author: The Chief Justice, Justice Marshall,

text:
    September 1, 1983
    No. 83-5290 (A-134).
    Gray v. Lucas, Warden, et al.
   C. A. 5th Cir. Certiorari denied. Application for stay of execution, scheduled for 12:01 a.m. on September 2, 1983, addressed to Justice Brennan and referred to the Court, denied. Justice Stevens would grant the application for stay.

The Chief Justice,

concurring.

On August 23, 1983, the applicant, Jimmy Lee Gray, filed a third petition for certiorari and an application for a stay of execution addressed to Justice White. Justice White denied petitioner’s application for a stay on August 25, 1983, and the following day, the Mississippi Supreme Court set petitioner’s execution for September 2, 1983. Now before the Court is petitioner’s petition for certiorari and his reapplication for a stay of execution addressed to Justice Brennan, and referred to the Court.

The facts and procedural history have not been referred to in the dissent. Since they are critical, they are set forth as follows: (1) In October 1976, petitioner was indicted for capital murder. At trial, the State proved that on June 25, 1976, petitioner abducted a 3-year-old girl, carried her to a remote area, and after sexually molesting her, suffocated her in a muddy ditch and threw her body into a stream. Petitioner was convicted and sentenced to death. (2) On appeal, the Mississippi Supreme Court reversed the conviction and remanded the case for a new trial. Gray v. State, 351 So. 2d 1342 (1977). (3) On retrial in 1978, Gray was again convicted of capital murder and sentenced to death. (4) The Mississippi Supreme Court affirmed both the conviction and the death sentence. Gray v. State, 375 So. 2d 994 (1979). (5) We denied petitioner’s petitions for certiorari and rehearing. Gray v. Mississippi, 446 U. S. 988, rehearing denied, 448 U. S. 912 (1980).

(6) Petitioner filed his first applications for a writ of error coram nobis and stay of execution before the Mississippi Supreme Court in July 1980. (7) After the state court’s summary denial of the writ, petitioner filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Mississippi. The court conducted an evidentiary hearing with respect to several of Gray’s 22 claims of constitutional violation and denied relief. (8) The Court of Appeals for the Fifth Circuit affirmed and denied petitioner’s motion for rehearing. Gray v. Lucas, 677 F. 2d 1086, rehearing denied, 685 F. 2d 139 (1982). (9) A petition for cer-tiorari and rehearing were once again denied by this Court. 461 U. S. 910 (1983); 462 U. S. 1124 (1983). On May 11, 1983, the Mississippi Supreme Court set the execution date for July 6, 1983.

(10) On June 22, 1983 petitioner submitted to the Mississippi Supreme Court a second motion for stay of execution along with a new application for a writ of error coram nobis. The petition raised, among others, those claims now before this Court. The Mississippi Supreme Court denied all requested relief on June 29, 1983. (11) Petitioner thereupon filed his second petition for a writ of habeas corpus in the Federal District Court, reasserting those claims he had submitted to the Mississippi Supreme Court. (12) On July 2, 1983, the Court of Appeals granted petitioner’s application for a stay of execution. (13) The District Court dismissed the petition for habeas corpus on July 8, 1983. (14) The Court of Appeals affirmed, Gray v. Lucas, 710 F. 2d 1048 (1983), and denied petitioner’s petition for rehearing. The stay was dissolved on August 26, 1983.

This case has been in state and federal courts for seven years. It has been tried twice in the state court and reviewed by the Mississippi Supreme Court four times. Seventeen different federal judges have reviewed petitioner’s case, and this Court has previously acted on this case four times prior to Justice White’s denial of petitioner’s application for a stay last week. Over the past seven years, judicial action reviewing this case has been taken 82 times by 26 different state and federal judges.

Petitioner’s latest claims have been reviewed by several courts in both the state and federal systems. Petitioner’s principal claim, which Justice Marshall addresses in his dissent, is that the lethal gas method of execution constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. In my view, no evidentiary hearing on the effects of lethal gas is required. A number of affidavits describing such effects were filed with and considered by the Court of Appeals, and the contents of several of these have been set forth in the dissent today of Justice Marshall. For purposes of my vote in this case, I accept the truth of the affidavits submitted by the petitioner, but nevertheless conclude — as did the Court of Appeals — that they do not as a matter of law establish an Eighth Amendment violation. I agree with the Court of Appeals that the showing made by petitioner does not justify a court holding that, “as a matter of law or fact, the pain and terror resulting from death by cyanide is so different in degree or nature from that resulting from other traditional modes of execution as to implicate the eighth amendment right.” Gray v. Lucas, 710 F. 2d, at 1061.

This case illustrates a recent pattern of calculated efforts to frustrate valid judgments after painstaking judicial review over a number of years; at some point there must be finality. I join the Court’s action denying the petition for certiorari and denying a stay of execution.

Justice Marshall,

with whom Justice Brennan joins, dissenting.

In this application for a stay, petitioner asks simply that we postpone his execution long enough to allow us to consider and dispose of his pending petition for certiorari in which he challenges the decision of the United States Court of Appeals for the Fifth Circuit affirming the denial of his request for a writ of habeas corpus. Gray v. Lucas, 710 F. 2d 1048 (1983). I would grant the application.

Petitioner argues that the method by which the State of Mississippi plans to execute him — exposure to cyanide gas— constitutes cruel and unusual punishment. In support of that claim, he submitted to the United States District Court for the Southern District of Mississippi numerous affidavits that described in graphic and horrifying detail the manner in which death is induced through this procedure. Gray v. Lucas, No. S83-0546(C) (July 8, 1983). For example, Dr. Richard Traystman, Director of the Anesthesiology and Critical Care Medicine Research Laboratories at Johns Hopkins Medical School, described the process as follows:

“ ‘Very simply, cyanide gas blocks the utilization of the oxygen in the body’s cells. * * * Gradually, depending on the rate and volume of inspiration, and on the concentration of the cyanide that is inhaled, the person exposed to cyanide gas will become anoxic. This is a condition defined by no oxygen. Death will follow through asphyxiation, when the heart and brain cease to receive oxygen.
“ ‘The hypoxic state can continue for several minutes after the cyanide gas is released in the execution chamber. The person exposed to this gas remains conscious for a period of time, in some cases for several minutes, again depending on the rate and volume of the gas that is inhaled. During this time, the person is unquestionably experiencing pain and extreme anxiety. The pain begins immediately, and is felt in the arms, shoulders, back, and chest. The sensation is similar to the pain felt by a person during a heart attack, where essentially, the heart is being deprived of oxygen. The severity of the pain varies directly with the diminishing oxygen reaching the tissues.
“‘The agitation and anxiety a person experiences in the hypoxic state will stimulate the autonomic nervous system. . . . [The person] . . . may begin to drool, urinate, defecate, or vomit. There will be a muscular con-tractio[n]. These responses can occur both while the person is conscious, or when he becomes unconscious.
“ ‘When the anoxia sets in, the brain remains alive for from two to five minutes. The heart will continue to beat for a period of time after that, perhaps five to seven minutes, or longer, though at a very low cardiac output. Death can occur ten to twelve minutes after the gas is released in the chamber.’” Gray v. Lucas, 710 F. 2d, at 1060.

Dr. Traystman further testifed that the lethal-gas method is sufficiently painful that it is disfavored in the scientific community as a way of putting animals to sleep. “‘We would not use asphyxiation, by cyanide gas or by any other substance, in our laboratory to kill animals that have been used in experiments — nor would most medical research laboratories in this country use it.’” Ibid.

Other affiants described in less clinical language the effects of the procedure when used to execute people:

“‘When the cyanide gas reached [the prisoner], he gasped, and convulsed strenuously. He stiffened. His head lurched back. His eyes widened, and he strained as much as the straps that held him to the chair would allow. He unquestionably appeared to be in pain.
“ ‘Periodically now, perhaps at thirty second intervals, he would convulse, alternately straining and relaxing in the chair. I noticed he had urinated. The convulsions continued for approximately ten more minutes, and you could see his chest expand, and then contract, trying to take in fresh air. These movements became weaker as the minutes ticked away. You could not tell when [he] finally lost consciousness.
“ ‘According to prison officials, [he] died . . . approximately 12 minutes after the cyanide pellets had dropped in the chamber. Death was pronounced after the shade on our observation window had been drawn, though there was still some slight movement in the body.
“ ‘The pellets of cyanide were released by mechanical controls, and dropped into an acid jar beneath the chair. The gas rose, and seemed to hit him immediately. Within the first minute [he] slumped down. I thought to myself how quickly cyanide really worked.
“ ‘Within 30 seconds he lifted his head upwards again. He raised his entire body, arching, tugging at his straps. Saliva was oozing from his mouth. His eyes open, he turned his head to the right. He gazed through my window. His fingers were tightly gripping his thumbs. His chest was visibly heaving in sickening agony. Then he tilted his head higher, and rolled his eyes upward. Then he slumped forward. Still his heart was beating. It continued for another several minutes.
“‘He was pronounced dead, twelve minutes after the pellets were released, by the doctor who could hear his heart through the stethoscope, die.’” Id., at 1058-1059.

The Court of Appeals accepted petitioner’s “proffered facts as proven.” Id., at 1061. Specifically, the court adopted petitioner’s description of the method of execution as that of “death by cyanide gas, causing asphyxiation at the cost of protracted pain over a period that may exceed seven minutes.” Ibid. The court refused, nevertheless, to reverse the District Court’s decision denying petitioner an evi-dentiary hearing, reasoning that, “under present jurisprudential standards,” petitioner’s allegations were insufficient “to implicate the eighth amendment right.” Ibid.

In my view, if the lethal-gas method operates in the manner described by petitioner, the Court of Appeals clearly erred in ruling that the method is not “cruel” under “present jurisprudential standards.” The Eighth Amendment proscribes “punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958)). Identification of those standards is sometimes difficult, but two principles have long been beyond dispute. First, “[pjunishments are cruel when they involve torture or a lingering death.” In re Kemmler, 136 U. S. 436, 447 (1890). Second, punishments are cruel when they “involve the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U. S. 153, 173 (1976). A corollary of the second principle is that “no court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives.” Furman v. Georgia, 408 U. S. 238, 430 (1972) (Powell, J., joined by Burger, C. J., and Blackmun and Rehnquist, JJ., dissenting); see also id., at 279 (Brennan, J., concurring).

The Court of Appeals failed to apply either of the foregoing principles to the case before it. Instead, the court attempted to assess the “pain and terror” associated with “traditional modes of execution” (such as hanging) and concluded that the difference between the trauma associated with the use of lethal gas and the trauma associated with those traditional methods was not so great as to render the former constitutionally infirm. Gray v. Lucas, 710 F. 2d., at 1061. Had the court made an effort to apply the proper legal standards, it seems highly likely that it would have found the lethal-gas method to be unconstitutional. A death that, as the court recognized, involves extreme pain over a span of 10 to 12 minutes surely must be characterized as “lingering,” see In re Kemmler, supra. And petitioner directed the court’s attention to at least one readily available alternative method of administering the death penalty that, though equally barbaric in its effects, involves far less physical pain than the use of cyanide gas; it seems indisputable, therefore, that the lethal-gas method is “unnecessarily cruel.”

That execution through the administration of lethal gas violates the Eighth Amendment is confirmed by examination of the treatment accorded the method in recent years by the state legislatures. This Court has often indicated that assessment of the constitutional status of a given punishment “‘should be informed by objective factors to the maximum possible extent.’” Enmund v. Florida, 458 U. S. 782, 788 (1982) (quoting Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion)). Among the most important of those factors is the direction in which contemporary “legislative judgments” are moving. Enmund v. Florida, supra. Between 1921 and 1973, several States by statute adopted the lethal-gas method. In most instances, the abandonment of the scaffold or electric chair in favor of the gas chamber was prompted by humanitarian motives; asphyxiation was regarded as a less painful and more dignified way of administering the death penalty than hanging or electrocution. However, as awareness of the trauma associated with the lethal-gas method grew and as the lethal-injection method became better known, the trend was reversed. In the past decade, no State has adopted the lethal-gas method. By contrast, three States that formerly employed the gas chamber exclusively have altered their laws to require or permit use of the injection procedure. At least two other States that never had used the gas chamber considered adopting the method but rejected it in favor of the injection system. At present, only 7 of the 39 jurisdictions that retain the death penalty require use of the gas chamber. This evolving consensus against compulsory use of the lethal-gas method buttresses the conclusion that the procedure must now be considered “cruel.”

Under these circumstances, the majority’s decision to deny the stay, thereby authorizing the execution of petitioner before we can even consider his petition for certiorari, seems to me unconscionable. Petitioner has presented a substantial challenge to the constitutionality of Mississippi’s method of execution. The Court of Appeals has denied petitioner a hearing to develop his claim. Townsend v. Sain, 372 U. S. 293 (1963). Yet a majority of this Court declines to delay petitioner’s execution a few more weeks until we can consider through our traditional means of deliberation whether this case raises issues of sufficient import to grant a writ of certiorari.

I dissent from the denial of the stay.

       Even if his petition for certiorari did not present the substantial constitutional claim discussed below, I would nevertheless grant petitioner’s application for a stay, grant certiorari, and vacate petitioner’s death sentence in accordance with my view that the death penalty is unconstitutional in all circumstances. Gregg v. Georgia, 428 U. S. 158, 231 (1976) (Marshall, J., dissenting).

       The District Court never assessed the relevance of these affidavits because it disposed of the claim on procedural grounds. The court determined that petitioner had neglected to present this Eighth Amendment claim in state-court proceedings and therefore had forfeited his right to raise the issue in federal court. Wainwright v. Sykes, 433 U. S. 72 (1977). The District Court also reasoned that, since petitioner’s original counsel did not include this claim in a previous federal habeas corpus petition, petitioner had waived the claim, and it would be an abuse of the writ for him to try to raise it in his current habeas petition. See Sanders v. United States, 373 U. S. 1, 17-19 (1963); 28 U. S. C. § 2254 Rule 9(b).

       The Court of Appeals did not share the District Court’s view that federal court review of this claim was procedurally barred. See n. 2, supra. The Circuit rejected the District Court’s finding of forfeiture and ruled that, in reaching petitioner’s claim on the merits, “the Mississippi Supreme Court itself removed any procedural bar which might otherwise impede a federal court’s hearing on the merits.” 710 F. 2d, at 1052, n. 2. The Circuit did not explicitly consider the District Court’s “abuse of writ” ground for dismissal, but by electing to reach the merits of the claim, the court implicitly held that petitioner had offered adequate explanation of why the issue had not been raised in his first habeas corpus petition. In his brief to the Court of Appeals, petitioner explained that his original counsel had been unaware of the excruciating side effects of execution by lethal gas and that the current trend against the use of lethal gas was not yet evident when petitioner filed his first federal habeas corpus petition. See infra, at 1246, and nn. 6 and 7. Alternatively, the Court of Appeals may quite correctly have concluded that, given the equitable nature of habeas relief, the District Court should not have denied petitioner an opportunity to challenge the means by which he will die simply because his attorney neglected to append the claim to an earlier petition. See Fay v. Noia, 372 U. S. 391, 438-440 (1963); Sanders v. United States, 373 U. S., at 17-18.
      Relying on this Court’s recent opinion in Barefoot v. Estelle, ante, p. 880, respondents suggest that second and successive habeas corpus petitions in death penalty cases should receive heightened scrutiny. I disagree. The majority in Barefoot explicitly endorsed the Sanders standard for reviewing second and successive petitions in death penalty cases. Ante, at 895. Since petitioner established that his failure to bring this claim in his previous petition was not an abuse of the writ under Sanders, the courts below were obliged to consider the claim on the merits.

       That method is the lethal-injection procedure, which involves intravenous injection of a fast-acting barbituate combined with a paralytic agent. See Royal Commission on Capital Punishment, 1949-1958 Report, Cmd. No. 8932, p. 257 (1980); Gardner, Executions and Indignities — An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 128-129 (1978).

       See L. Berkson, The Concept of Cruel and Unusual Punishment 29-31 (1975).

       See 1983 Nev. Stats., ch. 601, § 1 (amending Nev. Rev. Stat. § 176.355 (1979)); N. M. Stat. Ann. § 31-14-11 (Supp. 1983); 1983 N. C. Sess. Laws, ch. 678 (amending N. C. Gen. Stat. § 15-187 (1978)).

       See 1977 Okla. Sess. Law, ch. 41, § 1; 1977Tex. Gen. Laws, ch. 138, § 1.

       The seven States are Arizona (Ariz. Rev. Stat. Ann. §13-704 (Supp. 1982-1983)); California (Cal. Penal Code Ann. §3604 (West 1982)); Colorado (Colo. Rev. Stat. § 16-11-401 (1978)); Maryland (Md. Ann. Code, Art. 27, § 71 (1982)); Mississippi (Miss. Code Ann. § 99-19-51 (1972)); Missouri (Mo. Rev. Stat. § 546.720 (1978)); and Wyoming (Wyo. Stat. § 7-13-904 (1977)).
      A similar situation was presented in Enmund v. Florida, 458 U. S. 782 (1982). In that case, the Court relied significantly upon the fact that “only a small minority of jurisdictions — eight—allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed” in holding unconstitutional the use of capital punishment under such circumstances. Id., at 792.


source: Caselaw Access Project

license: Public Domain

text:
    September 6, 1983
    No. 82-2164.
    Austin v. Unarco Industries, Inc., et al.
   C. A. 1st Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 8, 1983
    No. A-57.
    Burlington Northern Railroad Co. v. United States et al.
   C. A. D. C. Cir. Application for stay, presented to Justice White, and by him referred to the Court, denied.


text:
    No. 82-432.
    Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers, et al. v. Crowley et al.
   C. A. 1st Cir. [Certiorari granted, 459 U. S. 1168.] Motion of Association for Union Democracy for leave to file a brief as amicus curiae granted.


text:
    No. 82-629.
    Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., et al.
   Sup. Ct. N. D. [Certiorari granted, 461 U. S. 904.] Motions of Standing Rock Sioux Tribe of North and South Dakota et al. and Turtle Mountain Band of Chippewa Indians for leave to file briefs as amici curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 82-708.
    Summa Corp. v. California ex rel. State Lands Commission et al.
   Sup. Ct. Cal. [Certio-rari granted, 460 U. S. 1036.] Motion of Amigos de Bolsa Chica for leave to file a brief as amicus curiae granted.


text:
    No. 82-945.
    Sure-Tan, Inc., et al. v. National Labor Relations Board.
   C. A. 7th Cir. [Certiorari granted, 460 U. S. 1021.] Motions of California Agricultural Labor Relations Board and United Farm Workers of America, AFL-CIO, for leave to file briefs as amici curiae granted.


text:
    No. 82-1071.
    Aluminum Company of America et al. v. Central Lincoln Peoples’ Utility District et al.
   C. A. 9th Cir. [Certiorari granted, 460 U. S. 1050.] Motion of the Solicitor General for divided argument granted.


text:
    No. 82-1095.
    Pulley, Warden v. Harris.
   C. A. 9th Cir. [Certiorari granted, 460 U. S. 1036.] Motion of National Council on Crime and Delinquency for leave to file a brief as amicus curiae granted.


text:
    No. 82-1326.
    No. 82-1327.
    No. 82-1511.
    Watt, Secretary of the Interior, et al. v. California et al.; Western Oil & Gas Assn. et al. v. California et al.; and California et al. v. Watt, Secretary of the Interior, et al.
   C. A. 9th Cir. [Certiorari granted, 461 U. S. 925.] Motion of Western Oil & Gas Association et al. for divided argument granted. Request for additional time for oral argument denied. Motion of Humboldt County et al. for divided argument granted. Request for additional time for oral argument denied.


text:
    No. 81-5044.
    No. 81-5240.
    No. 81-5698.
    No. 81-5947.
    No. 81-5962.
    No. 81-6454.
    No. 82-698.
    No. 82-1080.
    No. 82-1679.
    No. 82-1804.
    No. 82-1902.
    No. 82-5128.
    No. 82-5260.
    No. 82-5868.
    No. 82-6110.
    No. 82-6192.
    No. 82-6618.
    No. 82-6640.
    No. 82-6705.
    Monroe v. Louisiana, Gates v. Zant, Superintendent, Georgia Diagnostic and Classification Center, Sonnier v. Louisiana, Waters v. Georgia, Taylor v. North Carolina, Mattheson v. Louisiana, Howard et al. v. Taylor et al., Simon et al. v. Davis, Secretary of Commonwealth of Pennsylvania, et al., Alberding v. Donovan, Secretary of Labor, Mueller v. Superior Court of California, County of Orange (California, Real Party in Interest), Dolenz v. All Saints Episcopal Hospital, Mathis v. Georgia, Moore v. Louisiana, Williams v. Maggio, Warden, et al., Raulerson v. Florida, Roberts v. South Carolina, Bothwell v. Georgia, In re Damiano, Betka v. Smith et al.,
   ante, p. 1229;

ante, p. 1213;

ante, p. 1229;

ante, p. 1213;

ante, p. 1213;

ante, p. 1229;

ante, p. 1229;

ante, p. 1219;

ante, p. 1207;

ante, p. 1208;

462 U. S. 1134;

ante, p. 1214;

ante, p. 1214;

ante, p. 1214;

ante, p. 1229;

ante, p. 1214;

ante, p. 1210;

462 U. S. 1130; and

462 U. S. 1125. Petitions for rehearing denied.


text:
    No. 81-1717.
    American Bank & Trust Co. et al. v. Dallas County et al.; Bank of Texas et al. v. Childs et al.; and Wynnewood Bank & Trust et al. v. Childs et al.,
   ante, p. 855. Petition of Dallas County et al. for rehearing denied. Petition of City of Dallas et al. for rehearing denied.

Justice O’Connor took no part in the consideration or decision of these petitions.


text:
    No. 81-2008.
    Process Gas Consumers Group et al. v. Consumer Energy Council of America et al.,
   ante, p. 1216. Petition for rehearing denied.

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


text:
    September 12, 1983
    No. 82-1916.
    Empresa Ecuatoriana de Aviacion, S. A. v. District Lodge No. 100, International Association of Machinists & Aerospace Workers, et al.
   C. A. 11th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 21, 1983
    No. 83-270.
    Moore v. Moore.
   Ct. App. Okla. Certio-rari dismissed under this Court’s Rule 53.


text:
    September 22, 1983
    No. 82-5935.
    Jackson v. Wainwright, Secretary, Department of Corrections of Florida,
   ante, p. 1229. Petition for rehearing dismissed under this Court’s Rule 53.


text:
    September 27, 1983
    No. 83-5419.
    Stacy v. Wainwright.
   Dist. Ct. App. Fla., 1st Dist. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 81-2101.
    Pennhurst State School and Hospital et al. v. Halderman et al.
   C. A. 3d Cir. [Certiorari granted, 457 U. S. 1131.] Motion of respondents to dismiss the writ of certiorari as improvidently granted is denied.


text:
    No. A-188 (83-5432).
    Baldwin v. Maggio, Warden, Louisiana State Penitentiary, et al.
   C. A. 5th Cir. Application for stay of execution of the sentence of death scheduled for October 6, 1983, presented to Justice White, and by him referred to the Court, is granted pending this Court’s final action on the petition for writ of certiorari.


author: Justice Blackmun, Circuit Justice.

text:
    WILLIAMS v. MISSOURI
    No. A-1077.
    Decided July 6, 1983
   Justice Blackmun, Circuit Justice.

On May 31, 1983, the Supreme Court of Missouri affirmed applicant Williams’ conviction and death sentence. 652 S. W. 2d 102. It noted applicant’s execution was set for July 15. On June 30, the Missouri Supreme Court denied applicant’s timely motion for rehearing, and his motion requesting that court to stay issuance of its mandate pending final disposition of a petition for certiorari in this Court. Under the Rules of this Court, applicant has until August 29, 1983, to file a petition for certiorari. He has applied to me for a stay of execution pending timely filing and disposition of that petition. The application is granted.

“[D]irect appeal is the primary avenue for review of a conviction or sentence.” Barefoot v. Estelle, ante, at 887. If a federal question is involved, the process of direct review “includes the right to petition this Court for a writ of certio-rari.” Ibid.' A stay of execution obviously is essential to realization of this right if the execution otherwise would occur prior to the expiration of a defendant’s time to petition this Court for direct review. The defendant must have at least one opportunity to present to the full Court his claims that his death sentence has been imposed unconstitutionally. For this reason, if a State schedules an execution to take place before filing and disposition of a petition for certiorari, I must stay that execution pending completion of direct review, as a matter of course.


author: Justice Brennan, Circuit Justice.

text:
    CAPITAL CITIES MEDIA, INC., et al. v. TOOLE, JUDGE OF THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
    No. A-1070.
    Decided July 13, 1983
   Justice Brennan, Circuit Justice.

This is an application for an immediate stay of several orders entered by the Court of Common Pleas of Luzerne County, Pa., in connection with a homicide trial in that court, Commonwealth v. Banks, Criminal Cases Nos. 1290, 1506, 1507, 1508, 1519, 1520, 1524 of 1982, that had attracted a great deal of public interest. The specific orders in question were entered by respondent Judge Toole on June 3, 1983, after selection of the trial jury but before its sequestration. In one order, respondent directed first that “[n]o person shall print or announce in any way the names or addresses of any juror,” Order in Accordance with Pa. Rule Crim. Proc. 1111(c), June 3, 1983, ¶2 (hereinafter ¶2), and also that “[n]o person shall draw sketches, photographs, televise or videotape any juror or jurors during their service in these proceedings . . . ,” ¶6 (hereinafter ¶6). In a separate order, Judge Toole ordered that “[n]o one, except attorneys of record, their agents, court personnel, witnesses and jurors may handle exhibits except by Order of Court,” Order Pursuant to Pa. Rule Crim. Proc. 326, June 3, 1983, ¶ 11 (hereinafter ¶ 11). The application for a stay was first presented to me on June 18, 1983, but I held it pending action by the Supreme Court of Pennsylvania on a substantially identical application for summary relief. On June 21, the jury returned a guilty verdict in the Banks case and was discharged; on June 30, the Supreme Court of Pennsylvania denied summary relief. Applicants immediately reapplied to me for a stay. An initial response was received by telegram on July 7, with a more complete response submitted on July 13.

In recent years, several Justices have had occasion to explain the role of a Circuit Justice in precisely this context, when a trial court has enjoined the press and other media from publication of information in connection with a criminal trial. Caution is the refrain of any Justice acting as Circuit Justice, but we have recognized the special importance of swift action to guard against the threat to First Amendment values posed by prior restraints. It is clear that even a short-lived “gag” order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect. When it appears that there is a significant possibility that this Court would grant plenary review and reverse the lower court’s decision, at least in part, a stay may issue. Nebraska Press Assn. v. Stuart, 423 U. S. 1327, 1330 (1975) (Blackmun, Circuit Justice); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, Circuit Justice). See also Bonura v. CBS, Inc., 459 U. S. 1313 (1983) (White, Circuit Justice).

I address first the ¶ 2 provision, which on its face permanently restrains publication of the names or addresses of any juror. Counsel for respondent has informed the Clerk of this Court that this order remains in effect, and that publication at this time of the name of a juror would subject the publisher to the possibility of being held in contempt of court. This order was entered by the court sua sponte and without a hearing or a record; neither the prosecution nor defendant has expressed any interest in it. Cf. Gannett Co. v. DePasquale, 443 U. S. 368 (1979). The jury was selected at voir dire proceedings begun prior to the issuance of this order, from which the press and public were not excluded, and at which the names of the prospective jurors were not kept confidential. Cf. Press-Enterprise Co. v. Superior Court of California, 4 Civil No. 27904 (Ct. App. Cal., 4th App. Dist., May 13, 1982), cert. granted, 459 U. S. 1169 (1983).

It hardly requires repetition that ‘“[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,’” and that the State “ ‘carries a heavy burden of showing justification for the imposition of such a restraint.’” New York Times Co. v. United States, 403 U. S. 713, 714 (1971) (per curiam). This Court has given plenary consideration to a number of state statutes and court orders issued thereunder restraining publication of information in connection with a criminal trial or restricting press access to a criminal trial for the purpose of preventing such publication. Just last Term, in Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), we held that the First and Fourteenth Amendments prohibited enforcement of a rule barring press and public access to criminal sex-offense trials during the testimony of minor victims. We adopted a familiar standard: “Where, as in the present case, the State attempts ... to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Id., at 606-607; cf. Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979).

I assume, for purposes of argument only, that the State has a compelling interest in keeping personal information about jurors confidential in an appropriate case, either to assure the defendant a fair trial or to protect the privacy of jurors. Cf. Globe Newspaper, supra, at 607; Richmond Newspapers, Inc. v. Virginia, 448 U. S. 556, 600 (1980) (Stewart, J., concurring in judgment). Our precedents make clear, however, that far more justification than appears on this record would be necessary to show that this categorical, permanent prohibition against publishing information already in the public record was “narrowly tailored to serve that interest,” if indeed any justification would suffice to sustain a permanent order. Based on these precedents, I must conclude that if the Supreme Court of Pennsylvania sustained this order on its merits, four Justices of this Court would vote to grant review, and there would be a substantial prospect of reversal.

Insofar as the State’s interest is in shielding jurors from pressure during the course of the trial, so as to ensure the defendant a fair trial, that interest becomes attenuated after the jury brings in its verdict and is discharged. Cf. Gannett Co. v. DePasquale, supra, at 400 (Powell, J., concurring). As for the State’s concern for the jurors’ privacy, we have not permitted restrictions on the publication of information that would have been available to any member of the public who attended an open proceeding in a criminal trial, Oklahoma Publishing Co. v. District Court, 430 U. S. 308, 311-312 (1977) (per curiam); Nebraska Press Assn. v. Stuart, 427 U. S. 539, 568 (1976), even for the obviously sympathetic purpose of protecting the privacy of rape victims, Globe Newspaper, supra, at 607-609; Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 491-495 (1975). See also Smith v. Daily Mail Publishing Co., supra, at 104: “If the information is lawfully obtained . . . the state may not punish its publication except when necessary to further an interest more substantial than is present here” — i. e., protecting the privacy of an 11-year-old boy charged with a juvenile offense. In an extraordinary case such a restriction might be justified, but the justifications must be adduced on a case-by-case basis, with all interested parties given the opportunity to participate, and less restrictive alternatives must be adopted if feasible. Globe Newspaper, supra, at 608-609, and n. 25; Richmond Newspapers, Inc. v. Virginia, supra, at 580-581 (opinion of Burger, C. J.); Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 842-843 (1978). The ¶2 order was entered without a hearing, and without findings of fact that would justify it; respondent has suggested no concern specific to this case in support of his order. Accordingly, I grant applicants’ request for a stay of the ¶2 provision.

It would be inappropriate for me to grant a stay of the ¶ 6 or ¶ 11 provisions. By its terms, the ¶6 provision applied only “during [the jurors’] service in these proceedings.” Since the jury has been discharged, this particular provision can no longer have effect. It may be that such an order, although it had expired, could still receive appellate review in this Court under the “capable of repetition, yet evading review” doctrine, see Nebraska Press Assn., 427 U. S., at 546-547, but there is no prospect of immediate injury to applicants before they can seek review of the order, so their application for a stay must be denied. As for the ¶ 11 provision, restricting access to exhibits, applicants have neither identified the exhibits to which they seek access, nor have they indicated that they have sought a court order permitting them access. The application for a stay of the ¶ 11 provision is denied without prejudice to its renewal in the event a request for access to exhibits is denied by the trial judge.

I shall issue an order accordingly.


author: Justice Rehnquist, Circuit Justice.

text:
    JULIAN v. UNITED STATES
    No. A-1071.
    Decided July 13, 1983
   Justice Rehnquist, Circuit Justice.

Applicant has filed a motion for bail pending disposition of his petition for writ of certiorari. He was arrested in Los Angeles on May 7, 1980, while attempting to board a nonstop flight to Lima, Peru. Prior to the scheduled departure time, a customs official had announced that anyone taking more than $5,000 currency out of the country was required to file a report with the Customs Service. When stopped on the boarding ramp, applicant acknowledged that he had heard the announcement but denied that he was carrying more than $5,000. He repeated this denial during subsequent questioning, but a search of his person and belongings revealed approximately $29,000 in cash as well as a variety of narcotics paraphernalia.

Following a jury trial in the United States District Court for the Central District of California, applicant was convicted of attempted importation of narcotics; making false statements to a Government official, in violation of 18 U. S. C. § 1001; and failing to file a report in connection with the transportation of more than $5,000 outside the United States, in violation of 84 Stat. 1122, 31 U. S. C. § 1101. He was sentenced to concurrent 5-year terms and fined $5,000 each on the first two counts. He received a consecutive 1-year term and a $5,000 fine on the third count.

Applicant was freed on bond pending appeal. The Court of Appeals, by a divided vote, affirmed his conviction in all respects, and this application followed. For the reasons explained below, the application is denied.

The standards to be applied are well established. Applications for bail to this Court are granted only in extraordinary circumstances, especially where, as here, “the lower court refused to stay its order pending appeal. ” Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers). At a minimum, a bail applicant must demonstrate a reasonable probability that four Justices are likely to vote to grant cer-tiorari. Bateman v. Arizona, 429 U. S. 1302, 1305 (1976) (Rehnquist, J., in chambers).

Applicant raises a number of contentions in his petition, none of which, I believe, is likely to command the vote of four Justices. First, he argues that 18 U. S. C. § 1001 does not apply to his statements at all because those statements were oral, unsworn, exculpatory, and immaterial. A fair reading of the statute, however, brings applicant’s false statements to the customs official squarely within the prohibition of §1001. Second, applicant contends that a conviction under both 18 U. S. C. § 1001 and 31 U. S. C. § 1101 violates the Double Jeopardy Clause. But under the principle of statutory construction established in Blockburger v. United States, 284 U. S. 299, 304 (1932), cumulative punishments under separate statutes are permitted provided only that each statute requires proof of a fact not required by the other. Title 18 U. S. C. § 1001 requires a finding that applicant misled a Government official by material false statements. Title El U. S. C. § 1101 requires a different finding that applicant failed to file the required currency reporting form. Thus, the Blockburger test is satisfied, and a fortiori there is no double jeopardy.

Applicant also claims that the evidence taken from his person and his luggage was the fruit of unconstitutional searches and should have been suppressed. But see United States v. Ramsey, 431 U. S. 606, 616-619 (1977) (border searches require neither probable cause nor a warrant). Applicant’s remaining contentions are even less substantial.

For these reasons, the application is

Denied.

      Title 18 U. S. C. §1001 provides in relevant part:
      “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.”


author: Justice White, Circuit Justice.

text:
    NATIONAL COLLEGIATE ATHLETIC ASSOCIATION v. BOARD OF REGENTS OF UNIVERSITY OF OKLAHOMA et al.
    No. A-24.
    Decided July 21, 1983
   Justice White, Circuit Justice.

The application for a stay is granted, and the temporary stay of the judgments of the Court of Appeals and the District Court is continued pending the timely filing and disposition of a petition for writ of certiorari in the above-entitled action. If the petition is denied, this stay will terminate automatically. If certiorari is granted, the stay will continue in effect, pending judgment on the merits or other disposition of the case. Briefly stated, the reasons for granting the stay are as follows.

The National Collegiate Athletic Association is a private, nonprofit association of some 900 4-year colleges and universities meeting certain academic standards and of athletic conferences, associations, and other groups interested in intercollegiate athletics. Of these, some 800 are voting members, about 500 field football teams, and 187 are so-called Division I schools. These latter schools, the District Court found, dominate college football television.

The NCAA regulates many aspects of intercollegiate athletics, including the televising of intercollegiate football games, the arrangements for which it has controlled since 1953. The current plan involves contracts with two networks, CBS and ABC, covering the 1982-1985 seasons, as well as a 2-year contract with the Turner Broadcasting System. The District Court, in describing the contracts, stated that each network must broadcast a game on at least 14 different dates, and each must televise at least 35 games each year. At least seven broadcasts must be national and at least six regional. The networks select the games they will broadcast, at least 82 different teams must appear on each network over a 2-year period, and no school may appear more than six times during a 2-year period. Each network is obligated to pay a minimum of $131,750,000 over the four years; TBS will pay $17,696,000 over two years. From these sums, the NCAA takes a percentage, certain sums are reserved for participants in the Division II and III competitions, and the balance is divided equally among those schools who have appeared on the broadcasts covered by the contracts. Schools not selected to appear under the contract are not permitted to make their own arrangements to broadcast their games, and schools that do appear may not undertake to have additional games televised.

The Regents of the University of Oklahoma and the University of Georgia Athletic Association brought this action against the NCAA, asserting that the NCAA’s regulatory scheme violates the antitrust laws. The District Court agreed, holding that the scheme constituted price fixing that was illegal per se under § 1 of the Sherman Act and the relevant cases; it also held that the arrangement was an illegal group boycott, was monopolization forbidden by § 2, and was in any event an unreasonable restraint of trade. 546 F. Supp. 1276 (WD Okla. 1982). The contracts were declared null and void, and an injunction was entered forbidding their further implementation.

The Court of Appeals for the Tenth Circuit, while disagreeing with the boycott and monopolization holdings, otherwise upheld the decision of the District Court. 707 F. 2d 1147 (1983). Although it ordered the judgment affirmed, it remanded with instructions that the District Court “consider its injunction in light of” the Court of Appeals’ opinion. Id., at 1162. The court’s mandate has issued. The NCAA, asserting that it will petition for certiorari, has requested a stay; the respondents have opposed the stay, as has the United States as amicus curiae.

Having examined the papers so far filed with me and assuming that they fairly represent the issues and what has occurred in this case, I can say with confidence that I would vote to grant certiorari. Somewhat less confidently, I expect that at least three other Justices would likewise vote to grant. The judgment below would obviously have a major impact countrywide, and the case plainly presents important issues under the antitrust laws.

I also have little doubt that if certiorari is to be granted the equities pending decision on the merits are with the NCAA. The two respondent schools might do better for themselves during the 1983 season if they were free to go their own way, but were a stay to issue, their harm would be limited to the difference between what they would receive under the NCAA arrangements and what they could otherwise garner. On the other hand, unless the judgment is stayed, it would appear that the networks’ contracts would be void under the outstanding judgment and could not be enforced; the entire 1983 season would be at risk not only for the NCAA but also for many, if not most, of the schools which it represents, including many schools that would prefer the NCAA arrangements to continue at least through the 1983 season.

Although the question is a close one, I am also of the view that there is a sufficient likelihood that the court below erred in one or more important respects to justify issuing the stay. For example, the per se price-fixing holding is questionable to my mind; also, although in the long run I may agree with the courts below in this respect, I have some doubt whether they reached the correct result under the Rule of Reason.

Accordingly, having determined that certiorari will likely be granted, that there is a sufficient prospect that the NCAA will ultimately prevail, and that the equities favor the NCAA, I conclude that a stay is in order.

Respondents suggest that the NCAA should be required to post bond if the stay is granted. I am not inclined to impose that requirement. I note that the Court of Appeals stayed the judgment of the District Court without bond while the case was on appeal to it. I see no need to change that procedure.


text:
    RUCKELSHAUS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY v. MONSANTO CO.
    No. A-1066.
    Decided July 27, 1983
   Justice Blackmun, Circuit Justice.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U. S. C. §136 et seq. (1982 ed.), as amended in 1978, 92 Stat. 819, requires pesticide manufacturers to register their products with the Environmental Protection Agency (EPA) prior to marketing them in the United States. The EPA decides whether to register a pesticide; it bases its decision on an evaluation of test data concerning the product’s effectiveness and potential dangers. These data typically are submitted by the pesticide’s manufacturer. Section 3(c)(1)(D) of FIFRA, 7 U. S. C. § 136a(c)(l)(D) (1982 ed.), provides, however, that test data submitted in connection with a particular pesticide may be used by manufacturers seeking registration of similar pesticides. In effect, a subsequent applicant for registration may “piggyback” its registration on the efforts of the initial applicant. The subsequent applicant must offer to compensate the initial applicant, and compensation is to be determined by binding arbitration if the parties cannot agree on a sum. § 3(c)(1)(D), 7 U. S. C. § 136a(c)(l)(D) (1982 ed.). In addition, health and safety data submitted by the initial applicant may be disclosed to the public pursuant to § 10(d), 7 U. S. C. § 136h(d) (1982 ed.).

Respondent Monsanto Company manufactures several registered pesticides. To obtain registration, Monsanto submitted test data developed at a cost claimed to be in excess of $23 million. These test data are trade secrets under the law of Missouri, and Monsanto consequently has the right to prevent their use and disclosure. Monsanto brought suit in the United States District Court for the Eastern District of Missouri, contending that the use or disclosure of its test data pursuant to the FIFRA provisions described above would constitute an unconstitutional taking of its property. The District Court agreed, and enjoined enforcement of these and related provisions of FIFRA. The District Court declined to stay its injunction pending direct appeal to this Court, and the Administrator of the EPA has applied to me for a stay. Having reviewed the application, the response, and the other memoranda and supporting documents filed by the parties and several amici, I deny the application.

A Justice of this Court will grant a stay pending appeal only under extraordinary circumstances, Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in chambers), and a district court’s conclusion that a stay is unwarranted is entitled to considerable deference. Id., at 1203-1204; Bateman v. Arizona, 429 U. S. 1302, 1304 (1976) (Rehnquist, J., in chambers). An applicant for a stay “must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal.” Whalen v. Roe, 423 U. S. 1313, 1316 (1975) (Marshall, J., in chambers); see Graves v. Barnes, 405 U. S., at 1203. An applicant’s likelihood of success on the merits need not be considered, however, if the applicant fails to show irreparable injury from the denial of the stay. Whalen v. Roe, 423 U. S., at 1317-1318.

In this case, the Administrator has not convinced me that irreparable harm will result if the District Court’s injunction remains in effect pending appeal. During this interim period, the injunction prevents the EPA from registering new pesticides through use of previously submitted test data, and members of the public will be unable to obtain test data relating to health and safety. The EPA will remain able, however, to register new pesticides; applicants for registration may submit their own test data to support their applications, and may rely on previously submitted data if the submitters have given permission. The EPA has adopted interim procedures to permit registration in this manner. See 48 Fed. Reg. 32012-32013 (1983). If an applicant for registration chooses to rely on previously submitted data without the submitter’s permission, the EPA may process the application although it may not actually register the product pending appeal. While registrations and disclosures will be delayed somewhat, “delay alone is not, on these facts, irreparable injury.” Whalen v. Roe, 423 U. S., at 1317.

Two other considerations enter into my decision to deny this application. First, the granting of a stay might well cause irreparable harm to Monsanto. If the District Court’s injunction were lifted, the EPA would be free to use Monsanto’s trade secrets for the benefit of its competitors and could disclose them to members of the public. Monsanto’s trade secrets would become public knowledge, and could not be made secret again if the judgment below ultimately is affirmed. In addition, the Administrator has not been particularly expeditious in seeking a stay or in pressing his appeal. This application was filed more than seven weeks after the District Court issued its amended judgment. The Administrator has requested and received a 30-day extension of time in which to file his jurisdictional statement with this Court. While certainly not dispositive, the Administrator’s failure to act with greater dispatch tends to blunt his claim of urgency and counsels against the grant of a stay. See Beame v. Friends of the Earth, 434 U. S. 1310, 1313 (1977) (Marshall, J., in chambers).

I shall enter an order accordingly.


text:
    BELLOTTI, ATTORNEY GENERAL, COMMONWEALTH OF MASSACHUSETTS v. LATINO POLITICAL ACTION COMMITTEE et al.
    No. A-99.
    Decided August 11, 1983
   Justice Brennan, Circuit Justice.

The Attorney General of the Commonwealth of Massachusetts has applied to me for a stay pending the filing and consideration by this Court of a petition for a writ of certiorari to review the judgment of the District Court for the District of Massachusetts entered on July 26, 1983. Latino Political Action Committee v. City of Boston, 568 F. Supp. 1012. That judgment found unconstitutional a new electoral dis-tricting plan adopted by the Boston City Council and approved by the Mayor of Boston for the election by district of members of the City Council and the School Committee, and enjoined the defendants from conducting preliminary or final elections under the provisions of the plan. On August 2, 1983, the District Court permitted the Attorney General to intervene in this matter and denied his motions to stay the court’s judgment pending appeal and for relief from judgment. The Court of Appeals for the First Circuit, on August 5, 1983, also denied the Attorney General’s request for a stay, 716 F. 2d 68, and this application followed.

The general principles that guide my consideration as a Circuit Justice of this application are well settled:

“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. 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. Second, the applicant must persuade [the Circuit Justice] 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. Third, there must be a demonstration that irreparable harm is likely to result from the denial of a stay. 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.” Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers) (citations omitted).

After carefully considering the opinions below and the submissions of the applicant and respondents, I have concluded that under the circumstances of this case it is not reasonably probable that four Justices will consider the issues presented by the applicant sufficiently meritorious to grant certiorari; nor is there, in my judgment, a fair prospect that a majority of the Court will conclude that the decision below was erroneous. With respect to the third Rostker consideration, I have concluded that the inconvenience and delay imposed by the District Court’s requirement that the districting plan be revised before elections can go forward are not so great as to warrant a stay of the judgment of the District Court.

Accordingly, the application is denied.


author: Justice Powell, Circuit Justice.

text:
    KEMP, SUPERINTENDENT, COLUMBIA DIAGNOSTIC AND CLASSIFICATION CENTER v. SMITH
    No. A-133.
    Decided August 24, 1983
   Justice Powell, Circuit Justice.

Respondent Smith, a convicted murderer, is scheduled to be executed by the State of Georgia at 8 a. m. tomorrow, Thursday, August 25.

At about 4:25 p. m. on August 23, the Court of Appeals for the Eleventh Circuit — reversing the District Court — granted a stay of execution. Its brief opinion stated that substantial issues were raised in this habeas corpus proceeding that justified review of their merits. Judge Hill dissented. At about 10 a. m. today, the Attorney General of Georgia filed an application with me as Circuit Justice requesting that I dissolve and vacate this stay. A response to this application was received this afternoon in my chambers at about 3 o’clock.

This is the fourth time that this capital case has required action by this Court: once on direct appeal, once on state habeas corpus, once on federal habeas corpus, and now in Smith’s second federal habeas proceeding. Apart from rehearings, this case has been reviewed 16 times by state and federal courts since Smith’s conviction in 1975. In these circumstances, and for the reasons stated by Judge Hill in his dissenting opinion below, it is not clear to me that the Court of Appeals is correct in thinking that substantial issues may remain for further consideration.

But in the present posture of the case, the question before me as Circuit Justice is whether the Court of Appeals has abused its discretion in granting a temporary stay pending a hearing on the merits. I am not able so to conclude. It is apparent from the papers presented that the Court of Appeals heard arguments at some length yesterday afternoon. Moreover, and quite properly, that court has provided for an expeditious hearing on the merits.

Accordingly, the application to vacate the stay ordered by the Court of Appeals is denied.


text:
    HAWAII HOUSING AUTHORITY et al. v. MIDKIFF et al.
    No. A-113.
    Decided September 2, 1983
   Justice Rehnquist, Circuit Justice.

Applicants, the Hawaii Housing Authority, its commissioners and executive director, request that I stay or vacate an order of the United States Court of Appeals for the Ninth Circuit. The present application bears only tangentially on the merits of the underlying lawsuit, in which the Court of Appeals decided that the condemnation provisions of the Hawaii Land Reform Act, Haw. Rev. Stat. §516-1 et seq. (1976 and Supp. 1982), violated the “Takings Clause” of the Fifth Amendment to the United States Constitution. Mid- kiff v. Tom, 702 F. 2d 788 (CA9 1983). Applicants have appealed to this Court from that ruling, and their jurisdictional statement will be considered by this Court in due course. This application arises out of the decision of the Court of Appeals on August 11, some four months after its opinion on the merits was issued, to recall its mandate for clarification and, pending such clarification, to enjoin applicants from pursuing or initiating any state administrative or judicial proceedings under the Hawaii Land Reform Act. For the reasons that follow, I will deny applicants’ request.

Applicants base their request for a stay on three arguments. First, they argue that because a notice of appeal to this Court was filed with the Court of Appeals on July 18, 1983, the Court of Appeals lacked the power to recall and clarify its mandate on August 11, 1983. Jurisdiction over this case, they claim, had shifted to this Court. I find this reasoning unpersuasive. Whatever the current application of the so-called jurisdictional shift theory to modern appellate procedure, it is well settled that a court retains the power to grant injunctive relief to a party to preserve the status quo during the pendency of an appeal, even to this Court. See, e. g., Newton v. Consolidated Gas Co., 258 U. S. 165, 177 (1922); Merrimack River Savings Bank v. Clay Center, 219 U. S. 527, 531-535 (1911); Fed. Rule Civ. Proc. 62. Applicants also argue that respondents circumvented the normal appellate process when they sought recall of the mandate after the District Court had denied their request for injunc-tive relief. Although recalling a mandate is an extraordinary remedy, I think it probably lies within the inherent power of the Court of Appeals and is reviewable only for abuse of discretion. On the record before me, I am not prepared to say that the Court of Appeals abused its power in recalling its mandate.

Second, applicants contend that the traditional equitable requirements for an injunction were not shown to exist at the time the Court of Appeals issued its order in this case. While the August 11th order of the Court of Appeals contained no findings such as those contemplated by Federal Rule of Civil Procedure 65, the Court of Appeals obviously contemplates possible modification of its injunction in the near future. At the present time, a stay based on this contention would be inappropriate.

Applicants’ third contention raises by far the most serious question: whether the injunction issued by the Court of Appeals against further state proceedings violates the principles of federalism established in Younger v. Harris, 401 U. S. 37 (1971), Huffman v. Pursue, 420 U. S. 592 (1975), and later cases. The underlying rationale of Younger is a recognition that national government functions best if state institutions are unfettered in performing their separate functions in their separate ways. Younger, supra, at 44. A central part of this policy is a frank recognition that state courts, as judicial institutions of coextant sovereigns, are equally capable of safeguarding federal constitutional rights. See Trainor v. Hernandez, 431 U. S. 434, 446 (1977). Although originally adopted to prevent a federal court from enjoining pending state criminal proceedings, the principles of Younger are fully applicable to noncriminal proceedings when important state interests are involved. See Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423 (1982); Trainor, supra; Huffman, supra. Where vital state interests are involved, a federal court should refrain from enjoining an ongoing state judicial proceeding unless state law clearly bars the interposition of constitutional claims, or some extraordinary circumstance exists requiring equitable relief. Middlesex County Ethics Committee, supra, at 432.

On the record before me, this third ground on which applicants’ request for a stay is based seems to present a close and rather intricate question. There is no doubt in my mind that the Younger-Huffman rationale applies to a federal injunction against state judicial implementation of a far-reaching land reform program in which the State is itself a party to the proceedings in its own courts. I am totally unpersuaded by respondents’ reliance on Wooley v. Maynard, 430 U. S. 705 (1977). In Wooley, the three state proceedings had already concluded, and the federal injunction had absolutely no effect on them. The same cannot be said of the effect of the Court of Appeals’ injunction on the pending action in the courts of Hawaii.

A more doubtful question, both as to the law and the facts of this case, is the time as of which the determination should be made as to the pendency of state court proceedings. As I understand it, the injunction issued by the Court of Appeals in this case was the first such remedy that affected judicial proceedings. As of the date it was issued — August 11, 1983 — there were indisputably significant condemnation cases pending in state court under the Land Reform Act. Certainly a strong argument can be made that this case may be analogized to Hicks v. Miranda, 422 U. S. 332 (1975), in that although the federal proceedings began before those brought by the State, no federal injunction of state condemnation proceedings was granted until the latter proceedings were underway. If, on the other hand, the critical date is the commencement of the proceeding in the United States District Court for the District of Hawaii in 1979, the question of whether state proceedings were pending might well be resolved differently. This application may also raise the issue left undecided in Steffel v. Thompson, 415 U. S. 452 (1974), as to the circumstances under which a properly issued federal judgment declaring a state law unconstitutional may be converted into an injunction against the enforcement of that law.

Even though these questions obviously cannot be finally resolved by a single Justice of this Court, were the Court of Appeals to continue its injunction in the present form after revising its mandate, or for an indefinite period of time, I would have to do the best I could to forecast how the full Court would resolve them. But the unique interlocutory posture of the case at present spares me that task. It would be an inappropriate exercise of my authority as Circuit Justice to stay an order of the Court of Appeals which is not demonstrably wrong and which that court itself may be disposed to revise in short order. The application is therefore denied without prejudice to its being renewed in the event of changed circumstances.

      Applicants are supported by numerous lessee homeowner associations which intervened in the proceedings below.


text:
    HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. LOPEZ et al.
    No. A-145.
    Decided September 9, 1983
   Justice Rehnquist, Circuit Justice.

Applicant, the Secretary of Health and Human Services (Secretary), requests that I issue a partial stay pending appeal of a preliminary injunction issued by the District Court for the Central District of California. The Court of Appeals for the Ninth Circuit rejected the Secretary’s application for an emergency stay and for a stay pending appeal. On September 1, 1983, I granted the Secretary’s request for a temporary stay pending further consideration of the application and the response. I have now decided to grant the stay requested by the Secretary.

This class action was instituted by numerous individuals and organizations to challenge the Secretary’s failure to follow two Ninth Circuit decisions in terminating the payment of benefits under Title II and Title XVI of the Social Security Act to recipients in the Ninth Circuit. On the authority of Finnegan v. Matthews, 641 F. 2d 1340 (CA9 1981), and Patti v. Schweiker, 669 F. 2d 582 (CA9 1982), respondents contend that the Secretary cannot terminate the payment of benefits without producing evidence that a recipient’s medical condition has improved since he previously was declared disabled. The Secretary, on the other hand, relying on agency regulations which specifically disavow the holdings of Patti and Finnegan, contends that she can terminate benefits when current evidence indicates that a prior recipient is not now disabled. She argues that she need not produce specific evidence that the prior recipient’s medical condition has improved.

Respondents styled their claim in the District Court as a constitutional challenge to the Secretary’s “nonacquies-cence” with settled law in the Ninth Circuit, an action which they argue violates constitutional principles of separation of powers and which deprives them of due process and equal protection. The District Court granted respondents’ motion for class certification and their motion for a preliminary injunction.

The first part of the District Court’s injunction, which the Secretary has not sought to stay, restrains the Secretary from disregarding Patti and Finnegan in pending and future cases. Paragraph 4(c), on the other hand, directs the Secretary within 60 days of the order to notify each member of the class that he can apply for reinstatement of benefits if he believes that his medical condition has not improved since his initial disability determination. Paragraph 4(c) requires the Secretary immediately to reinstate benefits to the applicants who apply. Following reinstatement of benefits, the Secretary can conduct hearings to establish lack of disability, but in those hearings, the Secretary must make a showing of medical improvement pursuant to Patti and Finnegan before terminating benefits. In a later order the District Court ruled that the Secretary can recoup interim benefits if she produces evidence at the hearing that the applicant’s medical condition has improved now or that it had improved at the earlier time when benefits were terminated.

On August 15, 1983, after the Ninth Circuit refused to issue an emergency stay, the Secretary notified approximately 30,000 members of the class that they could apply for reinstatement of benefits. The Secretary already has begun to receive applications. Thus the Secretary only requests that I stay the portion of Paragraph 4(c) which requires her to pay benefits to all applicants until she establishes their lack of disability through hearings complying with Patti and Finnegan.

My obligation as a Circuit Justice in considering the usual stay application is “to determine whether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities/ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers). The Secretary’s stay application does not come to me in the posture of the usual application, however. The Secretary does not ask me to stay the judgment of the Court of Appeals pending the disposition of a petition for certiorari in this Court. She asks instead that I grant a stay of the District Court’s judgment pending appeal to the Ninth Circuit when the Ninth Circuit itself has refused to issue the stay.

Although there is no question that I have jurisdiction to grant the Secretary’s request, it is also clear that “‘a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted.’” Atiyeh v. Capps, 449 U. S. 1312, 1313 (1981) (Rehnquist, J., in chambers) (citation omitted); see O’Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers). For the reasons I am about to set out, I believe that the present case is sufficiently unusual to warrant the relief sought.

Ordinarily, in an action for an injunction, the decision of the court on the “merits” will be of greater concern to a reviewing court than the particular provisions of an injunction, which are primarily entrusted to the discretion of the district court. In this case, however, I believe that the scope of the District Court’s injunction would prompt review of the injunction by at least four Members of this Court should the Court of Appeals affirm it without modification. I believe this is true even though I assume that the Court of Appeals for the Ninth Circuit will certainly follow its Patti and Finnegan decisions when it hears the Secretary’s appeal. I likewise assume that since there does not appear to be any significant circuit conflict on this point at present, four Justices of this Court would not be likely to grant a petition for certiorari should the Secretary seek review in this Court of the merits of a Ninth Circuit opinion reaffirming Patti and Finnegan.

But the District Court’s injunction goes far beyond the application of Patti and Finnegan to concrete cases before it. I think that Paragraph 4(c) of the injunction issued by the District Court, because of its mandatory nature, its treatment of the statutory requirement of exhaustion of administrative remedies, and its direction to the Secretary to pay benefits on an interim basis to parties who have neither been found by the Secretary nor by a court of competent jurisdiction to be disabled, significantly interferes with the distribution between administrative and judicial responsibility for enforcement of the Social Security Act which Congress has established. While review of an injunction issued by a lower federal court independently of the “merits” of the issue involved in the case is not common, this Court has not hesitated to reverse a District Court where it concluded that the injunction did not comply with a provision of the Federal Rules of Civil Procedure, without ever reaching the “merits” of the question involved. See, e. g., Schmidt v. Lessard, 414 U. S. 473 (1974).

The injunction issued by the District Court in this case must be evaluated first in the light of the provisions for judicial review of determinations of eligibility for benefits by the Secretary. The principal provisions follow:

“Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 49 Stat. 624, as amended, 42 U. S. C. § 405(g) (1976 ed., Supp. V).
“The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under sections 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.” 42 U. S. C. § 405(h).

We have held that these provisions codify the doctrine of exhaustion of administrative remedies, circumscribe the methods by which judicial review of a determination of the Secretary may be obtained, and set forth the standard for the exercise of judicial review. Weinberger v. Salfi, 422 U. S. 749 (1975). We have also held that the scope of judicial review of the Secretary’s determinations is a very limited one. Heckler v. Campbell, 461 U. S. 458, 466 (1983).

The scope of the District Court’s injunction must also be evaluated in the light of familiar principles of administrative law enunciated in our decisions. In Vermont Yankee Nu clear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524 (1978), this Court said:

“[T]his Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U. S. 279, 290 (1965), the Court explicated this principle, describing it as ‘an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.’”

In FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326, 333 (1976), this Court similarly observed: “[I]n the absence of substantial justification for doing otherwise, a reviewing court may not after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of ‘propelling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ SEC v. Chenery Corp., 332 U. S. 194, 196 (1947).”

With these general principles in mind, I turn to the particulars of the injunction issued by the District Court. It is unlike the usual “prohibitory” injunction which merely freezes the positions of the parties until the court can hear the case on the merits. See University of Texas v. Camenisch, 451 U. S. 390, 395 (1981). The injunction issued here is in substance, if not in terms, a mandatory one, which “like a mandamus, is an extraordinary remedial process which is granted, not as a matter of right but in the exercise of a sound judicial discretion.” Morrison v. Work, 266 U. S. 481, 490 (1925).

Paragraph 4(c) forces the Secretary immediately to pay benefits to every Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) recipient whose benefits have been terminated within the last two years because of cessation of disability. It also forces the Secretary to pay benefits to every SSI recipient under the “Grandfather Clause” of the Social Security Act whose benefits have been terminated within the last three years because of cessation of disability. The Secretary’s obligation to pay is triggered merely by the recipient’s statement in his application that, in his subjective belief, his medical condition has not improved since the earlier determination. I have serious doubt, which I believe would be shared by other Members of this Court, whether this provision is consistent with 42 U. S. C. § 405(i) or with this Court’s admonition in Schweiker v. Hansen, 450 U. S. 785 (1981), that the courts have a duty “ ‘to observe the conditions defined by Congress for charging the public treasury.’” Id., at 788 (quoting Federal Crop Insurance Co. v. Merrill, 332 U. S. 380, 385 (1947)).

The nature of the mandatory relief granted by the District Court in this case is exacerbated by the fact that the District Court defined the class to include numerous individuals who have never received “final decisions” from the Secretary on their claims within the meaning of 42 U. S. C. § 405(g) and over whom arguably the District Court has no jurisdiction. In Weinberger v. Salfi, supra, the Court held that there was a nonwaivable and a waivable portion of §405(g)’s exhaustion requirement. The nonwaivable portion requires that “a claim for benefits shall have been presented to the Secretary” before judicial review can be sought. Mathews v. Eldridge, 424 U. S. 319, 328 (1976). Like this case, Mathews involved a prior recipient whose benefits were terminated. We held there that the nonwaivable exhaustion requirement had been satisfied because, after Eldridge received notice of termination, he “specifically presented the claim that his benefits should not be terminated because he was still disabled.” Id., at 329. The preliminary injunction here, however, covers individuals who have never questioned the initial determination that they cease to be disabled. I have difficulty in seeing how these individuals have satisfied the nonwaivable jurisdictional requirement set out in Salfi.

The class includes still other individuals who have satisfied Salfis nonwaivable but not its waivable exhaustion requirement. These individuals may have sought review of the original agency determination that their benefits should be terminated, but they never pursued their claims any further. We held in Salfi that the Secretary herself could waive the exhaustion requirement if she deemed it futile in a particular case, but we also held that “a court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary.” Weinberger v. Salfi, 422 U. S., at 766.

In this case the District Court concluded that the Secretary’s announced policy of nonacquiescence establishes her final position on the medical improvement issue and that further exhaustion would be futile. Although there are other federal-court opinions which have accepted that argument, there is no decision of this Court that has interpreted the Secretary’s announcement of her interpretation of a Social Security statute as a waiver of the exhaustion requirement. See Ringer v. Schweiker, 697 F. 2d 1291 (CA9 1982), cert. granted, ante, p. 1206. The Secretary vigorously pressed the exhaustion argument before the District Court, noting that many of the class members who did exhaust their administrative remedies have had their benefits restored for reasons unrelated to the medical improvement issue. The District Court’s determination that exhaustion would be futile seems to me to contradict our holding in Salfi that such determinations properly rest with the Secretary and not with the court.

Relying on this Court’s decision in Mathews, respondents argue that they present the kind of case where deference to the Secretary’s judgment concerning the need to exhaust is inappropriate. They argue that they are not making a demand for benefits per se, but rather that they are raising a collateral constitutional challenge to the Secretary’s failure to comply with Ninth Circuit precedent. I am not persuaded that just because respondents put the label “constitutional” on their claim they can fit within the language of our opinion in Mathews. The constitutionality of the failure of the Secretary to provide pretermination hearings in Mathews appears substantially different to me from respondents’ claim that their benefits were unlawfully terminated because of the Secretary’s insufficient evidentiary showing. Unlike the claim in Mathews, respondents’ unlawful-termination claim could benefit from further factual development and refinement through the administrative process.

Respondents argue that all class members are prior recipients who were once determined to be disabled by a final decision of the Secretary, and that the District Court has merely exercised its broad remedial powers to return the class members to the positions they occupied before the unlawful termination. Whatever might be the merits of such a determination in a lawsuit between private litigants, the remedial powers of a federal court in an action seeking to enjoin an agency of a coordinate branch of the Government are circumscribed by the principles which I have previously stated. This Court recently granted certiorari in Day v. Schweiker, 685 F. 2d 19 (CA2 1982), cert. granted, 461 U. S. 904 (1983). In that case the Solicitor General contends that an order of payment of interim benefits was beyond the authority of the District Court. If the full Court were to sustain this contention, its opinion might well indicate that an award of interim benefits such as that contained in Paragraph 4(c) of the District Court’s order in the present case was likewise beyond the competence of such a court.

The Secretary takes issue with the assessment of comparative equities by the District Court and by the Court of Appeals. For purposes of ruling upon the Secretary's application, I think I must accept, and do accept, the factual conclusions of both of these courts on the question. It bears repeating that if it seemed to me that nothing more were involved than the exercise of a District Court’s traditional discretion in fashioning a remedy for an adjudicated harm or wrong, there would be no occasion for me as Circuit Justice to grant a stay where both the Court of Appeals and the District Court had refused to grant one. But as I have stated earlier in this opinion, I do not believe this is such a case. I agree with the statement of this Court in FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 141 (1940):

“A much deeper issue, however, is here involved. This was not a mandate from court to court but from a court to an administrative agency. What is in issue is not the relationship of federal courts inter se — a relationship defined largely by the courts themselves — but the due observance by courts of the distribution of authority made by Congress as between its power to regulate commerce and the reviewing power which it has conferred upon the courts under Article III of the Constitution. A review by a federal court of the action of a lower court is only one phase of a single unified process. But to the extent that a federal court is authorized to review an administrative act, there is superimposed upon the enforcement of legislative policy through administrative control a different process from that out of which the administrative action under review ensued. The technical rules derived from the interrelationship of judicial tribunals forming a hierarchical system are taken out of their environment when mechanically applied to determine the extent to which Congressional power, exercised through a delegated agency, can be controlled within the limited scope of ‘judicial power’ conferred by Congress under the Constitution.”

I therefore grant the application of the Secretary to stay Paragraph 4(c) of the order of the District Court pending determination of the Secretary’s appeal by the Court of Appeals for the Ninth Circuit.


text:
    McGEE v. ALASKA
    No. A-156.
    Decided September 9, 1983
   Justice Rehnquist, Circuit Justice.

Applicant has moved for bail pending disposition of his petition for certiorari to the Court of Appeals for the Ninth Circuit. He was tried in the state courts of Alaska and convicted of two crimes under state law. His conviction was affirmed on direct appeal by the Supreme Court of Alaska, McGee v. State, 614 P. 2d 800 (1980), and we denied certiorari, McGee v. Alaska, 450 U. S. 967 (1981). He then sought federal habeas relief in the United States District Court for the District of Alaska, claiming that certain evidence srouU have been suppressed and certain eyewitness testimony should have been excluded. Following a Magistrate’s investigation and report, applicant pursued only the Fourth Amendment claim before the District Court, which denied the claim because applicant had received a full and fair hearing on his Fourth Amendment claim in the state courts. The Court of Appeals affirmed the judgment of the District Court, and applicant began serving his sentence.

Applicant, however, seeks to have me implement what amounts to an agreement between the parties to permit his release on bail, since the State has submitted a statement to the effect that it does not oppose release on bail. No doubt the proper Alaska authorities can release applicant on bail any time they choose to do so, but it is no part of the function of the federal courts to allow bail in federal habeas review of state proceedings simply because the State does not object. Requests for bail to this Court are granted only in extraordinary circumstances, especially if, as here, a previous bail application has been denied. See Julian v. United States, ante, p. 1308 (Rehnquist, J., in chambers). Applicants must also demonstrate a reasonable possibility that four Members of this Court will vote to grant the petition for certiorari. I am satisfied from the papers submitted to me that the probability of this Court’s granting certiorari to review the judgment of the Court of Appeals approaches, if it does not actually reach, zero. See Stone v. Powell, 428 U. S. 465 (1976). Therefore, the application will be denied, notwithstanding the fact that the respondent State does not oppose it.

It is so ordered.


author: Justice Brennan.

text:
    M. I. C., LTD., et al. v. BEDFORD TOWNSHIP
    No. A-147.
    Decided September 13, 1983
   Justice Brennan.

Applicants are the owner and operator of the West Point Auto Theatre, located in the Township of Bedford, Mich. They request that I issue a stay, pending decision of their appeal in the Michigan courts, of a preliminary injunction entered on May 23,1983, by the Circuit Court for the County of Calhoun, enjoining them from exhibiting allegedly obscene films at the West Point Auto Theatre.

On April 29, 1983, Bedford Township brought this action for common-law nuisance against applicants, seeking a preliminary injunction and claiming that the recent exhibition of two allegedly obscene films at the drive-in theater had created a public nuisance. Following a hearing, the trial court granted the Township’s motion. The order, issued on May 23,1983, enjoined applicants from displaying or projecting on the screen of the West Point Auto Theatre any films containing scenes of explicit sexual intercourse or other carnal acts. By its terms, the preliminary injunction was to continue in effect until a full trial on the matter was held or until further order of the court.

The next day, applicants appealed to the Michigan Court of Appeals, seeking immediate consideration of their application for a stay pending appellate review of the trial court’s preliminary injunction. The Court of Appeals, on June 22, 1983, granted the motion for immediate consideration of the stay application but declined to issue a stay of the trial court’s order. The court also directed that the case be placed on the calendar of the October 1983 session for a hearing on the merits. Applicants then sought similar relief from the Michigan Supreme Court, and, on August 16, 1983, that court denied both their motion for review prior to consideration of the appeal by the Court of Appeals and for a stay of the preliminary injunction. This application followed.

In support of their request for a stay, applicants principally contend that the delay entailed in processing their appeal before the Michigan Court of Appeals — a delay that they allege may extend up to six months — violates the “procedural safeguards” that must attend the imposition by a State of a prior restraint on protected speech. Freedman v. Maryland, 380 U. S. 51, 58 (1965).

1 recognize at the outset that there is a view that a Circuit Justice generally has authority to issue a stay of a state-court decision only where that decision is a “final judgment or decree” that is subject to review by this Court on writ of certio-rari. 28 U. S. C. §§ 2101(f), 1257(3). The Michigan courts can be expected ultimately to review the trial court’s decision and, in that sense, the judgment of the lower court is neither the final decision in this matter, nor one rendered by the State’s highest court. But here, as in National Socialist Party of America v. Village of Skokie, 432 U. S. 43, 44 (1977), and Nebraska Press Assn. v. Stuart, 423 U. S. 1327, 1329-1330 (1975) (Blackmun, J., in chambers), the State’s highest court has refused either to lift the challenged restraint or to provide for immediate appellate review. Such a failure indicates that the state court has decided finally to maintain the restraint in effect during the pendency of review. In this situation, I have no doubt that a Justice of this Court has full power to issue a stay.

Faced with situations similar to that presented here, this Court has repeatedly required that when a State undertakes to shield the public from certain kinds of expression it has labeled as offensive, it must “provide strict procedural safeguards including immediate appellate review. Absent such review, the State must instead allow a stay.” National Socialist Party of America v. Village of Skokie, supra, at 44 (citations omitted). See also Freedman v. Maryland, supra, at 59; Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 560-562 (1975); Vance v. Universal Amusement Co., 445 U. S. 308, 316-317 (1980); Nebraska Press Assn. v. Stuart, supra, at 1328-1330 (Blackmun, J., in chambers).

In this case it appears that in all likelihood appellate review of the preliminary injunction will not be completed for several months. During that time, the trial court’s broad proscription will bar, in advance of any final judicial determination that the suppressed films are obscene, the exhibition of any film that might offend the court’s ban. Because of the delay involved, this prohibition will remain in effect for a considerable period without any final judicial review of the trial court’s order. In these circumstances, the requirement imposed by the First Amendment that a State provide procedures to “assure a prompt final judicial decision,” Freedman v. Maryland, supra, at 59, has not been satisfied.

Accordingly, I will grant a stay of the preliminary injunction entered by the trial court on May 23,1983, and amended on August 15, 1983, pending the disposition of applicants’ appeal by the Michigan courts.

       The application, initially directed to Justice O’Connor as Circuit Justice, was, because of her unavailability, referred to me.

       This estimate of the appellate timetable is supported by an affidavit submitted by applicants, which respondent has not directly contradicted or refuted.


text:
    KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER v. SMITH
    No. A-186.
    Decided September 17, 1983
   Justice Powell, Circuit Justice.

On August 23,1983, the Court of Appeals for the Eleventh Circuit granted respondent Smith a stay of execution pending consideration of the merits of Smith’s petition for habeas corpus. In its opinion, the Court of Appeals stated that the petition raised substantial issues that warranted review. The Attorney General filed an application with me as Circuit Justice requesting that I dissolve and vacate the stay. I denied the application. See ante, p. 1321.

On September 9, the Court of Appeals — after a hearing on the merits — denied Smith’s petition for habeas corpus. On September 13, Smith filed a suggestion for rehearing en banc and a motion for stay of execution. The Court of Appeals stayed Smith’s execution on September 15. The court provided that the stay would remain in effect until the mandate issues. Under the Federal Rules of Appellate Procedure, if Smith’s suggestion for rehearing is denied, the mandate will issue automatically after seven days. The Court of Appeals may shorten or lengthen that period by order. Fed. Rule App. Proc. 41(a).

The Attorney General of Georgia filed an application with me on September 16 requesting that I vacate the Court of Appeals’ latest stay. Again I cannot say that the court abused its discretion in staying Smith’s execution. The Court of Appeals is in a better position to determine the merits of Smith’s request for rehearing and how much time it needs adequately to consider his claims. In the past, the Court of Appeals has addressed this case in an expeditious manner, consistent with our opinion in Barefoot v. Estelle, ante, p. 880. I have no reason to believe that the court will not expedite consideration of Smith’s suggestion for rehearing. The Court of Appeals also has authority to order that the mandate issue forthwith if Smith’s request for a rehearing is denied.

Accordingly, the application to vacate the stay ordered by the Court of Appeals is denied.

       On September 9, the Superior Court of Bibb County, Ga., scheduled Smith’s execution for September 21.

       Smith was convicted January 30, 1975. As I noted in my in-chambers opinion of August 23, this is the fifth time that this case has required action by this Court: once on direct appeal, once on state habeas corpus, once on federal habeas corpus, and twice in Smith’s second federal habeas proceeding. Apart from rehearings, this case has now been reviewed 16 times by state and federal courts. Few cases have received more repetitive consideration than this one. I cannot say whether the judicial process has been abused deliberately. Certainly our dual state and federal process, as presently structured by law, invites the years of repetitious litigation experienced in this case. But so long as present law remains unchanged, courts — absent evidence of deliberate abuse — must respect it. Courts, however, can and should expedite consideration in the absence of new and clearly substantial claims.