland, 12 Wheat. 419, 442 (1827). It held that, under the Import-Export Clause, goods imported from a foreign country are not subject to state ad valorem property taxation while remaining in their original packages, unbroken and unsold, in the hands of the importer.

In Michelin Tire Corp. v. Wages, supra, an importer challenged the assessment of Georgia’s nondiscriminatory ad valorem property tax upon an inventory of imported tires and tubes maintained at a wholesale distribution warehouse. This Court rejected the challenge to the state tax on the imported tires. It found that in the history of the Import-Export Clause, there was nothing to suggest that a tax of the kind imposed on goods that were no longer in import transit was the type of exaction that was regarded as objectionable by the Framers. The tax could not affect the Federal Government’s exclusive regulation of foreign commerce since it did not fall on imports as such. Neither did the tax interfere with the free flow of imported goods among the States. The Clause, while not specifically excepting nondiscriminatory taxes that had some impact on imports, was not couched in terms of a broad prohibition of every tax, but prohibited States only from laying “Imposts or Duties,” which historically connoted exactions directed only at imports or commercial activities as such. The Court concluded that its reliance a century earlier in Low v. Austin “upon the Brown dictum . . . was misplaced.” 423 U. S., at 283. Chief Justice Taney’s opinion in the License Cases, 5 How. 504 (1847), was carefully analyzed, with the Court concluding that that opinion had been misread in Low. “[Precisely contrary” to the reading it was given in Low, Chief Justice Taney’s License Cases opinion was authority “that nondiscriminatory ad valorem property taxes are not prohibited by the Import-Export Clause.” 423 U. S., at 301. It followed, this Court concluded, that “Low v. Austin was wrongly decided” and “therefore must be, and is, overruled.” Ibid. Hooven I was directly cited only once in Michelin, and then only in a footnote in which the Court stated that it found it unnecessary to address the assertion in Hooven I that Congress could consent to state nondiscriminatory taxation of imports even were such taxes within the prohibition of the Import-Export Clause. See 423 U. S., at 301, n. 13. While we acknowledge that Hooven I was not expressly overruled in Michelin, the latter case strongly implies that the foundation of the former had been seriously undermined.

It is apparent, and indeed clear, that Michelin, with its overruling of Low v. Austin, adopted a fundamentally different approach to cases claiming the protection of the Import-Export Clause. We said precisely as much in Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978):

“Previous cases had assumed that all taxes on imports and exports and on the importing and exporting processes were banned by the Clause. ... So long as the goods retained their status as imports by remaining in their import packages, they enjoyed immunity from state taxation. . . .
“Michelin initiated a different approach to Import-Export Clause cases. It ignored the simple question whether the tires and tubes were imports. Instead, it analyzed the nature of the tax to determine whether it was an ‘Impost or Duty.’ 423 U. S., at 279, 290-294. Specifically, the analysis examined whether the exaction offended any of the three policy considerations leading to the presence of the Clause:
‘The Framers of the Constitution thus sought to alleviate three main concerns . . . : the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; 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, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically.’ Id., at 285-286 (footnotes omitted).
“The ad valorem property tax there at issue offended none of these policies.... The Court therefore concluded that the Georgia ad valorem property tax was not an ‘Impost or Duty,’ within the meaning of the Import-Export Clause . . . .” Id., at 752-754.

See also id., at 762 (opinion concurring in part and concurring in result).

To repeat: we think it clear that this Court in Michelin specifically abandoned the concept that the Import-Export Clause constituted a broad prohibition against all forms of state taxation that fell on imports. Michelin changed the focus of Import-Export Clause cases from the nature of the goods as imports to the nature of the tax at issue. The new focus is not on whether the goods have lost their status as imports but is, instead, on whether the tax sought to be imposed is an “Impost or Duty.” See P. Hartman, Federal Limitations on State and Local Taxation, § 5:4 (1981); Hellerstein, State Taxation and the Supreme Court: Toward a More Unified Approach to Constitutional Adjudication?, 75 Mich. L. Rev. 1426, 1427-1434 (1977). Cf. Montana v. United States, 440 U. S. 147 (1979).

Hooven I held that, under the Clause, a nondiscriminatory state ad valorem personal property tax could not be imposed until the imported goods had lost their status as imports by being removed from their original packages. This decision was among the progeny of Low v. Austin for it, too, was decided on the original-package doctrine. Thus, Hooven I is inconsistent with the later ruling in Michelin that such a tax is not an “Impost or Duty” and therefore is not prohibited by the Clause. Although Hooven I was not expressly overruled in Michelin, it must be regarded as retaining no vitality since the Michelin decision. The conclusion of the Supreme Court of Ohio that Hooven I retains current validity in this respect is therefore in error. A contrary ruling would return us to the original-package doctrine. So that there may be no misunderstanding, Hooven I, to the extent it espouses that doctrine, is not to be regarded as authority and is overruled.

J — I

A

Respondent Hooven, however, argues that because the Court in Michelin did not expressly overrule Hooven I, it must follow that state-law principles of collateral estoppel bar the imposition of an ad valorem tax upon Hooven’s raw materials inventory.

We reject the suggestion that we are confronted, in the present posture of the case, with a claim of collateral estoppel under state, as distinguished from federal, law. Hooven I was a decision concerned with the application and impact of the Import-Export Clause upon the Ohio tax. The issue, thus, was one of a federal constitutional barrier. The Supreme Court of Ohio certainly so viewed it. It referred to both Hooven I and Michelin in federal constitutional terms and it described the issue before it as whether the contested tax “may constitutionally be assessed” in light of the Import-Export Clause. 4 Ohio St. 3d, at 171, 447 N. E. 2d, at 1297. And it viewed collateral estoppel in the light of precepts set forth in Commissioner v. Sunnen, 333 U. S. 591 (1948), a federal income tax case. From this premise, the Ohio court moved to its judgment that the levy of the tax was “barred by the doctrine of collateral estoppel.” 4 Ohio St. 3d, at 173, 447 N. E. 2d, at 1299.

Collateral estoppel, therefore, was applied as a matter of federal, not state, law. We perceive in this case no state-law overtones that, by any stretch of the imagination, could serve to insulate the case from review here. We are concerned with federal issues and a contention that a state court disregarded a federal constitutional ruling of this Court. The issue, then, is reviewable here. See Deposit Bank v. Frankfort,, 191 U. S. 499 (1903); Stoll v. Gottlieb, 305 U. S. 165 (1938); Toucey v. New York Life Ins. Co., 314 U. S. 118, 129, n. 1 (1941).

B

We move on to respondent’s collateral-estoppel argument. It is true, of course, that the parties in Hooven I were the same parties as those before us in the present case. It is true that the property sought to be taxed for 1976 and 1977 identifies with the property sought to be taxed for 1938, 1939, and 1940 in Hooven I. And it is true that the tax involved is the same Ohio nondiscriminatory ad valorem personal property tax. The parties, the tax, and the goods imported and their containers are the same. The Tax Commissioner does not dispute this. Tr. of Oral Arg. 12. Collateral-estoppel concepts, therefore, might have an initial appeal.

The years involved in this tax case, however, are not the same tax years at issue in Hooven I. Because of this, Commissioner v. Sunnen, supra, is pertinent and, indeed, is controlling. That case concerned licenses granted by a patent owner and his assignment of interests in the royalty agreements to his wife. An earlier decision of the Board of Tax Appeals, involving the same facts, questions, and parties but different tax years, was held not to be conclusive under the doctrine of collateral estoppel because certain intervening decisions of this Court made manifest the error of the result that had been reached by the Board. 333 U. S., at 602-607. The reason for not applying the collateral-estoppel doctrine in the present case is even stronger than that in Sunnen, for here the constitutional analysis of the earlier case is repudiated by this Court’s intervening pronouncement.

Because the Supreme Court of Ohio did not apply the principles of Sunnen, its judgment must be vacated and the case remanded. Failure to follow Sunnen’s dictates would lead to the very tax inequality that the admonition of that case was designed to avoid. Hooven then would be immune forever from tax on its imported goods because of an early decision based upon a now repudiated legal doctrine, while all other taxpayers would have their tax liabilities determined upon the basis of the fundamentally different approach adopted in Michelin. See Sunnen, 333 U. S., at 599.

Petitioner, therefore, is not barred by collateral estoppel in asserting the increases in tax for 1976 and 1977.

IV

The case is before us without a developed factual record. Hooven takes the position that it is entitled to an opportunity to demonstrate that the facts of this case are significantly different from those of Michelin, so that the result in that case is not controlling here. Hooven suggests that in Michelin, the tires had been mingled with domestically manufactured tires and had been arranged and stored for sale and delivery; moreover, the tires were finished goods. Here, according to Hooven, its imported fibers are not for sale, are not finished goods, and are destined for incorporation into a manufacturing process. Hooven further asserts that, once a factual record has been developed, a court will be in a position to examine the case in the light of any other constitutional provision respondent is then in a position to invoke, including the Foreign Commerce Clause.

Any development of the record, of course, should take place in the state courts and first be evaluated there. Accordingly, we make no judgment on the merits of Hooven’s constitutional claims. The judgment of the Supreme Court of Ohio is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       Because the respondents there, the county Tax Commissioner and Tax Assessors, did not cross-petition for certiorari, the Georgia courts’ ruling that tubes still in corrugated shipping cartons were immune from the tax was not before this Court for review. Michelin Tire Corp. v. Wages, 423 U. S., at 279. n. 2.

       Since Michelin, Hooven I has been cited by this Court only twice. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 111 (1980), and Kleppe v. New Mexico, 426 U. S. 529, 540 (1976). Neither citation bears upon the issue before us in the present case.


author: Justice Powell

text:
    SCHNEIDER MOVING & STORAGE CO. v. ROBBINS et al.
    No. 82-1860.
    Argued February 21, 1984
    Decided April 18, 1984

      Powell, J., delivered the opinion for a unanimous Court.

      David F. Yates argued the cause and filed briefs for petitioner in No. 82-1860. Charles W. Bobinette argued the cause for petitioner in No. 82-1862. With him on the briefs was Kevin M. O’Keefe.

      Russell N. Luplow argued the cause for respondents. With him on the brief were Diana L. S. Peters and Donald J. Weyerich.

      Together with No. 82-1862, Prosser’s Moving & Storage Co. v. Robbins et al., also on certiorari to the same court.

        Stephen P. Pepe and Joel M. Grossman filed a brief for the Merchants and Manufacturers Association et al. as amici curiae urging reversal.

        Michael H. Gottesman, Robert M. Weinberg, Laurence Gold, and George Kaufmann filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

   Justice Powell

delivered the opinion of the Court.

The issue presented in these two cases is whether the trustees of two multiemployer trust funds may seek judicial enforcement of the trust terms against a participating employer without first submitting to arbitration an underlying dispute over the meaning of a term in the employer’s collective-bargaining agreement.

HH

Respondents are the trustees of two multiemployer trust funds, the Central States, Southeast and Southwest Areas Pension Fund and the Central States, Southeast and Southwest Areas Health and Welfare Fund (Trust Funds). Petitioners are two employers — Prosser’s Moving & Storage Co. (Prosser’s) and Schneider Moving & Storage Co. (Schneider)— who have agreed to participate in the trust funds. Respondents filed separate complaints against petitioners in the United States District Court for the Eastern District of Missouri, claiming that petitioners had failed to meet their contribution requirements and had refused to allow an audit of their payroll records. Respondents requested the District Court to order an accounting and immediate payment of all sums thereby determined to be due. They alleged federal subject-matter jurisdiction under § 301(a) of the Labor Management Relations Act (LMRA), 29 U. S. C. § 185(a), and §502 of the Employee Retirement Income Security Act (ERISA), 29 U. S. C. § 1132. Petitioners defended on the ground that respondents’ complaints raised disputed interpretations under the collective-bargaining agreements that first must be submitted to the applicable arbitration procedures. The District Court agreed with petitioners and dismissed the suits pending arbitration. It held that although arbitration is not a prerequisite for “simple collection matters” in which the employer’s liability under the collective-bargaining agreement is clear, arbitration is required in claims such as these where interpretation of the collective-bargaining agreement is at issue.

A three-judge panel for the Court of Appeals for the Eighth Circuit reversed and held that arbitration was not a prerequisite to federal suit in these two cases. Robbins v. Prosser’s Moving & Storage and Schneider Moving & Storage, Nos. 80-2116, 80-2117 (CA8, Mar. 24, 1982) (per curiam). An en banc court of the Eighth Circuit agreed with the panel. After examining competing considerations under the federal labor laws and under the federal laws governing employee trust funds, the court held that the relevant agreements indicated no intent on the part of the parties to require the arbitration of contractual disputes between the trustees and the employers and thus that failure to arbitrate could not bar respondents’ suits. The en banc court, therefore, reversed the decision of the District Court and remanded for further proceedings. 700 F. 2d 433 (1983). We granted certiorari in view of an apparent conflict among the Circuits on this issue. 464 U. S. 813 (1983). We now affirm.

I — H h-4

As resolved by the Court of Appeals, these cases present a narrow question of contract interpretation. The en banc court considered only whether the parties to the collective-bargaining agreements and the trust agreements intended to require the arbitration of disputes between the trustees and the employer before the trustees could exercise their contractual right to sue in federal court. Because of its resolution of this issue, the Court of Appeals did not reach respondents’ argument that requiring the trustees to submit their disputes with the employer to the applicable arbitration procedures was prohibited as a matter of law. If we agree with the Court of Appeals that the parties did not provide for such an arrangement, we also need not address that argument. We turn first, therefore, to an analysis of the relevant agreements.

Petitioners entered into collective-bargaining agreements with Local 610 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Union). These agreements required petitioners to participate in the two multiemployer trust funds, and incorporated the terms of the two trust agreements by reference. The trust agreements required petitioners to contribute to the funds according to the applicable terms of their separate collective-bargaining agreements. To ensure compliance with the contribution requirements, the trust agreements gave the trustees the authority to examine petitioners’ payroll records. If the trustees determined that petitioners were not complying with their contribution requirements, they had the authority under the trust agreements to initiate legal proceedings to enforce those requirements:

“The Trustees . . . shall have the power to demand and collect the contributions of the Employers to the Fund. [The] Board of Trustees shall take such steps, including the institution and prosecution of, and intervention in, any legal proceedings as the Trustees in their discretion deem in the best interest of the Fund to effectuate the collection or preservation of contributions. . . which may be owed to the Trust Fund, without prejudice, however, to the rights of the Union to take whatever steps which may be deemed necessary for such purpose.” Pension Fund Agreement, Art. Ill, Sec. 4., App. 22.

The relevant terms of the two collective-bargaining agreements at issue here are substantially identical. Both required weekly payments to the funds for “each regular Employee.” No contributions were required for employees who worked “either temporarily or in cases of emergency.” Each collective-bargaining agreement also contained an arbitration clause that required the arbitration of any “differences . . . between the Company and the Union or any employee of the Company as to the meaning or application of the provisions of [the collective-bargaining] agreement.” Id., at 55. Arbitration could be demanded by either the Union or the Company in the case of Prosser’s collective-bargaining agreement, or by the Union alone in the case of Schneider’s collective-bargaining agreement. No other parties were given access to the arbitration process.

III

A

Petitioners argue that as third-party beneficiaries of the collective-bargaining agreements, the trustees are bound by the arbitration clauses provided therein to the same extent the Union would be if it were seeking judicial enforcement of those agreements. They rely on the general rule that the promisor may assert against the beneficiary any defense that he could assert against the promisee if the promisee were suing on the contract. See Restatement (Second) of Contracts § 309, Comment b (1981); S. Williston, Contracts § 395 (3d ed. 1959); 4 A. Corbin, Contracts § 819 (1951). That rule, however, is merely a rule of construction useful in determining contractual intent. It should not be applied so inflexibly as to defeat the intention of the parties. Where the language of the contract, or the circumstances under which it was executed, establish that the parties have provided that the right of the beneficiary is not to be affected by any defenses that the promisor might have against the promisee, the rule is inapplicable. Restatement (Second) of Contracts § 309, Comment b (1981). See also 4 A. Corbin, Contracts §§ 818, 819 (1951). Thus, the question is whether the parties to the agreements at issue here intended to condition the trustees’ contractual right to seek judicial enforcement of the trust agreements on exhaustion of the arbitration procedures set forth in the collective-bargaining agreements.

B

Before attempting to ascertain the parties’ intent from the relevant agreements, we must determine whether the presumption in favor of arbitrability applied in the Steelworkers Trilogy is applicable here. That presumption is an accepted rule of construction in determining the applicability of an arbitration clause to disputes between the union and the employer. Such a presumption furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties’ presumed objectives in pursuing collective bargaining. See Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 674, 578, 582-583 (1960). There is, however, less to commend the presumption in construing the applicability of arbitration clauses to disputes between the employer and the trustees of employee-benefit funds.

Arbitration promotes labor peace because it requires the parties to forgo the economic weapons of strikes and lockouts. Because the trustees of employee-benefit funds have no recourse to either of those weapons, requiring them to arbitrate disputes with the employer would promote labor peace only indirectly, if at all. We conclude, therefore, that the presumption of arbitrability is not a proper rule of construction in determining whether arbitration agreements between the union and the employer apply to disputes between trustees and employers, even if those disputes raise questions of interpretation under the collective-bargaining agreements.

C

Without the presumption of arbitrability, the agreements at issue here evidence no intent on the part of the parties to require arbitration of disputes between the trustees and the employers. Neither the terms of the trust agreements nor those of the collective-bargaining agreements contain any such requirement, and the circumstances surrounding the execution of each suggest that none should be inferred. We discuss each agreement in turn.

Under the terms of the trust agreements, the trustees have broad authority to initiate “any legal proceedings [that they] in their discretion deem in the best interest of the Fund to effectuate the collection or preservation of contributions.” Nowhere in the trust agreements is the exercise of that authority expressly conditioned on the exhaustion of any contractual remedies that might be found in the collective-bargaining agreements of individual employers. Nor have petitioners successfully identified any evidence that supports their argument that the parties nevertheless intended such a condition. This is not surprising. These are multiemployer trust funds. Each of the participating unions and employers has an interest in the prompt collection of the proper contributions from each employer. Any diminution of the fund caused by the arbitration requirements of a particular employer’s collective-bargaining agreement would have an adverse effect on the other participants. The enforcement mechanisms established in the trust agreements protect the collective interests of the parties from the delinquency of individual employers by allowing the trustees to seek prompt judicial enforcement of the contribution requirements. It is unreasonable to infer that these parties would agree to subordinate those mechanisms to whatever arbitration procedures might be required by a particular employer’s collective-bargaining agreement. In the absence of evidence to the contrary, therefore, we will not infer that the parties to the two multiemployer trust funds intended to condition the trustees’ enforcement authority on the arbitration procedures contained in petitioners’ separate collective-bargaining agreements.

Even if we assume that the parties to the collective-bargaining agreements could negate by their agreement the powers conferred on the trustees by the broader group of parties to the trust agreements, we find no attempt to do so here. The arbitration clauses found in these collective-bargaining agreements contain no suggestion that either the petitioners or the Union intended to require arbitration of disputes between the trustees and the employers. Under the terms of those agreements, arbitration is required only of “differences that arise between the Company and the Union or any employee of the Company as to the meaning or application of the provisions of this agreement.” App. 55 (emphasis added). Although petitioners concede that neither clause expressly requires the arbitration of disputes between the trustees and the employers, they argue that we should infer such a requirement. We see no justification for doing so.

As petitioners concede, the collective-bargaining agreements permit only the Union or the employer to invoke the arbitration process. It is unreasonable to infer that the parties to these agreements, or to the trust agreements, intended the trustees to rely on the Union to arbitrate their disputes with the employer. Because arbitration may be expensive, there is no reason to assume, without more persuasive evidence than is presented here, that the Union intended to incur such expenses at the request of the trustees and without any requirement that the trustees provide reimbursement. It is even less likely that the parties to the trust agreements intended to agree to such complete reliance on the Union. If the Union disagreed with the trustees’ construction of the agreement, it could refuse to arbitrate the claim, or compromise the trustees’ position in arbitration. The outcome of any subsequent judicial proceeding could be predetermined by the outcome of arbitration. We find particularly implausible petitioners’ further argument that a duty of fair representation may be implied, and that this should compel the Union to pursue the trustees’ uncom-promised claims through arbitration. There simply is no evidence that the Union owes any statutory or contractual duty of fair representation to the trustees. In the absence of such evidence, we will not engage the unlikely inference that the parties to these agreements intended to require the trustees to rely on the Union to arbitrate their disputes with the employer. Without that inference, as petitioners’ concede, there is no basis for assuming that the parties intended to require arbitration of disputes between the trustees and the employer.

IV

We hold that neither the trust agreements nor the collective-bargaining agreements at issue here evidence any intent to condition the contractual right of the trustees to seek judicial enforcement of the trust provisions on exhaustion of the arbitration procedures contained in petitioners’ collective-bargaining agreements. We, therefore, affirm the judgment of the Court of Appeals and remand both cases for further proceedings.

It is so ordered.

       Both multiemployer funds were established pursuant to § 302(c)(5) of the Labor Management Relations Act, 29 U. S. C. § 186(c)(5). The funds also are governed by the Employee Retirement Income Security Act, 29 U. S. C. § 1001 et seq., and the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U. S. C. § 1145.

       Section 301(a) of the LMRA provides a federal forum for suits to enforce labor contracts, including pension and welfare fund agreements. Section 502 of ERISA also provides a federal forum for enforcement of the various duties imposed by such trust fund agreements.

       Cf. Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965) (exhaustion of contract grievance procedure generally is a predicate to suits seeking to enforce collective-bargaining agreements under § 301 of the LMRA). Petitioners’ responses to respondents’ claims differed in some minor respects. The primary issue in the Prosser case was whether the collective-bargaining agreement limited the scope of the trustees’ asserted authority to conduct an audit of the company’s records. Schneider submitted to the audit, but claimed that the trustees’ suit raised a dispute under the collective-bargaining agreement as to which employees were covered by the contribution requirement. Relevant here, however, is the fact that both petitioners defended on the ground that the trustees’ complaints raised arbitrable disputes under the collective-bargaining agreements that could not be reviewed by a federal court prior to arbitration.

       See, e. g., Central States, Southeast and Southwest Areas Pension Fund v. Howard Martin, Inc., 625 F. 2d 171 (CA7 1980) (arbitration of disputes between the trustees and employer involving interpretations of a collective-bargaining agreement a prerequisite to judicial review); Trustees of National Benefit Fund for Hospital & Health Care Employees v. Constant Care Community Health Center, Inc., 669 F. 2d 213 (CA4 1982) (same).

       The en banc court expressed its holding at the outset as follows:
      “Our conclusion is that the national pension policy embodied in the [LMRA], [ERISA], and the [MPPAA], together with the terms of the collective-bargaining agreement and accompanying trust instruments, dictate that these trustees not be bound by the arbitration procedure, which they have no right to initiate.” 700 F. 2d, at 435.
      The subsequent explanation of that holding, and the court’s concluding statements, make clear that it consulted the “national pension policy” only to ascertain the parties’ contractual intent. After examining the agreements, the en banc court held:
      “[A]rbitration, pension funds, and health and welfare funds, are all matters of contract. They either exist or not as the parties have agreed in the collective-bargaining contract and related documents. If the agreements in the cases before us provided in express words that trustees’ claims could not come to court before questions of contract interpretation had been settled by arbitration, this would be quite a different case. But they do not.” Id., at 442.

       See Art. XV, Sec. 3 (Health & Welfare); Art. XVI, Sec. 3 (Pension) of Prosser’s Collective-Bargaining Agreement, App. 76.

       The parties inform us that the relevant terms of the Pension Fund Agreement and the Health and Welfare Fund Agreement are identical in all pertinent respects. Only the Pension Fund Agreement was included in the joint appendix. References, therefore, will be made only to that agreement.

       Artiele III, Sec. 1, of the Pension Fund Agreement provides in part: “Each Employer shall make continuing and prompt payments to the Trust Fund as required by the applicable collective bargaining agreement between the parties.” App. 21.

       Article III, Sec. 5, of the Pension Fund Agreement provides in part: “The Trustees may, by their representatives, examine the pertinent records of each Employer at the Employer’s place of business whenever such examination is deemed necessary or advisable by the Trustees in connection with the proper administration of the Trust.” App. 23.

       See Prosser’s Collective Bargaining Agreement, Art. XV, Secs. 5 and 6 (Health & Welfare); Art. XVI, Secs. 5 and 6 (Pension). App. 77-79.

       In Lewis v. Benedict Coal Corp., 361 U. S. 459 (1960), for example, this Court rejected the argument that a rule of construction generally applicable to third-party beneficiaries was applicable to the trust beneficiaries of a collective-bargaining agreement. Justice Brennan writing for the majority refused to employ the general rule of construction urged by the promisor because the collective-bargaining agreement at issue “[was] not a typical third-party beneficiary contract,” and the circumstances surrounding the agreement counseled against the general inference. Id., at 468-469. We adopt the same approach here and decline to adopt a mechanical application of the rule of construction urged by petitioners.

       See Steelworkers v. American Manufacturing Co., 363 U. S. 564 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960).

       In NLRB v. Amax Coal Co., 453 U. S. 322, 337 (1981), this Court recognized that “disputes between benefit fund trustees over the administration of the trust cannot, as can disputes between parties in collective bargaining, lead to strikes, lockouts, or other exercises of economic power.” We think that the same observation applies to disputes between the trustees and the employer. Although the employer has economic weapons at its disposal, they would serve little purpose in disputes with the trustees of employee-benefit funds.

       The presumption of arbitrability is, of course, generally applicable to any disputes between the union and the employer. In those circumstances, the presumption serves the national labor policy and fully accords with the probable intent of the parties.

       Art. III, Sec. 4, of the Pension Fund Agreement, App. 22 (emphasis added).

       Respondents inform us that these funds are two of the largest Taft-Hartley multiemployer funds in the United States. They have roughly 500,000 participants and beneficiaries nationwide. Brief for Respondents 6, 18.

       Cf. Lewis v. Benedict Coal Co., 361 U. S., at 469 (“[Ujnlike the usual third-party beneficiary contract, this is an industry-wide agreement involving many promisors. . . . The application of the suggested [presumption] to this contract would require us to assume that the other [employers] . . . were willing to risk the threat of diminution of the fund in order to protect those of their number who might have become involved in local labor difficulties”).

       In general, the terms of the trust agreements and the collective-bargaining agreements seem to support precisely the opposite conclusion, suggesting that conflicts between the collective-bargaining agreements and the trust agreements will be resolved in favor of the latter. The trust agreements expressly provide that “any construction [of the trust agreements] adopted by the Trustees in good faith shall be binding upon the Union, the Employees and Employers.” Art. IV, Sec. 17, Pension Trust Agreement, App. 26-27. The collective-bargaining agreements, on the other hand, provide that the employer is deemed to have ratified “all actions already taken or to be taken by [the] trustees within the scope of their authority.” Art. XV, Sec. 3, Prosser’s Collective Bargaining Agreement, App. 76.

       Article V, Sec. 4, of Prosser’s Collective-Bargaining Agreement requires the Union to bear one-half the costs of arbitration with the employer. App. 57. The cost of arbitration is at least one reason why this Court has declined to agree that individual employees represented by the union have an absolute right to have their grievances taken to arbitration. See Vaca v. Sipes, 386 U. S. 171, 191-192 (1967). The union may exercise its discretion in good faith to settle grievances “prior to the most costly and time-consuming step in the grievance procedures.” Id., at 191.

       Indeed, the trust agreements seem to prohibit such an arrangement. Article II, Sec. 10, of the Pension Fund Agreement provides that “[n]o Employer or Union nor any representative of any Employer or Union . . . is authorized to . . . act as agent of the Trustees.” App. 21.

       See Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S., at 596-599 (“It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his”). See also Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 737 (1981).

       A union’s statutory duty of fair representation traditionally runs only to the members of its collective-bargaining unit, and is coextensive with its statutory authority to act as the exclusive representative for all the employees within the unit. Vaca v. Sipes, supra, at 182; Humphrey v. Moore, 375 U. S. 335, 342 (1964). Moreover, petitioners have pointed to no evidence that suggests the parties intended to impose a contractual duty of fair representation on the Union.
      Even if there were a duty of fair representation here, it would accord the Union wide discretion and would provide only limited protection to trust beneficiaries. A primary union objective is “to maximize overall compensation of its members.” Barrentine, 450 U. S., at 742. Thus, it may sacrifice particular elements of the compensation package “if an alternative expenditure of resources would result in increased benefits for workers in the bargaining unit as a whole.” Ibid.

       Because there is no indication that the parties have agreed to the arrangement suggested by petitioners, we have no occasion to determine its legality.


author: Per Curiam.

text:
    BOARD OF EDUCATION OF PARIS UNION SCHOOL DISTRICT NO. 95 et al. v. VAIL
    No. 83-87.
    Argued February 28, 1984
    Decided April 23, 1984

      Thomas R. Miller argued the cause and filed briefs for petitioners.

      Marc J. Ansel argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging affirmance were filed for the American Association of University Professors by Ralph S. Brown, Lawrence White, AnnH. Franke, and Victor J. Stone; and for the National Education Association et al. by Michael H. Gottesman, Robert M. Weinberg, and Charles S. Sims.

        Gwendolyn H. Gregory filed a brief for the National School Boards Association as amicus curiae.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Marshall took no part in the decision of this case.


text:
    CAPITAL CITIES MEDIA, INC., tdba THE WILKES-BARRE TIMES LEADER, et al. v. TOOLE, JUDGE, COURT OF COMMON PLEAS OF LUZERNE COUNTY
    No. 83-599.
    Decided April 23, 1984
   Per Curiam.

The proceedings below were brought to challenge an order by respondent who, in a criminal trial, barred the press and public from publishing the names and addresses of jurors. Respondent also prohibited the parties from sketching, photographing, televising, and videotaping the jurors during their service in the criminal proceedings and from handling trial exhibits without permission of the court. Petitioners filed a petition for a writ of prohibition with the Supreme Court of Pennsylvania. However, it was denied without opinion. Petitioners, arguing that they have been denied their federal constitutional rights, now urge us to grant certiorari.

As matters now stand, the record does not disclose whether the Supreme Court of Pennsylvania passed on petitioners’ federal claims or whether it denied their petition for a writ of prohibition on an adequate and independent state ground. For this reason, we grant the petition for writ of certiorari, vacate the judgment of the Supreme Court of Pennsylvania, and remand the cause to that court for such further proceedings as it may deem appropriate to clarify the record. See Philadelphia Newspapers, Inc. v. Jerome, 434 U. S. 241 (1978) (per curiam); California v. Krivda, 409 U. S. 33 (1972) (per curiam).

So ordered.


author: Per Curiam. Justice Stevens,

text:
    FLORIDA v. MEYERS, aka WEYERS
    No. 83-1279.
    Decided April 23, 1984
   Per Curiam.

Respondent was charged with sexual battery. At the time of his arrest, police officers searched his automobile and seized several items. The vehicle was then towed to Sunny’s Wrecker, where it was impounded in a locked, secure area. Approximately eight hours later, a police officer went to the compound and, without obtaining a warrant, searched the car for a second time. Additional evidence was seized. At the subsequent trial, the court denied respondent’s motion to suppress the evidence seized during the second search, and respondent was convicted.

On appeal, the Florida District Court of Appeal for the Fourth District reversed the conviction, holding that even though respondent conceded that the initial search of the automobile was valid, the second search violated the Fourth Amendment. 432 So. 2d 97 (1983). The court concluded that Chambers v. Maroney, 399 U. S. 42 (1970), in which this Court held that police officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road may search it without obtaining a warrant, was distinguishable, stating that “in this case the element of mobility was removed because [respondent’s] vehicle had been impounded.” 432 So. 2d, at 99. The Florida Supreme Court denied the State’s petition for discretionary review, and the State filed the present petition for certiorari. We reverse.

The District Court of Appeal either misunderstood or ignored our prior rulings with respect to the constitutionality of the warrantless search of an impounded automobile. In Michigan v. Thomas, 458 U. S. 259 (1982), we upheld a war-rantless search of an automobile even though the automobile was in police custody and even though a prior inventory search had already been made. That ruling controls the disposition of this case. In Thomas, we expressly rejected the argument accepted by the District Court of Appeal in the present case, noting that the search upheld in Chambers was conducted “after [the automobile was] impounded and [was] in police custody” and emphasizing that “the justification to conduct such a warrantless search does not vanish once the car has been immobilized.” 458 U. S., at 261. The District Court of Appeal’s ruling that the subsequent search in this case was invalid because the car had been impounded is clearly inconsistent with Thomas and Chambers. The petition for certiorari is therefore granted, the judgment of the District Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

dissenting.

No judicial system is perfect. In this case the Florida District Court of Appeal for the Fourth District appears to have made an error. In the exercise of its discretion, the Florida Supreme Court elected not to correct that error. No reasons were given for its denial of review and since the record is not before us, we cannot know what discretionary factors may have prompted the Florida Supreme Court’s decision. This Court, however, finds time to correct the apparent error committed by the intermediate appellate court, acting summarily without benefit of briefs on the merits or argument.

“This Court can only deal with a certain number of cases on the merits in any given Term, and therefore some judgment must attend the process of selection.” Torres-Valencia v. United States, 464 U. S. 44 (1983) (Rehnquist, J., dissenting). If the error corrected today had been committed by a federal court, the Court’s action arguably would be a proper exercise of its supervisory powers over the federal judicial system. See this Court’s Rule 17.1(a). Or if the case raised a novel question of federal law on which there was a divergence of opinion, arguably it would be proper for the Court to assume jurisdiction for the purpose of clarifying the law. See this Court’s Rules 17.1(b) and (c). Or if there were reason to believe that the state court refused to apply federal precedent because of its hostility to this Court’s interpretation of the Constitution, see generally Cooper v. Aaron, 358 U. S. 1 (1958), we might have an obligation to act summarily to vindicate the supremacy of federal law. No such consideration is present in this case. In fact, the case on which the majority principally relies, Michigan v. Thomas, 458 U. S. 259 (1982) (per curiam), was itself a summary disposition. Clearly, the law in this area is well settled. That being the case, I see no reason why we cannot leave to the Florida Supreme Court the task of managing its own discretionary docket.

For three other reasons I believe the Court should deny certiorari in cases of this kind. First, our pronouncements concerning our confidence in the ability of the state judges to decide Fourth Amendment questions, see Allen v. McCurry, 449 U. S. 90 (1980); Stone v. Powell, 428 U. S. 465 (1976), are given a hollow ring when we are found peering over their shoulders after every misreading of the Fourth Amendment. Second, our ability to perform our primary responsibilities can only be undermined by enlarging our self-appointed role as supervisors of the administration of justice in the state judicial systems. Dispositions such as that today can only encourage prosecutors to file in increasing numbers petitions for certiorari in relatively routine cases, and if we take it upon ourselves to review and correct every incorrect disposition of a federal question by every intermediate state appellate court, we will soon become so busy that we will either be unable to discharge our primary responsibilities effectively, or else be forced to make still another adjustment in the size of our staff in order to process cases effectively. We should focus our attention on methods of using our scarce resources wisely rather than laying another course of bricks in the building of a federal judicial bureaucracy.

Third, and perhaps most fundamental, this case and cases like it pose disturbing questions concerning the Court’s conception of its role. Each such case, considered individually, may be regarded as a welcome step forward in the never-ending war against crime. Such decisions are certain to receive widespread approbation, particularly by members of society who have been victimized by lawless conduct. But we must not forget that a central purpose of our written Constitution, and more specifically of its unique creation of a life-tenured federal judiciary, was to ensure that certain rights are firmly secured against possible oppression by the Federal or State Governments. As I wrote last Term: “I believe that in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard.” Michigan v. Long, 463 U. S. 1032, 1068 (1983) (emphasis in original) (dissenting opinion). Yet the Court’s recent history indicates that, at least with respect to its summary dispositions, it has been primarily concerned with vindicating the will of the majority and less interested in its role as a protector of the individual’s constitutional rights. Since the beginning of the October 1981 Term, the Court has decided in summary fashion 19 cases, including this one, concerning the constitutional rights of persons accused or convicted of crimes. All 19 were decided on the petition of the warden or prosecutor, and in all he was successful in obtaining reversal of a decision upholding a claim of constitutional right. I am not saying that none of these cases should have been decided summarily. But I am saying that this pattern of results, and in particular the fact that in its last two and one-half Terms the Court has been unwilling in even a single criminal case to employ its discretionary power of summary disposition in order to uphold a claim of constitutional right, is quite striking. It may well be true that there have been times when the Court overused its power of summary disposition to protect the citizen against government overreaching. Nevertheless, the Court must be ever mindful of its primary role as the protector of the citizen and not the warden or the prosecutor. The Framers surely feared the latter more than the former.

I respectfully dissent.

      Even though the District Court of Appeal remanded the case for a new trial, its decision on the federal constitutional issue is reviewable at this time because if the State prevails at the trial, the issue will be mooted; and if the State loses, governing state law, Fla. Stat. § 924.07 (1981); State v. Brown, 330 So. 2d 535, 536 (Fla. App. 1976), will prohibit it from presenting the federal claim for review. In such circumstances, we have consistently held that “the decision below constitute^ a final judgment under 28 U. S. C. § 1257(3).” California v. Stewart, decided with Miranda v. Arizona, 384 U. S. 436, 497, 498, n. 71 (1966). See South Dakota v. Neville, 459 U. S. 553, 558, n. 6 (1983); North Dakota Pharmacy Board v. Snyder’s Stores, 414 U. S. 156, 159-164 (1973). See also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 481 (1975).
      Respondent contends that we should not review the issue raised by petitioner because “the appellate court reversed [respondent’s] conviction on two independent grounds, one of which (restricted cross-examination) petitioner does not contest.” Brief in Opposition 2. To the extent that this is an argument that the lower court’s judgment is unreviewable because it rests on adequate and independent state grounds, we reject it. First, it is highly questionable whether the District Court of Appeal would have reversed the conviction had it not reversed the trial court’s ruling on the suppression motion. The court did state that respondent’s cross-examination of the victim had been unduly restricted by the trial court. However, the court’s short discussion of this issue was introduced by the observation that “[s]ince the case must be remanded for a new trial we briefly mention another appellate point.” 432 So. 2d, at 99. This is hardly a clear indication that the cross-examination ruling provided an independent and adequate basis for reversal of the conviction. See Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983).
      Moreover, even if the cross-examination ruling did provide an independent state ground for reversal, we would still be empowered to review the constitutional issue raised by petitioner. The reason we cannot review a state-court judgment resting on adequate and independent state grounds is that “[w]e are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn, 324 U. S. 117, 126 (1946). In the present case, there is no possibility that our opinion will be merely advisory. Even if the District Court of Appeal were to order a new trial solely on the basis of its cross-examination ruling, the admissibility of critical evidence at that trial hinges on the constitutional issue presented for review by petitioner. Thus, our resolution of that issue will affect the proceedings below regardless of how the District Court of Appeal rules on remand. In such circumstances there is no jurisdictional reason why we cannot address the issue presented to us.

       The Court does, however, manage to inject legal significance into this otherwise unremarkable case through its discussion of whether the judgment below rests on an independent and adequate state ground. Ante, at 381-382, n. The Florida District Court of Appeal found that two errors had been committed by the trial court, one on the Fourth Amendment question and another on a state-law ground regarding the scope of respondent’s cross-examination of the complaining witness. This Court states that there is federal jurisdiction in this case because the Florida District Court of Appeal did not provide “a clear indication that the cross-examination ruling provided an independent and adequate basis for reversal of the conviction,” ibid., and relies on the “clear statement” rule of Michigan v. Long, 463 U. S. 1032, 1040-1042 (1983). This is what Long held:
      “[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.” Id., at 1040-1041.
      In effect, Long created a presumption of jurisdiction when the state decision rests “primarily on” or is “interwoven with” federal law. See id., at 1042, and n. 8. Here, the cross-examination ruling in no sense “rested on” or was “interwoven with” federal law. Yet today, by its citation of Long, the Court implies that all state courts have some sort of duty to make a plain statement that even their indisputably state-law decisions are independent of any federal question in the case. This apparent extension of Long occurs without briefs on the merits or argument; in fact petitioner does not even cite Long. It is all the more puzzling since the last paragraph in the Court’s footnote is sufficient to support the exercise of jurisdiction over this case without any reliance on Long.

       This trend, unfortunately, does not appear to be limited to the Court’s summary dispositions. See Long, 463 U. S., at 1069-1070, and n. 3 (Stevens, J., dissenting).

       The cases, other than this one, are: Rushen v. Spain, 464 U. S. 114 (1983) (per curiam); Wainwright v. Goode, 464 U. S. 78 (1983) (per curiam); California v. Beheler, 463 U. S. 1121 (1983) (per curiam); Illinois v. Batchelder, 463 U. S. 1112 (1983) (per curiam); Maggio v. Fulford, 462 U. S. 111 (1983) (per curiam); Cardwell v. Taylor, 461 U. S. 571 (1983) (per curiam); Wyrick v. Fields, 459 U. S. 42 (1982) (per curiam); Anderson v. Harless, 459 U. S. 4 (1982) (per curiam); United States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (per curiam); Michigan v. Thomas, 458 U. S. 259 (1982) (per curiam); Fletcher v. Weir, 455 U. S. 603 (1982) (per curiam); Sumner v. Mata, 455 U. S. 591 (1982) (per curiam); Wainwright v. Torna, 455 U. S. 586 (1982) (per curiam); Hutto v. Davis, 454 U. S. 370 (1982) (per curiam); Harris v. Rivera, 454 U. S. 339 (1981) (per curiam); Leeke v. Timmerman, 454 U. S. 83 (1981) (per curiam); Jago v. Van Curen, 454 U. S. 14 (1981) (per curiam); Duckworth v. Serrano, 454 U. S. 1 (1981) (per curiam). See also Board of Ed. of Rogers, Ark. v. McCluskey, 458 U. S. 966, 972-973 (1982) (Stevens, J., dissenting).