text:
    No. 82-81.
    Cablevision Systems Development Co. et al. v. National Labor Relations Board et al.
   C. A. 2d Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 82-84.
    Gens et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 82-87.
    Puerto Rico Maritime Shipping Authority v. Federal Maritime Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-97.
    Amusement & Music Operators Assn. v. Copyright Royalty Tribunal et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-103.
    Rank et al. v. Nimmo et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-109.
    Zuckerman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-114.
    Oliva-Cantu v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-117.
    Nunziata v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-126.
    Soojian et al. v. Donaldson et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-161.
    Shortbull v. Looking Elk et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-162.
    Hilton et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-191.
    White Tool & Machine Co. v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-196.
    Cirami et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-197.
    Maressa v. New Jersey Monthly et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 82-205.
    Resorts International, Inc., et al. v. NJM Associates, dba New Jersey Monthly, et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 82-212.
    J. Truett Payne Co., Inc. v. Chrysler Motors Corp.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-214.
    Caffall Bros. Forest Products, Inc. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 82-219.
    Secretary of Commerce of Puerto Rico et al. v. Villanueva.
   Sup. Ct. P. R. Certiorari denied. Reported below:-P. R. R.-.


text:
    No. 82-221.
    Innkeepers of New Castle, Inc. v. Maley et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-230.
    Pomanowski v. Monmouth County Board of Realtors et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 82-231.
    No. 82-416.
    Mothon v. United States et al.; and Twombly, Inc. v. United States et al.
   C. A. 3d Cir. Certiorari denied. Reported below: 685 F. 2d 793.


text:
    No. 82-234.
    Lee v. Shield Petroleum Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-236.
    Louis Sternbach & Co. v. Sirota et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-238.
    Flewallen v. Faulkner.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-239.
    Artuso et al. v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 82-248.
    Norberg, Tax Administrator of Rhode Island v. George, Inc.
   Sup. Ct. R. I. Certiorari denied.


text:
    No. 82-250.
    Truly v. Madison General Hospital et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-251.
    Estate of Wright v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-253.
    Phelps Cement Products, Inc. v. National Labor Relations Board et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-258.
    Arizona et al. v. McGraw-Hill, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-266.
    Michelin Tire Corp. et al. v. Fallaw et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-269.
    Pollard et al. v. City of Detroit et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-273.
    Old Mountain Properties, Ltd. v. April Investments, Inc.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 82-275.
    Miener, by and Through her Next Friend and Parent, Miener v. Missouri et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-278.
    Jackson v. Washington Monthly Co. et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-283.
    Andrews et ux. v. District of Columbia.
   Ct. App. D. C. Certiorari denied.


text:
    No. 82-286.
    Oregon Department of Revenue v. Pacific First Federal Savings & Loan Assn.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 82-291.
    Dollar Electric Co. v. Syndevco, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-292.
    Consultants & Administrators, Inc. v. Illinois Department of Insurance et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 82-296.
    Whalen, t/a Towson Associates Limited Partnership et al. v. Ford Motor Credit Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-301.
    Solargen Electric Motor Car Corp. et al. v. General Motors Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-302.
    No. 82-351.
    Hodge v. South Carolina; and McLeod v. South Carolina.
   Sup. Ct. S. C. Certiorari denied. Reported below: No. 82-302, 278 S. C. 110, 292 S. E. 2d 600; No. 82-351, 278 S. C. 112, 293 S. E. 2d 699.


text:
    No. 82-304.
    Sona Food Products Co. v. Hain Pure Food Co., Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-306.
    Norris v. Jackson et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-311.
    Burlington Northern Inc. v. Buskirk.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 82-361.
    Colacurcio v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-377.
    Faircloth et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-380.
    Strauss v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-388.
    Ippolito v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-391.
    Waxman v. City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-405.
    Hamilton v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-406.
    Auerbach v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-410.
    Cawthon v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-420.
    Patterson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-430.
    Lattimore v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5029.
    Ochoa-Sanchez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5033.
    Philson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5045.
    Jones v. Arizona.
   Ct. App. Ariz. Cer-tiorari denied.


text:
    No. 82-5059.
    J. P. v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 82-5073.
    Cowling v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 82-5085.
    Regner v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5108.
    Pugh v. Jones.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5175.
    Johnson v. Clawson.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5185.
    Bryant v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 82-5186.
    Saracho v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5190.
    Wendt v. MacDougall.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5194.
    Clinger et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5197.
    Sere et al. v. Group Hospitalization, Inc., et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 82-5202.
    Borrelli v. Cuyler.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 82-5207.
    Pelczarski v. Friedland et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 82-5209.
    Buchanan v. Jefferson County et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5213.
    Mitchell v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5214.
    McFall v. Parke et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5217.
    Dowlearn v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 82-5218.
    Collins v. Chicago Board of Education.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5225.
    Penick v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 82-5230.
    Toson v. Andale Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5231.
    West v. Financial Corp.
   Sup. Ct. La. Certiorari denied.


text:
    No. 82-5232.
    Trop et al. v. Orange County Municipal Court.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5234.
    Johl v. Town of Groton et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5235.
    Stoneman v. Aurelius.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5241.
    Drumheller v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 82-5244.
    Holsey v. D’Alesandro, Commissioner, Maryland Parole Board, et al.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 82-5250.
    Rajan v. New York State Board of Law Examiners.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 82-5255.
    Bullock v. National Railroad Adjustment Board et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5259.
    Jones v. Garrison et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5262.
    Chow v. Southern California Permanente Medical Group et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 82-5263.
    Marshall v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 82-5265.
    Salahuddin v. Wright et al.; and Salahuddin v. Gold et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5268.
    Wojie v. Francis et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5269.
    Blow et al. v. Lascaris, Commissioner, Onondaga County Department of Social Services.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5273.
    Ross v. McLeod, Attorney General of South Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5274.
    Robinson v. Matney.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5278.
    Stumhofer v. Ross, Industrial Commissioner of New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 82-5294.
    Dickinson v. Texas.
   Ct. App. Tex., 11th Sup. Jud. Dist. Certiorari denied.


text:
    No. 82-5300.
    McCord v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 82-5311.
    Lewingdon v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 82-5321.
    Brassell v. City of Montgomery, Alabama, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5337.
    Mitchell v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 82-5338.
    DeGideo v. Secretary of Health and Human Services.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5340.
    Buttery v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 82-5354.
    Vespucci v. New York.
   App. Term, Sup. Ct. N. Y., 9th and 10th Jud. Dists. Certiorari denied.


text:
    No. 82-5355.
    Doane v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5361.
    Janovich v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5362.
    Dixon v. MacDougall.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5363.
    Lewis v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5366.
    Burkhart v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5368.
    Holly v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5369.
    Reyes v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 82-5381.
    Ream v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5390.
    Manos v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5393.
    Meisner v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5394.
    Briones-Garza v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5396.
    Harper v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1798.
    Larry V. Muko, Inc. v. Southwestern Pennsylvania Building & Construction Trades Council et al.
   C. A. 3d Cir. Motions of Center on National Labor Policy and Associated Builders & Contractors, Inc., for leave to file briefs as amici curiae granted. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 81-1852.
    Montana et al. v. Crow Tribe of Indians.
   C. A. 9th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 81-6966.
    Stoica v. Stewart et al.
   C. A. 3d Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 82-61.
    Special School District of St. Louis County, Missouri, et al. v. Miener, by and Through her Next Friend and Parent, Miener, et al.
   C. A. 8th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 82-5148.
    Williams v. United States.
   Ct. App. D. C. Certiorari denied.

Justice White would grant cer-tiorari.


author: Justice White,

text:
    No. 81-2012.
    Elby’s Big Boy of Steubenville, Inc., et al. v. Frisch’s Restaurants, Inc.
   C. A. 6th Cir. Certiorari denied.

Justice White,

dissenting.

One of the questions presented by this case is whether a district court’s finding of a likelihood of confusion for purposes of § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a), is reviewable under the “clearly erroneous” standard, as a question of fact, or de novo, as a legal conclusion. Because there is a split in the lower courts on this question, compare Sun Banks of Florida, Inc. v. Sun Federal Savings & Loan Assn., 651 F. 2d 311, 314-315 (CA5 1981) (applying “clearly erroneous” standard); Squirtco v. Seven-Up Co., 628 F. 2d 1086, 1091 (CA8 1980) (same); Keebler Co. v. Rovira Biscuit Corp., 624 F. 2d 366, 377 (CA1 1980) (same), with Alpha Industries, Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F. 2d 440, 443-444 (CA9 1980) (reviewing de novo court’s conclusion that there was a likelihood of confusion); Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F. 2d 433, 435, n. 2 (CA2 1974) (same), I would grant certiorari to resolve the conflict.


author: Justice Rehnquist,

text:
    No. 81-2027.
    Carpenters 46 Northern California Counties Joint Apprenticeship & Training Committee & Training Board v. Eldredge et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed informa pauperis granted. Certiorari denied.

Justice Rehnquist,

dissenting.

This case raises a question of the proper application of Rule 19 of the Federal Rules of Civil Procedure. Because I believe the Court of Appeals seriously misapprehended the import of the Rule, I respectfully dissent.

Petitioner Joint Apprenticeship & Training Committee (JATC) is the board of trustees for the Carpenters Apprenticeship and Training Trust Fund for Northern California. The labor-management agreement that created JATC requires it to establish and maintain programs for training apprentices. Respondents, two women who sought unsuccessfully to become carpentry apprentices, sued JATC in the District Court, claiming its selection process discriminates against women in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2 et seq. The District Court set out the facts in detail in its first opinion, 440 F. Supp. 506, 510-514 (ND Cal. 1977).

JATC’s program provides four years of classroom instruction for apprentices, who receive on-the-job training from an employer. In theory, applicants can become indentured apprentices in one of two ways. First, they can wait in line at a local JATC office to obtain a place on a referral list. Employers can call the local office, which will refer to them the applicant at the top of the list. Employers are entitled under their collective-bargaining agreements to reject referred applicants “for any reason.” If the employer hires the referred applicant, he or she is indentured and thus admitted to the training program.

Second, local JATC offices will give anyone a “hunting license,” which enables the holder to hunt for jobs directly from employers. If the applicant obtains a job, he or she is indentured without regard to the referral list. In practice, very few employers use the referral list and virtually all apprentices obtain their jobs through a hunting license.

As the Court of Appeals found, the essence of respondents’ amended complaint is that JATC adopted the hunting license system knowing it has a discriminatory effect on women. Respondents claim that employers discriminate against women when hiring applicants with hunting licenses, and that JATC’s use of the system therefore violates Title VII. 662 F. 2d 534, 536 (CA9 1981). Respondents sought injunc-tive relief requiring JATC to adopt some other system. As the District Court noted:

“[Respondents] have not specified the precise system they seek to have instituted, but it is plain that they envision a system requiring an employer who wishes to hire a beginning apprentice to contact the union local and enter a request without naming any individual, whereupon the union would be required to dispatch an applicant selected by the JATC by means of one of a number of non-discriminatory techniques.” 440 F. Supp., at 514 (footnote omitted).

The District Court held that the employers are necessary parties under Rule 19(a)(1). It reasoned that any relief it might grant against JATC alone would be ineffective. Although more women might obtain referrals, they would not be any more successful in becoming apprentices. “There is no evidence that the change in referral system sought here will have any effect on the apparent source of the discrimination alleged — the absent employers.” 440 F. Supp., at 521.

Furthermore, the District Court reasoned, employers have a substantial interest in selecting their own apprentices. Even if the court could affect employers’ hiring decisions by a decree entered only against petitioner, it would be unfair to do so without affording them an opportunity to contest the allegations. Thus the employers are also necessary parties under Rule 19(a)(2)(i). 440 F. Supp., at 522-523.

The District Court applied the balancing process established by Rule 19(b) and concluded that the employers are indispensable parties. Respondents were unable to join the 4,500 employers, so the District Court dismissed the action without prejudice under Rule 41(b). 83 F. R. D. 136 (ND Cal. 1979).

The Court of Appeals reversed. 662 F. 2d, at 537-538. Although the Court of Appeals claimed “the district court misapprehended the legal inquiry required by rule 19(a)(1),” it did not state what form of inquiry would be appropriate. It believed the court has “both the power and the duty to enjoin” activities that violate Title VII. “[RJelief on plaintiffs’ claims against JATC as an entity could be afforded by an injunction against JATC alone.” Id., at 537. This seems to mean that since plaintiffs have sought only an injunction against JATC, the District Court can afford the complete relief contemplated by Rule 19(a)(1) by granting only what the plaintiffs seek, regardless of whether the order would have any impact on the discrimination that was apparently the reason for the lawsuit. This approach is hardly the “pragmatic” reasoning this Court commended in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102, 106-107, 116-117, n. 12 (1968).

Although the Court of Appeals thought there was “no evidence” that “employers would refuse to hire women admitted to the apprentice program pursuant to any judgment that may be entered against JATC,” 662 F. 2d, at 537, the substance of respondents’ complaint is that employers discriminate against women. See 83 F. R. D., at 138. The District Court correctly perceived the dilemma it and respondents faced. If it ordered relief against JATC alone, it could not affect the alleged discriminatory practices. Rule 19(a)(1). If it ordered relief against the employers, it would almost certainly affect their right to select apprentices without affording them an opportunity to rebut the charge that they discriminate. Rule 19(a)(2)(i).

The Court of Appeals sought to avoid the force of this argument by claiming that because the agreement that created JATC grants it “full authority to structure the apprenticeship program and to select the apprentices . . . the employers have by contract ceded to JATC whatever legally protectible interest they may have had in selecting apprentices to be trained.” 662 F. 2d, at 538. This is simply not correct. The agreement gives JATC authority only to select persons to refer to employers; an applicant does not become an apprentice and begin the training program until and unless an employer hires him. 440 F. Supp., at 510-512; 83 F. R. D., at 137. And, as noted above, employers have bargained to retain their right to rej ect any applicant for any reason. Yet the Court of Appeals rather cavalierly found, in a proceeding to which the employers were not parties, that the employers have ceded these rights.

The impropriety of the Court of Appeals’ ruling is demonstrated by General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375 (1982), in which we considered a similar apprenticeship system. We held that a district court cannot issue an injunction against employers in an employment discrimination case under 42 U. S. C. § 1981 when the employers are not guilty of intentional discrimination. In that case there apparently was no hunting license system, and the discrimination was caused by the JATC and the union, but the bar to an injunction was the same as the bar that will face the District Court on remand in this case: it is improper for a court to act against a person who has not been found to have violated the law.

The Court of Appeals, as if recognizing the unsatisfactory posture of the litigation for providing meaningful adjudication and relief, commented that “on remand it is possible that some employers . . . may move to intervene.” 662 F. 2d, at 538. But to secure full participation only by torturing the meaning of Rule 19 to avoid dismissal, in the hopes that the absent parties will then take it upon themselves to protect their interests, is not an appealing basis for the result reached by the Court of Appeals. It is respondents who have sought to affect the hiring practices of some 4,500 employers; it is respondents, and not the absent employers, who should shoulder the responsibility of joining the necessarily affected employers or suffering dismissal of their lawsuit.

If I only disagreed with the Court of Appeals’ conclusion, this case would not merit this Court’s attention. However, in choosing this approach over the District Court’s reasoned, pragmatic path, the Court of Appeals has, I believe, embraced a significant departure from the meaning of Rule 19. Since courts will not, I am confident, begin issuing injunctions against nonparties, the approach of the Court of Appeals will tend to reduce the district courts to issuers of “ ‘paper’ decrees which neither adjudicate nor, in the end, protect rights.” Schutten v. Shell Oil Co., 421 F. 2d 869, 874 (CA5 1970). This is hardly a sound way to expend the energies of overburdened district judges. Furthermore, plaintiffs will be frustrated by their failure to obtain effective relief, but will gain this frustration only after lengthy litigation and the attendant inconvenience and expense, instead of reaching the same practical result after relatively brief proceedings. Indeed, the only genuine beneficiaries of the Court of Appeals’ approach are attorneys who may be able to collect statutory attorney’s fees from defendants on the basis of a legal “success,” without having gained anything of practical value for their clients.

Since the Court of Appeals held the employers were not necessary parties, it did not reach the question whether they were also indispensable parties under Rule 19(b). It will thus suffice for me to indicate my agreement with the reasoning of the District Court on this question as well. I would grant the petition for certiorari.

       Rule 19(a) provides in pertinent part:
      “A person . . . shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring. . . inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.”

       The District Court acknowledged that it could order JATC to include women in its classroom programs, but noted that such an order would not help any woman obtain the on-the-job training that is a prerequisite for employment as a journeyman carpenter. “Thus the relief obtained in this lawsuit would serve only to swell the ranks of unemployed apprentices. This surely cannot be the ‘complete relief’ contemplated by Rule 19(a).” 440 F. Supp., at 520.
      See generally Gilmore v. Kansas City Terminal R. Co., 509 F. 2d 48, 52-53 (CA8 1975); Evans v. Sheraton Park Hotel, 164 U. S. App. D. C. 86, 90, 503 F. 2d 177, 181 (1974).

       The District Court found the employers’ interests were not sufficiently similar to JATC’s interests for a decree against JATC to bind the employers as nonparty participants under Rule 65(d). This ruling was apparently not challenged on appeal.

       Rule 19(b) provides:
      “If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.”

       See NLRB v. Doug Neal Management Co., 620 F. 2d 1133, 1139-1140 (CA6 1980) (adopting the approach of and quoting extensively from the opinion of the District Court in this case).


text:
    No. 81-2105.
    Mizell, Warden, Vienna Correctional Center v. Welsh.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Motion of respondent to strike material in petition denied. Certiorari denied.


text:
    No. 81-2358.
    American National Bank v. Equal Employment Opportunity Commission.
   C. A. 4th Cir. Certiorari denied.

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


text:
    No. 81-2407.
    Miskovsky v. Oklahoma Publishing Co.
   Sup. Ct. Okla. Certiorari denied.

Justice Rehnquist,

with whom Justice White joins,

dissenting.

In the midst of the 1978 campaign for the Democratic nomination for United States Senator from Oklahoma, petitioner, a candidate for that office, repeated charges made by a second candidate for the office against still a third candidate. As a result of these charges, respondent, publisher of two daily newspapers in Oklahoma City, published three news stories, an editorial, and an editorial cartoon castigating petitioner for his role in the imbroglio. In the editorial, respondent stated that petitioner “has sunk to a new low in Oklahoma political rhetoric — and for him that takes some doing.”

Petitioner brought suit in the Oklahoma state trial court asserting that respondent by these publications had libeled him. Following a trial on the merits, at the close of which the jury was instructed that it must find actual malice under the rule of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the jury deliberated for six hours and awarded petitioner $35,000 actual damages and $965,000 punitive damages. On appeal to the Supreme Court of Oklahoma, the judgment was reversed by that court.

Whether or not these particular statements in respondent’s newspapers were actionable under state and federal constitutional law is not clear to me. What is clear is that the Supreme Court of Oklahoma, apparently feeling itself bound by the decisions of this Court in cases such as New York Times Co. v. Sullivan, supra, and Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), said categorically that several of respondent’s statements were simply statements of opinion, and that “[a]s opinions they are not statements of fact, and therefore cannot be false.” 654 P. 2d 587, 593 (1982) (emphasis supplied).

The Supreme Court of Oklahoma also said:

“Like the U. S. Supreme Court, we also, in proper cases, must review the evidence to make certain that constitutional principles have been correctly applied. The case before us is such an instance.” Id., at 591.

From this and similar statements in its decision, it is quite possible to conclude that the Supreme Court of Oklahoma thought that the entire law of defamation, hitherto the province of the States, had been pre-empted by federal constitutional standards. This, of course, is not the case, as we have made clear in Gertz v. Robert Welch, Inc., supra, and succeeding cases. If statements in the decision of the Supreme Court of Oklahoma such as that quoted above with respect to “opinion” not forming the basis of a libel action were applications of Oklahoma law, they would of course present no federal question. But it seems probable to me that the Supreme Court of Oklahoma in discussing the subject was relying on the following dicta in Gertz v. Robert Welch, Inc., supra:

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Id., at 339-340 (footnote omitted).

A respected commentator on the subject has stated with respect to this quotation that “[t]he problem of defamatory opinion was not remotely in issue in Gertz, and there is no evidence that the Court was speaking with an awareness of the rich and complex history of the struggle of the common law to deal with this problem.” Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1239 (1976).

Examples of the “rich and complex history” of the common law’s effort to deal with the question of opinion are found in an entire chapter headed “Opinion” in R. Sack, Libel, Slander, and Related Problems 153-185 (1980). I am confident this Court did not intend to wipe out this “rich and complex history” with the two sentences of dicta in Gertz quoted above. The Supreme Court of Oklahoma’s statement that opinion was not actionable may fairly be read to suggest that the court felt this result to be compelled by the United States Constitution, rather than merely being a statement of Oklahoma law. Under these circumstances, we have jurisdiction to review the judgment of the Supreme Court of Oklahoma, Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977), and I would exercise that jurisdiction by granting the petition for certiorari in this case.


text:
    No. 81-6463.
    Romero v. United States.
   C. A. 2d Cir. Certiorari denied.

Justice White,

dissenting.

This petition seeks review of the Second Circuit’s minimum standard of competence for an attorney to satisfy the Sixth Amendment’s requirement that a defendant receive effective assistance of counsel. More than 30 years ago, the Second Circuit formulated what has become known as the “farce and mockery” test: “A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.” United States v. Wight, 176 F, 2d 376, 379 (1949), cert. denied, 338 U. S. 950 (1950). Since that time, every other Federal Court of Appeals has adopted a “reasonable competence” standard or some variation thereof. United States v. DeCoster, 159 U. S. App. D. C. 326, 331, 487 F. 2d 1197, 1202 (1973); United States v. Bosch, 584 F. 2d 1113, 1121 (CA1 1978); Moore v. United States, 432 F. 2d 730, 736 (CA3 1970); Marzullo v. Maryland, 561 F. 2d 540, 543 (CA4 1977), cert. denied, 435 U. S. 1011 (1978); Abridge v. Hopper, 545 F. 2d 457, 459 (CA5), cert. denied, 431 U. S. 941 (1977); United States v. Toney, 527 F. 2d 716, 720 (CA6 1975), cert. denied sub nom. Pruitt v. United States, 429 U. S. 838 (1976); United States ex rel. Williams v. Twomey, 510 F. 2d 634, 641 (CA7), cert. denied, 423 U. S. 876 (1975); Reynolds v. Mabry, 574 F. 2d 978 (CA8 1978); Cooper v. Fitzharris, 586 F. 2d 1325, 1328 (CA9 1978), cert. denied, 440 U. S. 974 (1979); Dyer v. Crisp, 613 F. 2d 275, 278 (CA10) (en banc), cert. denied, 445 U. S. 945 (1980). Despite the rejection of the “farce and mockery” standard by the rest of the Nation’s federal courts, the Second Circuit has remained steadfast in its adherence to the test. Indeed, it has “reaffirmed this standard numerous times.” Rickenbacker v. Warden, 550 F. 2d 62, 65 (1976) (citing cases).

In this case, a panel of the Second Circuit has applied the “farce and mockery” test in rejecting petitioner’s claim that he was denied effective assistance of counsel. Petitioner’s contention of ineffective assistance is not frivolous. His trial attorney failed to offer exculpatory testimony given at a suppression hearing and failed to call witnesses to testify at trial who exonerated petitioner at the hearing. Perhaps the performance of petitioner’s counsel satisfied the more exacting standard that the Court of Appeals has rejected, but there was no holding to that effect, and that question should be answered by the Court of Appeals after the level of minimum competence required by the Sixth Amendment has been determined by this Court. Unfortunately, despite conflicts among the Courts of Appeals, we have long refused to consider whether the “farce and mockery” test satisfies the constitutional imperative of effective assistance of counsel, or to otherwise clearly articulate what level of effectiveness is required by the Constitution. A more fundamental question to the administration of criminal justice in the state and federal courts can scarcely be envisioned. I have previously argued that the Court should review this issue, Maryland v. Marzullo, 435 U. S. 1011 (1978) (White, J., joined by Rehnquist, J., dissenting from the denial of certiorari), and I remain of that view.

I respectfully dissent.


text:
    No. 81-6894.
    Shaw v. Shaw et al.
   Ct. App. Tex., 9th Sup. Jud. Dist. Certiorari denied.

Justice Brennan, Justice White, and Justice O’Connor would grant certio-rari.


text:
    No. 81-6942.
    Barry v. United States.
   C. A. 6th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 82-33.
    Helen Mining Co. et al. v. Donovan, Secretary of Labor, et al.
   C. A. D. C. Cir. Motions of American Mining Congress and Cedar Coal Co. et al. for leave to file briefs as amici curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 81-6952.
    No. 82-5012.
    No. 82-5084.
    No. 82-5275.
    No. 82-5306.
    Tucker v. Zant, Warden, Georgia Diagnostic and Classification Center. King v. Texas. Spraggins v. Zant, Warden. Edwards v. Mississippi. Shaw v. Missouri.
   Super. Ct. Ga., Butts County;

Ct. Crim. App. Tex.;

Super. Ct. Ga., Butts County;

Sup. Ct. Miss.; and

Sup. Ct. Mo. Certio-rari denied. Reported below: No. 82-5012, 631 S. W. 2d 486; No. 82-5275, 413 So. 2d 1007; No. 82-5306, 636 S. W. 2d 667.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 82-48.
    Castorr et al. v. Brundage et al.
   C. A. 6th Cir. Certiorari denied.

Opinion of Justice Stevens respecting the denial of the petition for writ of certiorari.

It is, of course, not possible to explain the reasons supporting every order denying a petition for a writ of certiorari. An occasional explanation, however, may allay the possible concern that this Court is not faithfully performing its responsibilities. Cf. Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912, 917-918 (1950) (opinion of Frankfurter, J., respecting the denial of the petition for writ of certiorari). In this case petitioners request the Court to resolve the conflict among the Circuits on the question whether constitutional claims not actually litigated in earlier state proceedings are barred in a subsequent action under 42 U. S. C. § 1983. The general phrasing of the issue in the petition reflects the wholly unrealistic assumption that neither the character of the federal constitutional claim nor the character of the earlier state proceeding can affect its answer.

The case that gives rise to this petition does not squarely conflict with any previous decision. The Sixth Circuit wrote:

“We do not hold that the application of the principles of res judicata and collateral estoppel is mandatory in every case. They are an expression of the policy of federal courts preferring finality, i. e., that litigation at some time must become final. In the face of more important federal policies, however, the preference for finality might be outweighed by more compelling considerations. We do not foreclose the possibility that certain § 1983 claims might not be barred by res judicata under proper circumstances. We hold only that the facts of this case do not present a proper situation in which to find an exception to the principles of res judicata.” 674 F. 2d 531, 536 (1982).

This case, as the Court of Appeals recognized, arises out of a dispute over termination of parental rights, a domestic relations matter in which “the importance of finality is compelling. ” The record strongly suggests that prolongation of this litigation might have a serious adverse effect on the emotional and physical health of the child. See generally Brief for Guardian Ad Litem in Opposition. Nothing in the petition indicates that the child’s interests would be served by this Court’s intervention in this family law matter. There does not appear to be any conflict among the Circuits regarding the application of res judicata in challenges to state decisions terminating parental rights. See Robbins v. District Court, 592 F. 2d 1015 (CA8 1979) (res judicata bars § 1983 action challenging parental rights termination on constitutional grounds not raised in state-court proceedings). In my judgment it would be an abuse of our discretion to use this case as a vehicle for addressing the somewhat abstract question that is advanced by counsel for the petitioners.

Justice White,

dissenting.

In this case brought under 42 U. S. C. § 1983 the Sixth Circuit held that res judicata principles barred the petitioner from presenting a constitutional claim because she had failed to present the claim in previous state litigation. The issue of whether constitutional claims not actually litigated in earlier state proceedings are barred in a subsequent federal suit is of considerable importance, to §1983 litigants and has divided the Federal Courts of Appeals. The First, Fifth, Eighth, Ninth, and Tenth Circuits, and now the Sixth Circuit, have held that a § 1983 claimant is precluded by res judicata from relitigating not only the issues which were actually decided in the state proceeding, but also the issues which he might have presented. See Lovely v. Laliberte, 498 F. 2d 1261 (CA1), cert. denied, 419 U. S. 1038 (1974); Jennings v. Caddo Parish School Bd., 531 F. 2d 1331 (CA5 1976); Robbins v. District Court, 592 F. 2d 1015 (CA8 1979); Scoggin v. Schrunk, 522 F. 2d 436 (CA9 1975), cert. denied, 423 U. S. 1066 (1976); Spence v. Latting, 512 F. 2d 93 (CA10), cert. denied, 423 U. S. 896 (1975). The Second and Third Circuits hold that a litigant is not precluded from asserting later such claims in federal court. See Lombard v. Board of Ed. of New York City, 502 F. 2d 631 (CA2 1974), cert. denied, 420 U. S. 976 (1975); New Jersey Ed. Assn. v. Burke, 579 F. 2d 764 (CA3), cert. denied, 439 U. S. 894 (1978). This conflict — which has been recognized by petitioners, by respondents, by the court below, and even by this Court, Allen v. McCurry, 449 U. S. 90, 97, n. 10 (1980) — should now be resolved. I would grant certiorari.

       The § 1983 cases petitioners cite to demonstrate a conflict among Circuits range from alleged employment discrimination, Jennings v. Caddo Parish School Board, 531 F. 2d 1331 (CA5 1976), to alleged First Amendment violations by a mobile home park owner, Lovely v. Laliberte, 498 F. 2d 1261 (CA1), cert. denied, 419 U. S. 1038 (1974), to procedural due process claims arising in different contexts: termination of parental rights, Robbins v. District Court, 592 F. 2d 1015 (CA8 1979), conveyance of real property to the city for failure to pay a property assessment, Scoggin v. Schrunk, 522 F. 2d 436 (CA9 1975), cert. denied, 423 U. S. 1066 (1976), and discharge from public employment, Spence v. Latting, 512 F. 2d 93 (CA10), cert. denied, 423 U. S. 896 (1975). This Court has previously recognized the importance of differing contexts in determining whether negligence would support a § 1983 action. See Parratt v. Taylor, 451 U. S. 527, 534 (1981), citing Baker v. McCollan, 443 U. S. 137, 139-140 (1979).

       Prior state proceedings involved in cases cited by petitioner include a landlord’s action for possession, Lovely v. Laliberte, supra; a state hearing on termination of parental rights, Robbins v. District Court, supra; a state action to regain title to property, Scoggin v. Schrunk, supra; a suit to challenge termination of employment, Lombard v. Board of Education of New York City, 502 F. 2d 631 (CA2 1974), cert. denied, 420 U. S. 976 (1975); and a state challenge to the validity of regulations, New Jersey Education Assn. v. Burke, 579 F. 2d 764 (CA3), cert. denied, 439 U. S. 894 (1978). Differences in procedures and in standard of review in prior state proceedings in different cases may affect the degree to which federal courts should apply res judicata. Compare Kremer v. Chemical Construction Corp., 456 U. S. 461, 480-485 (1982) (majority opinion), with Justice Black-MUN’s dissenting opinion, id., at 490-493.


text:
    No. 82-56.
    Simmons et al. v. Sea-Land Services, Inc., et al.
   C. A. 4th Cir. Certiorari denied.

Justice White,

with whom Justice O’Connor joins,

dissenting.

Under § 33(b) of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1440, as amended, 33 U. S. C. § 933(b), the 6-month period within which an injured longshoreman must commence a third-party negligence action against a shipowner begins upon his “Acceptance of . . . compensation under an award in a compensation order.” In this case, the Fourth Circuit held that, in effect, this period begins whenever an injured longshoreman accepts a compensation payment from his employer, even if he does not know at that time what his ultimate recovery will be. This approach conflicts with that of the Second Circuit, which has held that the 6-month period begins only when the total amount of compensation benefits to be received by the injured worker is fixed, either by order, stipulation of the parties, or informal award. See Verderame v. Torm Lines, a/s, 670 F. 2d 5, 7 (CA2 1982). See also D’Amico v. Cia de Nav. Mar. Netumar, 677 F. 2d 249 (CA2 1982). I would grant certiorari in order to resolve the conflict.


author: Justice Brennan, Justice Marshall,

text:
    No. 82-5028.
    Butler v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would vacate the death sentence in this case.

Justice Marshall,

dissenting.

Adhering to my view that capital punishment is unconstitutional under all circumstances, I would grant certiorari and vacate petitioner’s death sentence. However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would vacate the death sentence in this case because both the trial court’s instructions concerning the standard of proof and the State Supreme Court’s standard for reviewing the sufficiency of the evidence failed to assure a reliable sentencing determination.

Following petitioner Horace Butler’s conviction for murder, the trial court conducted a separate sentencing proceeding in accordance with South Carolina law, S. C. Code §16-3-20(B) (Supp. 1981). In order to impose the death penalty, the State was required to prove beyond a reasonable doubt the existence of at least one statutory aggravating circumstance. § 16-3-20(C). The State alleged two aggravating circumstances: that the murder occurred during the commission of a rape and that the murder occurred during the commission of a kidnaping. See §§ 16-3-20(C)(a)(l)(a) and (c). The trial judge initially stated that he was “extremely dubious” whether the State had presented sufficient evidence of either rape or kidnaping. He subsequently changed his mind concerning the sufficiency of the evidence of rape and submitted that aggravating circumstance to the jury, but he ruled that the evidence of kidnaping did not suffice as a matter of law. The jury then found that the State had established the aggravating circumstance of rape, and sentenced petitioner to death. The South Carolina Supreme Court affirmed the conviction and sentence. 277 S. C. 452, 290 S. E. 2d 1 (1982).

Recognizing the extraordinary consequences of the capital sentencing process, this Court has stressed “the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (footnote omitted). See Lockett v. Ohio, 438 U. S. 586, 604 (1978) (opinion of Burger, C. J.). Accordingly, “we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination.” Beck v. Alabama, 447 U. S. 625, 638 (1980). In this case, errors committed by the trial judge at the sentencing stage and by the State Supreme Court on appeal seriously undermined the reliability of the sentencing determination.

The sentencing court’s instructions to the jury concerning reasonable doubt impermissibly lowered the standard of proof required to establish the aggravating circumstance of rape. South Carolina’s death penalty statute requires that proof of aggravating circumstances be established beyond a reasonable doubt. In my view the reasonable-doubt standard is constitutionally mandated. We have previously recognized that a capital sentencing proceeding is in many respects analogous to a trial on the issue of guilt or innocence. Bullington v. Missouri, 451 U. S. 430, 438 (1981). Since the death penalty may be imposed only if the State proves at least one aggravating circumstance, an aggravating circumstance is functionally an element of the crime of capital murder and, like any other element of a crime, its existence must be proved beyond a reasonable doubt. In re Winship, 397 U. S. 358, 364 (1970). The magnitude of the individual interest at stake in a capital sentencing proceeding requires a standard of proof “designed to exclude as nearly as possible the likelihood of erroneous judgment.” Addington v. Texas, 441 U. S. 418, 423 (1979).

Here the sentencing judge’s instructions significantly undercut the full constitutional protection afforded by the reasonable-doubt standard. The jury was told that reasonable doubt means “a substantial doubt for which an honest person seeking the truth can give a real reason,” and is “not a weak or slight doubt, but ... a serious or strong or substantial well-founded doubt as to the truth of the matters asserted by the state.” See 277 S. C., at 458, 290 S. E. 2d, at 4. At a minimum, instructions equating reasonable doubt with “substantial doubt” can confuse the jury about the proper standard of proof. See Taylor v. Kentucky, 436 U. S. 478, 488 (1978). When the instructions also define reasonable doubt as a “serious or strong or substantial well-founded doubt,” they create a serious danger that the jury may have found the existence of the aggravating circumstance on a lesser showing than “beyond a reasonable doubt.” The danger is exacerbated when the jurors are told that they must be able to articulate a “real reason” for the substantial doubt. “The ability to give sound reasons for their doubts or their beliefs is not given to many men, and . . . doubts for which [a person] can formulate no convincing reason often induce him to act or to refuse to act.” Pettine v. Territory of New Mexico, 201 F. 489, 496 (CA8 1912).

Viewed in their entirety, the instructions substantially reduced the reliability of the jury’s finding of the aggravating circumstance of rape. “Such a risk cannot be tolerated in a case in which the defendant’s life is at stake.” Beck v. Alabama, supra, at 637 (discussing failure to give a jury the option of convicting of a lesser included offense).

The errors in the jury instructions were compounded by the South Carolina Supreme Court’s failure to ensure the existence of a sufficient evidentiary basis for the jury’s determination. South Carolina law requires the State Supreme Court to review all death sentences and to determine whether the evidence supports the jury’s finding of the existence of one or more statutory aggravating circumstances. §§ 16-3-25(A) and (C)(2). In this case, the court rejected petitioner’s argument that the evidence of rape was insufficient to submit the aggravating circumstance to the jury. The court stated: “Any evidence direct or circumstantial reasonably tending to prove the guilt of the accused creates a jury issue.” 277 S. C., at 457, 290 S. E. 2d, at 4 (emphasis in original), citing State v. Hill, 268 S. C. 390, 234 S. E. 2d 219, cert. denied, 434 U. S. 870 (1977). Applying this standard, the court found sufficient evidence to submit the aggravating circumstance to the jury.

The South Carolina Supreme Court’s use of the “any evidence” rule to review death sentences is inconsistent with this Court’s decision in Jackson v. Virginia, 443 U. S. 307 (1979). Jackson established a constitutional standard of review for criminal convictions, holding that due process requires a reviewing court to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. Id., at 318-319. We rejected the “no evidence” rule of Thompson v. Louisville, 362 U. S. 199 (1960), as “simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt . . . .” Jackson v. Virginia, 443 U. S., at 320. We noted that while the “no evidence” rule could be satisfied by “[a]ny evidence that is relevant,” such a bare showing could not “rationally support a conviction beyond a reasonable doubt.” Ibid.

The State as respondent does not dispute the applicability of Jackson. Instead, it argues that the standard of review utilized by the state court was “equivalent to that required in Jackson.” Brief in Opposition 6. Indeed, according to the State, “the South Carolina Supreme Court has fully embraced, and in fact anticipated the standard of review required by this Court in Jackson.” Ibid. These assertions are simply inaccurate. The South Carolina Supreme Court’s “any evidence” standard is substantively identical to the “no evidence” rule of Thompson, and the state court itself has long equated the two formulations. In State v. Bailey, 253 S. C. 304, 170 S. E. 2d 376 (1969), the court held that “if there is any evidence which tends to establish the guilt of the defendant on the charges alleged a refusal to direct a verdict of acquittal is not an error of law. . . . There is no such error unless there is a total failure of competent evidence as to the charges alleged.” Id., at 308-309, 170 S. E. 2d, at 378 (emphasis added). Moreover, the state court continues to apply the equivalent of a “no evidence” rule even after Jackson. E. g., State v. Halyard, 274 S. C. 397, 400, 264 S. E. 2d 841, 842-843 (1980) (“The rule is that unless there is a failure of competent evidence tending to prove the charge in the indictment, a trial judge should refuse a defendant’s motion for a directed verdict of acquittal”); State v. Tyner, 273 S. C. 646, 657, 258 S. E. 2d 559, 565 (1979).

In short, the procedures employed at both the trial and appellate levels did not adequately ensure the reliable imposition of the death sentence. Under these circumstances, the death sentence must be vacated.

       Petitioner, a Negro, had stated to the police that he had met the white victim on her way home, that she had agreed to accompany him to a secluded area, that she had voluntarily engaged in sexual relations with him, that she had then told him she would claim that he had raped her, and that he had panicked and shot her. There was evidence that the victim had received a blow to the head before being shot.

       The term “reasonable doubt” conveys its own “unmistakable meaning,” while “the cumulative effect resulting from the reiteration of the same idea by the use of the words and phrases ‘well founded doubt,’ ‘substantial doubt,’ and others of like meaning, is well calculated to fritter away and destroy all benefit to be derived from this important rule of law.” Frazier v. State, 117 Tenn. 430, 467, 100 S. W. 94, 103 (1906).
      The “substantial doubt” instruction has been widely criticized. E. g., United States v. Zimeri-Safie, 585 F. 2d 1318 (CA5 1978); United States v. Wright, 542 F. 2d 975 (CA7 1976), cert. denied, 429 U. S. 1073 (1977); Laird v. State, 251 Ark. 1074, 476 S. W. 2d 811 (1972); State v. Thorpe, - R. I. -, 429 A. 2d 785 (1981).

       Many courts have disapproved the requirement that a juror be able to articulate a reason for his doubt. E. g., Dunn v. Perrin, 570 F. 2d 21 (CA1), cert. denied, 437 U. S. 910 (1978); Commonwealth v. Robinson, 382 Mass. 189, 415 N. E. 2d 805 (1981).

       While Jackson involved habeas corpus review by a federal court of a state-court conviction, “[t]he implications of Jackson are not limited to the habeas corpus context.” The Supreme Court, 1978 Term, 93 Harv. L. Rev. 60, 215 (1979). Because the standard outlined in Jackson is constitutionally required, state courts are obligated to apply it on direct review.


text:
    No. 82-5272.
    Genson v. Ripley et al.
   C. A. 9th Cir. Certiorari denied.

The Chief J ustice and J ustice O’Con-nor took no part in the consideration or decision of this petition.


text:
    October 18, 1982
    No. 82-105.
    California et al. v. Keenan.
   Appeal from Sup. Ct. Cal. Motion of appellee for leave to proceed in forma pauperis granted. Appeal dismissed for want of substantial federal question.


text:
    No. 82-381.
    Bethlehem Steel Corp. et al. v. Rhode Island Turnpike and Bridge Authority.
   Appeal from Sup. Ct. R. I. dismissed for want of substantial federal question.


text:
    No. A-299.
    Hayes v. Justices of the Supreme Court of Nevada et al.
   C. A. 9th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-307 (82-477).
    Herzog v. Dayton Bar Assn. et al.
   Sup. Ct. Ohio. Application for stay, addressed to Jusice Marshall and referred to the Court, denied.


text:
    No. A-344 (82-55).
    City of West Helena, Arkansas, et al. v. Perkins et al.,
   ante, p. 801. Application for the issuance of the judgment forthwith, presented to Justice Blackmun, and by him referred to the Court, is granted and the judgment is to issue forthwith.


text:
    No. D-260.
    In re Disbarment of Bussey.
    [For earlier order herein, see 455 U. S. 1012.]
   Disbarment entered.


text:
    No. D-265.
    In re Disbarment of Grant.
    [For earlier order herein, see 456 U. S. 956.]
   Disbarment entered.


text:
    No. D-269.
    In re Disbarment of Brown.
    [For earlier order herein, see 456 U. S. 957.]
   Disbarment entered.


text:
    No. D-273.
    In re Disbarment of Micun.
    [For earlier order herein, see 456 U. S. 987.]
   Disbarment entered.


text:
    No. D-276.
    In re Disbarment of Hubbard.
    [For earlier order herein, see 457 U. S. 1103.]
   Disbarment entered.


text:
    No. D-282.
    In re Disbarment of Levine.
   Due to mistaken identity, the Appellate Division of the Supreme Court of New York, First Judicial Department, having two attorneys on its roster with identical names, the rule to show cause is discharged and the order entered September 9, 1982 [458 U. S. 1126], is vacated.


text:
    No. D-293.
    In re Disbarment of Doyle.
   It is ordered that Eugene William Doyle, of San Francisco, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-294.
    In re Disbarment of Wolff.
   It is ordered that Peter Wolff, of Washington, D. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-295.
    In re Disbarment of Moyer.
   It is ordered that J. Hudson Moyer, of Amarillo, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-296.
    In re Disbarment of Coleman.
   It is ordered that Frederick L. Coleman, Jr., of Big Spring, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-297.
    In re Disbarment of Jeffcoat.
   It is ordered that Lynn R. Jeffcoat, of Richardson, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-298.
    In re Disbarment of Burger.
   It is ordered that George Ralph Burger, of Sandy Springs, Ga., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 8,
    Orig.
    Arizona v. California et al.
   Joint motion for additional time for oral argument and for divided argument granted, and a total of one and one-half hours allotted for oral argument and no more than two counsel per side shall present oral argument.

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

[For earlier order herein, see, e. g., ante, p. 811.]


text:
    No. 65,
    Orig.
    Texas v. New Mexico.
    [For earlier order herein, see, e. g., 454 U. S. 1076.]
   Report of the Special Master received and ordered filed. Exceptions to the Report, with supporting briefs, may be filed by the parties within 45 days. Replies to such Exceptions, with supporting briefs, may be filed within 30 days.


text:
    No. 92,
    Orig.
    Arkansas v. Mississippi.
    [For earlier order herein, see, e. g., 458 U. S. 1122.]
   Answer to the Counterclaim referred to the Special Master.


text:
    No. 81-395.
    United Steelworkers of America, AFL-CIO-CLC v. Sadlowski et al.,
   457 U. S. 102. Motion of respondents to dispense with taxation of costs denied.


text:
    No. 81-460.
    Middlesex County Ethics Committee v. Garden State Bar Assn. et al.,
   457 U. S. 423. Motion of respondents to retax costs denied.


text:
    No. 81-746.
    No. 81-1172.
    City of Akron v. Akron Center for Reproductive Health, Inc., et al.; and Akron Center for Reproductive Health, Inc., et al. v. City of Akron et al.
   C. A. 6th Cir. [Certiorari granted, 456 U. S. 988.] Motion of The Board of Church and Society of the United Methodist Church et al. for leave to join the brief, amicus curiae, of Certain Religious Organizations denied.


text:
    No. 81-878.
    Larkin et al. v. Grendel’s Den, Inc.
   C. A. 1st Cir. [Probable jurisdiction noted, 454 U. S. 1140.] Motion of appellee for leave to file supplemental statement after argument granted.


text:
    No. 81-1055.
    Poythress, Secretary of State of Georgia, et al. v. Duncan et al.
   C. A. 11th Cir. [Cer-tiorari granted, 455 U. S. 937.] Oral argument in this case, presently scheduled for November 1, 1982, is hereby postponed and the case of Federal Election Commission et al. v. National Right to Work Committee et al., No. 81-1506 [cer-tiorari granted, 456 U. S. 914], is set for oral argument in its stead.


text:
    No. 81-1120.
    United States et al. v. Rylander et al.
   C. A. 9th Cir. [Certiorari granted, 456 U. S. 943.] Motion of respondents for leave to argue points not raised by petitioners denied.


text:
    No. 81-1536.
    Commissioner of Internal Revenue v. Tufts et al.
   C. A. 5th Cir. [Certiorari granted, 456 U. S. 960.] Motion of Wayne G. Barnett for leave to file a brief as amicus curiae granted.


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.
   Ct. App. Tex., 5th Sup. Jud. Dist. Motion of Texas Association of Appraisal Districts et al. for leave to file a brief as amici curiae denied.

Justice O’Connor took no part in the consideration or decision of this motion.


text:
    No. 82-488.
    In re Hopfmann.
   Petition for writ of ha-beas corpus denied.


text:
    No. 81-984.
    First National City Bank v. Banco para el Comercio Exterior de Cuba.
   C. A. 2d Cir. Certio-rari granted.


text:
    No. 81-2257.
    Bill Johnson's Restaurants, Inc. v. National Labor Relations Board.
   C. A. 9th Cir. Cer-tiorari granted.


text:
    No. 82-242.
    Gorsuch, Administrator, Environmental Protection Agency v. Sierra Club et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 81-2242.
    Seibel v. Whitley.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 81-2294.
    Madonna v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-2369.
    Johnson v. Spalding et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-2370.
    Lascano v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 81-6704.
    Artis v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 81-6708.
    Griffin v. Warden, C. C. I., Columbia, South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 81-6725.
    Nelson v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 81-6768.
    Cart v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 81-6872.
    McGahee v. Massey, Superintendent, Union Correctional Institution.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 81-6929.
    Aice v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 81-6968.
    Jones v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-60.
    Dozier v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-121.
    Hawkins et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-122.
    Century Air Freight, Inc. v. Civil Aeronautics Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-124.
    Rossano v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-166.
    Zenith Radio Corp. v. United States et al.
   C. C. P. A. Certiorari denied.


text:
    No. 82-213.
    Chauffeurs, Teamsters & Helpers, Local Union No. 633 of New Hampshire, et al. v. Jones Motor Co., Inc.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 82-305.
    Farmers Bank & Trust Company of Winchester, Tennessee v. Transamerica Insurance Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-312.
    Ohio-Sealy Mattress Manufacturing Co. et al. v. Sealy, Inc., et al.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 82-323.
    Fisher et ux. v. West Virginia Department of Highways et al.
   Sup. Ct. App. W. Va. Certio-rari denied.


text:
    No. 82-325.
    Lawson v. Burlington Industries, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-330.
    Jadair, Inc. v. Walt Keeler Co., Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-334.
    Ginther-Davis Construction Co., Inc., et al. v. Texas Commerce Bank National Assn. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-336.
    Strickler et al. v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 82-338.
    Sun Publishing Co., Inc. v. Jones.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 82-340.
    Gladstone et al., dba Arthur Young & Co., et al. v. M. Bryce & Associates, Inc.
   Ct. App. Wis. Certiorari denied.


text:
    No. 82-343.
    Robinson Bus Service, Inc., et al. v. Willett Motor Coach Co. et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 82-345.
    Cooper, City Attorney of Santa Ana, California v. Mitchell Brothers’ Santa Ana Theater et al.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 82-348.
    CPC International, Inc., et al. v. Goldberg et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-369.
    Gulf Offshore Co., a Division of Pool Co. v. Mobil Oil Corp.
   Ct. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.


text:
    No. 82-375.
    Louis N. Ritten & Co. v. Commissioner of Revenue of Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 82-417.
    Holcombe v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 82-421.
    No. 82-431.
    LaBar Enterprises, Inc., et al. v. United States; and LaBar et al. v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 688 F. 2d 826.


text:
    No. 82-429.
    Honicker v. United States et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-449.
    Daly et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-454.
    Pate et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-465.
    Taylor et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 82-514.
    Morton v. Providence Hospital.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-5030.
    Chavis-El v. Greer et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5115.
    LaBow v. Mall.
   Sup. Ct. Conn. Certio-rari denied.


text:
    No. 82-5126.
    Vaughan v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5287.
    Howard v. Ohio.
   Ct. App. Ohio, Greene County. Certiorari denied.


text:
    No. 82-5288.
    Sellars v. City of Los Angeles, California, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5292.
    Flowers v. Fair.
   C. A. 1st Cir. Certio-rari denied.


text:
    No. 82-5293.
    Jones v. New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 82-5295.
    Phegley v. Greer, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5296.
    Gary v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 82-5301.
    Weinrauch v. University of the State of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5307.
    In re Ganey.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5312.
    Wright v. Edwards et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5318.
    Andrews v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 82-5320.
    Kaufman, aka Ojo v. Texas.
   Ct. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.


text:
    No. 82-5323.
    Treadway v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 82-5324.
    Farrakhan v. McKesson Chemical Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5325.
    Crooks v. City of Akron et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5330.
    Standard v. Rees, Warden, Kentucky State Reformatory, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5380.
    McClellan v. Smith, Attorney General, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5399.
    Stago v. Faust, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5402.
    Wilson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5404.
    Di Pietro et al. v. District Director of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5406.
    Lafferty v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5412.
    Tannenbaum v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5414.
    Morgan v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5415.
    Romieh v. Reagan, President of the United States, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-5429.
    Novak v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5445.
    Hassain, aka Fletcher v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-2343.
    Shoemaker, Chief, Ohio Adult Parole Authority v. Riley.
   C. A. 6th Cir. Certiorari denied.

Justice White,

dissenting.

In Stone v. Powell, 428 U. S. 465 (1976), the Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id., at 494. Since then, the Courts of Appeals have divided as to the meaning of the phrase “an opportunity for full and fair litigation.” The Fifth Circuit has held that “an opportunity for full and fair litigation” of Fourth Amendment claims is provided if “the processes provided by a state to fully and fairly litigate fourth amendment claims are [not] routinely or systematically applied in such a way as to prevent the actual litigation of fourth amendment claims on their merits.” Williams v. Brown, 609 F. 2d 216, 220 (1980). The Tenth Circuit has taken the position that the Stone v. Powell standard requires a determination that the state court made “at least [a] color-able application of the correct Fourth Amendment constitutional standards.” Gamble v. Oklahoma, 583 F. 2d 1161, 1165 (1978) (allowing adjudication of Fourth Amendment claim because a controlling United States Supreme Court case was neither recognized nor applied by the state courts). The Third Circuit, as well as the Sixth Circuit in the case below, has held that Stone v. Powell does not deprive the federal courts of jurisdiction when “‘the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process.’” Boyd v. Mintz, 631 F. 2d 247, 250 (1980) (quoting Gates v. Henderson, 568 F. 2d 830, 840 (CA2 1977) (en banc) (dictum)). The issue is obviously important and recurring. I would grant certiorari to settle it.


author: Justice Brennan,

text:
    No. 81-6773.
    Kime et al. v. United States.
   C. A. 4th Cir. Certiorari denied.

Justice Brennan,

dissenting.

On March 27, 1980, petitioners, Teresa Kime and Donald Bonwell, participated in a peaceful political protest on a public sidewalk in front of the Federal Building in Greensboro, N. C. The stated purposes of the demonstration were to call attention to a planned May Day demonstration and to protest the prosecution of a leader of the political party to which petitioners belonged. During the demonstration, petitioners set fire to a privately owned United States flag.

The United States Attorney filed an information in the United States District Court for the Middle District of North Carolina, charging petitioners with casting contempt on a United States flag by publicly burning it, in violation of 18 U. S. C. §700. That statute prohibits “knowingly cast[ing] contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it” (emphasis added).

Petitioners filed motions to dismiss the information on the ground that § 700 is unconstitutional on its face and as applied to them. The motions were denied after an evidentiary hearing. Petitioners were tried by jury before a United States Magistrate. They were convicted and sentenced to eight months’ imprisonment each. The District Court affirmed the convictions in an unpublished opinion, and the Court of Appeals for the Fourth Circuit affirmed for the reasons stated in the District Court’s opinion (affirmance order reported at 673 F. 2d 1318 (1982)).

I would grant certiorari and set this case for oral argument because I feel sure the Court would be persuaded after full briefing and oral argument that petitioners’ convictions violate their First Amendment rights under the principles established in Spence v. Washington, 418 U. S. 405 (1974); Schacht v. United States, 398 U. S. 58 (1970); Street v. New York, 394 U. S. 576 (1969); United States v. O’Brien, 391 U. S. 367 (1968); and West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943).

It is not seriously contested that petitioners’ action in burning a flag was, at a minimum, expressive conduct “sufficiently imbued with elements of communication to fall within the scope of the First. . . Amendment],” Spence v. Washington, 418 U. S., at 409. This Court has repeatedly recognized the communicative connotations of the use of flags, including the United States flag. Id., at 410; Stromberg v. California, 283 U. S. 359 (1931). It is likewise clear from the context of petitioners’ act that in burning a flag they were making a statement of political protest; here, as in Spence, “it would have been difficult for the great majority of citizens to miss the drift of [petitioners’] point.” 418 U. S., at 410. Indeed, the Government could hardly contend otherwise. The statute under which petitioners were convicted requires, as an element of the offense, that they “knowingly cast contempt” on the flag by burning it. See infra, at 954-956. Thus, if the Government were to contend that petitioners were not engaged in expressive conduct, it would be confessing that petitioners did not commit the crime charged. Cf., e. g., Smith v. Goguen, 415 U. S. 566, 588 (1974) (White, J., concurring in judgment); id., at 593 (Rehn-QUIST, J., dissenting).

Nor can there be any doubt that the subject matter of petitioners’ communication is well within the core of the First Amendment’s protection. Nearly four decades ago, this Court held that the First Amendment does not permit a legislature to require a person to show his respect for the flag by saluting it. West Virginia State Board of Education v. Barnette, supra. The same constitutional principle applies when the legislature, instead of compelling respect for the flag, forbids disrespect. As we said in Street v. New York, supra:

“We have no doubt that the constitutionally guaranteed ‘freedom to be intellectually . . . diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.” 394 U. S., at 593, quoting West Virginia State Board of Education v. Barnette, supra, at 641-642.

The only difference between this case and Street is that petitioners here communicated their contempt for the flag through expressive conduct rather than through spoken or written words (or through both words and conduct, as in Street). The First Amendment standard for government regulations of expressive conduct is the now-familiar four-part test first announced in United States v. O’Brien, supra, at 377:

“[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (Emphasis supplied.)

It is the third branch of the O’Brien test (here italicized) that is dispositive of this case. The Government suggests only one possible “substantial governmental interest” underlying § 700 — “preservation of the flag, not as a mere chattel, but as the Visible embodiment of the Nation.’” Brief in Opposition 4. Not surprisingly, however, the cases that the Government cites for this proposition all predate our decision in Spence v. Washington, supra. In Spence, we expressly rejected this alleged governmental interest as a basis for meeting the “unrelated to expression” branch of the O’Brien test. We assumed, arguendo, that the State has a valid interest in protecting the integrity of the flag as a national patriotic symbol. Even if that interest exists, we held, such an interest is directly related to expression, at least where it is invoked against one who would use the flag to make a political statement. 418 U. S., at 413-414, and n. 8. There is nothing surprising about that conclusion; it follows from the nature of the alleged governmental interest at stake. The Government has no esthetic or property interest in protecting a mere aggregation of stripes and stars for its own sake; the only basis for a governmental interest (if any) in protecting the flag is precisely the fact that the flag has substantive meaning as a political symbol. Thus, assuming that there is a legitimate interest at stake, it can hardly be said to be one divorced from political expression. Hence, the one governmental interest suggested as support for this statute, and these convictions, is one clearly foreclosed by both precedent and basic First Amendment principles.

The Government attempts to distinguish Spence on the ground that the defendant in that case merely displayed a flag in his own window with a peace symbol superimposed, whereas petitioners “contumaciously burned [the flag] in a public place.” Brief in Opposition 6, n. 5. It is true that we noted the absence of physical destruction of the flag in Spence, 418 U. S., at 415. Yet that fact does not dispose of the key principle at stake — that any governmental interest in protecting the flag’s symbolism is one that cannot pass muster under the third branch of the O’Brien test. So long as petitioners were engaged in expressive conduct, and so long as their conduct impaired no non-speech-related governmental interest, it is entirely irrelevant what specific physical medium petitioners chose for their expression. See also Spence, supra, at 420-421 (Rehnquist, J., dissenting); Cline v. Rockingham County Superior Court, 502 F. 2d 789 (CA1 1974). Section 700 is neither an arson statute nor a breach-of-the-peace statute; the Government does not and cannot suggest that the statute’s prohibition is directed at any interest other than enforcing respect for the flag.

So far I have analyzed this case simply as one governed by Spence. But even if that case were somehow distinguishable (on the basis of burning or otherwise), there is an entirely independent reason why the Court, after argument, would be persuaded that §700 is flagrantly unconstitutional on its face — indeed, a ground much stronger than anything in Spence. For § 700 contains an odious feature not shared by the statute in Spence. Section 700 makes it a crime “knowingly [to] cas[t] contempt upon any flag of the United States by publicly . . . burning . . . it.” Thus, it is an indispensable element of the offense under § 700 that one intend to engage in political expression — and not just any political expression, but only that espousing a particular, unpopular point of view. This is indeed a narrowly drawn statute; it is drawn so that everything it might possibly prohibit is constitutionally protected expression. This statute is thus different from one that simply outlawed any public burning or mutilation of the flag, regardless of the expressive intent or nonintent of the actor. To put it bluntly, one literally cannot violate § 700 without espousing unpopular political views. That is the very definition of a censorship statute.

In Schacht v. United States, 398 U. S., at 62-63, this Court unanimously struck down an actor’s conviction for the unauthorized wearing of a military uniform. The statute in question contained an exception to the prohibition for theatrical productions — but only those productions that did not tend to discredit the Armed Forces. We held that such a content-based exception constituted impermissible censorship.

The same principle applies in the context of selective flag desecration statutes. In his opinion concurring in the judgment in Smith v. Goguen, Justice White succinctly and soundly stated the reasons why such a statute is impermissible:

“To violate the statute in this respect, it is not enough that one ‘treat’ the flag; he must also treat it ‘contemptuously,’ which, in ordinary understanding, is the expression of contempt for the flag. In the case before us,. . . the jury must have found that Goguen not only wore the flag on the seat of his pants but also that the act — and hence Goguen himself — was contemptuous of the flag. To convict on this basis is to convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas about the flag unacceptable to the controlling majority in the legislature.
“. . . It would be difficult... to believe that the conviction in O’Brien would have been sustained had the statute proscribed only contemptuous burning of draft cards.” 415 U. S., at 588-590 (emphasis supplied; footnote omitted).

See also, e. g., id., at 591 (Blackmun, J., dissenting); id., at 597-598 (Rehnquist, J., dissenting); Spence v. Washington, 418 U. S., at 422-423 (Rehnquist, J., dissenting).

In short, § 700 constitutes overt content-based censorship, pure and simple. Under this statute, one may freely bum, mutilate, or otherwise abuse a flag for any reason in the world, except for the purpose of stating a contemptuous political message about the flag and what it stands for. This censorship goes to the heart of what the First Amendment prohibits. Of course, §700 does not bar petitioners from seeking to express their message by other means; but that is immaterial. It has long been settled that a government may not justify a content-based prohibition by showing that speakers have alternative means of expression. This statute is unconstitutional on its face. I would grant certiorari because I am confident the Court after argument would reverse these convictions and uphold the vital constitutional principle forbidding government censorship of unpopular political views.

       Petitioners, over their own objection, were forbidden to introduce any evidence or argument at trial as to the purposes of the March 27 demonstration or as to their intent in burning a flag. Indeed, the trial Magistrate refused even to allow petitioners to make an offer of proof for appellate purposes. The Government, however, does not contradict petitioners’ statement of their own intent, nor is there any room on the present record to doubt their statements. Certainly the courts below credited petitioners with communicative intent, see n. 2, infra.

       Besides raising the First Amendment point, petitioners contend that their convictions are infirm because there was no evidence on the record that would show that, by burning the flag, they intended thereby to cast contempt on it. This alleged absence of evidence is compounded, they argue, by the trial Magistrate’s refusal to allow them to testify or argue as to their purpose. The District Court, affirming the convictions, rejected this argument, stating that “the Court has difficulty imagining a situation in which someone could bum a flag as a means of doing anything other than casting contempt unless it was done inadvertently or to dispose of a soiled or worn flag.” App. to Pet. for Cert. 28. Although I express no opinion on this point in the case’s present posture, I suggest that petitioners’ contention is not frivolous. The District Court’s reasoning amounts to a virtual presumption that petitioners intended to express a contemptuous message about the flag (a crucial element of the offense) based on nothing more than the bare act of burning. Yet one can conceive of other messages that petitioners might have intended to convey. For example, petitioners point out that a person might burn a flag to vilify particular policies with which the flag is identified, rather than to cast contempt on the flag itself. Pet. for Cert. 11. Whether the jury would have accepted this explanation is unknown; petitioners’ point is that they were not even allowed to make it.

         United, States v. Crosson, 462 F. 2d 96 (CA9), cert. denied, 409 U. S. 1064 (1972); Joyce v. United States, 147 U. S. App. D. C. 128, 454 F. 2d 971 (1971), cert. denied, 405 U. S. 969 (1972); Hoffman v. United States, 144 U. S. App. D. C. 156, 445 F. 2d 226 (1971).

       The courts below were not similarly troubled at the need to distinguish Spence. On the contrary, they dealt with the case by ignoring it entirely. It is not cited in the opinions of the District Court or Court of Appeals.

       In Spence, we mentioned four factors important to our decision. First, the flag was privately owned; second, the defendant displayed the flag on private property, so that he committed no trespass or disorderly conduct; third, there was no evidence of breach of the peace; and fourth, the defendant was engaged in communication. 418 U. S., at 408-410. All of those factors are present here as well. Petitioners, unlike Spence, made their demonstration on public property, but in both cases there was no suggestion of trespass or disorderly conduct. Petitioners were where they had a right to be, and they were not charged with violating any regulation purporting to regulate use of public areas.

       The statute at issue in Spence, in fact, was not a flag desecration statute at all, but a so-called “improper use” statute, forbidding the superimposition of any advertising or other extraneous matter onto a flag. Wash. Rev. Code §9.86.020; see 418 U. S., at 406-407, and n. 1.

       1 do not mean to be read as suggesting that such a statute would be constitutional. On the contrary, it would be invalid for the reasons stated in my discussion of Spence, supra. My present point is that even if we had reached the opposite conclusion in Spence from the one we stated, there would be an independent fatal flaw in § 700.

       The Government’s brief gives the game away when it argues that “ ‘the legislation was enacted to prohibit the physical act of contemptuously burning a flag, rather than to in any way suppress free speech.’ ” Brief in Opposition 5, quoting United States v. Crosson, 462 F. 2d, at 102. There is no such thing as a “physical act of contemptuously burning a flag.” As Justice Rehnquist said in Smith v. Goguen, 415 U. S. 566, 593 (1974) (dissenting opinion), “I have difficulty seeing how Goguen could be found by a jury to have treated the flag contemptuously by his act and still not to have expressed any idea at all.”

         E. g., Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 541, n. 10 (1980), and cases cited.


text:
    No. 82-211.
    Borton v. United Parcel Service, Inc.
   C. A. 7th Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 82-349.
    New York v. Willette.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 82-5109.
    Rivera v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Petitioner was arrested on August 13, 1980, after one Francis J. Kelley reported that petitioner had taken his motorcycle from him at knife point earlier that day, along with title to the motorcycle and some cash. On August 26, two weeks later, a Cuyahoga County grand jury handed down a one-count indictment charging petitioner with receiving stolen property. Petitioner appeared on the following September 26, pleaded guilty to the charge, and received a sentence. Then, on October 7, the grand jury returned a second indictment that charged petitioner with receiving stolen property, aggravated robbery, and intimidating a witness. The receiving and aggravated robbery counts were based upon the same theft of Mr. Kelley’s belongings for which petitioner had already been convicted. Petitioner moved to dismiss the second indictment on the ground that it violated the Double Jeopardy Clause of the Fifth Amendment as applied to the States under the Fourteenth Amendment. The trial court dismissed the receiving count in the second indictment at the State’s request, but overruled petitioner’s motion to dismiss the remaining counts.

Petitioner took an interlocutory appeal. With one judge dissenting, the Ohio Court of Appeals, Eighth District, affirmed the trial court’s ruling. It held:

“The intimidation and aggravated robbery charges raise no double jeopardy issue. . . . [T]he aggravated robbery count implicates not a duplicate, but an allied offense. . . .
“The allied offense issue will arise only if the defendant is found guilty of aggravated robbery. He may be tried, but cannot be convicted, for both the aggravated robbery and for receiving the stolen property acquired in the theft offense, Maumee v. Geiger (1976), 45 Ohio St. 2d 238, 244. Accordingly, the error assigned is without merit.” App. to Pet. for Cert. 17-18.

The Ohio Supreme Court overruled petitioner’s motion for leave to appeal, and this petition followed.

We have jurisdiction to review final judgments by state courts denying a defendant’s pretrial motion to dismiss an indictment on former jeopardy grounds. Harris v. Washington, 404 U. S. 55, 56 (1971); see Abney v. United States, 431 U. S. 651, 656-661 (1977). I would grant the petition for certiorari and set the case for oral argument. The Double Jeopardy Clause prohibits “a second prosecution for the same offense after conviction,” North Carolina v. Pearce, 395 U. S. 711, 717 (1969), and I adhere to the view that this prohibition requires States to prosecute in one proceeding “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (BRENNAN, J., concurring); see Brooks v. Oklahoma, 456 U. S. 999 (1982) (Brennan, J., dissenting from denial of certiorari); Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting from denial of certiorari), and cases cited therein. Petitioner’s indictment for aggravated robbery manifestly arose from the selfsame criminal act supporting his earlier conviction for receiving stolen property. None of the exceptions discussed in my opinion in Ashe v. Swenson, supra, at 453, n. 7, and 455, n. 11, excuse the State’s failure to prosecute petitioner in a single proceeding. I therefore conclude that trying petitioner on an aggravated robbery charge after he has been convicted and sentenced on the receiving charge violates the Double Jeopardy Clause as applied to the States.

In addition, any offense that requires proof of all the facts necessary to obtain a conviction for receiving is the “same offense” as receiving for purposes of the Double Jeopardy Clause. See Illinois v. Vitale, 447 U. S. 410, 416 (1980); Brown v. Ohio, 432 U. S. 161 (1977); cf. Harris v. Oklahoma, 433 U. S. 682 (1977). In Ohio, the crime of receiving stolen property is complete if a person retains or disposes of the property of another knowing or having reason to believe that it was acquired through theft. See Ohio Rev. Code Ann. §2913.51 (1982). Aggravated robbery is defined as the use of a weapon or the infliction of harm in the course of committing, attempting, or fleeing after one of a series of “theft offenses” defined by statute, including receiving stolen goods. See §§2911.01, 2913.01(K). Thus, to convict petitioner of aggravated robbery in the current prosecution, the State must prove that he committed a “theft offense.” As the court below implicitly recognized, petitioner cannot be retried for receiving stolen goods. See Illinois v. Vitale, supra. Yet, on the allegations in the indictment now outstanding, the State will be unable to prove that petitioner committed aggravated robbery without proving at the same time that he retained or disposed of Mr. Kelley’s property with knowledge that it was obtained by theft. Since prosecuting petitioner for aggravated robbery will therefore require the State to prove every fact necessary to convict petitioner of receiving stolen goods, a charge on which he has already been convicted, the current prosecution violates the Double Jeopardy Clause. See Illinois v. Vitale, supra, at 426-428 (Stevens, J., dissenting).

       Nor does the authority cited by the Ohio Court of Appeals support its holding. It stands merely for the correct proposition that the State could have prosecuted petitioner on both charges at the same time, as long as he was convicted only of one.

       1 express no opinion as to the propriety of indicting petitioner for intimidating a witness. The intimidation charge stems from a telephone call petitioner allegedly made shortly after his arrest threatening Mr. Kelley with retribution should he cooperate with the police in prosecuting petitioner. It thus arguably relates to a criminal transaction between petitioner and Mr. Kelley separate from the theft at issue in the receiving and aggravated robbery charges.

       All but three of the “theft offenses” listed in §2913.01(K), besides receiving stolen goods itself, are not even arguably relevant to petitioner’s crime. For instance, he has not been charged with burglary, tampering with coin machines, impersonating an officer, or corrupting sports events, all of which constitute “theft offenses.” The three relevant possibilities are robbery, theft, and unauthorized use. As a matter of law, the only way petitioner could have committed aggravated robbery on the basis of these crimes without also committing the crime of receiving stolen goods would be if he had merely attempted robbery, theft, or unauthorized use, without actually obtaining another’s property. But there is no such attempt allegation in this case, and petitioner was in possession of some of the stolen property when he was arrested.
      The situation in this case is different from that before the Court in Illinois v. Vitale, 447 U. S. 410 (1980). The Court in Vitale found that the State might conceivably prove the crime of reckless vehicular manslaughter without resorting to the same facts that had supported Vitale’s earlier conviction for failing to reduce speed to avoid a collision, and it allowed the prosecution to proceed subject to a later double jeopardy challenge if the State in fact relied on failure to reduce speed. In this case, the State cannot conceivably convict petitioner of aggravated robbery without proving facts sufficient to obtain a conviction for receiving stolen goods.


text:
    No. 82-5280.
    No. 82-5305.
    Strickland v. Zant, Warden, Georgia Diagnostic and Classification Center. Hitchcock v. Florida.
   Super. Ct. Ga., Butts County; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 82-5305, 413 So. 2d 741.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 80-1745.
    No. 80-2015.
    F. W. Woolworth Co. v. Taxation and Revenue Department of New Mexico, ASARCO Inc. v. Idaho State Tax Commission,
   458 U. S. 354; and

458 U. S. 307. Motion of Multistate Tax Commission et al. for leave to file a brief as amici curiae denied. Petition for rehearing denied.


text:
    October 28, 1982
    No. 82-483.
    Arizona et al. v. United States District Court for the District of Arizona (Kaiser Cement & Gypsum Corp. et al., Real Parties in Interest).
   C. A. 9th Cir. Certiorari before judgment dismissed under this Court’s Rule 53.


text:
    October 29, 1982
    No. A-396.
    Estelle, Director, Texas Department of Corrections v. O’Bryan.
   Application to vacate the stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Rehnquist would grant the application.


text:
    November 1, 1982
    No. 82-360.
    Burton et al. v. Hobbie et al.
   Affirmed on appeal from D. C. M. D. Ala.


text:
    No. 82-139.
    Jacoby & Meyers v. Supreme Court of New Jersey et al.
   Appeal from Sup. Ct. N. J. dismissed for want of substantial federal question.

Justice White and Justice Blackmun would note probable jurisdiction and set case for oral argument.

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


text:
    No. 82-309.
    Smith et al. v. Brandt, President, New Jersey State Board of Education, et al.
   Appeal from Sup. Ct. N. J. dismissed for want of substantial federal question.


text:
    No. 82-347.
    No. 82-5360.
    Wiser v. Hughes, Governor of Maryland; and Andrews v. Hughes, Governor of Maryland.
   Appeals from Ct. App. Md. dismissed for want of substantial federal question. Reported below: 299 Md. 658, 475 A. 2d 428.


text:
    No. 82-402.
    Durning, Trustee v. City of Louisville et al.
   Appeal from Ct. App. Ky. dismissed for want of substantial federal question.


text:
    No. 82-5372.
    Ma v. Community Bank.
   Appeal from C. A. 7th Cir. dismissed for want of jurisdiction. Treatingthe papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 82-5376.
    Latendresse v. Latendresse.
   Appeal from Sup. Ct. N. D. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.