text:
    No. 84-5191.
    James v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case. Even if I felt otherwise, however, I would grant certiorari in this case because the underlying conviction raises grave constitutional issues.

I

At stake in this case are the limits the Fifth Amendment places on official custodial interrogation of an accused who has invoked the right to assistance of counsel. See Solem v. Stumes, 465 U. S. 638 (1984); Oregon v. Bradshaw, 462 U. S. 1039 (1983); Edwards v. Arizona, 451 U. S. 477 (1981). Admitting certain incriminating evidence against petitioner James in this case, the Arizona trial court ignored the principles of Edwards and its progeny. To affirm the trial court, the Arizona Supreme Court applied Edwards and Bradshaw in a way that departs substantially from our intendment in those cases and merits plenary review. Because Arizona plans to execute James if this constitutionally infirm conviction stands, our responsibility to undertake review is clear.

II

On November 19, 1981, Phoenix police officers arrested James for the murder of Juan Maya. Shortly after the arrest, Officer Davis of the Phoenix force escorted James to a small, windowless room and began an interrogation. Officer Davis read James his Miranda rights and then informed him that he would be charged with first-degree murder. Tr. 5-7 (Aug. 27, 1982). About 19 minutes into the interrogation, James asked Davis what would happen with respect to the murder charge. Davis responded that if James was found guilty the result would be up to the court. James appears to have perceived this statement as an intimation that capital punishment was possible, because at this point he made his first request for an attorney. Id., at 9-10 (Sept. 3, 1982). Instead of terminating the interrogation, the officer continued to press James to make some kind of a statement; Davis told James he was “only trying to get the facts of the case and giving [James] the opportunity to tell his side of it too.” Id., at 8-10. According to the subsequent testimony of Officer Davis, James’ response was hesitant and uncertain. He first suggested he might be willing to proceed without an attorney but then reversed himself and requested an attorney once again. Ibid. This second request for an attorney prompted Officer Davis to pick up his papers, stand and open the door. As he opened the door he encountered Sergeant Midkiff, the officer supervising this investigation, who was standing just outside. Id., at 10-11. As soon as he saw Officer Davis, Midkiff asked “is he going to show us where the body is?” Id., at 44 (Aug. 27, 1982). Midkiff later testified that he stood close to James when asking this question. Midkiff also testified that James “might have assumed” the question was intended for him. Id., at 52-53. Officer Davis and James responded to Midkiff’s inquiry simultaneously. As Davis told Midkiff that James had invoked his right to counsel, James said “I’ll show you where the body is.” Id., at 44-45. Midkiff immediately asked James where the body was and James responded that it was approximately 100 miles from Id., at 44-47. Neither officer made any effort to remind James of his right to counsel and neither sought an express oral or written waiver of that right.

Instead of providing James with an attorney, the officers ied a police car for a trip to the site of Juan Maya’s body. Sergeant Midkiff instructed all officers to refrain from questioning James while the car was being readied. Id., at 57. Midkiff also phoned a prosecutor for advice on whether, in fight of James’ request for an attorney, the officers should proceed with the proposed journey. The prosecutor told Midkiff to proceed. Davis then escorted James to the patrol car and requested directions to the site of the body. Id., at 55-56. James obliged and led Davis to an abandoned mine shaft about 100 miles from Phoenix. At the base of the shaft the officers found the body of Juan Maya. Id., at 53-55. to the

At his trial for capital murder James incriminating statements but the trial court held the statements admissible. James was convicted and sentenced to death. The Arizona Supreme Court affirmed the conviction and sentence. 141 Ariz. 141, 685 P. 2d 1293 (1984). James then petitioned this Court for certiorari. While the petition was under consideration, the State of Arizona set James’ execution date for October 3, 1984. The Arizona Supreme Court denied a stay of execution pending this Court’s disposition of the petition for certiorari. Justice Rehnquist granted a stay of execution to permit consideration of the petition.

Ill

When an accused in custody requests the assistance of counsel the Fifth Amendment requires that all “interrogation must cease until an attorney is present.” Miranda v. Arizona, 384 U. S. 436, 474 (1966). To ensure that officials scrupulously honor this right, we have established in Edwards v. Arizona, supra, and Oregon v. Bradshaw, supra, the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused (1) “initiates” further discussions relating to the investigation, and (2) makes a knowing and intelligent waiver of the right to counsel under the standard of Johnson v. Zerbst, 304 U. S. 458, 464 (1938), and its progeny. See Solem v. Stumes, 465 U. S. 638 (1984). Under this approach, an accused’s initiating statement is admissible if it is voluntary and not made in response to interrogation, Edwards, 451 U. S., at 485-486, but the accused’s subsequent responses to interrogation are admissible only if the accused has, after the initiation, made a knowing and intelligent waiver of the right to counsel.

In this case James twice invoked his right to counsel during the course of interrogation; James “expressed his own view” that he was “not competent to deal with the authorities without legal advice.” Michigan v. Mosley, 423 U. S. 96, 110, n. 2 (1975) (White, J., concurring). The statement he made only a few seconds after requesting counsel for the second time — “I’ll show you where the body is” — was therefore properly admitted into evidence only if it was a voluntary initiation of new discussions. The followup colloquy that led to discovery of the body was properly admitted into evidence only if that statement was an initiation and if, prior to further official questions and James’ responses to those questions, James knowingly and intelligently waived his previously invoked right to counsel.

1. “Initiation.” Under the strict rule of Edwards and Bradshaw once an accused has invoked the right to counsel no further interrogation is permitted until the accused initiates a new dialogue with the authorities. Solem v. Stumes, supra, at 646. Sergeant Midkiff’s query “[i]s he going to show us where the body is,” though directed at Officer Davis, indisputably triggered James’ statement “I’ll show you where the body is.” That James made the statement in response to Midkiff’s inquiry is not, however, determinative of the “initiation” question. If Midkiff’s inquiry is not viewed as interrogation for Fifth Amendment purposes, then James’ response might be a voluntary initiation of dialogue. Some official statements made within earshot of an accused in custody are not “interrogation” even if they prompt a response. In Rhode Island v. Innis, 446 U. S. 291 (1980), the Court held:

“[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id., at 800-301 (footnotes omitted).

The Innis approach “focuses primarily upon the perceptions of the suspect,” id., at 301, and mandates inquiry into whether the words or actions of the authorities bring to bear any coercive pressure “above and beyond that inherent in custody itself.” Id., at 300. Consonant with the approach in Miranda, this inquiry “vest[s the] suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” 446 U. S., at 301. This perspective is tempered, Innis makes clear, to the extent that the police ought not be “held accountable for the unforeseeable results of their words or actions.” Id., at 302 (emphasis added). In general, though, Innis defines interrogation broadly and flexibly in recognition of the enhanced coercive pressures that official words or conduct may impose on an accused in the “interrogation environment. . . created for no purpose other than to subjugate the individual to the will of his examiner.” Miranda, supra, at 457.

At the suppression hearing, the state trial court made no findings as to whether James’ statement was an “initiation” under Edwards or a response to interrogation as defined in Innis. The court merely concluded without explanation that James had “‘knowingly, willingly, and voluntarily made’ the statement.” 141 Ariz., at 145, 685 P. 2d, at 1297 (quoting unpublished trial court minute order). Under Edwards, of course, a statement could be made knowingly, willingly, and voluntarily and yet be inadmissible because the statement was obtained in response to interrogation occurring after an accused had invoked the right to counsel and absent any initiation of new dialogue by the accused. Edwards, supra, at 485 (“[I]t is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel”). Thus the trial court finding is of no relevance to the “initiation” inquiry that Edwards and Bradshaw mandate.

The Arizona Supreme Court endeavored to paper over this deficiency. Acknowledging the trial court’s failure to make the requisite finding of initiation — and subsidiary failure to determine whether Midkiff’s question was “interrogation” under Innis — the court held that such a finding was nonetheless “implicit” in the lower court decision. 141 Ariz., at 145, 685 P. 2d, at 1297. The following four assertions encompass the entirety of the State Supreme Court’s justification for this divination of the “implicit” finding:

“[1] There was uncontradieted testimony that James understood his rights. [2] There was uncontradicted testimony that Midkiff’s question was meant solely for Davis. [3] Although the [trial] court did not employ all of the proper ‘buzz words,’ the record indicates that James made a decision to cooperate with the police without benefit of counsel, and [4] his statement fits either definition of ‘initiate’ in Bradshaw.” Ibid.

Three of these stated reasons have no bearing on the determinative question whether James spoke the first incriminating words on his own initiative or in response to interrogation. That James knew his rights has no relevance to whether Midkiff’s inquiry should be viewed as interrogation. That James “made a decision to cooperate” is similarly irrelevant: if his “decision to cooperate” was prompted by interrogation occurring after he invoked his right to counsel, and absent an intervening “initiation,” any cooperative statements he made are inadmissible under Edwards. The court’s claim that James’ statement was initiation “under either definition of the term in Bradshaw” is also inapposite to the “interrogation” aspect of the initiation analysis. In Bradshaw the plurality and dissent disagreed over how related to the subject of the investigation the initiating statement need be to justify resumption of official interrogation. The plurality suggested an expansive view of what might qualify as initiation, 462 U. S., at 1045, and the dissent proposed a much more circumscribed view. Id., at 1053-1054 (Marshall, J., dissenting). The statement in-this case was sufficiently related under either view expressed in Bradshaw but this fact has nothing to do with whether the statement was made in response to interrogation.

The only potentially relevant reason the state court gave for perceiving an implicit finding of “initiation” was the purportedly uncontradicted testimony that Sergeant Midkiff directed his inquiry at Officer Davis and not at James. This assertion, even if valid, provides little support for the conclusion that James’ statement was an independent “initiation.” The proper inquiry under Innis is whether the official should know that the statement is reasonably likely to elicit an incriminating response from the suspect. Innis, 446 U. S., at 301. A bare finding that Midkiff directed his question to Davis and not to James is but the beginning of the Innis inquiry; had the officer directed the question to James, “interrogation” vel non would not be an issue. The question that must be answered under Innis is whether Midkiff’s statement, though not aimed at James, should be viewed as the “functional equivalent” of interrogation in these circumstances because Midkiff should have known that the statement was reasonably likely to elicit an incriminating response from the accused. Id., at 302. Relying only on the fact that Midkiff spoke to Davis and not James, the Arizona Supreme Court has done little more than restate the question under Innis.

That the Arizona Supreme Court could not salvage a plausible finding of “initiation” is perhaps not surprising. The facts demonstrate that from James’ perspective Midkiff’s question created significant coercive pressure over and above that inherent in custody itself. When Sergeant Midkiff asked his question he stood only a few feet from James in the interrogation room. Midkiff admitted at the suppression hearing that James “might have assumed” the question was meant for him, Tr. 52-53 (Aug. 27, 1982), as well he might because the question sought information for which he had to have been the original source. Like many of the interrogation techniques deplored in Miranda for their tendency to overbear the will of an accused in custody, Midkiff’s question presumed guilt and suggested to James that the purpose of the interrogation was simply to force him to accede to the inevitable. See Miranda, 384 U. S., at 450-451; Innis, supra, at 299. Projecting an air of confidence in the suspect’s guilt is a reeommmended interrogation tactic precisely because of the enhanced coercive pressure it brings to bear on a suspect. See F. Inbau & J. Reid, Criminal Interrogation and Confessions 26 (2d ed. 1967).

The timing of Midkiff’s question exacerbated its coercive impact. Occurring only seconds after Davis had completed his direct questioning, the Midkiff inquiry must have seemed to James simply one more question in the intensive interrogation to which he had been subjected up until a few seconds before. The enhanced coercive pressures of the direct questioning in the interrogation room were not likely to have dissipated in the few seconds between Davis’ final question and Midkiff’s question. Because James’ first request for an attorney had not succeeded in cutting off interrogation, James would have had no reason to think that his second request would be any more effective. Under these circumstances the statement “I’ll show you where the body is” must be viewed as the product of compulsion produced by coercive pressures that were at least the functional equivalent of direct questioning.

Under Innis, only if Sergeant Midkiff could not reasonably have foreseen that his question would prompt an incriminating response should the response be found to be a voluntary “initiation.” The preceding discussion should make clear that the response of James was entirely foreseeable under the coercive circumstances then present. Nor is this a case like Innis in the sense that the authorities would have had no reason to foresee that their “few offhand remarks” would touch a peculiar psychological susceptibility in the accused and thereby evoke an incriminating response. Innis, supra, at 302-303. Midkiff should reasonably have foreseen that under the coercive circumstances then present, his question to Davis was likely to evoke an incriminating response from even a veteran of the interrogation room.

At bottom, the “initiation” aspect of the Edwards test is meant to protect the Fifth Amendment rights of a suspect who has decided that he or she is not competent to handle the coercive pressures of custodial interrogation without a lawyer. The requirement of an “initiation” ensures that an accused has independently changed his or her mind about the need for a lawyer, and has not had his or her mind changed by the coercive pressure of continued direct questioning or its functional equivalent. In no sense can James be said to have made such an independent judgment.

2. “Waiver.” Even if one accepts, arguendo, that James initiated the conversation about the location of the body, such a conclusion permits introduction at trial of only the initiating statement. Edwards, 451 U. S., at 485-486. Immediately after James made the first incriminating statement, Midkiff directly asked James where the body was. Whatever the status of Midkiff’s first question to Davis, this question to James and the follow-up questions as to the exact location of the body are interrogation under any definition. James’ incriminating responses and their evidentiary fruits were properly admitted at trial only if James made a knowing and intelligent waiver of his previously invoked right to counsel. Oregon v. Bradshaw, 462 U. S. 1039 (1983). The test is that of Johnson v. Zerbst: indulging every reasonable presumption against waiver, was there a knowing and intelligent waiver in light of the “particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused?” 304 U. S., at 464.

The state trial court failed to apply the proper legal standard in evaluating whether the incriminating statements should be admitted. The court merely found that James ‘“knowingly, willingly, and voluntarily made’ the statement,” 141 Ariz., at 145, 685 P. 2d, at 1297 (quoting unpublished trial court minute order) (emphasis added), and did not find that James knowingly and intentionally relinquished his right to counsel. Though the trial court’s finding might suffice under the “voluntariness” standard of Schneckloth v. Bustamonte, 412 U. S. 218, 226, 227 (1973), it falls short under the more exacting test of Johnson v. Zerbst.

The Arizona Supreme Court’s efforts to rehabilitate the trial court on this issue are no more availing than were its similar efforts on the initiation question. The State Supreme Court held that a constitutionally sufficient finding of waiver was implicit in the trial court opinion. See 141 Ariz., at 144-145, 685 P. 2d, at 1296-1297. Though the analysis that led the court to this conclusion is not crystalline, the court appears to have found waiver because James knew his rights (he twice invoked them), was not subject to threats or promises, and made a conscious decision to cooperate, expressed in his initiation of dialogue with the authorities. Ibid. The opinion makes clear that the court found waiver implicit in the initial incriminating statement and not in anything James did or said subsequent to that initial statement. Id., at 145, 685 P. 2d, at 1297.

This analysis cannot pass muster under Edwards. In every Edwards case that reaches the waiver stage of the analysis, the accused will have necessarily invoked the right to counsel and subsequently initiated a dialogue. If these two facts alone support an affirmative finding of knowing and intelligent waiver of the right to counsel, then the further requirement in Edwards and Bradshaw of an explicit finding of subsequent waiver becomes superfluous. Bradshaw made clear that “even if a conversation ... is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” 462 U. S., at 1044 (emphasis added). The court here pointed to no subsequent events in which James affirmatively indicated an intention to waive his right to counsel.

No fair reading of the facts of this case will support a finding of waiver. See Fare v. Michael C., 442 U. S. 707, 726-727 (1979). This Court indulges a strong presumption against finding a waiver of the right to counsel, especially when the accused has not made such a waiver explicit. See Miranda v. Arizona, 384 U. S., at 475; Johnson v. Zerbst, 304 U. S., at 464. That presumption should apply with particular force in this case because James was never reminded of his right to counsel after he allegedly initiated new discussions with Officer Davis and Sergeant Midkiff. This important circumstance distinguishes the present case from recent cases in which the Court has found a valid waiver of a previously invoked right to counsel. In both Oregon v. Bradshaw, supra, and Wyrick v. Fields, 459 U. S. 42 (1982), the police gave the accused a thorough reminder of his right to counsel prior to official reinterrogation after an initiation. See United States v. Montgomery, 714 F. 2d 201 (CA1 1983). While a prophylactic rule requiring such reminders in every case might be an appropriate safeguard of this core right, cf. North Carolina v. Butler, 441 U. S. 369, 377 (1979) (Brennan, J., dissenting), at the very least an especially strong presumption against finding waiver should apply absent such a reminder.

Because James never specifically indicated a waiver of his rights, a finding of waiver must be based on inference. If waiver is to be inferred on these facts it would have to be inferred solely from James’ decision to respond to the questions that Midkiff and Davis put to him after he invoked his right to counsel. His first response to a direct question — Midkiff’s inquiry about the location of the body — occurred only seconds after James had invoked his right to counsel and only a split second after he had purportedly “initiated” a new dialogue. Tr. 44-46 (Aug. 27, 1982). Inferring waiver from the bare fact that an accused responded to interrogation is under any circumstances extremely dubious. Edwards, 451 U. S., at 484; Miranda v. Arizona, supra, at 474; Carnley v. Cochran, 369 U. S. 506, 516 (1962). And the instant circumstances simply will not support such an inference of a split-second change of mind in the coercive interrogation environment.

Absent any specific affirmative signal of waiver, any thorough reminder to petitioner of his rights after initiation, and with only inferences from the fact that James responded to interrogation, I do not see how this Court can sanction a finding of waiver under these circumstances, particularly in a capital case. Declining review of so substantial a departure from Johnson v. Zerbst and its progeny, this Court shirks its primary role in reviewing the decisions of state courts “‘to make sure that persons who seek to vindicate federal rights have been fairly heard.’” Florida v. Meyers, 466 U. S. 380, 385 (1984) (Stevens, J., dissenting) (quoting Michigan v. Long, 463 U. S. 1032, 1068 (1983) (dissenting opinion) (emphasis in original). When a petitioner seeking vindication of a federal right risks execution if that right is not vindicated the responsibility to review is one this Court must accept.

IV

Perhaps the Court is disinclined to review this case on the mistaken view that the case involves only the application of settled constitutional principle to the instant facts. I have made plain that I think clarification is needed with respect to the application of Johnson v. Zerbst, supra, to custodial waiver of the previously invoked right to counsel. More importantly, in the realm of constitutional protections of the accused the sensitivity to factual nuance that marks so many of our current doctrines requires this Court in the proper case to exercise its powers of review to correct egregious departures from the intendment of our precedents. Incessant reliance on the precept that review is unnecessary when a case involves no more than application of settled principles to fact risks draining our constitutional protections of all protective vitality. The present case illustrates the point. If the instant facts support a finding of initiation and waiver under Edwards v. Arizona, supra, then the protections set forth in that case are illusory. Only by granting review in aberrant cases such as this can the Court make clear that the tests set forth for deciding the bounds of the Constitution’s protections of individual rights are meant not as manipulable technicalities in the service of empty-slogans but as bulwarks of our most precious liberties.

      Midkiff and Davis certainly did not perceive James as having waived his rights under the circumstances. Midkiff instructed all officers not to question James, and Davis testified that he deliberately avoided interrogating James because he thought he had a legal obligation to refrain. Tr. 50-51 (Aug. 27, 1982).


source: Caselaw Access Project

license: Public Domain

text:
    No. 83-2001.
    No. 83-6455.
    No. 83-6581.
    No. 83-6693.
    No. 83-6923.
    No. 84-302.
    No. 84-5021.
    No. 84-5071.
    No. 84-5087.
    No. 84-5102.
    No. 84-5207.
    Paschall et al. v. Kansas City Star Co., Murley et al. v. Harkin et al., Bryan v. U. S. Office of Personnel Management et al., Tyler v. Wyrick, Warden, Belgarde v. United States, Hastings v. Investigating Committee of the Judicial Council of the Eleventh Circuit et al., In re Carter, Kinnell v. Rayl, Director, Kansas State Penitentiary, et al., Dingle v. Simpkins, Administrator of the Estate of Dingle, Agresti v. United States, Hoyett v. Alabama,
   ante, p. 872;

ante, p. 836;

ante, p. 837;

ante, p. 838;

ante, p. 846;

ante, p. 884;

ante, p. 813;

ante, p. 862;

ante, p. 863;

ante, p. 863; and

ante, p. 867. Petitions for rehearing denied.


author: Justice Brennan and Justice Marshall,

text:
    November 7, 1984
    No. A-360.
    Palmes v. Wainwright, Secretary, Florida Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice Powell, 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:
    November 8, 1984
    No. A-356 (84-5717).
    Moore v. Maggio, Warden, et al.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the final disposition of the petition for writ of certiorari.

Justice White and Justice Rehnquist dissent.


text:
    November 12, 1984
    No. 84-5687 (A-345).
    Willie v. Maggio, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari 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 the petition for writ of certiorari and would vacate the death sentence in this case.


author: Justice Stevens, Justice Rehnquist,

text:
    November 13, 1984
    No. 83-1722.
    No. 83-1865.
    No. 83-2053.
    Mississippi Republican Executive Committee v. Brooks et al.; Brooks et al. v. Allain, Governor of Mississippi, et al.; and Allain, Governor of Mississippi, et al. v. Brooks et al.
   Affirmed on appeals from D. C. N. D. Miss.

Reported below: 604 F. Supp. 807.

Justice Stevens,

concurring.

Although I agree that a summary affirmance of the judgment of the District Court is entirely appropriate in these cases, what has been written in dissent prompts me to make two important points.

First, there is little, if any, resemblance between the argument advanced in the dissenting opinion and the specific questions presented in the parties’ jurisdictional statements. This Court has determined that summary affirmances “reject the specific challenges presented in the statement of jurisdiction.” Mandel v. Bradley, 432 U. S. 173, 176 (1977). The only questions presented in the' jurisdictional statement that the Mississippi Republican Executive Committee filed in case No. 83-1722 read as follows:

“1. Whether Section 5 and Section 2 as amended apply to redistricting decisions.
“2. Whether the amendment to Section 2 or any other portion of the Voting Rights Amendments of 1982 has any bearing upon litigation under Section 5.
“3. Whether Section 2 as amended prohibits only those electoral schemes intentionally designed or maintained to discriminate on the basis of race.
“4. Whether Section 2, if construed to prohibit anything other than intentional discrimination on the basis of race in registration and voting, exceeds the power vested in Congress by the Fifteenth Amendment.” Juris. Statement in No. 83-1722, p. i.

Second, the dissent does not fairly characterize the opinion of the District Court. That opinion does not “in effect” construe the recent amendment to § 2 of the Voting Rights Act of 1965, 96 Stat. 134, 42 U. S. C. § 1973, as entitling “minority plaintiffs, in a State where there exist present effects from past discrimination, to have a state redistricting plan invalidated if it fails to provide at least one district in which the ‘minority’ is a majority of the eligible voters.” Post, at 1005. The dissent buttresses this incorrect impression by attributing the following statement to the District Court:

“The District Court felt it was obligated, under the 1982 amendments to the Voting Rights Act, to redraw the district map so that the redefined Second District would have a ‘clear black voting age population majority of 52.83 percent.’” Post, at 1008.

What the District Court actually said was this:

“In the opinion of this court, after considering the totality of the circumstances, the creation of a Second District with a clear black voting age population majority of 52.83% is sufficient to overcome the effects of past discrimination and racial bloc voting and will provide a fair and equal contest to all voters who may participate in congressional elections.” App. to Motion to Dismiss or Affirm in No. 83-1722, p. 14a.

The District Court’s conclusion that its remedy was required was not based on any notion that the law gives every minority group an entitlement to some form of proportional representation. Its conclusion was quite the contrary. It rested on specific findings of fact describing the impairment — or “dilution” if you will— of the voting strength of the black minority in Mississippi. Those factual findings reveal that Mississippi has a long history of de jure and de facto race discrimination, that racial bloc voting is common in Mississippi, and that political processes have not been equally open to blacks.

Because I find no merit in any of the specific challenges presented in the parties’ jurisdictional statements, and because the record supports the District Court’s findings of fact, as the dissent notes, post, at 1011-1012, I join the Court’s summary affirmance.

Justice Rehnquist,

with whom The Chief Justice joins,

dissenting.

The District Court’s ruling in these cases presents important questions concerning the construction of the recent amendment to §2 of the Voting Rights Act of 1965, 96 Stat. 134, 42 U. S. C. § 1973. The District Court in effect has construed the amendment to entitle minority plaintiffs, in a State where there exist present effects from past discrimination, to have a state redistricting plan invalidated if it fails to provide at least one district in which the “minority” is a majority of the eligible voters. This is so even though the challenged redistricting plan is constitutional, is not the product of discriminatory intent, and indeed was intended by the court which adopted it to “deal fairly with [the State’s] black citizens by avoiding any scheme that has the purpose or effect of unnecessarily minimizing or fragmenting black voting strength.”

In 1982, the District Court in these cases adopted a redistricting plan for Mississippi’s congressional districts in order to remedy district population disparities, revealed by the 1980 census, of up to 17%. In choosing from among several plans offered by the litigants, it sought a plan that would “satisfy the one person, one vote rule and avoid any dilution of minority voting strength.” Jordan v. Winter, 541 F. Supp. 1185, 1142 (ND Miss. 1982) (Jordan I). The court further observed that “[w]hat is required is that the state deal fairly with its black citizens by avoiding any scheme that has the purpose or effect of unnecessarily minimizing or fragmenting black voting strength.” Id., at 1143. The court chose the so-called “Simpson” plan because it satisfied most of the State’s policy considerations in districting, created two districts with 40% or better black population, and included a district where nearly 54% of the population was black.

On appeal to this Court, the judgment of the District Court was vacated and the case remanded for reconsideration in the light of the 1982 amendments to the Voting Rights Act. Brooks v. Winter, 461 U. S. 921 (1983). On remand, the District Court found that the very plan which it had approved and adopted in 1982 was unlawful under the amended §2 of the Voting Rights Act because “the structure of the Second Congressional District in particular unlawfully diluted black voting strength.” Jordan v. Winter, No. GC82-80-WK-0 (ND Miss., Apr. 16, 1984) (Jordan II). I think the rather remarkable conclusion that the 1982 amendments to the Voting Rights Act made unlawful a plan adopted by the District Court, which plan the District Court had adopted with a view to the requirement that “the state deal fairly with its black citizens by avoiding any scheme that has the purpose or effect of unnecessarily minimizing or fragmenting black voting strength,” 541 F. Supp., at 1143, should receive plenary review by this Court.

After being presented with the census data revealing the previously mentioned population disparities between existing congressional districts, the Mississippi Legislature in 1981 enacted a new redistricting plan. The Attorney General of the United States refused preclearance,' however, and the legislature adjourned without enacting a new plan. A three-judge District Court was convened to hear actions filed by two groups of Mississippi voters seeking a court-ordered interim plan for the 1982 congressional elections. That court refused to place in effect the legislative plan which had not been precleared, and held the existing district-ing statute unconstitutional because of the population disparities. It then adopted the “Simpson” plan from among several plans submitted to it by the litigants. Jordan I, supra.

In choosing the “Simpson” plan, the court followed the teaching of Upham v. Seamon, 456 U. S. 37 (1982), which requires courts to fashion interim plans that adhere to a State’s political policies. The court identified Mississippi’s political districting policies as follows: (1) minimal change from 1972 district lines; (2) least possible population deviation; (3) preservation of the electoral base of incumbent congressmen; and (4) establishment of two districts with 40% or better black population. The court specifically rejected two plans proposed by a group of black plaintiffs. These plans would have kept the predominantly black northwest or “Delta” portion of Mississippi intact, and would have combined that area with predominantly black portions of Hinds County and the city of Jackson. Each of these plans would have resulted in one congressional district with a black population of approximately 65%. The “Simpson” plan, on the other hand, combined 15 Delta or partially Delta counties with six predominantly white eastern rural counties, and resulted in a congressional district with a 53% black population, but a 48% black voting population. The District Court found the “Simpson” plan most nearly in accord with the State’s policies articulated above. The rejected plans would have resulted in only one district with greater than 40% black population; this was contrary to the reasonable state policy established to assure that blacks would have an effective voice in choosing representatives in more than one district. In addition, the court noted that the black plaintiffs had managed to place a high percentage of black voters in a single congressional district only through obvious and unseemly racial gerrymanders.

When this Court subsequently vacated the District Court’s judgment for reconsideration in the light of the 1982 amendment the District Court held further evidentiary hearings, and concluded that its own plan violated the amended section. This violation occurred, in the opinion of the District Court, because “the structure of the Second Congressional District in particular unlawfully diluted black voting strength.” Under the plan adopted by the District Court in 1982, the Second District had a black population of 53.77%, but blacks comprised only 48.09% of the voting age population. The District Court felt it was obligated, under the 1982 amendments to the Voting Rights Act, to redraw the district map so that the redefined Second District would have a “clear black voting age population majority of 52.83 percent.” In doing so, the District Court “recognize[d] that the creation of a Delta District with a majority black voting age population implicates difficult issues concerning the fair allocation of political power.” Jordan II, supra.

Any statute that would lead a District Court to reject a plan which it had previously found fair to all concerned in favor of one including an obligatory district with a majority black voting age population deserves careful attention, and so I turn to the language of the Voting Rights Act as amended in 1982. The District Court in its most recent opinion set out the statutory provisions toward the beginning of its opinion, but scarcely mentioned that language again, and instead went on to quote extensively from the Senate Report of the 1982 amendments. The applicable statutory language is this:

“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b).
“(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 96 Stat. 134, 42 U. S. C. § 1973 (emphasis in original).

Applying the statutory language to the situation confronting the District Court after our remand, the “voting qualification or prerequisite to voting or standard, practice, or procedure” to which the amended statute is to be applied is obviously the 1982 plan adopted by the District Court. That court clearly thought so, and no other “qualification . . . standard, practice, or procedure” suggests itself. There has never been any suggestion that the plan adopted by the District Court in 1982 denied or abridged the right of any citizen to vote on account of race or color, so if that plan does violate the amended Act it is because it contravenes “the guarantees set forth ... in subsection (b).”

Subsection (b), in turn, provides that a violation of subsection (a) is established if “it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a).” The District Court read subsection (b) as if it were totally divorced from subsection (a), and proceeded to enumerate factors in the political history of Mississippi which it felt indicated that the plan it had adopted in 1982 “unlawfully dilutes minority voting strength.” Jordan II, supra. The District Court did not state what it understood the term “unlawfully dilutes minority voting strength” to mean, and since that term is nowhere used in the statutory language one is left to infer that the court derived the necessary meaning for the language from the report of the Senate Judiciary Committee which it cited at some length. The District Court’s understanding of what is required by § 2 is highly questionable in light of the statute’s language and legislative history. To fully evaluate the District Court’s analysis it is necessary to review the events preceding the amendment of § 2.

In Mobile v. Bolden, 446 U. S. 55 (1980), this Court wrestled with the question whether legislative “intent” to discriminate must exist in order to find that a particular legislative action violates the Voting Rights Act, or whether it was enough that the legislative action have a “discriminatory effect.” In Mobile black plaintiffs had brought an action challenging the constitutionality of the city’s at-large method of electing its commissioners. We produced six different opinions debating among ourselves whether discriminatory intent was required to find a violation of the Fifteenth Amendment, or whether “an invidious discriminatory purpose could be inferred from the totality of facts.” Id., at 95 (White, J., dissenting). None of the opinions challenged the conclusion of the plurality that the Voting Rights Act as it then existed added “nothing to the appellee’s Fifteenth Amendment claim.” Id., at 61 (opinion of Stewart, J.).

It is clear that the 1982 amendment was precipitated in large part by the holding of Mobile. But the language used in the amended statute is, to say the least, rather unclear. The legislative history indicates that Congress was well aware of the “intent effects” dichotomy, and of the problems with identifying actions with discriminatory “effects.” The bill originally passed the House under a loose understanding that § 2 would prohibit all discriminatory “effects” of voting practices, and that intent would be “irrelevant.” H. R. Rep. No. 97-227, p. 29 (1981). This version met stiff resistance in the Senate, however. Two Senate Subcommittees held extensive hearings, at which testimony was given concerning the tendency of a “results” approach to lead to requirements that minorities have proportional representation, or to devolve into essentially standardless and ad hoc judgments. See, e. g., Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H. R. 3112 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., 1309-1313, 1334-1338 (1982). The Subcommittees could not agree on the proposed amendment, and at that point Senator Dole stepped in with a proposed compromise. The compromise bill retained the “results” language but also incorporated language directly from this Court’s opinion in White v. Regester, 412 U. S. 755 (1973), and strengthened the caveat against proportional representation. The debates on the compromise focused on whether the “results” language would nevertheless provide for proportional representation, or merely for equal “access” to the political process. Senator Dole took the position that “access” only was required by amended §2: “[T]he concept of identifiable groups having a right to be elected in proportion to their voting potential was repugnant to the democratic principles on which our society is based.” 128 Cong. Rec. 14132 (1982) (remarks of Senator Dole). This position was adopted by many supporters of the compromise in the Senate, and the bill passed as written.

The District Court apparently felt obliged to reach a conclusion in tension with this legislative history because of language in the Senate Judiciary Committee Report on the 1982 amendment stating that the “results” language of §2(a) was meant to “restore the pre-Mobile [v. Bolden] legal standard which governed cases challenging election systems or practices as an illegal dilution of the minority vote.” S. Rep. No. 97-417, p. 27 (1982). The Report then enumerates the factors courts may consider in deciding whether plaintiffs have established a violation of §2, factors apparently derived from this Court’s opinion in White v. Regester, supra. Applying these “factors,” the District Court found that Mississippi has a long history of de jure and de facto race discrimination, which has present effects in impeding black voter registration and turnout. It noted that although blacks constitute 35% of the State’s population, no black has been elected to Congress since the Reconstruction period, and none has been elected to statewide office in this century. Furthermore, the court found socioeconomic disparities between blacks and whites in the Delta area, and finally, that voters in Mississippi have previously voted and continued to vote on the basis of the race of candidates for elective office. The District Court concluded from this that the adoption of a plan in which the Second District contained less than a majority of voters from a protected class “diluted” the class’ voting strength. .

Thus we have a statute whose meaning is by no means easy to determine, supplemented by legislative history which led the District Court in this case to conclude that only the inclusion within one congressional district of a majority black voting age population could satisfy the Act. I think it can be fairly argued from the legislative history, and from the express caveat that the section was not intended to establish a right to proportional representation, that in amending § 2 Congress did not intend courts to supersede state voting laws for the sole purpose of improving the chance of minorities to elect members of their own class.

To best understand the meaning of the Senate Committee’s references to our decisions in Mobile and White v. Regester, it is essential to remember that those cases dealt with challenges to multimember legislative districts. It is only in this context that phrases such as “vote dilution” make any sense, for the phrase itself suggests a norm with respect to which the fact of dilution may be ascertained. In the case of multimember districts, the norm available for at least theoretical purposes is the single-member district. But when we turn from attacks on multi-member districts to attacks on the way lines are drawn in creating five single-member congressional districts, as in the cases at hand, phrases such as “vote dilution” and factors relied upon to determine discriminatory effect are all but useless as analytical tools. Neither White v. Regester, Mobile v. Bolden, nor Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973), a case also dealing with challenges to multimember legislative districts, ever suggested that their analysis should be carried over to challenges addressed to single-member districts. And whichever of the views espoused in Mobile is found to have been adopted by the 1982 amendment, it would seem that a plan adopted by the District Court under the command “that the state deal fairly with its black citizens by avoiding any scheme that has the purpose or effect of unnecessarily minimizing or fragmenting black voting strength” should be home free under either test.

Under this view, the District Court’s most recent opinion and judgment seem to me to present virtually insuperable difficulties. Although we may regretfully concede that the District Court’s findings were correct, it nevertheless seems a non sequitur to say that the past discrimination, and its present effects, have “resulted” in “dilution” of minority voting strength through the adoption of this particular districting plan. To the extent that fewer blacks vote due to past discrimination, that in itself diminishes minority voting strength. But this occurs regardless of any particular state voting practice or procedure. As the plurality opinion in Mobile recognized in another context, “past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.” Mobile, 446 U. S., at 74. Here the only finding even remotely related to the boundaries of the Second Congressional District under the 1982 plan is what the District Court referred to as “socioeconomic disparities between blacks and whites in the Delta area.” The findings as to the history of racial discrimination and bloc voting apparently obtained throughout the State. It is obvious that no plan adopted by the Mississippi Legislature or the District Court could possibly have mitigated or subtracted one jot or tittle from these findings of past discrimination. What we have, therefore, is in effect a declaration by the District Court that because of these past examples of racial discrimination throughout the State, any plan adopted either by the legislature or by a court which did not give blacks one of five congressional districts in which they had a majority of the voting age population violated the 1982 amendments to the Voting Rights Act. Under this analysis, cause and effect are entirely severed.

For these reasons, I think the judgment of the District Court presents substantial questions concerning the interpretation of a new amendment to the Voting Rights Act of 1965, and that the Court seriously misapprehends its obligation in such a case when it summarily affirms the judgment of the District Court.

       The jurisdictional statement that William A. Allain and others filed in No. 83-2053 presents two questions that are similar to those presented in No. 83-1722 and also presents the question whether the District Court erroneously found as a fact that black persons in Mississippi — and especially in the Delta generally — have less education, lower incomes, and more menial occupations than white persons, and that there has been racially polarized voting in Mississippi. See n. 2, infra. Nothing in the dissenting opinion indicates that it believes these questions merit full briefing and argument. In my judgment the jurisdictional statement in No. 83-1865 raises a more serious question, but I do not understand that the dissenting opinion favors review of that question.

       Regarding past discrimination, the District Court carefully found that Mississippi had often used poll taxes, literacy tests, residency requirements, white primaries, and violence to intimidate black persons from registering to vote. More importantly, the court found “that the effects of the historical official discrimination in Mississippi presently impede black voter registration and turnout.” App. to Motion to Dismiss or Affirm in No. 83-1722, p. 9a. Additionally, the court wrote:
      “Black registration in the Delta area is still disproportionately lower than white registration. No black has been elected to Congress since the Reconstruction period, and none has been elected to statewide office in this century. Blacks hold less than ten percent of all elective offices in Mississippi, though they constitute ,35% of the state’s population and a majority of the population of 22 counties.
      “The evidence of socio-economic disparities between blacks and whites in the Delta area and the state as a whole is also probative of minorities’ unequal access to the political process in Mississippi. Blacks in Mississippi, especially in the Delta region, generally have less education, lower incomes, and more menial occupations than whites. The State of Mississippi has a history of segregated school systems that provided inferior education to blacks. . . . Census statistics indicate lingering effects of past discrimination: the median family income in the Delta region (Second District) for whites is $17,467, compared to $7,447 for blacks; more than half of the adult blacks in the Second District have attained only 0 to 8 years of schooling, while the majority of white adults in this District have completed four years of high school; the unemployment rate for blacks is two to three times that for whites; and blacks generally live in inferior housing.” Id., at 9a-10a (footnote omitted).

       The court also found that there existed “persuasive evidence” that Mississippi’s political processes have not recently been open to black persons. In addition, the court particularly noted the following message accompanying a campaign television commercial:
      “You know, there’s something about Mississippi that outsiders will never, ever understand. The way we feel about our family and God, and the traditions that we have. There is a new Mississippi, a Mississippi of new jobs and new opportunity for all our citizens, [video pan of black factory workers] We welcome the new, but we must never, ever forget what has gone before, [video pan of Confederate monuments] We cannot forget a heritage that has been sacred through our generations.” Id., at 12a, n. 8.
      The commercial opened and closed with a view of Confederate monuments; the candidate that ran the commercial used “He’s one of us” as his campaign slogan. Ibid.

       Indeed, it should be noted that the District Court’s plan would be an acceptable remedy for the violations even if it did not regard the Simpson plan itself as a violation of § 2 of the Voting Rights Act as amended. For after our remand, the District Court could have appropriately decided that the policy of that Act, coupled with the findings of fact concerning the effects of historic discrimination, particularly in the Delta area, required a remedy that established at least one district in which black persons represented an effective majority of the eligible voters.

       Justice Stevens’ concurrence suggests that my analysis is unwarranted because the problems I perceive with the District Court’s opinion were not specifically raised by the “questions presented” in appellants’ jurisdictional statements. I believe, however, that several of the “questions presented” “fairly include” the issues that I address. In particular, question 3, quoted ante, at 1003 (STEVENS, J., concurring), raises the question of the scope of activity Congress intended to proscribe under §2. I need not agree 100% with appellants’ position — that § 2 only proscribes intentionally discriminatory conduct — to reach the question whether the District Court misconstrued Congress’ intent.

       Those factors are:
      “1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
      “2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
      “3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
      “4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
      “5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
      “6. whether political campaigns have been characterized by overt or subtle racial appeals;
      “7. the extent to which members of the minority group have been elected to public office in the jurisdiction.” S. Rep. No. 97-417, at 28-29.


text:
    No. 84-83.
    Trapf v. Lohr et al.
   Appeal from Sup. Ct. Mo. dismissed for want of substantial federal question.


text:
    No. 84-326.
    Cain v. New York.
   Appeal from App. Div., Sup. Ct. N. Y., 2d Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 84-198.
    Olivero v. Illinois.
   Appeal from App. Ct. Ill., 3d Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. - - -.
    Horne v. Adolph Coors Co. et al.
   Application to declare notice of appeal as a petition for writ of certiorari and to file a supplemental petition for writ of certiorari denied.


text:
    No. A-278 (84-5506).
    Dingle v. Simpkins.
   Sup. Ct. S. C. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-302 (84-644).
    National Rifle Association of America et al. v. Minnesota State Ethical Practices Board.
   C. A. 8th Cir. Application for stay of mandate, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-346 (84-5350).
    Maxwell v. Pennsylvania,
   ante, p. 971. Application to suspend the effect of the order denying certiorari, presented to Justice Brennan, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall would grant the application.


text:
    No. 82-1832.
    Town of Hallie et al. v. City of Eau Claire.
   C. A. 7th Cir. [Certiorari granted, 467 U. S. 1240.] Motion of Illinois et al. for leave to participate in oral argument as amici curiae and for additional time for oral argument denied.


text:
    No. 83-990.
    School District of the City of Grand Rapids et al. v. Ball et al.
   C. A. 6th Cir. [Certiorari granted, 465

U. S. 1064.] Motion of the Solicitor General to permit Michael W. McConnell, Esquire, to present oral argument as amicus curiae, pro hac vice, is granted.


text:
    No. 83-2146.
    Wilson et al. v. Garcia.
   C. A. 10th Cir. [Certiorari granted, ante, p. 815.] Motion of respondent for leave to proceed further herein informa pauperis granted.


text:
    No. 83-1032.
    No. 83-1122.
    Federal Election Commission v. National Conservative Political Action Committee et al.; and Democratic Party of the United States et al. v. National Conservative Political Action Committee et al.
   D. C. E. D. Pa. [Probable jurisdiction noted, 466 U. S. 935.] Motion of Democratic National Committee for divided argument granted to be divided as follows: Federal Election Commission, 20 minutes; and Democratic National Committee, 10 minutes.


text:
    No. 83-1660.
    No. 83-6381.
    Atkins, Commissioner of the Massachusetts Department of Public Welfare v. Parker et al.; and Parker et al. v. Block, Secretary of Agriculture, et al.
   C. A. 1st Cir. [Certiorari granted, 467 U. S. 1250.] Motion of the Solicitor General to strike portions of the reply brief of Parker et al. denied.


text:
    No. 83-5954.
    Lindahl v. Office of Personnel Management.
   C. A. Fed. Cir. [Certiorari granted, 467 U. S. 1251.] Motion of National Association of Retired Federal Employees for leave to participate in oral argument as amicus curiae denied.


text:
    No. 84-444.
    Connor et al. v. Aerovox Inc. et al.
   C. A. 1st Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 84-5059.
    Ramirez v. Indiana.
   Ct. App. Ind. [Certiorari granted, ante, p. 929.] Motion of petitioner for appointment of counsel granted, and it is ordered that Kenneth F. Ripple, Esquire, of South Bend, Ind., be appointed to serve as counsel for petitioner in this case.


text:
    No. 84-5268.
    Gordon v. Donovan, Secretary of Labor.
   C. A. 5th Cir. Motion of petitioner for leave to proceed informa pauperis denied. Petitioner is allowed until December 4, 1984, 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, 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. 84-468.
    City of Cleburne, Texas, et al. v. Cleburne Living Center, Inc., et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 83-1961.
    Landreth Timber Co. v. Landreth et al.
   C. A. 9th Cir. Certiorari granted and case set for oral argument in tandem with No. 84-165, Gould v. Ruefenacht, infra.


text:
    No. 84-48.
    United States v. Bagley.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pawperis and certiorari granted.


text:
    No. 84-165.
    Gould v. Ruefenacht et al.
   C. A. 3d Cir. Certiorari granted and case set for oral argument in tandem with No. 83-1961, Landreth Timber Co. v. Landreth, supra.


text:
    No. 84-438.
    Superintendent, Massachusetts Correctional Institution at Walpole v. Hill et al.
   Sup. Jud. Ct. Mass. Motion of respondents for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 83-1908.
    Shelby County Sheriff’s Department v. Ruiz.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-1974.
    North Platte Baptist Church et al. v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 83-6668.
    Draper v. Guerry, Judge, Circuit Court of the City of Norfolk.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6715.
    Frank v. Reed.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6758.
    Marcano, aka Jermosen v. Karabatsos et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-6794.
    Diaz v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 83-6856.
    Bland v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6875.
    Delaney v. Maggio, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6899.
    Wiedemer v. Ricketts et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-6935.
    Ferreira v. Fair, Commissioner, Massachusetts Department of Corrections.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-6981.
    Caldwell v. Garrison, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6997.
    Witherspoon, Individually, and as Mother and Next Friend of Gaines et al. v. Cordier et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-7024.
    Foucha v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-30.
    Copelin v. Alaska.
   Ct. App. Alaska. Certiorari denied.


text:
    No. 84-112.
    Aronson et al. v. Servus Rubber Division of Chromalloy American Corporation Employees’ Profit Sharing Plan et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-141.
    Yarbrough et al. v. Small Business Administration.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-145.
    Krieger v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 84-215.
    Multi-State Communications, Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-232.
    Trustees of the University of Pennsylvania v. Sansom Committee (three cases).
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-258.
    No. 84-259.
    Schapansky v. Department of Transportation; Adams et al. v. Department of Transportation; Martel v. Department of Transportation; Moylan v. Department of Transportation; Dorrance v. Department of Transportation; DiMasso v. Department of Transportation; and Anderson et al. v. Department of Transportation et al.
   C. A. Fed. Cir. Certiorari denied. Reported below: No. 84-258, 735 F. 2d 477 (first case), 735 F. 2d 488 (second case), 735 F. 2d 504 (third case), 735 F. 2d 524 (fourth case), 735 F. 2d 516 (fifth case), 735 F. 2d 526 (sixth case); No. 84-259, 735 F. 2d 537.


text:
    No. 84-260.
    Faith Center, Inc. v. City of Hartford et al.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 84-287.
    Stewart v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-405.
    Jack Walters & Sons Corp. v. Morton Buildings, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-413.
    Hughes-Bechtol, Inc. v. West Virginia Board of Regents.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-420.
    Eitmann v. New Orleans Public Service, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-426.
    Johnson v. Allyn & Bacon.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-429.
    International Indemnity Co. v. Enfinger, by and Through his Next Friend, Enfinger; and International Indemnity Co. v. Odom.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 84-437.
    Evening News Assn. et al. v. Locricchio et al.
   Ct. App. Mich. Certiorari denied.


text:
    No. 84-439.
    Caldwell v. Solus Ocean Systems, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-440.
    Cohen et ux. v. City of Philadelphia et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-441.
    Agri-Feeds, Inc. v. Hansens’ Inc., dba Champion Industrial Contractors.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 84-443.
    Morial et al. v. United Gas Pipe Line Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-445.
    First Assembly of God Church et al. v. City of Alexandria, Virginia, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-446.
    Hyatt Legal Services et al. v. Hyatt Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-447.
    Metropolitan Property & Liability Insurance Co. v. Longenecker et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-455.
    Hauser v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-456.
    Scott et al. v. Benson.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-457.
    Minsky v. Auto Driveaway Co. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-464.
    Klemens et al. v. Air Line Pilots Assn., International.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-471.
    National Federation of the Blind of California et al. v. County of Los Angeles et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-477.
    Felice v. Foley et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-486.
    Shearson/American Express Inc. et al. v. Neely et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-507.
    T. B. & Z. Realty & Management Corp. et al. v. Coterie Seven Enterprises Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-535.
    Davis v. Devine, Director, Office of Personnel Management.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-617.
    Flynt v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5026.
    Maghe v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-5027.
    Williams et al. v. Transport Workers Union of America, AFL-CIO, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5070.
    Boles v. Mintzes, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5135.
    Peeler et al. v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5147.
    Gonzalez v. Scully, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5161.
    Lucien v. Seidenfeld et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5241.
    Humphrey v. United States et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5256.
    Mugercia et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5270.
    Burrell v. Bowen, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5428.
    Dankert v. Wharton, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5461.
    LeGrand v. Scully, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5482.
    Wilson, dba Holly Grove Estates v. Wilson et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5511.
    Golden v. United States.
   C. A. 8d Cir. Certiorari denied.


text:
    No. 84-5513.
    Watson v. Heckler, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5516.
    Albrecht v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5521.
    Greer v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5522.
    Vice v. Smith, Attorney General.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5531.
    Gerwitz et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5536.
    Holloway v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5540.
    Gonzales v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5542.
    Levy v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5544.
    Hernandez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5546.
    Wingfield v. United States Postal Service.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-5549.
    Del Prado-Montero v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5550.
    Torres v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-967.
    Territory of Guam v. Okada.
   C. A. 9th Cir. Certiorari denied.

Justice Blackmun and Justice Rehnquist would grant certiorari, vacate the judgment, and remand the case for further consideration in light of Pub. L. 98-454.


author: Justice White,

text:
    No. 83-1971.
    Illinois v. Washington.
   Sup. Ct. Ill. Certiorari denied.

Justice White,

with whom The Chief Justice and Justice Rehnquist join,

dissenting.

In Cuyler v. Sullivan, 446 U. S. 335 (1980), this Court held that in order to establish a Sixth Amendment violation, a defendant challenging his attorney’s representation of multiple clients must establish that the attorney’s performance was affected by an actual conflict of interest, not merely a potential one. In the present case, the Illinois Supreme Court held that Cuyler*s actual-conflict-of-interest standard was limited to multiple-representation situations. 101 Ill. 2d 104, 461 N. E. 2d 393 (1984). Because that holding is contrary to the results reached by at least six other courts, I dissent from the denial of certiorari.

On May 7, 1979, Nathan Bottley was murdered in Chicago. Chicago police suspected Charles Washington, .a resident of Chicago Heights, and made inquiries to the Chicago Heights police. As a result of these inquiries, Chicago Heights police officers reinterviewed witnesses to a 1977 murder in Chicago Heights, in which Washington had been a suspect, and arrested Washington for that crime. While Washington was in custody, he was also charged by Chicago police for the Bottley murder.

After being indicted for the Bottley murder, Washington filed pretrial motions to quash arrest and suppress identification, contending that his arrest in Chicago Heights had been without probable cause. Washington’s attorney at this hearing also served as the city attorney for Chicago Heights, a fact that the State’s attorney brought to the attention of the trial court. The defense attorney responded that he had consulted with Washington about the possible conflict of interest inherent in this situation, but that he “anticipated no Chicago Heights Police Officers to be called” in connection with the Chicago murder. The court questioned Washington and ascertained that he had no objection to being represented by his defense counsel.

Contrary to defense counsel’s expectation, the State called a Chicago Heights police officer to establish that there was probable cause for the defendant’s arrest in Chicago Heights on the 1977 murder charge. Defense counsel cross-examined the officer and then called another Chicago Heights officer as a rebuttal witness. The trial court denied Washington’s motion to quash arrest, basing its holding primarily on the testimony of these two officers.

On appeal, Washington argued that he was denied effective assistance of counsel because of his attorney’s conflicting interests. The Illinois Appellate Court reversed the conviction on this ground, 111 Ill. App. 3d 711, 444 N. E. 2d 753 (1982), and the Illinois Supreme Court agreed, 101 Ill. 2d 104, 461 N. E. 2d 393 (1984). The Illinois Supreme Court adhered to its longstanding view that as a matter of federal constitutional law even a potential conflict of interest required reversal, rejecting the State’s contention that Cuyler v. Sullivan required Washington to show that his attorney’s performance had been adversely affected by an actual conflict of interest. The State’s argument, the court held, overlooked the fact that Cuyler involved multiple representation of defendants. The court focused on Cuyler’s observation that “a possible conflict inheres in almost every instance of multiple representation,” so that a presumption that even potential conflict resulted in ineffective assistance “would preclude multiple representation even in cases where ‘[a] common defense . . . gives strength against a common attack.’” 446 U. S., at 348, quoting Glasser v. United States, 315 U. S. 60, 92 (1942) (Frankfurter, J., dissenting).

Unlike the Illinois Supreme Court, numerous federal courts have failed to discern in Cuyler any limitation to cases involving multiple representation of defendants. See Westbrook v. Zant, 704 F. 2d 1487, 1498-1499 (CA11 1983); United States v. Harris, 701 F. 2d 1095, 1099 (CA4 1983); United States v. Knight, 680 F. 2d 470, 471 (CA6 1982) (per curiam), cert. denied, 459 U. S. 1102 (1983); Ware v. King, 694 F. 2d 89, 92 (CA5 1982) (per curiam), cert. denied, 461 U. S. 930 (1983); Alexander v. Housewright, 667 F. 2d 556, 558 (CA8 1981); United States v. Hearst, 638 F. 2d 1190, 1193 (CA9 1981). Most of these courts have simply applied Cuyler to non-multiple-representation situations without even considering the possibility that it did not apply. In United States v. Hearst, the Ninth Circuit observed that “Sullivan’s lawyer’s conflict was based on multiple representation, whereas Hearst’s was based on private financial interests,” but concluded, without discussion, that this difference, among others, was “immaterial.” 638 F. 2d, at 1193. In Theodore v. New Hampshire, 614 F. 2d 817 (CA1 1980), a pre-Cuyler case, the court held that an actual-conflict standard applied when a defendant’s attorney had represented a principal prosecution witness in an earlier trial arising out of the same incident. The court noted that “[b]eeause this is a case involving dual representation, not joint representation, the danger of conflict is not as great, hence judicial scrutiny need not be as deep.” 614 F. 2d, at 822. This at least suggests an approach directly opposite to that taken by the Illinois Supreme Court, which reasoned that greater judicial scrutiny was called for where defense counsel merely represented a prosecution witness.

Because the decision below creates a conflict among the lower courts on an important and frequently recurring question of constitutional law, I would grant the petition for certiorari.


author: Justice Brennan,

text:
    No. 83-6809.
    Thompson v. United States.
   C. A. 8th Cir. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Once again this Court is confronted with a challenge to the constitutionality of the Government’s use of peremptory challenges to exclude potential jurors in a criminal trial because of their race. See Swain v. Alabama, 380 U. S. 202, 221 (1965) (“[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws”). The continued vitality of Swain is by now a “distressingly familiar” issue to this Court. Williams v. Illinois, decided with Dixon v. Illinois and Yates v. Illinois, 466 U. S. 981, 982 (1984) (Marshall, J., dissenting from denial of certiorari); see McCray v. New York, decided with Miller v. Illinois and Perry v. Louisiana, 461 U. S. 961, 963 (1983) (Marshall, J., dissenting from denial of certiorari); Gilliard v. Mississippi, 464 U. S. 867 (1983) (Marshall, J., dissenting from denial of certiorari). A majority of the Court has expressed the position that this question merits plenary review. See McCray, supra, at 961 (opinion of Stevens, J., joined by Blackmun and Powell, JJ.); id., at 963 (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari). The call to reconsider Swain, from both courts and scholars, continues unabated. It is time for this Court to face up to the issue.

Justice Marshall has written persuasively concerning the immediate need to reconsider Swain in light of Duncan v. Louisiana, 391 U. S. 145 (1968), and Taylor v. Louisiana, 419 U. S. 522 (1975), which found the Sixth Amendment’s jury trial guarantees applicable to the States through the Fourteenth Amendment. See McCray v. New York, supra, at 963 (Marshall, J., dissenting from denial of certiorari); Gilliard v. Mississippi, supra, at 867 (Marshall, J., dissenting from denial of certiorari). I add my voice here simply to make two points. First, however plausible the rationale of Swain may have seemed two decades ago, the justification for shielding peremptory challenges from equal protection scrutiny has not withstood the test of time. Swain thus should be reconsidered for equal protection as well as Sixth Amendment reasons. Second, the admirable intent of three of my colleagues in acknowledging the import of the issue but deferring our review “to allow the various States to serve as laboratories in which the issue receives further study,” see McCray, supra, at 963 (opinion of Stevens, J., joined by Blackmun and Powell, JJ.), has spawned confusion not clarification in the courts below.

I

Swain is an anomaly, a departure from two fundamental principles of constitutional law. The first is the basic equal protection notion that government officials cannot exclude persons from juries solely because of their race. “It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection [a jury of peers] which others enjoy.” Strauder v. West Virginia, 100 U. S. 303, 308-309 (1880). The second is the basic notion inherent in the “American tradition of trial by jury” that “[j]ury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discrimination which are abhorrent to the democratic ideals of trial by jury.” Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946). Notwithstanding the force of these principles, five Members of the Court in Swain (of whom I was one) held that the prosecution’s right to use peremptory challenges in any particular case involving a Negro defendant had to remain free of equal protection scrutiny. After acknowledging the impressive pedigree of the peremptory challenge, we held that such challenges are frequently

“exercised on grounds thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. . . . Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations ....
“With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws.” 380 U. S., at 220-221 (footnotes omitted).

With the hindsight that two decades affords, it is apparent to me that Swain’s reasoning was misconceived. Stripped of its historical embellishments, Swain holds that the State may presume in exercising peremptory challenges that only white jurors will be sufficiently impartial to try a Negro defendant fairly. In other words, Swain authorizes the presumption that a Negro juror will be partial to a Negro defendant simply because both belong to the same race. Implicit in such a presumption is profound disrespect for the ability of individual Negro jurors to judge impartially. It is the race of the juror, and nothing more, that gives rise to the doubt in the mind of the prosecutor. Whatever the justification for permitting the idiosyncratic use of peremptory challenges in the run of cases, that justification ought not extend to permit the government to make use of an unfounded racial presumption that disparages Negroes in this way. Cf. Palmore v. Sidoti, 466 U. S. 429, 432 (1984) (“Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category”).

II

In McCray v. New York, 461 U. S. 961 (1988), five Members of the Court suggested that Swain should be reconsidered. Three of these five went on to suggest a preference for deferring review to permit experimentation in the state courts, presumably in a state constitutional law context, regarding how allegations of race-based use of peremptory challenges should be raised and considered. The decision to defer review has not produced the desired state-law experimentation in the state courts. See Gilliard v. Mississippi, 464 U. S., at 870-871 (Marshall, J., dissenting from denial of certiorari). Instead it has thrown the status of Swain as a matter of federal constitutional law into considerable doubt in the lower courts. Some courts appear to have read our opinions in McCray as an invitation to depart from Swain as a matter of federal law, e. g., McCray v. Abrams, 576 F. Supp. 1244 (EDNY 1983), while others have declined to depart from Swain, e. g., King v. County of Nassau, 581 F. Supp. 493 (EDNY 1984). Even the courts reaffirming Swain have felt compelled to reconsider it at length in light of this Court’s McCray decision. King v. County of Nassau, supra; see also People v. Charles, 61 N. Y. 2d 321, 462 N. E. 2d 118 (1984). The piecemeal erosion of Swain — whose rule, if without other virtue, was at least clear— will continue until this Court acts to resolve the uncertainty.

III

The time is ripe to reconsider Swain. The erosion of Swain’s constitutional legitimacy and the dearth of creative state-law development counsel against further delay in resolving this important question. Declining to review this case, we let stand a conviction in which we know that the prosecuting attorney excluded individual potential jurors because they were Negroes. This official use of disparaging racial classification is so at odds with our most basic understandings of equal protection that we should not sanction it in this case or any other. I think we have a responsibility to resolve this important and recurring constitutional issue, and I respectfully dissent from this Court’s refusal to do so.

      Petitioner Thompson, convicted of federal counterfeiting charges, challenges his conviction on the ground that the Government used peremptory challenges to exclude five of seven Negro potential jurors. When defense counsel raised the objection at the close of voir dire, the Assistant United States Attorney stated on the record that she had used race as a criterion in excluding the five Negro jurors. The District Court rejected the challenge on the basis of Swain v. Alabama, 380 U. S. 202 (1965), and the Eighth Circuit affirmed with some reluctance. 730 F. 2d 82, 85 (1984).


text:
    No. 84-5173.
    Roberts v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 84-267.
    Clark, Secretary of the Interior, et al. v. Southern Oregon Citizens Against Toxic Sprays, Inc.
   C. A. 9th Cir. Certiorari denied.

Justice White and Justice O’Connor would grant certiorari.


text:
    No. 84-5330.
    Payne v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 84-5336.
    Gosberry v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 84-5271.
    No. 84-5370.
    Reeves v. Nebraska. Martin v. Maggio, Warden, et al.
   Sup. Ct. Neb.; and

C. A. 5th Cir. Certiorari denied. Reported below: No. 84-5271, 216 Neb. 206, 344 N. W. 2d 433; No. 84-5370, 711 F. 2d 1273 and 739 F. 2d 184.

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. 84-5498.
    DeBardeleben v. United States.
   C. A. 6th Cir. Certiorari denied.

Justice White, joined by Justice Brennan, would grant certiorari to settle the conflict between the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Ninth Circuit with respect to the proper resolution of the issue involved in this case.


text:
    No. 84-5515.
    Curran v. United States.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 83-6688.
    No. 83-6876.
    Hunter v. New Mexico, Gelber v. Marsh, Secretary of the Army,
   ante, p. 838; and

ante, p. 880. Petitions for rehearing denied.


text:
    No. 83-6915.
    No. 83-6998.
    No. 84-96.
    No. 84-5022.
    No. 84-5099.
    No. 84-5248.
    No. 84-5259.
    No. 84-5294.
    Beam v. Alabama, Boles v. Guilford Technical Institute, Inland Marine Industries et al. v. Houston, Birden v. Conan et al., Brady v. Smith, Attorney General, Ferenc, aka Rowe v. Paite et al., Shemerdiak v. Workers’ Compensation Appeals Board of California, In re Cooper,
   ante, p. 846;

ante, p. 849;

ante, p. 855;

ante, p. 860;

ante, p. 863;

ante, p. 885;

ante, p. 886; and

ante, p. 878. Petitions for rehearing denied.


text:
    No. 84-5061.
    Caldwell v. A. H. Robins Co.,
   ante, p. 862. Petition for rehearing denied.

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


text:
    November 19, 1984
    No. 83-1441.
    No. 83-6542.
    Heckler, Secretary of Health and Human Services v. Blankenship et al.; and Blankenship et al. v. Heckler, Secretary of Health and Human Services.
   C. A. 6th Cir. Certiorari dismissed under this Court’s Rule 53. Reported below: 722 F. 2d 1282.


text:
    November 20, 1984
    No. 84-218.
    In re County of Suffolk et al.
   Petition for writ of prohibition dismissed under this Court’s Rule 53.


text:
    November 26, 1984
    No. 84-349.
    Gibney et al. v. Toledo Federation of Teachers et al.
   Appeal from Ct. App. Ohio, Lucas County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-640.
    Gaunce v. National Transportation Safety Board et al.
   Appeal from C. A. 9th 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. 84-5506.
    Dingle v. Simpkins.
   Appeal from Sup. Ct. S. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-366.
    Ray Bell Oil Co., Inc. v. New Mexico.
   Appeal from Ct. App. N. M. dismissed for want of jurisdiction.


text:
    No. 84-499.
    Sasso v. Ram Property Management et al.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.


text:
    No. 84-5459.
    J. E. W. v. Estate of Doe.
   Appeal from Dist. Ct. App. Fla., 1st Dist., dismissed for want of substantial federal question.


text:
    No. A-335.
    Lockwood et al. v. United States.
   C. A. 1st Cir. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. D-448.
    In re Disbarment of Holloway.
   Disbarment entered. [For earlier order herein, see 468 U. S. 1248.]


text:
    No. D-462.
    In re Disbarment of Collier.
   It is ordered that James C. Collier, of Orlando, Fla., 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. 83-1362.
    No. 83-1363.
    No. 83-6392.
    Cleveland Board of Education v. Loudermill et al.; Parma Board of Education v. Donnelly et al.; and Loudermill v. Cleveland Board of Education et al.
   C. A. 6th Cir. [Certiorari granted, 467 U. S. 1204.] Motion of city respondents in No. 83-6392 for correction of caption and for divided argument denied.


text:
    No. 83-5954.
    Lindahl v. Office of Personnel Management.
   C. A. Fed. Cir. [Certiorari granted, 467 U. S. 1251.] Motions of Willard Bronger et al. and Margaret Cheeseman et al. for leave to file briefs as amici curiae granted.


text:
    No. 83-6808.
    Dalton v. United States et al.
   C. A. 10th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until December 17, 1984, 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, 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. 84-28.
    No. 84-143.
    Brockett v. Spokane Arcades, Inc., et al.; and Eikenberry, Attorney General of Washington, et al. v. J-R Distributors, Inc., et al.
   C. A. 9th Cir. [Probable jurisdiction noted, ante, p. 813.] Motion of Citizens for Decency Through Law, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-248.
    No. 84-627.
    Pino v. District Court of the Second Judicial District’s Children’s Court in and for the County of Bernalillo. City Council of the City of Chicago v. Ketchum et al.
   Appeal from Sup. Ct. N. M.; and

C. A. 7th Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 84-483.
    Arkansas Public Service Commission et al. v. Southwestern Bell Telephone Co.
   C. A. 8th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

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


text:
    No. 84-494.
    National Labor Relations Board v. Machinists Local 1327, International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 115, et al.
   C. A. 9th Cir. Motion of respondents Lapinski et al. to expedite consideration of this case and No. 84-528, Lapinski v. Machinists Local 1327, and to consolidate with No. 83-1894, Pattern Makers’ League of North America v. NLRB [certiorari granted, ante, p. 814], denied.


text:
    No. 84-5029.
    Paleno v. Quinn, Insurance Commissioner of California,
   ante, p. 812. Motion of appellant for reconsideration of order denying leave to proceed informa pauperis denied.


text:
    No. 84-5108.
    Liparota v. United States.
   C. A. 7th Cir. [Certiorari granted, ante, p. 930.] Motion for appointment of counsel granted, and it is ordered that William T. Huyck, Esquire, of Chicago, Ill., be appointed to serve as counsel for petitioner in this case.


text:
    No. 84-478.
    In re Egle.
   C. A. 5th Cir. Petition for writ of common-law certiorari denied.


text:
    No. 84-497.
    Ruckelshaus, Administrator, United States Environmental Protection Agency v. Union Carbide Agricultural Products Co. et al.
   Appeal from D. C. S. D. N. Y. Probable jurisdiction noted.

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


text:
    No. 84-476.
    McDonald v. Smith.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 84-320.
    National Farmers Union Insurance Cos. et al. v. Crow Tribe of Indians et al.
   C. A. 9th Cir. Motion of respondents LeRoy Sage and Flora Not Afraid for leave to proceed informa pauperis and certiorari granted.


text:
    No. 84-351.
    Atascadero State Hospital et al. v. Scanlon.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-465.
    Black, Director, Missouri Department of Corrections and Human Resources, et al. v. Romano.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-501.
    Mintzes, Warden v. Buchanon.
   C. A. 6th Cir. Motion of respondent for leave to proceed informa pauperis and certiorari granted.


text:
    No. 83-1903.
    Morris Mechanical Enterprises, Inc. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 83-2081.
    No. 83-6929.
    No. 83-6952.
    Sigmond v. United States; Barnes v. United States; and Case v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: Nos. 83-2081 and 83-6929, 734 F. 2d 8; No. 83-6952, 734 F. 2d 3.


text:
    No. 83-6774.
    Soong v. Hofstra University.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-6792.
    Jones v. Lockhart, Director, Arkansas Department of Corrections, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6874.
    Garrett v. Oklahoma.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 83-6903.
    Madeley v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6953.
    Johnson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6964.
    Throckmorton v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-7009.
    Zavolta v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-7010.
    DePriest v. Puett, Commissioner, Tennessee Department of Human Services, et al.
   Ct. App. Tenn. Certiorari denied.


text:
    No. 83-7017.
    Gann v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-7025.
    Lucien v. McGinnis, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-7044.
    Mays v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-7048.
    Shabazz v. Brown et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-104.
    Redhouse v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-113.
    Heights Community Congress v. Veterans Administration.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-114.
    Amidon et al. v. Weinberger, Secretary of Defense, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-140.
    Holliday v. Securities and Exchange Commission.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-184.
    No. 84-185.
    No. 84-186.
    Williams Pipe Line Co. v. Farmers Union Central Exchange, Inc., et al.; Texas Eastern Transmission Corp. v. Farmers Union Central Exchange, Inc., et al.; and Association of Oil Pipe Lines v. Farmers Union Central Exchange, Inc., et al.
   C. A. D. C. Cir. Certiorari denied. Reported below: 236 U. S. App. D. C. 203, 734 F. 2d 1486.


text:
    No. 84-195.
    Ohio Power Co. v. United States Environmental Protection Agency et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-201.
    Urbanek et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-266.
    Venneri v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-268.
    A-1 King Size Sandwiches, Inc. v. National Labor Relations Board.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-272.
    Scott v. Scott.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-285.
    Lampton v. Bosse.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-289.
    Mendia v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-347.
    Shaw v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-362.
    Glass Packaging Institute et al. v. Regan, Secretary of the Treasury, et al.
   C. A. D. C. Cir. Cer-tiorari denied.


text:
    No. 84-393.
    Wachovia Bank & Trust Co., N. A. v. Banister.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-395.
    Field v. Commissioner, Immigration and Naturalization Service.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-454.
    Morrison et ux. v. County of San Diego.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-472.
    Wilson v. Dugger, Superintendent, Florida State Prison, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-475.
    Laughlin Recreational Enterprises Inc. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-484.
    Berkovitz et al. v. Islamic Republic of Iran et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-493.
    No. 84-508.
    S. E. Johnson Co. et al. v. Arthur S. Langenderfer, Inc., et al.; and Arthur S. Langenderfer, Inc., et al. v. S. E. Johnson Co. et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 729 F. 2d 1050.


text:
    No. 84-511.
    Transcon Lines v. Manchester Products Co.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-512.
    DeHavilland Aircraft of Canada, Ltd. v. Maunder et al.
   Sup. Ct. Ill. Certiorari denied.