text:
    No. 84-1427.
    Simon v. Kroger Co. et al.
   C. A. 11th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Section 10(b) of the National Labor Relations Act limits the time for filing an unfair labor practice charge with the National Labor Relations Board. It provides that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.” 29 U. S. C. § 160(b). The plain words require that a charge be both filed and served within six months of the challenged conduct, and such has long been the Board’s interpretation. See, e. g., Old Colony Box Co., 81 N. L. R. B. 1025, 1027 (1949). Service may be accomplished merely by mailing a copy of the charge. See 29 CFR § 102.113(a) (1984).

In DelCostello v. Teamsters, 462 U. S. 151 (1983), we held that § 10(b) governs an employee’s suit against his employer for breach of contract and his union for breach of its duty of fair representation. We did not discuss whether that section’s requirement of service, as well as filing, within the 6-month period also applies in such a suit. That is the question raised in this petition.

The Kroger Co. (Kroger) discharged petitioner on February 18, 1982. Grievance procedures were unsuccessful, and on July 6, 1982, the union notified petitioner that it would not proceed to arbitration. The following January 3, just within the 6-month period, petitioner filed this § 301 action in Federal District Court. See 29 U. S. C. § 185. On January 12, after the 6-month period had run, he served a copy of the complaint on Kroger; and on January 25 he served the union. Applying DelCostello, and relying on the plain words of § 10(b), the District Court granted both defendants’ motions for summary judgment on the ground that the action was time-barred. It also found that petitioner had not filed a timely response to Kroger’s motion for summary judgment and that under a local rule he would be deemed not to oppose it.

The Court of Appeals for the Eleventh Circuit affirmed. 743 F. 2d 1544 (1984). Referring to the “intent, spirit, and plain language of section 10(b),” it held that a § 301 complaint must be both filed and served within the 6-month period. Id., at 1546. It also found that the District Court had properly applied its local rule in treating Kroger’s motion for summary judgment as unopposed.

The lower courts agree that a suit in federal court on a federal cause of action is commenced, and the statute of limitations tolled, upon the filing of the complaint. See, e. g., Hobson v. Wilson, 237 U. S. App. D. C. 219, 262, 737 F. 2d 1, 44 (1984); Fed. Rule Civ. Proc. 3; 2 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 3.07[4.-3-2] (1984). While the time for service of process is not open-ended, see Fed. Rules Civ. Proc. 4(a), 4(j), it need not occur within the limitations period. Ordinary federal practice thus conflicts with the specific terms of this borrowed statute of limitations. In light of this inconsistency, the brevity of the limitations period, and the fact that § 10(b) was not intended to apply to judicial proceedings, the result below is not obviously correct. In practical effect, the Eleventh Circuit’s ruling shortens the 6-month period by the amount of time necessary to effect service under the Federal Rules. Section 10(b) does not have a similar impact in administrative proceedings, in which service is accomplished merely by placing a copy of the charge in the mail. Compare Fed. Rule Civ. Proc. 4 with 29 CFR § 102.113(a) (1984).

This issue has come before the Eleventh Circuit more than once, see Howard v. Lockheed-Georgia Co., 742 F. 2d 612 (1984), and it may be expected to recur. At least one District Court in another Circuit has reached the contrary conclusion. See Williams v. E. I. du Pont de Nemours Co., 581 F. Supp. 791 (MD Tenn. 1983). A panel of the Sixth Circuit held that a complaint filed at the 5-month, 27-day mark was timely, without pausing to consider whether the defendants had been served within the subsequent 4 days. Smith v. General Motors Corp., 747 F. 2d 372 (1984).

This problem is a necessary corollary to the decision in Del-Costello. It is worth settling quickly and dispositively. I would therefore grant the petition and set the case for oral argument.

      The decision below also rests on petitioner’s failure to respond to Kroger’s motion for summary judgment. However, this ruling applies only to Kroger; the judgment in favor of the union rests solely on the statute of limitations holding. In any event, the presence of an alternative holding does not reduce the precedential effect of the § 10(b) holding or make it any less the authoritative judgment of the Court of Appeals. See Richmond Co. v. United States, 275 U. S. 331, 340 (1928); Union Pacific R. Co. v. Mason City & Fort Dodge R. Co., 199 U. S. 160, 166 (1905).


source: Caselaw Access Project

license: Public Domain

text:
    No. 84-1432.
    Martin v. Crain et al.
   Sup. Jud. Ct. Mass. Motion of Francis X. Bellotti, Attorney General of Massachusetts, for leave to intervene granted. Certiorari denied.


author: Justice White,

text:
    No. 84-5814.
    Diggs v. Lyons et al.
   C. A. 3d Cir. Certio-rari denied.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Petitioner sued respondent prison officials in Federal District Court under 42 U. S. C. § 1983, alleging the use of excessive force in preventing his escape from Holmesburg County Prison in Philadelphia and the denial of access to legal assistance. Respondents prevailed on both claims. At trial, the District Court permitted respondents’ counsel to prove that petitioner had been convicted of murder, bank robbery, attempted prison escape, and criminal conspiracy within the 10 years preceding the date of trial. In so doing the trial judge relied on Rule 609(a) of the Federal Rules of Evidence, which provides that evidence of such felony convictions “shall be admitted” to attack the credibility “of a witness,” if “the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.” The trial judge interpreted the Rule to require the evidence to be admitted since the Rule’s provision for assessing the prejudicial import of the evidence applied only in regard to the defendant, not to a plaintiff witness against whom such evidence was sought to be introduced. Moreover, under the trial judge’s view, Rule 609(a) precluded any resort to the balancing test of Rule 403 of the Federal Rules of Evidence, which permits the exclusion of relevant evidence if its probative value is “substantially outweighed by the danger of unfair prejudice.”

A divided panel of the Court of Appeals for the Third Circuit affirmed on appeal. 741 F. 2d 577 (1984). The Court of Appeals found the District Court’s interpretation of Rule 609(a) to be strongly supported by the Rule’s legislative history. Although acknowledging that congressional attention in enacting the Rule had been focused largely on criminal cases and on the defendants in those cases, the Court of Appeals concluded that its broad language was nevertheless applicable to a civil case such as the one before it. And, like the District Court, the Court of Appeals held that Rule 403 had no application where, as here, a more specific rule of admissibility applied. Admission of prior convictions to impeach a plaintiff witness in a civil case was therefore mandatory. The Court of Appeals recognized that this reading of the Rule “may in some cases produce unjust and even bizarre results,” but suggested that the remedy lay with “those who have the authority to amend the rules, the Supreme Court and the Congress.” Id., at 582.

As the Court of Appeals recognized, its reading of Rule 609(a) directly conflicts with the interpretation of two other Circuits. Both the Eighth Circuit and the Fifth Circuit have ruled that, assuming the applicability of Rule 609(a) to civil cases, it does not relieve courts of the duty to assess the prejudicial effect of evidence of prior convictions against a plaintiff witness under Rule 403. See Czajka v. Hickman, 703 F. 2d 317 (CA8 1983); Shows v. M/V Red Eagle, 695 F. 2d 114 (CA5 1983). This disagreement concerning the Rule’s meaning now affects litigants in three large Circuits, and the issue will undoubtedly arise elsewhere before long. See Furtado v. Bishop, 604 F. 2d 80 (CA1 1979), cert. denied, 444 U. S. 1035 (1980) (folding it unnecessary to resolve the question). Given this square conflict regarding a fundamental evidentiary rule, and in light of the concededly “bizarre” results that may follow from the ruling below, I would grant certiorari to decide whether Rule 609(a) mandates the admission of evidence of prior convictions against a plaintiff witness in a civil case.

       Rule 609(a) provides:
      “(a) General rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.”
      Rule 609(b) limits application of the Rule to convictions that are less than 10 years old.

       Rule 403 provides:
      “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       The District Court stated that it would have admitted the evidence of the prior convictions even if it had been given the discretion to exclude it under a balancing test. The Court of Appeals evidently viewed this statement as dictum. After squarely affirming the District Court’s holding that “Rule 609(a) compelled the admission of evidence of [petitioner’s] prior convictions and that Rule 403 did not give discretionary authority to exclude them as'prejudicial to the witness,” the Court of Appeals noted that it therefore had “no need to consider the trial judge’s suggestion that he would have admitted them in any event in the exercise of his discretion if he had been given such discretion.” 741 F. 2d, at 581-582. In any event, that the District Judge would have reached the same result under a different test is no reason for this Court to decline to review this case. The Court of Appeals’ interpretation of Rule 609(a) as precluding application of the Rule 403 balancing test is now the law in the Third Circuit, and future cases in that Circuit will be governed by it.


author: Justice Brennan,

text:
    No. 84-6030.
    Glass v. Louisiana.
   Sup. Ct. La. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting from denial of certiorari.

The petitioner Jimmy L. Glass has been condemned to death by electrocution — “that is, causing to pass through the body of the person convicted a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of the person convicted until such person is dead.” La. Rev. Stat. Ann. § 15:569 (West 1981). Glass contends that “electrocution causes the gratuitous infliction of unnecessary pain and suffering and does not comport with evolving standards of human dignity,” and that this method of officially sponsored execution therefore violates the Eighth and Fourteenth Amendments. Pet. for Cert. 27. The Supreme Court of Louisiana held that this claim must summarily be rejected pursuant to “clearly established principles of law” and observed that, in any event, the claim is wholly lacking in medical or scientific merit. 455 So. 2d 659, 660, 671 (1984).

I adhere 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) (Brennan, J., dissenting), and would therefore grant certiorari and vacate Glass’ death sentence in any event. One of the reasons I adhere to this view is my belief that the “physical and mental suffering” inherent in any method of execution is so “uniquely degrading to human dignity” that, when combined with the arbitrariness by which capital punishment is imposed, the trend of enlightened opinion, and the availability of less severe penological alternatives, the death penalty is always unconstitutional. Furman v. Georgia, 408 U. S. 238, 287-291 (1972).

Even if I thought otherwise, however, I would vote to grant certiorari. Glass’ petition presents an important and unsettling question that cuts to the very heart of the Eighth Amendment’s Cruel and Unusual Punishments Clause — a question that demands measured judicial consideration. Of the 42 officially sponsored executions carried out since the Court’s decision in Gregg v. Georgia, supra, 31 have been by means of electrocution. And since Gregg, an ever-increasing number of condemned prisoners have contended that electrocution is a cruel and barbaric method of extinguishing human life, both per se and as compared with other available means of execution. As in this case, such claims have uniformly and summarily been rejected, typically on the strength of this Court’s opinion in In re Kemmler, 136 U. S. 436 (1890), which authorized the State of New York to proceed with the first electrocution 95 years ago. Kemmler, however, was grounded on a number of constitutional premises that have long since been rejected and on factual assumptions that appear not to have withstood the test of experience. I believe the time has come to measure electrocution against well-established contemporary Eighth Amendment principles.

I

Electrocution as a means of killing criminals was first authorized by the New York Legislature in 1888, and resulted from a lengthy investigation to identify “the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.” In In re Kemmler, supra, this Court rejected a constitutional attack on New York’s statute by William Kemmler, who was scheduled to be the first person put to death by electrocution. The Court emphasized that, because the Eighth Amendment was not applicable to the States, “[t]he decision of the state courts sustaining the validity of the act under the state constitution is not reexaminable here.” Id., at 447. In dicta, the Court also followed a “historical” interpretation of the Cruel and Unusual Punishments Clause as it governed executions carried out by the Federal Government, suggesting that the constitutionality of a particular means of execution should be determined by reference to contemporary norms at the time the Bill of Rights was adopted. See id., at 446-447. In addition, the Court approvingly observed that the state court had concluded that “‘it is within easy reach of electrical science at this day to so generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and, therefore, painless, death.’” Id., at 443 (emphasis added).

State and federal courts recurrently cite to Kemmler as having conclusively resolved that electrocution is a constitutional method of extinguishing life, and accordingly that further factual and legal consideration of the issue is unnecessary. See n. 3, supra. But Kemmler clearly is antiquated authority. It is now well established that the Eighth Amendment applies to the States through the Fourteenth Amendment. See, e. g., Gregg v. Georgia, 428 U. S., at 168 (opinion of Stewart, Powell, and Stevens, JJ.); Robinson v. California, 370 U. S. 660 (1962). Moreover, the Court long ago rejected Kemmler’s “historical” interpretation of the Cruel and Unusual Punishments Clause, emphasizing instead that the prohibitions of the Clause are not “confine[d] ... to such penalties and punishment as were inflicted by the Stuarts.” Weems v. United States, 217 U. S. 349, 372 (1910). This is because “[t]ime works changes, [and] brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth.” Id., at 373. The Clause thus has an “expansive and vital character,” id., at 377, that “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). Accordingly, Eighth Amendment claims must be evaluated “in the light of contemporary human knowledge,” Robinson v. California, supra, at 666, rather than in reliance on century-old factual premises that may no longer be accurate.

To be sure, legislative decisions concerning appropriate forms of punishment are entitled to considerable deference. But in common with all constitutional guarantees, “it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power.” Gregg v. Georgia, supra, at 174, n. 19 (opinion of Stewart, Powell, and Stevens, JJ.); see also Weems v. United States, supra, at 371-373. “[T]he Constitution contemplates that in the end [a court’s] own judgment will be brought to bear on the question of the acceptability” of a challenged punishment, guided by “objective factors to the maximum possible extent.” Coker v. Georgia, 433 U. S. 584, 592, 597 (1977) (plurality opinion). Thus it is firmly within the “historic process of constitutional adjudication” for courts to consider, through a “discriminating evaluation” of all available evidence, whether a particular means of carrying out the death penalty is “barbaric” and unnecessary in light of currently available alternatives. Furman v. Georgia, 408 U. S., at 420, 430 (Powell, J., dissenting).

What are the objective factors by which courts should evaluate the constitutionality of a challenged method of punishment? First and foremost, the Eighth Amendment prohibits “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, supra, at 173 (opinion of Stewart, Powell, and Stevens, JJ.). See also Coker v. Georgia, supra, at 592 (plurality opinion) (a punishment is excessive if it is “nothing more than the purposeless and needless imposition of pain and suffering”); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (“The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence”). The Court has never accepted the proposition that notions of deterrence or retribution might legitimately be served through the infliction of pain beyond that which is minimally necessary to terminate an individual’s life. Thus in explaining the obvious unconstitutionality of such ancient practices as disemboweling while alive, drawing and quartering, public dissection, burning alive at the stake, crucifixion, and breaking at the wheel, the Court has emphasized that the Eighth Amendment forbids “inhuman and barbarous” methods of execution that go at all beyond “the mere extinguishment of life” and cause “torture or a lingering death.” In re Kemmler, 136 U. S., at 447. It is beyond debate that the Amendment proscribes all forms of “unnecessary cruelty” that cause gratuitous “terror, pain, or disgrace.” Wilkerson v. Utah, 99 U. S. 130, 135-136 (1879).

The Eighth Amendment’s protection of “the dignity of man,” Trop v. Dulles, supra, at 100 (plurality opinion), extends beyond prohibiting the unnecessary infliction of pain when extinguishing life. Civilized standards, for example, require a minimization of physical violence during execution irrespective of the pain that such violence might inflict on the condemned. See, e. g., Royal Commission on Capital Punishment, 1949-1953 Report ¶732, p. 255 (1953) (hereinafter Royal Commission Report). Similarly, basic notions of human dignity command that the State minimize “mutilation” and “distortion” of the condemned prisoner’s body. Ibid. These principles explain the Eighth Amendment’s prohibition of such barbaric practices as drawing and quartering. See, e. g., Wilkerson v. Utah, supra, at 135.

In evaluating the constitutionality of a challenged method of capital punishment, courts must determine whether the factors discussed above — unnecessary pain, violence, and mutilation — are “inherent in the method of punishment.” Louisiana ex rel. Francis v. Resweber, supra, at 464 (emphasis added). A single, unforeseeable accident in carrying out an execution does not establish that the method of execution itself is unconstitutional. Cf. Estelle v. Gamble, 429 U. S. 97, 105 (1976). Thus in Louisiana ex rel. Francis v. Resweber, supra, the Court allowed a State to proceed with a second effort to electrocute a prisoner after a mechanical failure had interrupted the first attempt. The Court emphasized that the initial failure had been an “unforeseeable accident,” 329 U. S., at 464, and Justice Frankfurter’s concurrence stressed that the failure had been an “innocent misadventure,” id., at 470.

A different case would be presented, however, if the Court were confronted with “a series of abortive attempts.” Id., at 471. This is because the Eighth Amendment requires that, as much as humanly possible, a chosen method of execution minimize the risk of unnecessary pain, violence, and mutilation. If a method of execution does not satisfy these criteria — if it causes “torture or a lingering death” in a significant number of cases, In re Kemmler, 136 U. S., at 447 — then unnecessary cruelty inheres in that method of execution and the method violates the Cruel and Unusual Punishments Clause.

II

Because contemporary courts have summarily rejected constitutional challenges to electrocution, the evidence respecting this method of killing people has not been tested through the adversarial truthfinding process. There is considerable empirical evidence and eyewitness testimony, however, which if correct would appear to demonstrate that electrocution violates every one of the principles set forth above. This evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the “mere extinguishment of life.” Ibid. Witnesses routinely report that, when the switch is thrown, the condemned prisoner “cringes,” “leaps,” and “‘fights the straps with amazing strength.’ ” “The hands turn red, then white, and the cords of the neck stand out like steel bands.” The prisoner’s limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner’s eyeballs sometimes pop out and “rest on [his] cheeks.” The prisoner often defecates, urinates, and vomits blood and drool.

“The body turns bright red as its temperature rises,” and the prisoner’s “flesh swells and his skin stretches to the point of breaking.” Sometimes the prisoner catches on fire, particularly “if [he] perspires excessively.” Witnesses hear a loud and sustained sound “like bacon frying,” and “the sickly sweet smell of burning flesh” permeates the chamber. This “smell of frying human flesh in the immediate neighbourhood of the chair is sometimes bad enough to nauseate even the Press representatives who are present.” In the meantime, the prisoner almost literally boils: “the temperature in the brain itself approaches the boiling point of water,” and when the postelectrocution autopsy is performed “the liver is so hot that doctors have said that it cannot be touched by the human hand.” The body frequently is badly burned and disfigured.

The violence of killing prisoners through electrical current is frequently explained away by the assumption that death in these circumstances is instantaneous and painless. This assumption, however, in fact “is open to serious question” and is “a matter of sharp conflict of expert opinion.” Throughout the 20th century a number of distinguished electrical scientists and medical doctors have argued that the available evidence strongly suggests that electrocution causes unspeakable pain and suffering. Because “‘[t]he current flows along a restricted path into the body, and destroys all the tissue confronted in this path . . . [i]n the meantime the vital organs may be preserved; and pain, too great for us to imagine, is induced. . . . For the sufferer, time stands still; and this excruciating torture seems to last for an eternity.’” L. G. V. Rota, a renowned French electrical scientist, concluded after extensive research that

“[i]n every case of electrocution, . . . death inevitably supervenes but it may be very long, and above all, excruciatingly painful .... [T]he space of time before death supervenes varies according to the subject. Some have a greater physiological resistance than others. I do not believe that anyone killed by electrocution dies instantly, no matter how weak the subject may be. In certain cases death will not have come about even though the point of contact of the electrode with the body shows distinct burns. Thus, in particular cases, the condemned person may be alive and even conscious for several minutes without it being possible for a doctor to say whether the victim is dead or not. . . . This method of execution is a form of torture.”

Although it is an open question whether and to what extent an individual feels pain upon electrocution, there can be no serious dispute that in numerous cases death is far from instantaneous. Whether because of shoddy technology and poorly trained personnel, or because of the inherent differences in the “physiological resistance” of condemned prisoners to electrical current, see n. 29, supra, it is an inescapable fact that the 95-year history of electrocution in this country has been characterized by repeated failures swiftly to execute and the resulting need to send recurrent charges into condemned prisoners to ensure their deaths. The very first electrocution required multiple attempts before death resulted, and our cultural lore is filled with examples of attempted electrocutions that had to be restaged when it was discovered that the condemned “tenaciously clung to life.” Attending physicians routinely acknowledge that electrocutions must often be repeated in order to ensure death. It is difficult to imagine how such procedures constitute anything less than “death by installments” — “a form of torture [that] would rival that of burning at the stake.” Louisiana ex rel. Francis v. Resweber, 329 U. S., at 474, 476 (Burton, J., dissenting).

This pattern of “death by installments” is by no means confined to bygone decades. Here is one eyewitness account of Alabama’s electrocution of John Louis Evans on April 22, 1983:

“At 8:30 p. m. the first jolt of 1900 volts of electricity passed through Mr. Evans’ body. It lasted thirty seconds. Sparks and flames erupted from the electrode tied to Mr. Evans’ left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of greyish smoke and sparks poured out from under the hood that covered Mr. Evans’ face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.
“The electrode on the left leg was refastened. At 8:30 p. m. [sic] Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. The doctors reported that his heart was still beating, and that he was still alive.
“At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request for clemency was denied.
“At 8:40 p. m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans’ body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes.”

Similarly, this was the scene at Georgia’s electrocution of Alpha Otis Stephens just last December 12th:

“The first charge of electricity administered today to Alpha Otis Stephens in Georgia’s electric chair failed to kill him, and he struggled to breathe for eight minutes before a second charge carried out his death sentence for murdering a man who interrupted a burglary.
A few seconds after a mask was placed over his head, the first charge was applied, causing his body to snap forward and his fists to clench.
“His body slumped when the current stopped two minutes later, but shortly afterward witnesses saw him struggle to breathe. In the six minutes allowed for the body to cool before doctors could examine it, Mr. Stephens took about 23 breaths.
“At 12:26 A. M., two doctors examined him and said he was alive. A second two-minute charge was administered at 12:28 A. M.”

Stephens “‘was just not a conductor’ of electricity, a Georgia prison official said.”

Thus there is considerable evidence suggesting — at the very least — that death by electrocution causes far more than the “mere extinguishment of life.” In re Kemmler, 136 U. S., at 447. This evidence, if correct, would raise a substantial question whether electrocution violates the Eighth Amendment in several respects. First, electrocution appears to inflict “unnecessary and wanton . . . pain” and cruelty, and to cause “torture or a lingering death” in at least a significant number of cases. Gregg v. Georgia, 428 U. S., at 173 (opinion of Stewart, Powell, and Stevens, JJ.); In re Kemmler, supra, at 447. Second, the physical violence and mutilation that accompany this method of execution would seem to violate the basic “dignity of man.” Trop v. Dulles, 356 U. S., at 100 (plurality opinion). Finally, even if electrocution does not invariably produce pain and indignities, the apparent century-long pattern of “abortive attempts” and lingering deaths suggests that this method of execution carries an unconstitutionally high risk of causing such atrocities. Louisiana ex rel. Francis v. Resweber, 329 U. S., at 471 (Frankfurter, J., concurring); see also n. 11, supra. These features of electrocution seem so “inherent in [this] method of punishment” as to render it per se cruel and unusual and therefore forbidden by the Eighth Amendment. Louisiana ex rel. Francis v. Resweber, supra, at 464.

Moreover, commentators and medical experts have urged that other currently available means of execution — particularly some forms of lethal gas and fast-acting barbituates — accomplish the purpose of extinguishing life in a surer, swifter, less violent, and more humane manner. Several state legislatures have abandoned electrocution in favor of lethal injection for these very reasons; one of the architects of this change has emphasized that it resulted precisely from the recognition that the electric chair is “a barbaric torture device” and electrocution a “gruesome ritual.” Other States have rejected electrocution in favor of the use of lethal gas.

For me, arguments about the “humanity” and “dignity” of any method of officially sponsored executions are a constitutional contradiction in terms. See supra, at 1080. Moreover, there is significant evidence that executions by lethal gas — at least as administered in the gas chamber — and barbituates — at least as administered through lethal injections — carry their own risks of pain, indignity, and prolonged suffering. But having concluded that the death penalty in the abstract is consistent with the “evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U. S., at 101 (plurality opinion), courts cannot now avoid the Eighth Amendment’s proscription of “the unnecessary and wanton infliction of pain” in carrying out that penalty simply by relying on 19th-century precedents that appear to have rested on inaccurate factual assumptions and that no longer embody the meaning of the Amendment. Gregg v. Georgia, supra, at 173 (opinion of Stewart, Powell, and Stevens, JJ.). For the reasons set forth above, there is an evermore urgent question whether electrocution in fact is a “humane” method for extinguishing human life or is, instead, nothing less than the contemporary technological equivalent of burning people at the stake.

       The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.)

       See American Civil Liberties Union, Death-Row Census (Mar. 1, 1985). On the prevalence of electrocution, see also The Death Penalty in America 16 (H. Bedau ed., 3d ed., 1982) (hereinafter Bedau); Gardner, Executions and Indignities—An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 119, and n. 164 (1978).

       See, e. g., Sullivan v. Dugger, 721 F. 2d 719, 720 (CA11 1983) (order); Spinkellink v. Wainwright, 578 F. 2d 582, 616 (CA5 1978), cert. denied, 440 U. S. 976 (1979); Dix v. Newsome, 584 F. Supp. 1052, 1068 (ND Ga. 1984); Mitchell v. Hopper, 538 F. Supp. 77, 94 (SD Ga.), supp. op. sub nom. Ross v. Hopper, 538 F. Supp. 105 (1982), aff’d in part and vacated in part on other grounds sub nom. Spencer v. Zant, 715 F. 2d 1562 (CA11), and aff’d in part and rev’d in part on other grounds, 716 F. 2d 1528 (1983); McCorquodale v. Balkcom, 525 F. Supp. 408, 430-431 (ND Ga. 1981), aff’d in part and rev’d in part, 705 F. 2d 1553 (CA11), on rehearing, 721 F. 2d 1493 (1983), cert. denied, 466 U. S. 954 (1984); Ruiz v. State, 265 Ark. 875, 900-901, 582 S. W. 2d 915, 927-928 (1979), cert. denied, 454 U. S. 1093 (1981); Booker v. State, 397 So. 2d 910, 918 (Fla.), cert. denied, 454 U. S. 957 (1981); Godfrey v. Francis, 251 Ga. 652, 670, 308 S. E. 2d 806, 820, cert. denied, 466 U. S. 945 (1984); State v. Shaw, 273 S. C. 194, 206, 255 S. E. 2d 799, 804-805, cert. denied, 444 U. S. 957 (1979); Martin v. Commonwealth, 221 Va. 436, 439, 271 S. E. 2d 123, 125 (1980).

       See Report of the Commission to Investigate and Report the Most Humane and Practical Method of Carrying Into Effect the Sentence of Death in Capital Cases 3 (transmitted to the Legislature of the State of New York, Jan. 17, 1888). See generally Bedau 15; L. Lawes, Life and Death in Sing Sing 183-186 (1928) (hereinafter Lawes); N. Teeters, Hang By The Neck 446 (1967) (hereinafter Teeters); Beichman, The First Electrocution, 35 Commentary 410, 411 (1963). Some contemporary observers described the so-called Electrical Execution Law as a means to ensure “euthanasia by electricity.” Id., at 411.

       The Court concluded that the challenged statute was reviewable only to determine whether its enactment “was in itself within the legitimate sphere of the legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence.” 136 U. S., at 449. See also McElvaine v. Brush, 142 U. S. 155, 158-159 (1891).

       See also Estelle v. Gamble, 429 U. S. 97, 102 (1976) (methods of punishment cannot trangress contemporary ‘“broad and idealistic concepts of dignity, civilized standards, humanity, and decency’ ”).

       Were it otherwise, the Cruel and Unusual Punishments Clause would be rendered “little more than good advice,” Trop v. Dulles, 356 U. S. 86, 104 (1958) (plurality opinion), and “[i]ts general principles would have little value and be converted by precedent into impotent and lifeless formulas,” Weems v. United States, 217 U. S., at 373.

       See, e. g., Furman v. Georgia, 408 U. S. 238, 392 (1972) (Burger, C. J., dissenting) (“The dominant theme of the Eighth Amendment debates was that the ends of the criminal laws cannot justify the use of measures of extreme cruelty to achieve them”).

       See also id., at 279 (Brennan, J., concurring); id., at 430 (Powell, J., dissenting) (“[N]o court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives”); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 473-474 (1947) (Burton, J., dissenting) (“Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people. . . . The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself”).

       The issue in Resweber was whether repeated attempts to electrocute a person were unconstitutional, not whether electrocution was per se cruel and unusual punishment. The plurality obviously believed that electrocution in the abstract was not constitutionally forbidden, and even the dissent assumed that electrocution generally was so “instantaneous” and “painless” that it would not present constitutional difficulties. Id., at 474 (Burton, J., dissenting).

       We have emphasized in procedural contexts that the Eighth Amendment requires that all feasible measures be taken to minimize the risk of mistakes in administering capital punishment. See, e. g., Zant v. Stephens, 462 U. S. 862, 884-885 (1983); Eddings v. Oklahoma, 455 U. S. 104, 118 (1982) (O’Connor, J., concurring). See also Royal Commission Report ¶729, at 255 (importance of determining “which method [of execution] is most likely to avoid mishaps”).

       Details concerning the actual process of electrocution are not widely known, primarily because “executions are carried out in private; there are few witnesses; pictures are not allowed; and newspaper accounts are, because of ‘family newspaper’ requirements of taste, sparing in detail.” Hearings on H. R. 8414 et al. before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 2d Sess., 308 (1972) (hereinafter 1972 Hearings). See also Furman v. Georgia, supra, at 297 (Brennan, J., concurring); Camus, Reflections on the Guillotine, in Resistance, Rebellion, and Death 187 (1961) (“The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail”).

       The technical aspects of electrocution, briefly stated, are that the authorities bind the condemned to a wooden chair with leather straps, affix electrodes to his shaven head and right leg, and partially cover his face with a mask. When the switch is thrown, an “initial voltage of 2,000 to 2,200 and amperage of 7 to 12” are sent “hurtling through the prisoner’s body,” and the voltage and amperage subsequently “are lowered and reapplied at various intervals” until the prisoner is dead. Lawes 170.

       Hearings on S. 1760 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 20 (1968) (hereinafter 1968 Hearings) (statement of Clinton Duffy, former Warden of San Quentin); Lawes 170; 1972 Hearings, at 305. See also Teeters 448 (‘“The figure in the chair gives one terrific lurch against the straps, every muscle contracting and straining. The face — all that can be seen from mouth to throat — turns crimson’ ”) (quoting Dr. Amos Squire, Sing Sing prison).

       Lawes 170.

       C. Duff, A Handbook on Hanging 119-120 (1974) (hereinafter Duff).

       “The force of the death-dealing blow the condemned prisoner receives is more easily understood when it is realized that this amount of electricity, transferred into mechanical power, would be equivalent to 884,400 foot-pounds per minute, or enough electrical energy to light 800 lights in the average home.” Lawes 189.

       1968 Hearings, at 20 (statement of Clinton Duffy); see also Rubin, The Supreme Court, Cruel and Unusual Punishment, and the Death Penalty, 15 Crime and Delinquency 121, 129 (1969). In addition, the force of the current is so strong that it sometimes literally ruptures the prisoner’s heart. Duff 120.

       Tyler, Electrocution As a Spectator Sport, 2 Fact 47, 50-51 (Mar.-Apr. 1965); see also 1968 Hearings, at 20 (statement of Clinton Duffy).

       Gardner, 39 Ohio St. L. J., supra n. 2, at 126; 1968 Hearings, at 20 (statement of Clinton Duffy). See also G. Bishop, Executions: The Legal Ways of Death 27 (1965).

       Rubin, 15 Crime and Delinquency, supra n. 18, at 128; see also 1972 Hearings, at 305; Teeters 448.

       Tyler, 2 Fact, supra n. 19, at 50. One veteran observer once commented: “Only the greenhorns sit in the first row. We sit behind. The smell is too bad.” Id,., at 49. See generally 1968 Hearings, at 20 (statement of Clinton Duffy); Bedau 16; Teeters 449; Rubin, 15 Crime and Delinquency, supra n. 18, at 128.

       Duff 119.

       Lawes 189; 1968 Hearings, at 20 (statement of Clinton Duffy). “[T]he electrodes making contact may reach a temperature high enough to melt copper (1,940 degrees Fahrenheit) and . . . the average body temperature will be in the neighbourhood of 140 degrees Fahrenheit. . . .” Lawes 188.

       Bedau 16; 1968 Hearings, at 20 (statement of Clinton Duffy).

       Lawes 188-189; Teeters 447-448.

       1972 Hearings, at 305; Note, The Death Penalty Cases, 56 Calif. L. Rev. 1268, 1339 (1968). “No one knows whether electrocuted individuals retain consciousness until dead . . . .” 1972 Hearings, at 306. See also Bedau, General Introduction, in Capital Punishment 7, 17-18, 22-23 (J. McCafferty ed. 1972); G. Scott, The History of Capital Punishment 219 (1950).

       Teeters 447 (quoting Nicola Tesla).

       Quoted in Duff 118-119. See also Lawes 187 (“[T]he resisting power of the human body is very high and it requires a voltage comparatively large or small, depending entirely upon the resistance and contacts, to force this amount of current through a circuit in which the body, with its contacts, constitutes the resistance”).

       See Duff 122 (“Experience proves that human beings vary enormously in their powers of resistance to electrocution, which depends upon the strength of current and not upon voltage pressure: hence, several shocks may be required to produce what medical experts can reasonably define as death, which means that doctors have to stand by with stethoscopes at the ready to apply to the victim’s chest when he or she has been given one or more doses of current”) (emphasis in original).

       See generally Teeters 446-447; Beichman, 35 Commentary, supra n. 4, at 417-419. George Westinghouse, founder of Westinghouse Electric Company, “thought that the job could have been ‘done better with an axe.’” Voices Against Death xxxii (P. Mackey ed. 1976) (hereinafter Voices Against Death). The New York Press asserted that “the age of burning at the stake is past; the age of burning at the wire will pass also.” Beichman, supra, at 417. Another newspaper editorialized: “[I]t is not improbable that the first will prove the last .... Dr. E. A. Spitzka, the celebrated expert, who was present, unhesitatingly pronounced the experiment a failure and declared it his belief that the law should be repealed and no more experiments made with electricity as a means of execution.” Teeters 446-447. A note in the Harvard Law Review from the time suggested that the judicial approval of electrocution “might well be changed in the light of subsequent experiment.” 4 Harv. L. Rev. 287 (1891).

       R. Elliott, Agent of Death 66 (1940) (hereinafter Elliott). See generally Bedau 15; Duff 121; J. Pritchard, A History of Capital Punishment 65 (1932); Teeters 448-449; Gardner, 39 Ohio St. L. J., supra n. 2, at 126; 1972 Hearings, at 305-306. Robert Elliott, Sing Sing’s long-time electrocutioner, described in his memoirs a number of failed attempts to electrocute prisoners. See especially Elliott 57 (“Fred’s heart, larger than that of any other person electrocuted up to that time, was still beating, and he was alive. There was only one thing to do: put him in the chair again, and pass current through his body until he was dead”); id., at 66 (describing the execution of another condemned prisoner in which “six shocks [were] necessary before he was pronounced dead”); id., at 147-148.
      A noted instance of this phenomenon occurred when Ethel Rosenberg was electrocuted for treason: five consecutive attempts were required before she finally died. “After the fourth (shock) guards removed one of the two straps and the two doctors applied their stethoscopes. But they were not satisfied that she was dead. The executioner came to them from his switchboard in a small room 10 feet from the chair. ‘Want another?’ he asked. The doctors nodded. Guards replaced the straps and fpr the fifth time electricity was applied.” Duff 122 (emphasis in original).
      See also Howells, State Manslaughter, in Voices Against Death 152:
      “It was not imagined that electricity could fail to kill instantly, much less that the criminal, who had become the State’s peculiar care, could be so ineffectually tortured as to froth at the mouth, and strain at his bonds with writh-ings of agony which almost burst them, or give out the smell of his burning flesh so that the invited guest was often made sick at his stomach by the loathsome and atrocious fact. Yet all this has happened again and again in the execution of the death sentences since the consecration of the electric chair to the hallowed office of the axe, the noose, the screw. It has happened so often that I, at least, had become used to reading of it, and had tranquilly accepted it ... . I generally managed to reconcile myself to the record of the frothing, and burning, and writhing, by learning further that the scientific gentleman, or the educated electrician, on the other side of the wall, had made it all right by discharging another thousand or two thousand volts into the body of his erring brother, and so putting him finally out of his misery.”

       Dr. Amos Squires, for years the officiating doctor at electrocutions conducted at Sing Sing, observed that after “the current is cut off. . . the doctor with his stethoscope listens for heartbeats — he listens to them grow fainter and fainter. A brief interval passes. The switch is thrown again — and after contact is broken, again the doctor listens. There is seldom any pulse this time.” Teeters 448 (emphasis added). See also id., at 449 (“[I]t often takes several shocks of high voltage to finally convince the attending physician— who often must rely on the executioner himself to give the nod — that the victim is actually dead”).

       Louisiana’s execution of Willie Francis remains the most notorious example of the botched manner in which so many electrocutions have been conducted. See generally L. Berkson, The Concept of Cruel and Unusual Punishment 26-29 (1975); B. Prettyman, Death and the Supreme Court 90-128 (1961). Sheriff Harold Resweber described the first attempted electrocution as follows:
      “Then the eleetrocutioner turned on the switch and when he did Willie Francis’ lips puffed out and he groaned and jumped so that the chair came off the floor. Apparently the switch was turned on twice and then the condemned man yelled: ‘Take it off. Let me breath [sic].’ ” 329 U. S., at 480, n. 2 (Burton, J., dissenting).
      Another witness gave this account of the aborted attempt:
      “I saw the eleetrocutioner turn on the switch and I saw his lips puff out and swell, his body tensed and stretched. I heard the one in charge yell to the man outside for more juice when he saw that Willie Francis was not dying and the one on the outside yelled back he was giving him all he had. Then Willie Francis cried out ‘Take it off. Let me breath [sic].’ Then they took the hood from his eyes and unstrapped him. . . . This boy really got a shock when they turned that machine on.” Ibid.

       Affidavit of Russell F. Canan (June 22, 1983), attached to Pet. for Cert.

       N. Y. Times, Dec. 13, 1984, p. A18, cols. 1-4.

       N. Y. Times, Dec. 17, 1984, p. A22, col. 1.

       See Bedau 18; Gardner, 39 Ohio St. L. J., supra n. 2, at 110-113; see also Royal Commission Report ¶¶ 735-749, at 256-261.

       Gardner, 39 Ohio St. L. J., supra n. 2, at 126-127, n. 228 (quoting Texas Rep. Ben Grant).

         Id,., at 127.

       See, e. g., 1968 Hearings, at 21; 1972 Hearings, at 806-307; Teeters 451-455; Gardner, 39 Ohio St. L. J., supra n. 2, at 127-128.

       See, e. g., Chaney v. Heckler, 231 U. S. App. D. C. 136, 139-140, 718 F. 2d 1174, 1177-1178 (1983), rev’d, 470 U. S. 821 (1985); Royal Commission Report ¶¶ 737-749, at 257-261; Gardner, 39 Ohio St. L. J., supra n. 2, at 128-129.


author: Justice Brennan and Justice Marshall,

text:
    No. 84-6302.
    No. 84-6306.
    No. 84-6364.
    Roscoe v. Arizona. Campbell v. Washington. Vereen v. North Carolina.
   Sup. Ct. Ariz.;

Sup. Ct. Wash.; and

Sup. Ct. N. C. Certiorari denied. Reported below: No. 84-6302, 145 Ariz. 212, 700 P. 2d 1312; No. 84-6306, 103 Wash. 2d 1, 691 P. 2d 929; No. 84-6364, 312 N. C. 499, 324 S. E. 2d 250.

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. 83-6493.
    No. 84-1251.
    No. 84-6092.
    No. 84-6144.
    Irving v. Mississippi, Ohio v. Luck, Berkson v. Del Monte Corp. et al., Day v. Amoco Chemicals Corp.,
   470 U. S. 1059;

470 U. S. 1084;

470 U. S. 1056; and

470 U. S. 1086. Petitions for rehearing denied.

Justice Powell took no part in the consideration or decision of these petitions.


text:
    May 1, 1985
    No. 84-999.
    Stringfellow et al. v. Concerned Neighbors in Action et al.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    May 13, 1985
    No. 84-1145.
    Lanton v. Alabama.
   Appeal from Ct. Crim. App. Ala. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1478.
    Blair v. Boulger.
   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.


text:
    No. 84-1583.
    Walber, dba Walber Construction Co. v. United States Department of Housing and Urban Development.
   Appeal from C. A. 6th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1637.
    Holderman v. United States.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 84-1638.
    Holderman v. United States.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 84-6401.
    Valway et ux. v. Kearns et al.
   Appeal from Sup. Ct. N. H. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1476.
    DePerte et al. v. Tribune Co. et al.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.


text:
    No. 84-6410.
    Tuggle v. Virginia.
   Sup. Ct. Va. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Ake v. Oklahoma, 470 U. S. 68 (1985).


text:
    No. 84-5636.
    Alcorn v. Smith, Warden.
   C. A. 6th Cir. [Certiorari granted, 470 U. S. 1003.] Judgment vacated and case remanded for further proceedings in light of the assertions set forth in petitioner’s motion to vacate filed April 26, 1985, and the response filed thereto.


text:
    No.-.
    Keller, Administratrix of the Estate of Keller v. American Optical Co.
   Motion to direct the Clerk to file a petition for writ of certiorari out of time denied.


text:
    No. D-294.
    In re Disbarment of Wolff.
    [For earlier order herein, see 459 U. S. 939.]
   Disbarment entered.


text:
    No. D-462.
    In re Disbarment of Collier.
    [For earlier order herein, see 469 U. S. 1030.]
   Disbarment entered.


text:
    No. D-480.
    In re Disbarment of Black.
    [For earlier order herein, see 470 U. S. 1025.]
   Disbarment entered.


text:
    No. D-489.
    In re Disbarment of McGarry.
   It is ordered that James P. McGarry, of Flushing, N. Y., 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-491.
    In re Disbarment of Pecoraro.
   It is ordered that Maria Catherine Pecoraro, of West Chester, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court.


text:
    No. D-492.
    In re Disbarment of Surgent.
   It is ordered that John W. Surgent, of Lake Ariel, Pa., 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. 83-1944.
    Jensen, Director, Department of Motor Vehicles of Nebraska, et al. v. Quaring.
   C. A. 8th Cir. [Certiorari granted, 469 U. S. 815.] Motion of respondent for leave to file a supplemental brief after argument granted.


text:
    No. 84-262.
    Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana.
   C. A. 10th Cir. [Certiorari granted, 469 U. S. 879.] Motion of petitioner for leave to file a supplemental brief after argument granted.


text:
    No. 84-801.
    No. 84-805.
    Midlantic National Bank v. New Jersey Department of Environmental Protection; and O’Neill, Trustee in Bankruptcy of Quanta Resources Corp., Debtor v. City of New York et al.; and O’Neill, Trustee in Bankruptcy of Quanta Resources Corp., Debtor v. New Jersey Department of Environmental Protection.
   C. A. 3d Cir. [Certiorari granted, 469 U. S. 1207.] Motion of respondents for divided argument granted.


text:
    No. 84-1321.
    Nix, Warden v. Whiteside.
   C. A. 8th Cir. [Certiorari granted, ante, p. 1014.] Motion for appointment of counsel granted, and it is ordered that Patrick Reilly Grady, Esquire, of Cedar Rapids, Iowa, be appointed to serve as counsel for respondent in this case.


text:
    No. 84-1426.
    Abrams, Attorney General of New York v. McCray.
   C. A. 2d Cir. Motion of respondent to expedite further consideration of the petition for writ of certiorari and to consolidate with No. 84-6263, Batson v. Kentucky [certiorari granted, ante, p. 1052], denied.

Justice Brennan, Justice Marshall, and Justice Stevens would grant this motion.


text:
    No. 84-1447.
    Salcer et al. v. Envicon Equities Corp. et al.
   C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 84-6051.
    Allen v. Georgia,
   470 U. S. 1059. Respondent is requested to file a response to the petition for rehearing within 30 days.


text:
    No. 84-6423.
    No. 84-6496.
    In re Bernstein; and In re Hunter.
   Petitions for writs of mandamus denied.


text:
    No. 84-1493.
    No. 84-1509.
    National Labor Relations Board v. Financial Institution Employees of America, Local 1182, Chartered by United Food & Commercial Workers International Union, AFL-CIO, et al.; and Seattle-First National Bank v. Financial Institution Employees of America, Local 1182, Chartered by United Food & Commercial Workers International Union, AFL-CIO, et al.
   C. A. 9th Cir. Certiorari granted,


text:
    No. 84-1288.
    Evans, Governor of Idaho, et al. v. Jeff D. et al., Minors, by and Through Their Next Friend, Johnson, et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-1480.
    Wainwright, Secretary, Florida Department of Corrections v. Greenfield.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-1485.
    Moran, Superintendent, Rhode Island Department of Corrections v. Burbine.
   C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-6646.
    Turner v. Sielaff, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 83-2132.
    Lucky Stores, Inc. v. Garibaldi.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-756.
    Moore v. General Motors Corp.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-821.
    Woodmen of the World Life Insurance Society v. Lasso.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-996.
    Jacobs, Executrix of the Estate of Jacobs v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1101.
    Brainard v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1104.
    Przybyla v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1136.
    Burroughs et al. v. Pierce, Secretary of Housing and Urban Development, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1142.
    No. 84-1316.
    Exxon Corp. v. Department of Energy et al.; and Texaco Inc. v. Department of Energy et al.
   Temp. Emerg. Ct. App. Certiorari denied. Reported below: 752 F. 2d 650.


text:
    No. 84-1143.
    O’Brocta v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1171.
    Jenrette v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1173.
    United Transportation Union, Successor to Brotherhood of Railroad Trainmen v. Sears et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1177.
    Sterling v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1210.
    Spradley v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1260.
    No. 84-1261.
    No. 84-6104.
    Yamanis v. United States; Yamanis v. United States; and Calise v. United States.
   C. A. 11th Cir. Certiorari denied. Reported below: 744 F. 2d 1508.


text:
    No. 84-1306.
    Baker v. Baker.
   Sup. Jud. Ct. Me. Certio-rari denied.


text:
    No. 84-1345.
    Town Pump, Inc. v. Brock, Secretary of Labor.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1348.
    Eikenberry, Attorney General of Washington v. Standard Oil Company of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1369.
    Manhattan Coffee Co. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 688.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 84-1416.
    Sumco Manufacturing Co., Inc., et al. v. National Labor Relations Board.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 84-1420.
    Chicago Investment Corp. v. American National Bank & Trust Company of Chicago, Trustee, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1446.
    Taca International Airlines, S.A. v. Air Line Pilots Assn., International, AFL-CIO.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1448.
    Lennon v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1452.
    Wisconsin’s Environmental Decade, Inc., et al. v. State Bar of Wisconsin.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1453.
    KMA, Inc. v. City of Newport News.
   Sup. Ct. Ya. Certiorari denied.


text:
    No. 84-1455.
    Bedat et al. v. McLean Trucking Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1457.
    Capital Telephone Co., Inc., et al. v. New York Telephone Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1461.
    Providence Builders, Inc., et al. v. Zoning Hearing Board of Lower Providence Township et al.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 84-1462.
    James v. Hunter et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1464.
    Ronwin et al. v. Supreme Court of Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 84-1467.
    Palmer et ux. v. Tucker et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1468.
    DeSeyn v. Muskingum Watershed Conservancy District.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1469.
    Berry v. Bailey.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1472.
    Lyons v. Ohio.
   Ct. App. Ohio, Lake County. Certiorari denied.


text:
    No. 84-1473.
    Hoffman v. Henderson.
   Ct. App. Minn. Certiorari denied.


text:
    No. 84-1483.
    Yugoexport, Inc., et al. v. Thai Airways International, Ltd.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1486.
    Kerrigan et ux. v. Luce, Forward, Hamilton & Scripps et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1487.
    Washington v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 84-1494.
    Brister et al. v. Parish of Jefferson et al.
   C. A: 5th Cir. Certiorari denied.


text:
    No. 84-1496.
    Hampton Roads Shipping Assn. v. International Longshoremen’s Assn., AFL-CIO, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1497.
    Riceland Foods, Inc. v. United Brotherhood of Carpenters & Joiners of America, AFL-CIO-CLC, Local 2381, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1498.
    Good Hope Chemical Corporation Creditors’ Committee v. Koerver & Lersch.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 84-1501.
    John E. Green Plumbing & Heating Co., Inc. v. Turner Construction Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1505.
    Chambers v. Henderson, Judge of the District Court, Oklahoma County, Oklahoma.
   Dist. Ct. Oklahoma County, Okla. Certiorari denied.


text:
    No. 84-1507.
    Carder v. Van de Kamp, Attorney General of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1514.
    Georgia v. Felker.
   Ct. App. Ga. Certiorari denied.


text:
    No. 84-1523.
    Duffy v. City of Long Beach.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1547.
    Alpha Portland Industries, Inc., et al. v. Anderson et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1562.
    Segrera v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1570.
    Johnson v. Merit Systems Protection Board.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1574.
    Adcock v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1575.
    Thomas v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1585.
    Cosman v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1588.
    Dugger v. Delta Airlines.
   Ct. App. Ga. Certiorari denied.


text:
    No. 84-1594.
    Genser v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1596.
    Bibbero v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1610.
    Smith v. FCX, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1628.
    Williams v. General Motors Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1632.
    Suter v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5343.
    Hux v. Murphy, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5484.
    Jarrell v. Balkcom, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5547.
    Saldana v. Wyoming.
   Sup. Ct. Wyo. Certio-rari denied.


text:
    No. 84-5797.
    Herrera v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 84-5950.
    Rhea v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5954.
    Sams v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5963.
    Williams v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5993.
    Atnip v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6059.
    Thompson v. Reivitz, Secretary, Department of Health and Social Services, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6074.
    Gregory v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-6079.
    Owens v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6080.
    Ventura v. Cupp, Superintendent, Oregon State Penitentiary.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6099.
    Schmitt v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6127.
    Thompson et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6132.
    Grandison v. Moore et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6146.
    Preston v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6205.
    Pierrot v. United States.


text:
    No. 84-6246.
    Thomas v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6259.
    Latil v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 84-6271.
    Young v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6290.
    Van Orden v. Indiana.
   Sup. Ct. Ind. Cer-tiorari denied.


text:
    No. 84-6310.
    Love v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 84-6352.
    No. 84-6360.
    Segura v. United States; and Reynosa v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 749 F. 2d 39.


text:
    No. 84-6353.
    Smith v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6367.
    Sellars v. Social Security Administration et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6372.
    Haas v. Nichols et al.
   Ct. App. Ariz. Cer-tiorari denied.


text:
    No. 84-6379.
    Orange v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6390.
    Coquillian v. Jones, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6391.
    Fosso et al. v. Cabinet for Human Resources of Kentucky et al.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 84-6393.
    Frankenberry v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 84-6394.
    Brown v. Schweitzer et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6397.
    Drumheller v. Booker, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6403.
    Smith et ux. v. Citizens Home Savings Co.
   Ct. App. Ohio, Lorain County. Certiorari denied.


text:
    No. 84-6404.
    Speigel v. Zimmerman, Superintendent, State Correctional Institution at Huntingdon.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6405.
    Smith et ux. v. Citizens Home Savings Co.
   Ct. App. Ohio, Lorain County. Certiorari denied.


text:
    No. 84-6415.
    Stewart v. Cabana, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6418.
    McKinnis v. Alabama.
   Sup. Ct. Ala. Certio-rari denied.


text:
    No. 84-6420.
    Connor v. Haugh et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 84-6421.
    Abbott v. Melson et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6424.
    Kimball v. Mahler et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-6426.
    Ely v. United States Postal Service.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6435.
    Magee v. Campoy, Warden.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 84-6439.
    Forrester v. Brandt.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 84-6448.
    Woods v. Lumber Center, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6455.
    Freeze v. Baer, Chairman, United States Parole Commission, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6459.
    Huber v. North Dakota.
   Sup. Ct. N. D. Certiorari denied.


text:
    No. 84-6461.
    Swann v. Idaho.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 84-6462.
    Perkins v. Rice et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 84-6467.
    Davis v. Procunier, Director, Texas Department of Corrections.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 84-6472.
    Buhajla v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6476.
    Webster v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6479.
    Sloan v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6481.
    Liberto v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6483.
    DeVelasco v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6488.
    Lopez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6494.
    Murphy v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6499.
    Thompson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6511.
    Moss v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6518.
    Parsons v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 84-6519.
    Pepper v. Kentucky.


text:
    No. 84-6523.
    Lorick et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6539.
    Walker v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6549.
    McElveen v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6565.
    Jones v. United States.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 84-6570.
    Blyther v. District of Columbia.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1190.
    Wells v. Rockefeller et al.
   C. A. 3d Cir. Motion of respondents for award of damages denied. Certiorari denied.

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


text:
    No. 84-1207.
    South Carolina Department of Corrections et al. v. Doby.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1223.
    Davis, Warden v. Stokes.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1234.
    Wainwright, Secretary, Florida Department of Corrections v. Hall.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Cer-tiorari denied.


text:
    No. 84-1410.
    Irving, Director, Juvenile Division, Illinois Department of Corrections v. Clay.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1540.
    Duckworth, Superintendent, Indiana State Prison v. Dillon.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1278.
    Yamasaki, Director, Hawaii Department of Transportation v. Stop H-3 Assn. et al.
   C. A. 9th Cir. Motion of Committee for H-3 et al. for leave to file a brief as amici curiae granted. Certiorari denied.


author: Chief Justice Burger,

text:
    No. 84-1291.
    Park Avenue Investment & Development, Inc., et al. v. Barkheimer et al.
   Dist. Ct. App. Fla., 4th Dist. Motion of respondents for attorneys’ fees and costs denied. Certiorari denied.

Chief Justice Burger,

with whom Justice Rehnquist and Justice O’Connor join.

I agree that we should deny the petition for a writ of certiorari, but I would also grant respondents’ motion for costs and fees. This petition is an attempt to invoke the Court’s jurisdiction on an utterly frivolous claim, and on this record I believe that the purpose of the petition is to delay collection of a debt. This use of the Court’s processes should subject the attorney who filed the petition to the sanction of Rule 49.2 of this Court.

Park Avenue Investment & Development, Inc., was formed to develop and convert oceanfront buildings into time-share resorts. Petitioners solicited the respondents to invest in Park Avenue under a profit-sharing plan. Park Avenue later defaulted on its obligations under the profit-sharing plan. It then executed a series of promissory notes to the respondents for the deficiencies due under the plan, but defaulted on the notes as well. Respondents initiated five separate lawsuits to collect on the promissory notes. On September 17, 1981, the parties entered into a stipulation for the settlement of the lawsuits. The stipulation set out the amounts petitioners owed to respondents and established a timetable for repayment. When Park Avenue failed to make any of the payments under the stipulation, respondents attempted to foreclose on their debts, but petitioners prevented them from doing so.

Respondents then filed suit in state court. In response to a motion for summary judgment filed by respondents, petitioners moved to set aside the stipulation on the ground that it was usurious and unenforceable under Florida’s criminal usury statute, Fla. Stat. §687.071(7) (1983). The trial court denied petitioners’ motion to set aside the stipulation, granted respondents’ motion for summary judgment, and, a few weeks later, entered judgment for respondents. The court based its decisions on Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1 (Fla. 1971), in which the Florida Supreme Court held that “usury is purely a personal defense created by statute for the protection of borrowers and, therefore, any borrower may waive his right to claim the benefit of such statute.” Id., at 4. The trial court held that the parties’ stipulation constituted a waiver of whatever usury defense petitioners may have had to the promissory notes.

Petitioners appealed to the District Court of Appeal. That court affirmed in a per curiam order, simply citing Gunn Plumbing, supra, and Sherman v. Field Clinic, 74 Ill. App. 3d 21, 392 N. E. 2d 154 (1979). Petitioners then filed a petition for a writ of certiorari in the Florida Supreme Court and at the same time attempted to take a direct appeal to that court, invoking its appellate jurisdiction on the obviously meritless ground that the District Court of Appeal had held § 687.071(7) invalid as applied. See generally Fla. Const., Art. V, §3(b)(1). The State Supreme Court denied certiorari and dismissed the appeal. Petitioners then filed a motion for reinstatement of the appeal. The Florida Supreme Court denied this motion.

Petitioners next filed their petition for a writ of certiorari in this Court, asserting that the state courts’ failure to apply § 687.071(7) infringed their rights under the Equal Protection Clause of the Fourteenth Amendment. Petitioners’ equal protection “argument” is raised here for the first time. In reviewing judgments of state courts, of course, we do not consider constitutional arguments that were not properly presented in the state courts.

Moreover, the claim is patently frivolous. Besides the wholly conclusory assertion that the decisions of the state courts have violated petitioners’ right to equal protection, the arguments contained in the petition concern only matters of state law, principally that the trial and appellate courts erred in applying Gunn Plumbing, supra. Although there are colorable arguments that Gunn Plumbing is distinguishable from petitioners’ case, there is nothing in Gunn Plumbing or in the facts of this case to indicate that the application of Gunn Plumbing here was arbitrary or even surprising. There is no allegation that Gunn Plumbing has not been applied in similar cases. Hence there is no basis whatsoever for petitioners’ assertion that they have been denied equal protection. Indeed, it seems clear to me that this petition is but the latest step in a series of actions designed solely to delay respondents’ foreclosure on their loans. Such an abuse of the judicial process should not be tolerated. See Talamini v. Allstate Insurance Co., 470 U. S. 1067, 1071 (1985) (Stevens, J., concurring) (“[l]f it appears that unmeritorious litigation has been prolonged merely for the purposes of delay, with no legitimate prospect of success, an award of double costs and damages occasioned by the delay may be appropriate.”).

Respondents have moved for an award of costs and fees for their expenses in responding to this frivolous petition. I would grant the motion to the extent of awarding, respondents $5,000 against Hal P. Dekle, Esq., petitioners’ counsel, pursuant to this Court’s Rule 49.2.

       Rule 49.2 provides: “When an appeal or petition for writ of certiorari is frivolous, the Court may award the appellee or the respondent appropriate damages.”

       Nor could any such allegation be made; Gunn Plumbing has been followed consistently. See, e. g., Munilla v. Perez-Cobo, 335 So. 2d 584 (Fla. App. 1976), cert. denied, 344 So. 2d 325 (Fla. 1977). See also Morgan Walton Properties, Inc. v. International City Bank & Trust Co., 404 So. 2d 1059, 1062 (Fla. 1981).


text:
    No. 84-1313.
    Burlington Northern Railroad Co. v. Cosby et al.
   C. A. 8th Cir. Motion of Association of American Railroads for leave to file a brief as amicus curiae granted. Cer-tiorari denied.


text:
    No. 84-1438.
    National Business Systems, Inc., et al. v. AM International, Inc., et al.
   C. A. 7th Cir. Motion of petitioners to defer consideration of the petition for writ of certio-rari denied. Certiorari denied.


text:
    No. 84-1471.
    Beech Aircraft Corp. v. Elsworth et al.
   Sup. Ct. Cal. Motion of Boeing Co. et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 84-1488.
    Baldwin-United Corp. et al. v. Eubanks, Insurance Commissioner for Arkansas.
   Sup. Ct. Ark. Motion of the parties to defer consideration of the petition for writ of certiorari denied. Certiorari denied.


text:
    No. 84-6033.
    No. 84-6284.
    No. 84-6326.
    No. 84-6408.
    No. 84-6413.
    No. 84-6486.
    No. 84-6490.
    No. 84-6526.
    Brogdon v. Louisiana. Fairchild v. Arkansas. Hall v. Wainwright, Secretary, Florida Department of Corrections. Singleton v. South Carolina. Stano v. Florida. Washington v. Virginia. Dutton v. Oklahoma. Carriger v. Arizona.
   Sup. Ct. La.;

Sup. Ct. Ark.;

C. A. 11th Cir.;

Sup. Ct. S. C.;

Sup. Ct. Fla.;

Sup. Ct. Va.;

Ct. Crim. App. Okla.; and

Sup. Ct. Ariz. Cer-tiorari denied. Reported below: No. 84-6033, 457 So. 2d 616; No. 84-6284, 284 Ark. 289, 681 S. W. 2d 380; No. 84-6326, 733 F. 2d 766; No. 84-6408, 284 S. C. 388, 326 S. E. 2d 153; No. 84-6413, 460 So. 2d 890; No. 84-6486, 228 Va. 535, 323 S. E. 2d 577; No. 84-6526, 143 Ariz. 142, 692 P. 2d 991.

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. 83-2022.
    No. 84-667.
    No. 84-5968.
    No. 84-6190.
    No. 84-6212.
    Gribble v. Buckner, Judge, General Sessions Court of Rutherford County, Tennessee, et al., Lyons v. Warden, Nevada State Prison, Brewer v. City of Clayhatchee, Judd v. United States et al., Hopgood v. Hopgood,
   469 U. S. 930;

ante, p. 1004;

ante, p. 1005;

ante, p. 1019; and

ante, p. 1006. Petitions for rehearing denied.


text:
    No. 83-6663.
    No. 84-16.
    No. 84-249.
    No. 84-559.
    No. 84-690.
    No. 84-833.
    No. 84-841.
    No. 84-939.
    No. 84-5059.
    No. 84-5507.
    No. 84-5736.
    No. 84-5770.
    No. 84-5870.
    No. 84-6055.
    No. 84-6147.
    No. 84-6192.
    No. 84-6227.
    No. 84-6243.
    No. 84-6323.
    Fugate v. New Mexico, Cory et al. v. Western Oil & Gas Assn. et al., Spencer et ux. v. South Carolina Tax Commission et al., Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp., United States v. Gagnon et al., Bean Dredging Corp. v. Alabama, Kashetta v. Kashetta, Japan Air Lines Co., Ltd. v. Abramson, Ramirez v. Indiana, Lavonte v. Walter et al., White v. Maryland, Stull v. United States, Finney v. Georgia, Hanson v. Rutherford et al., McNeair v. Suburban Hospital Assn., Inc., Bertulfo v. Office of Personnel Management, Manko v. United States, Betka v. Heckler, Secretary of Health and Human Services, Fabian v. Ryan,
   469 U. S. 1191;

470 U. S. 522;

470 U. S. 904;

ante, p. 81;

ante, p. 82;

470 U. S. 1031;

469 U. S. 1200;

470 U. S. 1059;

ante, p. 147;

469 U. S. 1219;

470 U. S. 1062;

470 U. S. 1062;

470 U. S. 1088;

470 U. S. 1055;

470 U. S. 1086;

470 U. S. 1057;

470 U. S. 1046;

470 U. S. 1087; and

470 U. S. 1087. Petitions for rehearing denied.

Justice Powell took no part in the consideration or decision of these petitions.


text:
    May 14, 1985
    No. A-859.
    De La Rosa v. Procunier, Director, Texas Department of Corrections.
   Application for stay of execution of sentence of death scheduled for Wednesday, May 15, 1985, presented to Justice White, and by him referred to the Court, denied.

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 the application for stay and a petition for writ of certiorari and would vacate the death sentence in this case.


text:
    May 17, 1985
    No. 84-1266.
    G. Heileman Brewing Co., Inc., et al. v. Folding Carton Administration Committee et al.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    May 20, 1985
    No. 84-1454.
    Mississippi Power & Light Co. v. Conerly et al.
   Appeal from Sup. Ct. Miss, dismissed for want of substantial federal question.

Justice Blackmun would dismiss for want of jurisdiction.


text:
    No. 84-1605.
    Jack H. Brown & Co. Inc. v. Northwest Sign Co.
   Appeal from Sup. Ct. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1398.
    Weinberger, Secretary of Defense, et al. v. Ramirez de Arellano et al.
   C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded to the Court of Appeals for reconsideration of its opinion and judgment in light of the Foreign Assistance and Related Programs Appropriations Act for fiscal year 1985, Pub. L. 98-473, 98 Stat. 1884, 1893-1894, and other events occurring since October 5, 1984.


text:
    No. 84-1418.
    Pastrana de Caraballo v. Heckler, Secretary of Health and Human Services.
   C. A. 1st Cir. Cer-tiorari granted, judgment vacated, and case remanded to the Court of Appeals with instructions to remand the case to the United States District Court for the District of Puerto Rico with instructions to remand the case to the Secretary of Health and Human Services for review pursuant to § 2(d)(2)(C) of the Social Security Disability Benefits Reform Act of 1984.


text:
    No. D-471.
    In re Disbarment of Brault.
    [For earlier order herein, see 469 U. S. 1154.]
   Disbarment entered.


text:
    No. D-479.
    In re Disbarment of Goffen.
    [For earlier order herein, see 470 U. S. 1025.]
   Disbarment entered.


text:
    No. D-481.
    In re Disbarment of Gold.
    [For earlier order herein, see 470 U. S. 1025.]
   Disbarment entered.


text:
    No. D-493.
    In re Disbarment of Surdut.
   It is ordered that Raymond J. Surdut, of Providence, R. I., 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. 83-1944.
    Jensen, Director, Department of Motor Vehicles of Nebraska, et al. v. Quaring.
   C. A. 8th Cir. [Certiorari granted, 469 U. S. 815.] Motion of petitioners for leave to file a supplemental brief after argument granted.


text:
    No. 84-1244.
    Davis et al. v. Bandemer et al.
   D. C. S. D. Ind. [Probable jurisdiction noted, 470 U. S. 1083.] Motion of Mexican American Legal Defense and Educational Fund for leave to file a brief as amicus curiae granted.


text:
    No. 84-1287.
    No. 84-1545.
    Liphete et al. v. Stierheim et al. Miller-Wohl Co., Inc. v. Commissioner of Labor and Industry of Montana et al.
   Dist. Ct. App. Fla., 3d Dist.; and

Appeal from Sup. Ct. Mont. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 84-1538.
    Fisher et al. v. City of Berkeley, California, et al.
   Appeal from Sup. Ct. Cal. Motions of California Chamber of Commerce and Western Mobilehome Association for leave to file briefs as amici curiae granted.


text:
    No. 84-6598.
    Knoblauch v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until June 10, 1985, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, Justice Blackmun, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 84-6471.
    In re Carter.
   Petition for writ of mandamus denied.


text:
    No. 84-1558.
    In re Pan American World Airways, Inc., et al.
   Petition for writ of mandamus and prohibition denied.


text:
    No. 84-1484.
    Wisconsin Department of Industry, Labor and Human Relations et al. v. Gould Inc.
   Appeal from C. A. 7th Cir. Probable jurisdiction noted.


text:
    No. 84-1379.
    Diamond et al. v. Charles et al.
   Appeal from C. A. 7th Cir. Probable jurisdiction noted and case set for oral argument in tandem with No. 84-495, Thornburgh v. American College of Obstetricians and Gynecologists [probable jurisdiction postponed, ante, p. 1014].


text:
    No. 83-6887.
    Quigley v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 84-995.
    No. 84-1265.
    Massa v. United States; and Skinner v. United States.
   C. A. 8th Cir. Certiorari denied. Reported below: 740 F. 2d 629.


text:
    No. 84-1200.
    Meese, Attorney General, et al. v. Segar et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1257.
    Glover v. United Grocers, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1344.
    Saginaw Mining Co. v. Gibas et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1351.
    Akootchook et al. v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1365.
    Public Utility District No. 1 of Chelan County, Washington v. Confederated Tribes and Bands of the Yakima Indian Nation et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1366.
    Board of Education of the City of Chicago v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1378.
    Renard v. Columbia Broadcasting System, Inc., et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-1490.
    Nelson v. Piedmont Aviation, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1520.
    Cameo Convalescent Center, Inc. v. Willkom.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1532.
    Nevada et al. v. Oliver.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1535.
    Consolidated Freightways Corporation of Delaware v. Gerling Global General Insurance Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1541.
    Dewberry v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-1544.
    Miller v. Commissioner of Revenue of Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 84-1546.
    McGinnis, Warden, et al. v. Robinson.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1548.
    Amis v. Steele, Lee County Tax Collector, et al.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 84-1551.
    Katherine D., a Minor, by and Through her Natural Parents and Legal Guardians, Kevin D. et ux. v. Department of Education of Hawaii.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1552.
    Soderbeck v. Burnett County, Wisconsin, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1556.
    Durham Hosiery Mills, Inc., et al. v. White.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1557.
    Howkins v. Caldwell et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1561.
    S/S Lake Anja et al. v. M. Golodetz Export Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1565.
    Van Weelde Brothers Shipping Ltd. et al. v. I. N. C. A. S. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1576.
    Michigan v. Early.
   Ct. App. Mich. Certio-rari denied.


text:
    No. 84-1579.
    Presbytery of Elijah Parish Lovejoy et al. v. Jaeggi et al.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 84-1603.
    Keltee v. Kentucky.
   Sup. Ct. Ky. Certio-rari denied.


text:
    No. 84-5934.
    Johnson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5941.
    No. 84-6300.
    No. 84-6434.
    Satterfield v. United States; Allison v. United States; and Welden v. United States.
   C. A. 11th Cir. Certiorari denied. Reported below: 743 F. 2d 827.


text:
    No. 84-6128.
    Palacios v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6221.
    Cleveland v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-6222.
    BoCook v. Tate.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6272.
    Glasshofer v. Cuyler, Superintendent, State Correctional Institution, et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 84-6283.
    Britt v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6437.
    Savage v. City of Columbus.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 84-6464.
    Small v. Rice, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6480.
    Cooper et al. v. Society National Bank.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 84-6482.
    Roybal v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 84-6484.
    Owens v. Cupp, Superintendent, Oregon State Penitentiary, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6489.
    Anderson v. Vose, Superintendent, Massachusetts Correctional Institution at Norfolk, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-6491.
    Wilson v. Seiter et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 84-6492.
    Papandrea v. Nevada.
   Sup. Ct. Nev. Cer-tiorari denied.


text:
    No. 84-6497.
    Weser v. Maschner et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6524.
    Herrington v. Heflin-Horton Insurance Agency et al.
   Cir. Ct. W. Va., Monongalia County. Certio-

rari denied.


text:
    No. 84-6540.
    Muhammad v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6553.
    Hill v. Illinois.
   App. Ct. Ill., 1st Dist. Cer-tiorari denied.


text:
    No. 84-6566.
    Gala v. United States Department of Defense et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6573.
    Lee v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 84-6574.
    Piquette v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6577.
    Rodriguez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6588.
    Cox v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 84-6593.
    Timlick v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6597.
    Godino v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6600.
    Brown v. United States et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6663.
    Andino v. Procunier, Director, Texas Department of Corrections.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 84-953.
    Florida v. Zafra.
   Dist. Ct. App. Fla., 3d Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1227.
    California v. Ramos.
   Sup. Ct. Cal. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1537.
    Educational Books, Inc. v. Virginia.
   Cir. Ct. Fairfax County, Va. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the convictions.


text:
    No. 84-6453.
    No. 84-6498.
    No. 84-6508.
    No. 84-6522.
    Gaskins v. South Carolina. Lawson v. North Carolina. Stewart v. Illinois. Hardwick v. Florida.
   Sup. Ct. S. C.;

Sup. Ct. N. C.;

Sup. Ct. Ill.; and

Sup. Ct. Fla. Certio-rari denied. Reported below: No. 84-6453, 284 S. C. 105, 326 S. E. 2d 132; No. 84-6498, 310 N. C. 632, 314 S. E. 2d 493; No. 84-6508, 104 Ill. 2d 463, 473 N. E. 2d 1227; No. 84-6522, 461 So. 2d 79.

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. 83-1896.
    No. 84-724.
    No. 84-6186.
    No. 84-6189.
    No. 84-6230.
    No. 84-6380.
    Mobil Oil Corp. v. Blanton et al., Texas A & M University et al. v. Gay Student Services et al., Ferrell v. South Carolina, Chaffee v. South Carolina, Truesdale v. South Carolina, Martin v. Pennsylvania Board of Law Examiners,
   ante, p. 1007;

ante, p. 1001;

ante, p. 1009;

ante, p. 1009;

ante, p. 1009; and

ante, p. 1022. Petitions for rehearing denied.


text:
    No. 83-1274.
    Metropolitan Life Insurance Co. et al. v. Ward et al.,
   470 U. S. 869. Petitions of W. G. Ward, Jr., and American Educators Life Insurance Co. for rehearing denied.


text:
    No. 84-685.
    Rush et al. v. United States,
   470 U. S. 1004. Petition for rehearing denied.

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


text:
    May 23, 1985
    No. 84-1127.
    In re Robson et al.
   Petition for writ of mandamus dismissed under this Court’s Rule 53.


text:
    May 28, 1985
    No. 84-1571.
    O’Keefe, as Personal Representative of the Estate of O’Keefe v. County of Hennepin.
   Appeal from Ct. App. Minn, dismissed for want of substantial federal question.


text:
    No. A-856 (84-6743).
    David v. American Telephone & Telegraph Co. et al.
   C. A. 11th Cir. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.