source: Caselaw Access Project

author: Per Curiam. Mr. Justice Marshall, Mr. Justice Blackmun,

license: Public Domain

text:
    HAMMETT v. TEXAS
    No. 79-5050.
    Decided July 2, 1980
   Per Curiam.

William Jack Hammett, the petitioner in this case, has been convicted of murder and sentenced to death. The conviction and sentence were affirmed by the Texas Court of Criminal Appeals, 578 S. W. ~2d 699 (1979). The petitioner states, and his attorney does not deny, that he informed his counsel that he did not wish to pursue any further appeals in his case. Nevertheless, counsel filed a petition requesting review by this Court.

Petitioner now moves for dismissal of the petition, stating under oath that he “made this decision voluntarily and with full knowledge of the consequences, only after due consideration of all facts and circumstances regarding the case.” Affidavit of June 3, 1980. Under Rule 60 of the Rules of the Supreme Court (1970), a petitioner or appellant may withdraw a petition or appeal. In response to this motion, petitioner’s counsel does not question petitioner’s competence. The State of Texas does not oppose petitioner’s motion. In the absence of any issue as-to petitioner’s competence to withdraw the petition filed against his will, there is no basis under Rule 60 for denying this motion. See Gilmore v. Utah, 429 U. S. 1012, 1014 (1976) (Burger, C. J., concurring). Moreover, withdrawal of the petition will not foreclose an appropriate application for collateral relief. Accordingly, the motion to withdraw the petition is granted.

It is so ordered.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

The Court today permits petitioner, a prisoner acting pro se, to take the first step towards enforcement of his death sentence by withdrawing the petition for writ of certiorari filed on his behalf by his appointed counsel. I continue to adhere to my view that the death penalty is unconstitutional under all circumstances, and accordingly I dissent. In addition, however, the present decision is indefensible even under the more restrictive view of the Eighth Amendment taken by a majority of my Brethren.

The Court takes its action today despite the fact that we have already granted certiorari in a similar case to determine whether the Constitution is violated by the manner in which the State of Texas acquires psychiatric testimony introduced at the punishment phase of the trial to obtain a jury verdict setting the punishment at death. Estelle v. Smith, 445 U. S. 926 (1980). The United States Court of Appeals for the Fifth Circuit has already held that the established pattern of conduct by which the State of Texas obtains the testimony necessary to send a defendant to his death violates the Fifth, Sixth, and Fourteenth Amendments. Smith v. Estelle, 602 F. 2d 694 (1979). Thus the Court today acquiesces in the petitioner’s apparent decision to be executed despite the fact that we may hold next Term that the death penalty cannot be enforced in cases such as this one. I do not believe that a defendant may by his consent permit a State to impose a punishment forbidden by the Constitution; “the procedure the Court approves today amounts to nothing less than state-administered suicide.” Lenhard v. Wolff, 444 U. S. 807, 815 (1979) (Marshall, J., dissenting).

I

A few facts about this case must be briefly stated in order to place the present motion in its proper context. Petitioner was originally tried for capital murder in the spring of 1977. Although the jury found the defendant guilty of capital murder, a mistrial was declared after the jury was unable to agree on the punishment during the sentencing phase of the trial. See 578 S. W. 2d 699, 706 (Tex. Crim. App. 1979). The second trial was held in the fall of 1977, and petitioner was again found guilty of capital murder. The jury answered the requisite questions in the affirmativ.e, and the punishment was therefore assessed at death.

The Texas Court of Criminal Appeals initially reversed the judgment of the trial court. See App. to Pet. for Cert., Exhibit A. The Court of Criminal Appeals concluded that it was error to deny petitioner’s motion for appointment of a psychologist to examine petitioner for the purpose of testifying on his behalf concerning the probability that petitioner would commit future criminal acts of violence. On the State’s motion for rehearing, however, that opinion was withdrawn and the court affirmed the conviction and sentence. 578 S. W. 2d 699 (1979). The court concluded that petitioner’s motion for appointment of a defense psychologist had been made too late.

The central issue raised by the petition for certiorari in this case concerns the use of psychiatric testimony during the punishment stage of a Texas capital case. Prior to the first trial, the court appointed Dr. Bill W. Henry, a psychiatrist, to examine petitioner to determine his mental competency to stand trial. Dr. Henry filed two written reports with the court, based on two interviews with petitioner, concluding that the defendant was competent to stand trial. Counsel apparently was not present at either interview. Cf. id., at 705. No issue of competency was raised during the guilt phase of either of petitioner’s trials.

At the punishment stage of each trial, however, the State was permitted to call Dr. Henry as an expert witness. The State examined Dr. Henry on whether there was a probability that the petitioner would commit criminal acts of violence in the future that would constitute a continuing threat to society. That issue is, of course, one of the statutorily required questions which must be presented to the jury in the sentencing phase of a Texas capital case; if the jury finds beyond a reasonable doubt that such a probability of future violent crime exists, in addition to the other statutorily mandated findings, then the death penalty must be imposed. Based on the pretrial psychiatric examinations which were supposedly limited to the question whether the petitioner was legally competent to stand trial, Dr. Henry testified that the defendant was a "person suffering of an antisocial personality,” id., at 706, and that petitioner would probably commit criminal acts of violence in the future.

II

It has become clear that the scenario just described constitutes a customary pattern of conduct by the authorities in Texas capital cases. This is by no means the first time that a pretrial examination allegedly sought only to ascertain the defendant’s competence to stand trial has been used as the basis for punishment-stage testimony by the court-appointed psychiatrist that the defendant has an antisocial personality and is likely to commit future violent crimes. The cases in the Texas Court of Criminal Appeals reflecting this pattern of official conduct are legion. See. e. g., Wilder v. State, 583 S. W. 2d 349 (1979), cert. pending, No. 79-5002; Armour v. State, 583 S. W. 2d 349 (1979), cert. pending, No. 79-5007; Bell v. State, 582 S. W. 2d 800 (1979), cert. pending, No. 79-5199; Garcia v. State, 581 S. W. 2d 168 (1979), cert. pending, No. 79-5464; Woods v. State, 569 S. W. 2d 901 (1978), cert. pending, No. 79-721; Livingston v. State, 542 S. W. 2d 655 (1976), cert. denied, 431 U. S. 933 (1979); Gholson v. State, 542 S. W. 2d 395 (1976), cert. denied, 432 U. S. 911 (1977); Smith v. State, 540 S. W. 2d 693 (1976), cert. denied, 430 U. S. 922 (1977), death penalty vacated, Smith v. Estelle, 445 F. Supp. 647 (ND Tex. 1977), aff’d, 602 F. 2d 694 (CA5 1979), cert. granted, 445 U. S. 926 (1980); Hurd v. State, 513 S. W. 2d 936 (1974) ; Armstrong v. State, 502 S. W. 2d 731 (1973). The use at the punishment stage of testimony by the psychiatrist appointed by the court to establish the defendant’s competency to stand trial has the official sanction of the Texas Court of Criminal Appeals. See Armour v. State, supra; Livingston v. State, supra; Gholson v. State, supra.

The United States Court of Appeals for the Fifth Circuit has concluded that this practice violates the Fifth and Sixth Amendments as made applicable to the States through the Due Process Clause of the Fourteenth Amendment. See Smith v. Estelle, 602 F. 2d 694 (1979), aff’g 445 F. Supp. 647 (ND Tex. 1977). The Court of Appeals held that “a defendant may not be compelled to speak to a psychiatrist who can use his statements against him at the sentencing phase of a capital trial,” 602 F. 2d, at 708, that the defendant must be warned that he has the right to remain silent, and that if a defendant indicates that he wishes to remain silent he may not be questioned by the psychiatrist to determine future dangerousness, ibid. That court also found that whether to submit to a pretrial psychiatric examination in a Texas capital case "is a vitally important decision, literally a life or death matter,” ibid. The examination is therefore a critical stage in the prosecution, and the defendant is entitled to the assistance of counsel under the Sixth Amendment. Id., at 708-709.

Because of the seriousness of the issues raised and the conflict between the Texas Court of Criminal Appeals and the United States Court of Appeals for the Fifth Circuit, we have already granted certiorari in Estelle v. Smith, 445 U. S. 926 (1980). Should this Court agree with the federal court, the death penalty imposed on petitioner in the instant case would have to be reconsidered because of the manner in which the crucial psychiatric testimony against him was obtained.

Nevertheless, the Court today permits petitioner, acting pro se, to withdraw his petition for certiorari, thereby setting in motion the steps by which the defendant may be put to death by the State of Texas. It appears that petitioner does not intend to prosecute any challenge to his conviction and sentence; petitioner asks this Court to permit him to withdraw his petition for certiorari “so that the [death] sentence may be carried out.” Motion to Dismiss 2. Petitioner in effect seeks to waive a challenge to his execution, despite the fact that the issue of the constitutionality of the practice by which he was sentenced to die is presently pending before this Court. In my judgment, there can be no such waiver. See Lenhard v. Wolff, 444 U. S., at 810 (Marshall, J., dissenting); Gilmore v. Utah, 429 U. S. 1012, 1019 (1976) (Marshall, J., dissenting).

In Gilmore, Mr. Justice White, joined by Mr. Justice Brennan and myself, asserted that “the consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment.” Id., at 1018 (dissenting opinion). In a separate dissenting opinion, I expressed the view that “the Eighth Amendment not only protects the rights of individuals not to be victims of cruel and unusual punishment, but that it also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments.” Id., at 1019 (Marshall, J., dissenting). “Society is not powerless ... to resist a defendant’s effort to prompt the exercise of capital force,” Lenhard v. Wolff, supra, at 812 (Marshall, J., dissenting). The defendant has no right to “state-administered suicide.” 444 U. S., at 815.

These observations have no less force because here the imposition of the death penalty under these circumstances may be held by a majority of my Brethren to violate the Fifth and Sixth Amendments rather than the Eighth Amendment. Indeed, these views have added force in this case because the procedure employed by the State has been successfully challenged on constitutional grounds in federal court, and the issue of the constitutionality of the manner in which the State obtains the psychiatric testimony necessary to convince the jury that the defendant will probably commit acts of criminal violence in the future is presently pending before this Court. Cf. Gilmore v. Utah, 429 U. S., at 1018 (White, J., dissenting); id., at 1019 (Marshall, J., dissenting); Lenhard v. Wolff, supra, at 811-812, n. 3 (Marshall, J., dissenting).

If this Court agrees with the Court of Appeals in Estelle v. Smith, then the death penalty imposed on petitioner in the present case must be reconsidered. Under these circumstances I cannot accept the Court’s decision to permit the petitioner to withdraw his petition for certiorari and thereby run the risk that the State of Texas will take a life which it is constitutionally prohibited from taking. I dissent.

Mr. Justice Blackmun,

dissenting.

I would not grant this pro se application summarily, but would set it for plenary consideration upon briefs and arguments submitted by petitioner’s appointed counsel and the State. See Gilmore v. Utah, 429 U. S. 1012, 1020 (1976) (dissenting opinion).

       By state statute the jury in a capital case in Texas must decide three questions:
      “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
      “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
      “(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Tex. Code Crim. Proc. Ann., Art. 37.071 (b) (Yemon Supp. 1979). An affirmative answer to each question must be unanimous, and if all three questions are answered affirmatively then the death penalty “shall” be imposed. Tex. Code Crim. Proc. Ann., Arts. 37.071 (d)(1) and (e) (Vernon Supp. 1979).

       The Texas Court of Criminal Appeals reasoned:
      “Those who face an accusation of being likely to commit criminal acts of violence that will constitute a continuing threat to society face a peculiarly unique charge with ominous consequences. In this jurisdiction the use of the expert opinion testimony of those in the behavioral sciences has frequently been resorted to by the prosecution, and this Court has consistently approved such use, often basing the sufficiency of the evidence to support a death-producing verdict on that evidence. . . . Given the role such evidence has come to play, the unique character of the issue, the extreme consequences that rest on resolution of the issue, and the tremendous diversity of opinions on such matters within the field of experts that may qualify to give such evidence on the issue, it cannot be denied that for accused persons facing the possibility of death, expert behavioral witnesses for the defense are necessities, not luxuries.” App. to Pet. for Cert., Exhibit A, pp. 3-4.
      See also 578 S, W. 2d 699, 720-721 (Tex. Crim. App. 1979) (Odom, J., concurring).

       In the Texas Court of Criminal Appeals petitioner argued, inter dia, that “the trial court erred in allowing a psychiatrist who was appointed to examine the [defendant] with respect to his competency to stand trial to testify at the punishment phase of the trial.” Id., at 705. A similar argument is made in the petition for certiorari. See, e. g., Pet. for Cert. 6-7: “[T]he circumstances surrounding the State's -presentation of Dr. Henry's testimony at the punishment stage of trial was grossly unfair and the defendant was thus denied due process of law,” citing Smith v. Estelle, 445 F. Supp. 647 (ND Tex. 1977). See also Pet. for Cert. 14-16, 17-18.

         See n. 1, supra.

       In the instant case there is evidence that in fact petitioner did not want to cooperate with Dr. Henry during the interview. See 578 S. W. 2d, at 705; Brief in Opposition 4.
      The State’s response to the petition for certiorari alleges that Dr. Henry informed petitioner of his right not to participate and that the psychiatrist terminated the first interview after petitioner chose not to continue. Ibid. Even if that was the case, it does not necessarily mean that the procedure used in this case complies with the constitutional requirements discussed by the Court of Appeals in Smith v. Estelle, and, of course, when this Court reviews that decision we may conclude that the Court of Appeals took an overly narrow view of the constitutional requirements. If this Court affirms the judgment of the Court of Appeals in Estelle v. Smith, cert. granted, 445 U. S. 926 (1980), at the very least the procedure by which Dr. Henry obtained the information from petitioner from which the psychiatrist derived his testimony would have to be closely scrutinized to see if it satisfied constitutional demands.

       According to the State of Texas, if the petition for writ of certiorari is dismissed by this Court, the mandate would then issue from the Texas Court of Criminal Appeals to the trial court. Petitioner would then be formally sentenced to be executed on a date 30 days or more from the date of sentencing. Response to Motion to Dismiss 3. See also Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 1979).

       Petitioner states that “I no longer wish to appeal (or challenge) my conviction in this case.” Motion to Dismiss 1. He also asks this Court “to set aside this writ and issue an order so stating to the state court so that the sentence may be carried out.” Id., at 2.

       It is questionable whether petitioner fully understands what he is seeking to waive. In his papers petitioner "moves the Court to dismiss the Appal [sic] or Habeas Corpus Application,” id., at 1. He does not appear to know whether his appointed attorney filed a petition for cer-tiorari, an appeal, or a habeas corpus application. Ibid. It is certainly possible that petitioner has reached his present decision without full knowledge or understanding of the Court of Appeals decision in Smith v. Estelle, our grant of certiorari to review that decision, or the effect that Estelle v. Smith may have on his sentence of death. Cf. Gilmore v. Utah, 429 U. S. 1012, 1019 (1976) (Marshall, J., dissenting).


text:
    June 26, 1980
    No. 79-1852.
    Blue Cross of Northwest Ohio v. Jump, Superintendent of Insurance.
   Sup. Ct. Ohio. Certiorari dismissed under this Court’s Rule 60.


text:
    June 30, 1980
    No. 79-1436.
    Minnesota et al. v. Planned Parenthood of Minnesota.
   Affirmed on appeal from C. A. 8th Cir. Mr. Chief Justice Burger, Mr. Justice White, and Mr. Justice Rehnquist would note probable jurisdiction and set case for oral argument.


text:
    No. 79-1027.
    King, Governor of Massachusetts, et al. v. Preterm, Inc., et al.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Mr. Justice Rehnquist, being of the view that the order of the Court of Appeals “amending its mandate” to embrace the invalidation of an entirely separate statute is not governed by FTC v. Minneapolis-Honeywell Co., 344 U. S. 206 (1952), dissents from dismissal of the appeal and would note probable jurisdiction and set case for oral argument.


text:
    No. 79-393.
    United States v. Conway.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Salvucci, ante, p. 83, and Rawlings v. Kentucky, ante, p. 98.


text:
    No. 78-1902.
    No. 78-1905.
    No. 79-221.
    International Longshoremen’s Assn., AFL-CIO v. Consolidated Express, Inc., et al.; New York Shipping Assn., Inc., et al. v. Consolidated Express, Inc., et al.; and Consolidated Express, Inc., et al. v. New York Shipping Assn., Inc., et al.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of NLRB v. Longshoremen, 447 U. S. 490 (1980). Reported below: 602 F. 2d 494.


text:
    No. 79-809.
    Grassi v. United States.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Walter v. United States, 447 U. S. 649 (1980).


text:
    No. 79-921.
    Ohio v. Smith.
   Sup. Ct. Ohio. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Ohio v. Roberts, ante, p. 56.

Mr. Justice Stewart and Mr. Justice Stevens dissent.


text:
    No. 79-1242.
    Tiffany Construction Co., Inc. v. Bureau of Revenue of New Mexico.
   Ct. App. N. M. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of White Mountain Apache Tribe v. Bracker, ante, p. 136, and Central Machinery Co. v. Arizona Tax Comm’n, ante, p. 160.


text:
    No. 79-1481.
    United States v. Dickinson et al.
   C. A. 2d Cir. Motions of respondents Dickinson and Montanino for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Salvucci, ante, p. 83.


text:
    No. 79-1677.
    California v. Velasquez.
   Sup. Ct. Cal. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Adams v. Texas, ante, p. 38.


text:
    No. 79-5026.
    No. 79-5301.
    No. 79-5458.
    No. 79-5525.
    No. 79-5563.
    No. 79-5709.
    No. 79-5741.
    No. 79-5835.
    Williamson v. Alabama; Wilson v. Alabama; Horsley v. Alabama; Cade v. Alabama; Baldwin v. Alabama; Thomas v. Alabama; Ritter v. Alabama; and Mack v. Alabama.
   Sup. Ct. Ala. Motions of petitioners for leave to proceed in forma pauperis and cer-tiorari granted. Judgments vacated and cases remanded for further consideration in light of Beck v. Alabama, 447 U. S. 625 (1980). Reported below: No. 79-5026, 370 So. 2d 1066; No. 79-5301, 371 So. 2d 943; No. 79-5458, 374 So. 2d 375; No. 79-5525, 375 So. 2d 828; No. 79-5563, 372 So. 2d 32; No. 79-5709, 373 So. 2d 1167; No. 79-5741, 375 So. 2d 270; No. 79-5835, 375 So. 2d 504.


text:
    No. 79-5804.
    Burroughs v. Georgia.
   Sup. Ct. Ga. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Illinois v. Vitale, 447 U. S. 410 (1980).


text:
    No. 79-6150.
    Mathews v. Ohio.
   Ct. App. Ohio, Licking County. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Illinois v. Vitale, 447 U. S. 410 (1980).


text:
    No. 79-6190.
    Crawford v. Alabama.
   Sup. Ct. Ala. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Beck v. Alabama. 447 U. S. 625 (1980), and United States v. Henry, 447 U. S. 264 (1980).


text:
    No. A-1060.
    Craig v. United States District Court for the Northern District of California et al. (Ford Motor Co. et al., Real Parties in Interest).
   Application for stay of trial court proceedings, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-1074.
    Blue v. Seventh District Committee of the Virginia State Bar.
   Application for stay of the order of the Supreme Court of Virginia, dated April 18, 1980, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-1093.
    Silo v. Kelly, Warden, et al.
   Application for stay of trial court proceedings, addressed to Mr. Justice Stevens and referred to the Court, denied.


text:
    No. A-1167.
    Zant, Superintendent, Georgia Diagnostic and Classification Center v. Potts et al.
   Application to vacate the order dated June 28, 1980, of the United States Court of Appeals for the Fifth Circuit and for other relief, addressed to Mr. Justice Powell, and by him referred to the Court, denied.

Justice Brennan took no part in the or application.


text:
    No. 85,
    Orig.
    Texas v. Oklahoma.
   It is ordered that John A. Carver, Jr., Esquire, of Denver, Colo., be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The compensation of the Special Master, the allowances to him, the compensation paid to his technical, stenographic and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court. [For earlier order herein, see 444 U. S. 1065.]


text:
    No. A-1134.
    Pennhurst State School and Hospital et al. v. Halderman et al. (No. 79-1404); Mayor of Philadelphia et al. v. Halderman et al. (No. 79-1408); Pennsylvania Association for Retarded Citizens et al. v. Pennhurst State School and Hospital et al. (No. 79-1414); Commissioners and Mental Health/Mental Retardation Administrator for Bucks County et al. v. Halderman et al. (No. 79-1415); and Pennhurst Parents-Staff Assn. v. Halderman et al. (No. 79-1489).
   C. A. 3d Cir. [Cer-tiorari granted, 447 U. S. 904.] Motion of petitioner in No. 79-1489 for stay of the judgment of the Court of Appeals, pending final disposition of the cases in this Court, granted to the extent that the judgment mandates the movement of residents of the Pennhurst facility to “appropriate community living arrangements.” In all other respects, the motion is denied.

Mr. Justice Brennan, Mr. Justice Marshall, Mr. Justice Blackmun, and Mr. Justice Powell would deny the motion.


text:
    No. 79-1989.
    Citizens Party et al. v. Manchin, Secretary of State of West Virginia.
   Sup. Ct. App. W. Va. Motion of appellants to expedite consideration of the appeal and for emergency relief denied.


text:
    No. 79-395.
    United States v. Morrison.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 79-297.
    Horn, Commissioner, Division of Employment Security, Department of Labor and Industry of New Jersey, et al. v. Ross et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 79-375.
    Whitmire et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-1035.
    No. 79-1036.
    No. 79-1099.
    No. 79-1109.
    No. 79-1110.
    New York Shipping Assn., Inc., et al. v. National Labor Relations Board et al.; International Longshoremen’s Assn., AFL-CIO v. National Labor Relations Board et al.; Tidewater Motor Truck Assn. v. International Longshoremen’s Assn., AFL-CIO, et al.; Houff Transfer, Inc. v. International Longshoremen’s Assn., AFL-CIO, et al.; and Dolphin Forwarding, Inc. v. International Longshoremen’s Assn., AFL-CIO, et al.
   C. A. D. C. Cir. Certiorari denied. Reported below: 198 U. S. App. D. C. 157, 613 F. 2d 890.


text:
    No. 79-64.
    Zbaraz et al. v. Miller, Acting Director, Department of Public Aid of Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-1460.
    National Van Lines, Inc., et al. v. Director, Office of Workers’ Compensation Programs, U. S. Department of Labor, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 79-5179.
    Tracy et al. v. Pennsylvania Department of Public Welfare.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 79-6128.
    Smith v. Hartman, Sheriff.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-5533.
    No. 79-6099.
    No. 79-6350.
    Burks v. Texas. Starvaggi v. Texas. Barfield v. North Carolina.
   Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.; and

Sup. Ct. N. C. Certiorari denied. Reported below: No. 79-5533, 583 S. W. 2d 389; No. 79-6099, 593 S. W. 2d 323; No. 79-6350, 298 N. C. 306, 259 S. E. 2d 510.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

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


text:
    No. 65,
    Orig.
    No. 78-1522.
    Texas v. New Mexico, Andrus, Secretary of the Interior v. Utah,
   446 U. S. 540; and 446 U. S. 500. Petitions for rehearing denied.


text:
    No. 78-1557.
    No. 78-1821.
    No. 79-1434.
    No. 79-6152.
    No. 79-6237.
    No. 79-6261.
    Nachman Corp. v. Pension Benefit Guaranty Corporation et al., United States v. Mendenhall, Mandel et al. v. New York, Hayes v. Valley Bank of Nevada; and Hayes v. Gladstone et al., Rodrigues v. City of Sparks, Nevada, et al., Jaffer v. City of Miami et al.,
   446 U. S. 359;

446 U. S. 544;

446 U. S. 949;

446 U. S. 902;

446 U. S. 931; and

446 U. S. 931. Petitions for rehearing denied.


text:
    No. 79-6108.
    Armour et al. v. Nix et al.,
   446 U. S. 930. Petition for rehearing denied.

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


text:
    July 2, 1980
    No. 78-1107.
    No. 78-1108.
    No. 78-1114.
    No. 78-1382.
    No. 78-1442.
    Armistead et al. v. Associated General Contractors of California et al.; City of Los Angeles et al. v. Associated General Contractors of California et al.; Los Angeles County et al. v. Associated General Contractors of California et al.; Klutznick, Secretary of Commerce v. Associated General Contractors of California et al.; and National Association for the Advancement of Colored People, Los Angeles Branch v. Associated General Contractors of California et al.
   Appeals from D. C. C. D. Cal. Judgment vacated and cases remanded for further consideration in light of Fullilove v. Klutznick, ante, p. 448.

Mr. Justice Stewart, Mr. Justice Rehnquist, and Mr. Justice Stevens would affirm the judgment.

Reported below: 459 F. Supp. 766.


text:
    No. A-1135.
    Railway Labor Executives’ Assn. v. Gibbons, Trustee, et al.
   Application for stay of the preliminary injunction entered by the United States District Court for the Northern District of Illinois on June 9, 1980, denied.

Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Rehstquist would grant the application. Mr. Justice Brennan took no part in the consideration or decision of this application.


text:
    No. A-1168.
    Klutznick, Secretary of Commerce, et al. v. Control Data Corp. et al.
   Application of the Solicitor General to vacate the order of the United States Court of Appeals for the District of Columbia Circuit, entered June 24, 1980, granted.

Mr. Justice Brennan dissents. Mr. Chief Justice Burger, Mr. Justice Blackmun, and Mr. Justice Stevens took no part in the consideration or decision of this application.


text:
    No. 79-1631.
    Democratic Party of the United States of America et al. v. Wisconsin ex rel. La Follette et al.
   Appeal from Sup. Ct. Wis. Probable jurisdiction noted. The judgment of the Supreme Court of Wisconsin, filed January 19, 1980, is stayed pending the issuance of the mandate of this Court.


text:
    No. 78-918.
    No. 78-919.
    Republic Steel Corp. v. Occupational Safety and Health Administration et al.; and American Iron & Steel Institute et al. v. Occupational Safety and Health Administration et al.
   C. A. 3d Cir. Motion of American Petroleum Institute et al. for leave to file a brief as amici curiae in No. 78-919 granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 577 F. 2d 825.


text:
    No. 79-1213.
    Minnick et al. v. California Department of Corrections et al.
   Ct. App. Cal., 1st App. Dist. Cer-tiorari granted.


text:
    No. 79-1356.
    Johnson et al. v. Board of Education of the City of Chicago et al.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 79-1601.
    Sumner, Warden v. Mata.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 79-489. No. 79-561.
    Merola v. Bell, Justice, Supreme Court of New York, et al.; and New York News, Inc. v. Bell, Justice, Supreme Court of New York, et al.
   Ct. App. N. Y. Cer-tiorari denied.

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

Reported below: 47 N. Y. 2d 985, 393 N. E. 2d 1038.


text:
    No. 79-901.
    No. 79-1216.
    No. 79-1297.
    No. 79-6145.
    No. 79-6175.
    No. 79-6262.
    No. 79-6354.
    Ohio v. Korn, Syrovatka et ux. v. Ehrlich, Director, Department of Public Welfare of Nebraska, et al., Victorson et al. v. United States, Lee v. Garrison, Warden, et al., Holmes v. Florida, Jaffer v. Ongie, Clerk, City of Miami, Picking v. Hughes, Governor of Maryland, et al.,
   445 U. S. 911;

446 U. S. 935;

446 U. S. 936;

446 U. S. 967;

446 U. S. 913;

446 U. S. 943; and

446 U. S. 944. Petitions for rehearing denied.


text:
    No. 78-986.
    Arkansas Louisiana Gas Co. v. Hall et al.,
   444 U. S. 878. Petition for rehearing denied.

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


text:
    No. 79-1428.
    A. H. Robins Co., Inc., et al. v. Ross et al.,
   446 U. S. 946. Petition for rehearing denied.

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


text:
    July 11, 1980
    No. 79-1665.
    Piper Aircraft Corp. v. Davis,
   Executor. C. A. 4th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    July 14, 1980
    No. 79-1943.
    Alessi et al. v. Raybestos-Manhattan, Inc., et al.
   C. A. 3d Cir. Certiorari dismissed as to petitioner Vogt under this Court’s Rule 53.


text:
    August 11, 1980
    No. 78-630.
    No. 78-1729.
    No. 79-305.
    No. 79-421.
    No. 79-425.
    No. 79-435.
    No. 79-1101.
    Washington et al. v. Confederated Tribes of the Colville Indian Reservation et al., United States v. Payner, United States v. Havens, Bryant et al. v. Yellen et al., California et al. v. Yellen et al., Imperial Irrigation District et al. v. Yellen et al., Catalano, Inc., et al. v. Target Sales, Inc., et al.,
   447 U. S. 134;

447 U. S. 727;

446 U. S. 620;

447 U. S. 352;

447 U. S. 352;

447 U. S. 352; and

446 U. S. 643. Petitions for rehearing denied.


text:
    No. 79-1136.
    No. 79-1175.
    No. 79-1228.
    No. 79-1294.
    No. 79-1377.
    No. 79-1433.
    No. 79-1506.
    No. 79-1549.
    No. 79-1627.
    No. 79-1671.
    No. 79-5921.
    No. 79-5954.
    No. 79-5975.
    No. 79-5996.
    No. 79-6055.
    No. 79-6188.
    No. 79-6196.
    No. 79-6209.
    No. 79-6248.
    No. 79-6250.
    Brown & Root, Inc., et al. v. Joyner et al., Wm. T. Burnett & Co., Inc. v. General Tire & Rubber Co., Ivy et al. v. Security Barge Lines, Inc., Harris, Secretary of Health and Human Services v. Rosario et al., Anderson, Warden v. Charles, Maskeny et al. v. United States, Laguta et al. v. Ohio, Geeck et al. v. City of New Orleans et al., Green v. County of Alameda et al., Warner et al. v. Sovereign News Co. et al., Blake v. Georgia, Rubies et al. v. United States, Bowen v. Georgia, Peery v. Sielaff, Corrections Director, et al., Heitman v. Missouri, Moore v. Zant, Warden, Geromette v. General Motors Corp., Stanley et al. v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida, Ma v. Hazelwood et al., Gray v. Mississippi,
   446 U. S. 981;

446 U. S. 951;

446 U. S. 956;

446 U. S. 651 ;

447 U. S. 404;

447 U. S. 921;

446 U. S. 952;

446 U. S. 961;

446 U. S. 984;

447 U. S. 923;

446 U. S. 988;

446 U. S. 940;

446 U. S. 970;

446 U. S. 940;

446 U. S. 941;

446 U. S. 947;

446 U. S. 985;

447 U. S. 925;

446 U. S. 942; and

446 U. S. 988. Petitions for rehearing denied.


text:
    No. 79-6298.
    No. 79-6314.
    No. 79-6356.
    No. 79-6404.
    No. 79-6405.
    No. 79-6412.
    No. 79-6422.
    No. 79-6443.
    No. 79-6450.
    No. 79-6457.
    No. 79-6470.
    No. 79-6487.
    No. 79-6488.
    No. 79-6494.
    No. 79-6540.
    No. 79-6551.
    No. 79-6594.
    No. 79-6605.
    No. 79-6614.
    Dioquino v. Workers' Compensation Appeals Board et al. Irvin v. Nanni et al., Hop-Wah, aka Green v. Hopper, Warden, Crooker v. U. S. Department of Justice, Davis v. New York, Muina v. Department of Professional Licensing of Montana et al., Burger v. Georgia, Profit v. City of Niagara Falls, New York, et al., Young v. Baltimore County Board of Education et al., Johnson v. Carter, President of the United States, Franklin v. Georgia, Crisafi v. Wiethe, Woodard v. Wachovia Bank & Trust Co. et al., Ginsburg v. Tighe, Proffitt v. United States, Smiley v. Corcoran, Los Angeles County Clerk, et al., Rucker v. City of Saint Louis et al., Westover v. United States, Dobbs v. Hopper, Warden,
   446 U. S. 944;

446 U. S. 985;

446 U. S. 968;

447 U. S. 908;

446 U. S. 986;

446 U. S. 981;

446 XJ. S. 988;

447 XJ. S. 901;

446 XJ. S. 955;

447 U. S. 909;

447 U. S. 930;

447 U. S. 927;

447 U. S. 928;

447 U. S. 910;

447 U. S. 910;

447 U. S. 910;

447 U. S. 910;

447 U. S. 929; and

447 U. S. 930. Petitions for rehearing denied.


text:
    No. 79-912.
    No. 79-914.
    Hanrahan et al. v. Hampton et al., Johnson et al. v. Hampton et al.,
   446 U. S. 754; and

446 U. S. 754. Petition for rehearing denied.

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


text:
    No. 79-1553.
    Coleman v. Montana,
   446 U. S. 970. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.


text:
    No. 79-5575.
    Jagnandan et al. v. Mississippi State University et al.,
   444 U. S. 1026. Motion for leave to file a petition for rehearing denied.


text:
    August 13, 1980
    No. 79-6885.
    Beasley v. United States.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 15, 1980
    No. 80-182.
    Celebrezze, Secretary of State of Ohio v. Anderson et al.
   C. A. 6th Cir. Motion to expedite consideration of the petition for writ of certiorari denied without prejudice to its later renewal.

Mr. Justice Powell and Mr. Justice Stevens would grant the motion.


text:
    August 20, 1980
    No. 79-1908.
    Lee Vision Center, Inc. v. Vaught.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 22, 1980
    No. 79-1654.
    Ambook Enterprises, aka American Book Club v. Time Inc. et al.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. A-1101.
    Sayles v. Hart,
   U. S. District Judge. Application to vacate the order of the United States Court of Appeals for the District of Columbia Circuit, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-1138.
    Homeowner’s Enterprises, Inc. v. Thompson et al.
   Application for stay of trial proceedings, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-1154.
    Wood, dba National Photo Services v. Chace Company Advertising, Inc., et al.
   Application for recall and stay of the mandate of the United States Court of Appeals for the Ninth Circuit, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-1160.
    Payne v. United States.
   Application for bail pending appeal to the United States Court of Appeals for the Seventh Circuit, addressed to Mr. Justice Stewart and referred to the Court, denied.


text:
    No. A-1169.
    Quinault Pacific Corp. et al. v. Aetna Business Credit, Inc., et al.
   Application for stay, addressed to Mr. Justice Stevens and referred to the Court, denied.


text:
    No. A-27.
    Prince George’s County, Maryland v. State Water Control Board et al.
   Application for stay of an order of the United States District Court for the District of Columbia, addressed to Mr. Justice Eehnquist and referred to the Court, denied.


text:
    No. A-77.
    Aladdin Hotel Corp. et al. v. Nevada Gaming Commission et al.
   C. A. 9th Cir. Application for stay, addressed to Mr. Justice Stevens and referred to the Court, denied.


text:
    No. A-33.
    O’Hair et al. v. Hill et al.
   C. A. 5th Cir. Application for preliminary injunction, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-1162 (79-1815).
    Salob v. Ambach, Commissioner of Education of New York, et al.
   Application for stay, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-52 (80-5263).
    Bullwinkle v. California.
   Ct. App. Cal., 2d App. Dist. Application for stay, addressed to Mr. Justice Stevens and referred to the Court, denied.


text:
    No. 79-8.
    No. 79-343.
    No. 79-394.
    No. 79-6334.
    No. 79-6362.
    No. 79-6592.
    United States v. Raddatz, Sun Ship, Inc. v. Pennsylvania et al., United States v. Ward, dba L. O. Ward Oil & Gas Operations, Attwell v. Undercofler, Chief Justice, Supreme Court of Georgia, et al., Dobbert v. Florida, Wilkerson v. Wilkerson et al.,
   447 U. S. 667;

447 U. S. 715;

ante, p. 242;

446 U. S. 955;

447 U. S. 912; and

447 U. S. 935. Petitions for rehearing denied.


text:
    September 3, 1980
    No. 80-4.
    Mitsubishi International Corp., Inc. v. United States District Court for the District of Oregon (BRS, Inc., Real Party in Interest).
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 4, 1980
    No. 79-6781.
    Padgett v. United States.
   C. A. 8th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 10, 1980
    No. 78-918.
    No. 78-919.
    Republic Steel Corp. v. Occupational Safety and Health Administration et al.; and American Iron & Steel Institute et al. v. Occupational Safety and Health Administration et al.
   C. A. 3d Cir. [Certiorari granted, ante, p. 909.] Writs of certiorari dismissed under this Court’s Rule 53.


text:
    September 12, 1980
    No. 79-1203.
    Lucky Mc Uranium Corp v. Geomet Exploration, Ltd.
   Sup. Ct. Ariz. [Certiorari granted, 447 U. S. 920.] Writ of certiorari dismissed under this Court’s Rule 53.


text:
    September 17, 1980
    No. 79-4.
    No. 79-5.
    No. 79-491.
    No. 79-1268.
    Williams et al. v. Zbaraz et al., Miller, Acting Director, Department of Public Aid of Illinois, et al. v. Zbaraz et al., United States v. Zbaraz et al., Harris, Secretary of Health and Human Services v. McRae et al.,
   ante, p. 358;

ante, p. 358;

ante, p. 358; and

ante, p. 297. Motions of Richard Abel et al. and Abortion Rights Council of Minnesota et al. for leave to file briefs as amici curiae granted. Petitions for rehearing denied.


text:
    No. 79-561.
    No. 79-669.
    No. 79-1615.
    New York News, Inc. v. Bell, Justice, Supreme Court of New York, et al., Dawson Chemical Co. et al. v. Rohm & Haas Co., Hall v. California et al.,
   ante, p. 910;

ante, p. 176; and

447 U. S. 917. Petitions for rehearing denied.


text:
    No. 79-1634.
    No. 79-1714.
    No. 79-6099.
    No. 79-6350.
    Starr et al. v. Nixon, former President of the United States, et al., Alexander v. Los Angeles County Civil Service Commission et al., Starvaggi v. Texas, Barfield v. North Carolina,
   446 U. S. 953;

447 U. S. 924;

ante, p. 907; and

ante, p. 907.

Petitions for rehearing denied.


text:
    September 18, 1980
    No. 80-182.
    Celebrezze, Secretary of State of Ohio v. Anderson et al.
   C. A. 6th Cir. Renewed motion of petitioner to expedite consideration of the petition for writ of certiorari granted. Certiorari before judgment denied.

Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Rehnquist would grant the petition and set the case for oral argument during the week of October 6, 1980.


author: Me. Justice Stevens, Circuit Justice.

text:
    RAILWAY LABOR EXECUTIVES’ ASSN. v. GIBBONS, TRUSTEE, et al.
    No. A-1135.
    Decided June 28, 1980
   Me. Justice Stevens, Circuit Justice.

Proceedings to reorganize the Chicago, Rock Island and Pacific Railroad (the Rock Island) pursuant to § 77 of the Bankruptcy Act, 11 U. S. C. § 205, have been pending before Judge McGarr in the United States District Court for the Northern District of Illinois for over five years. Because the Rock Island had been sustaining continuing substantial losses, on January 25, 1980, Judge McGarr ordered the Trustee to prepare and file a preliminary plan of liquidation. On May 27, 1980, the Interstate Commerce Commission filed an advisory report with the District Court concluding “that abandonment of the Rock Island and its dissolution as an operating railroad is required by the public convenience and necessity.” Consistent with its own precedents, the Commission apparently did not recommend that any special labor protection condition be imposed on the Rock Island in connection with the abandonment. On June 2, 1980, after receiving briefs and hearing argument, Judge McGarr entered an order authorizing complete abandonment of all Rock Island operations and expressly holding that “no labor protection arrangements may be imposed on the Rock Island estate.”

Two days earlier, however, the President had signed Public Law 96-254, 94 Stat. 399, 45 U. S. C. § 1001 et seg. (1976 ed., Supp. IV), entitled the Rock Island Railroad Transition and Employee Assistance Act (Act). Section 106 (a) of the Act required the Trustee, within 10 days, to enter into an agreement with the collective-bargaining representatives of Rock Island employees and former employees to provide for labor protection payments to terminated employees. Section 106 (b) authorized the Interstate Commerce Commission to impose a labor protection arrangement on the estate if the Trustee failed to reach agreement with the unions. Section 110 of the Act authorized the Trustee to borrow up to $75 million from the United States to provide the funds for payments pursuant to that arrangement. It further providés that such borrowing, as well as the employee protection claims themselves, should be treated as an expense of administration. It is my understanding that, effectively, the employee protection payments and any concomitant obligations of repayment to the United States are thus given priority over the claims of the general creditors on the assets of the estate. The Act further provides that no court may stay the payment of any labor protection benefits. And -finally, § 110 (e) provides: “Except in connection with obligations guaranteed under this section, the United States shall incur no liability in connection with any employee protection agreement or arrangement entered into under § 106 of this Title.”

Within the 10-day period, the Trustee applied for a preliminary injunction against implementation of the labor protection arrangement provisions of the Act on the ground that the statute authorized an unconstitutional taking of the property of the estate. Judge McGarr granted that relief, concluding that (1) the procedural provisions of the Act required him to take action immediately in order to preserve the estate from irreparable damage, (2) there were no pre-existing contractual or statutory obligations to make labor protection payments that were being quantified by the Act, and (3) the Act would serve neither a public purpose nor the interest of the estate in view of the total abandonment of the Rock Island’s operations that had been authorized. He also implicitly concluded that the statutory program could not be justified as necessary to facilitate sales by the Trustee of portions of the railroad’s operating properties.

On June 21, 1980, applicant Railway Labor Executives’ Association applied to me in my capacity as Circuit Justice for a stay of Judge McGarr’s preliminary injunction. Four days later, on June 25, 1980, the United States filed a memorandum supporting that stay application. The applicant contends that the estate will not suffer irreparable damage by simply permitting the negotiation of a labor protection plan to commence. It argues that even if payments pursuant to such a plan would result in an unconstitutional taking of the estate’s property, the estate might still be able to convince Judge McGarr that the statutory prohibition against court orders prohibiting payments pursuant to such arrangement is unconstitutional, and that it would be better to enjoin such payments rather than the negotiation of the underlying plan. Alternatively, it is argued that a remedy against the Government to make the estate whole may ultimately be available in the Court of Claims under the Tucker Act if it turns out that any payments made were unconstitutionally required.

Like Judge McGarr, I do not find persuasive any of the suggestions that the Act could not cause the estate irreparable harm. And while the Solicitor General suggests that a Tucker Act remedy may exist in the event of an unconstitutional taking, see Memorandum for United States 5-6, it is obvious that his suggestion is equivocal. Moreover, having read the parties’ submissions, I am now of the opinion that Judge McGarr was probably correct in concluding that the Act authorizes an unconstitutional taking of property of the estate. It appears to direct a transfer of $75 million off the top of the estate’s assets to the employees. While such a transfer might be permissible in the course of a genuine reorganization, at least as of this moment, I have difficulty perceiving how, in the context of a liquidation, this is anything other than a simple taking of the property of the general creditors, as the Trustee argues.

Accordingly, since there is a strong possibility that a stay would set in motion a chain of events that would lead to substantial payments that would be unconstitutional and unrecoverable, I believe that a sufficient showing of irreparable damage has beén made to support the entry of the preliminary injunction. Necessarily, my views are tentative, based as they are on the relatively brief submissions of the parties. Nonetheless, for the foregoing reasons, I have decided to deny the application for a stay.

       An explanation of the Act is found in the Senate proceedings. See remarles of Senator Kassebaum of Kansas, 126 Cong. Rec. 4869-4870 (1980). In substance, it appears that the Senator was particularly concerned with preserving the possibility of selling a portion of the Rock Island, known as the Tucumcari Line from Kansas City to New Mexico, to the Southern Pacific Railroad. She explained that the bill extended “directed service” of the Rock Island, which as I understand it, means service ordered by the Federal Government with any losses incurred underwritten by the Federal Government. She indicated that in February representatives of the labor unions and the acquiring railroads had worked out labor agreements adequate to protect employees who would be re-employed by the acquiring roads, but that there was a substantial risk that no protection would be made available to terminated employees who would not be re-employed, and that the smooth transfer might be interrupted by a broad strike called to obtain compensation for the employees who lost their jobs. It was in order to avoid this prospect that the bill was apparently designed to compel the estate to make adequate termination payments that it was not already obligated to make to those terminated employees. It also appears that the original plan was to fund $50 million for those employees, $30 million of which would be secured by the Government as a high priority administration expense, the other $20 million being subordinated to the claims of all other creditors. The total loan was changed to $75 million prior to passage, and, more significantly, all of the loan was to be given the high priority of an administration expense. Thus, Congress rather clearly indicated its intent that the Government ultimately not be required to underwrite any of the employee protection payments, but rather to have them imposed entirely as a burden on the Rock Island estate.
      See also the remarks of Congressman Madigan, 126 Cong. Rec. 7096 (1980), in support- of H. R. 6837, which included two titles, the first containing provisions for the completion of the northeast corridor. Title II, which became the Rock Island Railroad Transition and Employee Assistance Act, seemed primarily intended to authorize so-called “directed service” to be funded by the Federal Government, but it also included the employee protection program. With respect to the latter, Congressman Madigan stated, in part:
      “There is a $75 million guaranteed obligation in this bill for labor protection payments to the Rock Island employees whose jobs are terminated. That is not an appropriation of Federal funds that will not be returned; it is a priority claim against the estate of the Rock Island Railroad, and it is structured exactly the same as the Milwaukee bill which we passed late last year.
      "At the risk of being redundant, I would like to repeat, the $750 million for the Northeast corridor is in the President’s budget. The money for the Rock Island Railroad will be -paid back from the estate of the Rock Island Railroad.” Ibid. (Emphasis added.)
      It is worth noting that the “Milwaukee bill” concerned a genuine railroad reorganization, not a liquidation.

       Appeal lies to this Court under 28 U. S. C. § 1252, since Judge McGarr held an Act of Congress unconstitutional.


author: Mr. Justice Brennan, Circuit Justice.

text:
    ROSTKER, DIRECTOR OF SELECTIVE SERVICE, et al. v. GOLDBERG et al.
    No. A-70.
    Decided July 19, 1980
   Mr. Justice Brennan, Circuit Justice.

This is an application for a stay pending review on appeal of the July 18, 1980, order of a three-judge District Court for the Eastern District of Pennsylvania invalidating the registration provisions of the Military Selective Service Act, 50 U. S. C. App. § 451 et seq., and enjoining the Government from enforcing them. At stake are the Government’s plans to register more than four million males born in 1960 and 1961 in the two weeks commencing on July 21.

The District Court concluded that the exclusion of females from the registration provisions constitutes gender-based discrimination and that the federal parties had failed to demonstrate that the exclusion was substantially related to an important governmental interest. Accordingly, it found the provisions violative of the equal protection component of the Fifth Amendment. The applicants, Bernard Rostker, Director of Selective Service et al., urge both that the District Court applied too strict a standard of scrutiny in light of the national defense interests at stake, and that even under the standard which that court applied the decision not to include females could be justified. Beyond that, the applicants contend that the Government will suffer irreparable injury if it is not permitted to go forward with implementation of the President’s July 21 through August 2 call for draft registration, while respondents — a class including persons required to register within the next two weeks — will suffer only minor and remediable harms should I decide to stay the District Court’s injunction. Respondents submit that the three-judge court properly decided the constitutional question before it, that its injunction was proper, and that its subsequent decision to deny a stay of that injunction was likewise appropriate.

The principles that control a Circuit Justice’s consideration of in-chambers stay applications are well established. Relief from a single Justice is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct. Whalen v. Roe, 423 U. S. 1313, 1316-1317 (1975) (Marshall, J., in chambers). In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a “reasonable probability” that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction, Graves v. Barnes, 405 U. S. 1201, 1203-1204 (1972) (Powell, J., in chambers); Mahan v. Howell, 404 U. S. 1201, 1202 (1971) (Black, J., in chambers). Second, the applicant must persuade me that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous. While related to the first inquiry, this question may involve somewhat different considerations, especially in cases presented on direct appeal. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers); Graves v. Barnes, supra, at 1203-1204. Third, there must be a demonstration that irreparable harm is likely to result from the denial of a stay. Whalen v. Roe, supra, at 1316; Graves v. Barnes, supra, at 1203. And fourth, in a close case it may be appropriate to “balance the equities”— to explore the relative harms to applicant and respondent, as well as the interests of the public at large. Cf. Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers) (citing cases); Republican Committee v. Ripon Society, 409 U. S. 1222, 1224 (1972) (Rehnquist, J., in chambers).

That the first prong of this test is satisfied is undeniable. The importance of the question and the substantiality of the constitutional issues are beyond cavil. The second prong is more troubling. In my judgment the case is a difficult and perplexing one. My task, however, is not to determine my own view on the merits, but rather to determine the prospect of reversal by this Court as a whole. In the past, the standard of review to be applied in gender-based discrimination cases has been a subject of considerable debate, compare Schlesinger v. Ballard, 419 U. S. 498 (1975), with Craig v. Boren, 429 U. S. 190 (1976). And my Brethren’s application of the standard upon which we have finally settled in a context as sensitive as that before me cannot be predicted with anything approaching certainty. Nonetheless, it does seem to me that the prospects of reversal can be characterized as “fair.” I therefore turn to the interrelated inquiries that make up the third and fourth prongs of the approach set forth above.

The applicants identify three distinct injuries that the United States would sustain if the District Court’s order were to remain in force and this Court were then to uphold the Selective Service Act. First, during the life of the District Court’s injunction, the United States is barred from instituting registration without time-consuming congressional action, even in the face of a clear and present threat to national security. Accordingly, the Nation’s military capability to respond to emergencies would remain uncertain until the full Court completes review of the ruling below. See Affidavit of W. Graham Claytor, Deputy Secretary of Defense, at 2 (July 16, 1980); Affidavit of Bernard Rostker, Director of Selective Service, at 2 (July 15, 1980). Second, the inauguration of registration by the President and the Congress was not merely a predicate to possible future conscription. It was an act of independent foreign policy significance — a deliberate response to developments overseas. Thus, a suspension of registration until a decision on its validity is reached might frustrate coordinate branches in shaping foreign policy. Affidavit of John P. White, Deputy Director of Office of Management and Budget, at 2-4 (July 15, 1980); Affidavit of W. Graham Claytor, supra, at 3; Affidavit of Warren Christopher, Deputy Secretary of State, at 1-2 (July 12, 1980). Third, considerable resources have been expended in preparation for the imminent registration effort. The Government has distributed publicity material, trained and assigned personnel, engaged computer support, and entered into contractual arrangements, all with a view toward the commencement of actual registration on Monday, July 21. Should the Government ultimately prevail at some future date, these preparations will have to be replicated at considerable expense. Affidavit of Bernard Rostker, supra, at 4-5; Affidavit of John P. White, supra, at 6. While difficult to evaluate with precision, these are considerations of palpable weight.

For their part, respondents urge that should they eventually succeed on the merits they will have suffered irreparable injury by virtue of having had to register during the pendency of the Government’s appeal. But although registration imposes material interim obligations upon respondents — including-the duty to appear — I cannot say that the inconvenience of those impositions outweighs the gravity of the harm to the United States should the stay requested be refused. Nor does an irremediable injury stem from the fact that respondents’ names will be enrolled upon registration lists. If respondents’ claim is upheld, the destruction of those lists can be ordered. On balance, therefore, I conclude that the equities favor the Government. Accordingly, I have today entered an order staying execution and enforcement of the District Court’s judgment.

       Briefly, the procedural history of this case is as follows: The original complaint was filed in June 1971 by male citizens subject to registration and induction who argued that the Selective Service Act violated several of their constitutional rights, including the right to equal protection of the laws guaranteed by the Fifth Amendment. Application to the United States District Court for the Eastern District of Pennsylvania for the convening of a three-judge court under the then applicable statute, 28 U. S. C. §2282 (1970 ed.), was denied, and the suit was dismissed. On review, the United States Court of Appeals for the Third Circuit upheld the dismissal of all claims except that founded upon the failure to conscript females. The Court of Appeals remanded the ease to the District Court for a determination of the substantiality of the equal protection claim, and of plaintiffs’ standing to raise that issue. On remand, the District Court found that plaintiffs had standing, and convened a three-judge court.
      On July 1, 1974, the three-judge court, with Judge Rosenn dissenting, denied defendants’ motion to dismiss. Rowland v. Tan, 378 F. Supp. 766. There were no further proceedings until June 1979, when the court proposed to dismiss the case due to inaction. Additional discovery ensued, and on February 17, 1980, defendants’ motion for summary judgment was denied. On July 1, 1980, a plaintiff class of potential registrants was certified, and on July 18, 1980, the District Court entered its order enjoining registration under the Selective Service Act and declined to enter a stay of execution.
      Although the statute authorizing three-judge courts in actions such as this was repealed in 1976, Pub. L. 94-381, §§ 1 and 2, 90 Stat. 1119 (Aug. 12, 1976), the Act remains applicable to suits filed before the date of repeal, §7, 90 Stat. 1120.

       Further, inasmuch as congressional appropriations for registration lapse on September 30, 1980, at the end of the current fiscal year, Affidavit of John P. White, Deputy Director of Office of Management and Budget, at 6 (July 15, 1980), a decision by the full Court in favor of the Government after that date will necessitate additional delay while Congress authorizes a new appropriation.

       To be sure, the extent and duration of these irreparable injuries could be curtailed if the Government were substantially to amend the Selective Service Act during the period preceding review by this Court. In light of the serious question raised by this case, however, the Government should not be obliged to abandon an important statutory scheme without an opportunity for plenary consideration by the Court.


text:
    IN RE ROCHE
    No. A-66.
    Decided July 23, 1980
   Mr. Justice Brennan, Circuit Justice.

This is an application for a stay of enforcement, pending a petition for a writ of certiorari, of the July 10, 1980, order of a single justice of the Massachusetts Supreme Judicial Court, adjudicating applicant in civil contempt for refusal to disclose the identities of news sources, and of the July 16, 1980, order of the Supreme Judicial Court affirming the adjudication of contempt.

Applicant Roche is a reporter who participated in a television news team’s investigation of a number of state judges. On January 11, 1979, applicant broadcasted a television news story about alleged misconduct by respondent, a State District Court Justice. The report prompted an investigation by the Massachusetts Commission on Judicial Conduct that culminated in the filing of formal proceedings.

In anticipation of disciplinary hearings, the Commission furnished the state judge with the names of 65 witnesses whom the Commission proposed to call. Among these was applicant. On May 16, the Commission issued an order allowing the judge to depose 11 of the 65 witnesses, including applicant. At his deposition, applicant testified about his own observations in the course of his investigation, and indicated a willingness to reveal the content of interviews with any individual who could be independently identified as one of applicant’s sources. Accordingly, applicant did communicate to respondent judge the substance of his interviews with those persons who publicly appeared on the television news broadcast. Applicant also conceded that names of all the people whom he had previously interviewed were contained in the list of witnesses for the disciplinary hearings. Citing a newsman’s “privilege,” however, applicant refused to specify or discuss those on the list whom he had interviewed in confidence, unless they had first been identified by other means.

In the course of some procedural skirmishing, applicant Roche moved for a protective order from Justice Kaplan of the Supreme Judicial Court based upon this asserted newsman’s privilége, and respondent judge sought an order compelling applicant to identify his sources. Justice Kaplan referred the issue to the Conduct Commission, which ruled that the claim of newsman’s privilege under the First Amendment was insubstantial, and that applicant should divulge the identities of his sources so that the respondent judge could prepare to impeach or correct the testimony of those sources during the hearings. Upon renewal of the motions to him, Justice Kaplan concurred in the Commission’s view. He reasoned that inasmuch as the applicant had consented to disclose the substance of interviews with sources if otherwise identified — as through the process of deposing each of the 65 hearing witnesses — the net effect of applicant’s claim of privilege was simply to compel the respondent judge to sift through a series of deponents to obtain information directly available from the reporter. Justice Kaplan concluded that “no significant principle [was] to be served by the suggested approach,” Applicant’s Ex. B., p. 4, and, on July 7, ordered Roche to respond to questions about unidentified sources.

Applicant subsequently appeared at a deposition but once again declined to identify his undisclosed sources. On July 10, Justice Kaplan adjudicated him in civil contempt, and stayed execution of the contempt order. The adjudication of contempt was affirmed by the full Supreme Judicial Court on July 16, and the next day Justice Kaplan ordered that the stay of civil contempt sanctions be vacated on July 21. Upon application to me as Circuit Justice, I entered an interim order continuing the stay pending filing of a response and further order of the Circuit Justice or this Court.

Only recently, I have had occasion to review the principles that guide a Circuit Justice’s determination of stay applications. Rostker v. Goldberg, ante, p. 1306. Generally, a stay will issue upon a four-part showing that (1) there is a “reasonable probability” that four Justices will find the issue sufficiently substantial to grant certiorari; (2) there is a “fair prospect that a majority of the Court will conclude that the decision below was erroneous,” ante, at 1308; Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (POWELL, J., in chambers); (3) irreparable harm to applicant is likely to result if the request for a stay is denied; and (4) the “balance of equities” — to the parties and to the public — favors the issuance of a stay.

Predicting the probability of a grant of certiorari and of a reversal of the decision below in this case is an uncertain undertaking. The question of a newsman’s privilege to conceal sources is not a matter of first impression. Branzburg v. Hayes, 408 U. S. 665 (1972), held that the First Amendment does not provide newsmen with an absolute or qualified testimonial privilege to be free of relevant questioning about sources by a grand jury. More recently, two of my Brethren found the prospects for review by the full Court insufficient to warrant staying contempt proceedings against a New York Times reporter for his failure to submit documents to in camera judicial inspection in compliance with a subpoena for those documents by the defendant in a murder trial. New York Times Co. v. Jascalevich, 439 U. S. 1317 (1978) (White, J., in chambers); New York Times Co. v. Jascalevich, 439 U. S. 1331 (1978) (Marshall, J., in chambers).

At the same time, there is support for the proposition that the First Amendment interposes a threshold barrier to the subpoenaing of confidential information and work product from a newsgatherer. Four dissenting Justices in Branzburg discerned at least some protection in the First Amendment for confidences garnered during the course of newsgathering. 408 U. S., at 721 (Douglas, J., dissenting); id., at 744-747 (Stewart, J., dissenting, joined by Brennan and Marshall, JJ.). And Mr. Justice Powell, who joined the Court in Branzburg, wrote separately to emphasize that requests for reporter’s documents should be carefully weighed with due deference to the “vital constitutional and societal interests” at stake. Id., at 710. Consequently, I do not believe that the Court has foreclosed news reporters from resisting a subpoena on First Amendment grounds.

Assuming that there is at least a limited First Amendment right to resist intrusion into newsgatherers’ confidences, this case presents an apt occasion for its invocation. As determined by Justice Kaplan below, respondent judge could have obtained the information sought from the applicant by other adequate — albeit somewhat roundabout — methods. Thus, this case does not present a question of necessity for the confidences subpoenaed. What is ranged against the asserted First Amendment interests of the applicant is essentially respondent’s convenience. If I am correct, therefore, that a majority of the Court recognizes at least some degree of constitutional protection for newsgatherers’ confidences, it is reasonably probable that four of my Brothers will vote to grant certiorari, and there is a fair prospect that the Court will reverse the decision below.

Turning to consider the irreparable harm of the applicant in the absence of a stay, and to weigh the “balance of equities,” I conclude that these favor the continuation of the stay below pending a petition for writ of certiorari and disposition thereof. Without such a stay, applicant must either surrender his secrets (and moot his claim of right to protect them) or face commitment to jail. If the stay remains in force, on the other hand, the judge subject to the disciplinary inquiry can obtain the information he seeks by deposing the hearing witnesses. The hardship that this would impose— although not negligible — does not outweigh the unpalatable choice that civil contempt would impose upon the applicant. Finally, even respondent’s burden of gomg forward without the desired cooperation of the applicant can be alleviated by an agreement with the Commission to continue disciplinary proceedings until resolution of applicant’s petition for a writ of certiorari.

Having decided that a stay pending a timely petition for writ of certiorari and disposition thereof is warranted, I have today entered an order continuing my stay of enforcement of the order of the single justice of July 10, 1980, adjudicating applicant Roche in civil contempt.

       In Rostker, my evaluation of the “fair prospect” for reversal of the decision below was conducted in the context of a direct appeal. Where review is sought by the more discretionary avenue of writ of certiorari, however, the consideration of prospects for reversal dovetails, to a greater extent, with the prediction that four Justices will vote to hear the case. Thus, it may be that the “fair prospect”-of-reversal criterion has less independent significance in a stay determination when review will be sought by way of certiorari.

       The opinions in chambers denying the requested stay in New York Times Co. v. Jascalevich on the basis of the unlikelihood of review turned not upon the general meritlessness of a newsman’s privilege, but more particularly upon the improbability that such a privilege would be applied to preclude in camera inspection of papers by a judge. 439 U. S., at 1322-1323 (White, J.); 439 U. S., at 1337 (Marshall, J.); see United States v. Nixon, 418 U. S. 683 (1974).
      Respondent also suggests that Herbert v. Lando, 441 U. S. 153, 167-169 (1979), contradicts any assertion of a newsman’s privilege. That decision, however, dealt with discovery of editorial processes when the collective state of mind of a news organization was directly in issue in a suit against that organization.

       Civil contempt proceedings such as these — against a nonparty and colored by First Amendment overtones — are appealable for purposes of our review. New York Times Co. v Jascalevich, supra, at 1318-1319 (White, J., in chambers). The judgment sought to be stayed has been affirmed by the Supreme Judicial Court of Massachusetts and is final.

       Respondent judge suggests that “the ends of justice might ... be served by the Circuit Justice ordering a stay of the formal proceedings against the Respondent.” Memorandum in Opposition 7. Should the Commission and respondent judge be unable to agree upon a continuance, respondent judge is, of course, free to apply for a stay of the proceedings in accordance with proper procedures.

       For the reasons stated in this opinion, I believe that applicant’s showing is sufficient, to support my order of a stay notwithstanding the denial of an indefinite stay below. Cf. Bostker v. Goldberg, ante, p. 1306.


author: Mr. Justice Powell, Circuit Justice.

text:
    McDaniel et al. v. Sanchez et al.
    No. A-126.
    Decided August 14, 1980
   Mr. Justice Powell, Circuit Justice.

This is an application for a stay of the judgment of the United States Court of Appeals for the Fifth Circuit, pending consideration of a petition for certiorari. Applicants are officials of Kleberg County, Tex., who have been ordered by the United States District Court for the Southern District of Texas to proceed immediately with procedures for the “pre-clearance” of a new apportionment plan for county commissioner precincts under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c.

I

This suit began in 1978 as a class action challenging the boundary lines of the four county commissioner precincts in Kleberg County. Plaintiffs claimed that these precincts, as drawn, violated the one-person, one-vote principle and unconstitutionally diluted the voting strength of Mexican-Americans. After a trial, the District Court found that the precincts did violate the one-person, one-vote principle, but ruled that plaintiffs had failed to meet their burden of proof on the dilution claim.

The District Court then directed defendants to submit a proposed new apportionment plan. That plan was drawn by a university professor selected by the County Commissioners and approved for submission to the District Court by the Commissioners. The District Court approved the plan and rejected an argument by plaintiffs that preclearance under the Voting Rights Act was necessary, relying on East Carroll Parish School Board v. Marshall, 424 U. S. 636 (1976) {per curiam,). In East Carroll this Court stated that “court-ordered plans resulting from equitable jurisdiction over adversary proceedings are not controlled by § 5.” Id., at 638, n. 6.

On appeal, the Fifth Circuit reversed in a per curiam opinion. 615 F. 2d 1023 (1980). It relied on this Court’s later decision in Wise v. Lipscomb, 437 U. S. 535 (1978), for the proposition that plans drawn up or approved by a legislative body are “legislative” plans even if submitted in response to a court order. As a result, the Court of Appeals found that the plan in this case is legislative and concluded that it is subject to the preclearance provisions of § 5. The court remanded the case for appropriate action and the District Court then ordered applicants to begin the § 5 procedures “immediately.” On July 25, 1980, the Fifth Circuit denied a stay pending consideration of a petition for a writ of certiorari.

II

The preclearance procedures at issue here require either an action in the District Court for the District of Columbia for a declaratory judgment that the new plan is not racially discriminatory, or submission of the plan to the Attorney General of the United States, who may interpose an objection within 60 days. 42 U. S. C. § 1973c. See Allen v. State Board of Elections, 393 U. S. 544, 548-550 (1969). Applicants will argue in their petition for certiorari that they should not be required to follow these procedures because this apportionment plan was court-ordered and was not the product of a legislative action. They argue in this application that their petition is likely to be granted because the decisions of this Court have left unsettled the principles that determine which apportionment plans are essentially “legislative,” as opposed to" “judicial,” in nature. They further argue that a stay is necessary in order to prevent their claim from becoming moot before it can be heard.

In Wise v. Lipscomb, supra, we faced the question whether a plan for the election of members of the City Council-, of Dallas was judicial or legislative. The existing system of electing members at large had been declared unconstitutional, and the city had been given an opportunity by the court to produce a substitute plan. Because the plan submitted by the City Council, and approved by the District. Court, included a provision for the election of several council members at large, it was necessary to decide whether the plan was invalid under East Carroll, supra, in which we held that judicially imposed plans should not, absent special circumstances, include multimember districts.

The Court in Wise decided that the Dallas plan was legislative, rather than judicial, and therefore was exempt from the higher level of scrutiny accorded to judicial plans. Mr. Justice White, in an opinion joined by Mr. Justice Stewart, viewed the plan as one enacted by the City Council, emphasizing that in his view the Council was exercising its lawful powers in so acting. 437 U. S„ at 546-547. Mr. Justice Marshall, in a dissent joined by Mr. Justice Brennan and Mr. Justice Stevens, agreed that the power of the legislative body under state law to enact the plan at issue is an important factor, but disagreed about the powers possessed by the City Council in that case. He concluded that the Council could only have acted pursuant to a court order and that the case was therefore controlled by East Carroll, supra, at 638, n. 6, where we labeled a plan “judicial” partly because the legislative body had no authority to reapportion itself. 437 U. S., at 550-554. My opinion concurring in part and concurring in the judgment, joined by the three remaining Justices, asserted that assumptions about state law were “unnecessary” because the “essential point is that the Dallas City Council exercised a legislative judgment, reflecting the policy choices of the elected representatives of the people, rather than the remedial directive of a federal court.” Id., at 548.

Arguably; it was this last approach that the Court of Appeals followed in the present case. It determined that the plan was a legislative, one because it was approved for submission by the Commissioners of Kleberg County. The Court of Appeals was apparently unconcerned that the reapportionment might be outside the Commissioners’ legislative powers. If so, it can be contended that the court was following an approach that has been endorsed by only a minority of Justices. Applicants also make a substantial argument that this approach is inconsistent with the decision in East Carroll, as that case has been interpreted by the majority of this Court.

Ill

It is fair to say that the opinions in East Carroll and Wise v. Lipscomb fall considerably short of providing clear guidance to the courts that initially address this difficult issue. It would be helpful, therefore, for this Court to exercise its responsibility to provide such guidance. It seems to me that this case presents the opportunity.

I mention briefly the settled principles that govern the granting of stays. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers); Graves v. Barnes, 405 U. S. 1201, 1203-1204 (1972) (Powell, J., in chambers). In view of the ambiguity of our precedents (to which I may have contributed), I cannot say whether the possibility of reversal is significant. I do think there is a “reasonable probability” that four Members of the Court will consider the issue sufficiently meritorious — and the need for clarification sufficiently evident — to warrant a grant of certiorari. The applicants assert that, absent a stay, they will be required immediately to expend substantial money on preclearance procedures, and that this expenditure will be irretrievable. They argue further that without a stay their petition to this Court will become moot. The balance as to the possibility of “irreparable harm” seems to favor the applicants.

I will therefore enter an order recalling the mandate and staying the judgment of the United States Court of Appeals for the Fifth Circuit pending disposition of the petition for certiorari.

       Under Tex. Rev. Civ. Stat. Ann., Art. 2.04 (1) (Vernon Supp. 1979), the Commissioners can only enact a reapportionment plan during their July or August terms. See Wilson v. Weller, 214 S. W. 2d 473 (Tex. Civ. App. 1948). . The plan in this case was submitted in November. Respondents contend, however, that the Commissioners have an “inherent” power to reapportion their precincts when a “vacuum” has been created by a court ruling that the existing precincts are drawn unconstitutionally.

       Indeed, this apparent inconsistency may have produced a conflict within the Fifth Circuit on the issues raised here. In Marshall v. Edwards, 582 F. 2d 927 (1978) (en banc), cert. denied, 442 U. S. 909 (1979), a case involving the same litigation as East Carroll but an entirely different plan, the Fifth Circuit labeled that plan “court-ordered” partly because the legislative body merely submitted it, rather than adopting it. 582 F. 2d, at 933-934. Applicants contend that the Commissioners acted in a similarly limited fashion here.


text:
    WILLHAUCK v. FLANAGAN et al.
    No. A-169.
    Decided August 28, 1980
   Mr. Justice Brennan, Circuit Justice.

This is an application for a stay pending appeal to the United States Court of Appeals for the First Circuit from an order of the United States District Court for the District of Massachusetts denying a request for a temporary restraining order. The facts are briefly as follows. On July 2, 1979, the applicant, Francis A. Willhauck, Jr., allegedly led local police on a high-speed automobile chase through Norfolk and Suffolk Counties. He was finally arrested in Suffolk County and charged with various offenses by the District Attorneys in both counties. In Norfolk County (Quincy District Court), he was charged with driving so as to endanger, failure to stop for a police officer, failure to slow down for an intersection, and driving at an unreasonable speed. In Suffolk County (West Roxbury District Court), he was also charged with driving so as to endanger and failure to stop for a police officer, and in addition was charged with assault and battery with a motor vehicle.

With the complaints pending in the respective county District Courts, applicant moved in Quincy District Court to consolidate the cases into a single proceeding there pursuant to Rule 37 of the Massachusetts Rules of Criminal Procedure. However, since the Rule requires the written approval of both prosecuting attorneys to effectuate transfer and consolidation, his attempt failed when one of the District Attorneys apparently declined to approve the consolidation. Applicant subsequently moved for consolidation in at least one of the Superior Courts of Norfolk and Suffolk Counties, where his indictment was handed down, but the motion was similarly denied.

Finally, applicant brought his claim before a single justice of the Massachusetts Supreme Judicial Court, contending, inter alia, that failure to consolidate would put him twice in jeopardy for the same offenses, in violation of the Constitution. The justice dismissed it in a four-page memorandum and order for judgment entered June 19, 1980, rejecting applicant’s argument that the charges in the two counties were for a single offense. He also noted that, even if he had the power to transfer and consolidate the two trials, he would refuse to do so because, in his view, this would be an unwarranted intrusion and interference with the lower courts and prosecutors.

On August 1, 1980, Willhauck brought an action pursuant to 42 U. S. C. § 1983 in Federal District Court to obtain a declaration that Massachusetts Rule of Criminal Procedure 37 (b)(2). giving prosecuting attorneys a veto over transfer and consolidation, violates the Double Jeopardy and Due Process Clauses of the Constitution. He sought a temporary restraining order, a preliminary injunction, and a permanent injunction against the two county District Attorneys to enjoin their criminal prosecutions against him. The District Court entered an order denying a temporary restraining order on August 12, 1980, on the basis that applicant’s prayer for relief did not fall within one of the recognized exceptions to the rule announced in Younger v. Harris, 401 U. S. 37 (1971). Will-hauck later moved for a stay of the District Court order in the Court of Appeals for the First Circuit pending appeal. The Court of Appeals denied this motion on August 13, 1980, assuming without deciding that the District Court’s order was “in reality’’ an order denying a preliminary injunction.

Willhauck now applies to me as Circuit Justice for a stay pending resolution of his appeal to the Court of Appeals for the First Circuit. The cases against him appear to be proceeding simultaneously in Suffolk Superior and Quincy District Courts. He was scheduled for “status” hearings in the two courts on August 14, or August 14 and 15, 1980. Applicant advises me that both cases now have been continued until September 12, 1980.

In my view, Willhauck has a potentially substantial double jeopardy claim, if not on the face of the Massachusetts Rule or as applied to him, then simply on the possibility the State may conduct simultaneous prosecutions against him in two separate courts on the same offenses. Whether the Younger doctrine would bar federal intervention in a continuing state criminal proceeding in this simultaneous prosecution context or, for that matter, in a case where the claim of double jeopardy is made after jeopardy has attached in the first proceeding, seems to me an open question. The principles of Abney v. United States, 431 U. S. 651 (1977), and Harris v. Washington, 404 U. S. 55 (1971) (per curiam), suggest that an exception to Younger for double jeopardy claims may be appropriate, at least when all state remedies have been exhausted.

Nevertheless, I do not find that applicant has alleged sufficient irreparable harm for me to consider whether there is a reasonable probability that four Justices would consider the above issue sufficiently meritorious to grant certiorari, should the merits of the case eventually come before us. Neither trial has begun and no jury has been empaneled. Until a jury is empaneled and sworn, Crist v. Bretz, 437 U. S. 28, 38 (1978), or, in a bench trial, until the first witness is sworn, id., at 37, n. 15 (federal rule); Serfass v. United States, 420 U. S. 377, 388 (1975) (federal rule), jeopardy does not attach. Accordingly, applicant’s constitutional claim is premature. Of course, once jeopardy does attach in one of the trials, applicant should be able to make his claim before the second trial judge, at which time the courts can give due consideration to his claim.

Therefore, I deny the application for a stay pending appeal.