author: Mr. Justice White, Mr. Justice Blacicmun,

text:
    June 2, 1980
    No. 79-1295.
    McKeesport Area School District v. Pennsylvania Department of Education.
   Appeal from Pa. Commw. Ct. dismissed for want of substantial federal question.

Mr. Justice Stevens would note probable jurisdiction and set case for oral argument.

Mr. Justice White,

with whom Mr. Justice Rehnquist joins,

concurring.

Under Pennsylvania law, a public school district must provide nonpublic school children with transportation to and from school and transportation for educational field trips if those services are provided to public school children. Pa. Stat. Ann., Tit. 24, § 13-1361 (Purdon Supp. 1979-1980). The present controversy centers on that portion of the statute dealing with transportation to and from school. Mb. Justice Blackmun’s concurring opinion, however, post, at 978, states that it “is not automatically apparent from the jurisdictional statement and the motion to dismiss that have been filed with this Court, or from the summary opinion of the [Pennsylvania] Commonwealth Court,” that the constitutionality of the field-trip provision is not before us. I write both to demonstrate that the absence of the field-trip issue is absolutely clear and to analyze the law that Mr. Justice Blackmun would apply to this case if the field-trip issue were present.

I

In School District of Pittsburgh v. Pennslyvania Dept. of Education, 443 U. S. 901 (1979), we dismissed for want of a substantial federal question an appeal challenging the constitutionality of the same statute challenged here. The question presented by the jurisdictional statement in School District of Pittsburgh reads as follows: “Whether Pennsylvania Act 372 of 1972 [Act of Dec. 29, 1972, P. L. 1726, No. 372, amending § 1361 of the Public School Code of 1949 (24 P. S. § 13-1361, as amended)] requiring school districts to transport resident nonpublic school pupils to and from schools located up to 10 miles beyond district boundaries violates the Establishment Clause of the First Amendment of the Constitution of the United States because of the Act’s primary effect of advancing religion in addition to fostering excess entanglement of the state with religion.” Juris. Statement, O. T. 1978, No. 78-1614, p. 3. The question presented by the jurisdictional statement in the instant case is identically phrased. Juris. Statement 4. Because a ruling of dismissal for want of a substantial federal question is a judgment on the merits, Hicks v. Miranda, 422 U. S. 332, 344 (1975), and because this case presents the same challenge to the same statute that we rejected in School District of Pittsburgh, the same outcome properly follows here.

II

Nor can it be maintained that, although the identical statute and constitutional arguments are involved in both cases, School District of Pittsburgh involved a different application of the statute and thus that a different legal response is occasioned here. The instant litigation commenced with a show-cause order emanating from the Pennsylvania Department of Education, an order that placed in jeopardy under the statute appellant school district’s public transportation reimbursement for the 1973-1974 school year. The order was premised not on any district action regarding field trips, but on the district’s alleged refusal to transport students to five specified nonpublic schools beyond district boundaries in violation of the statute. Juris. Statement 7-8. Similarly, in School District of Pittsburgh, the litigation commenced with a show-cause order from the Department of Education threatening the appellant district’s public transportation reimbursement for the 1973-1974 school year and relying on the district’s alleged refusal to transport students to 20 specified institutions located beyond district boundaries. Juris. Statement, O. T. 1978, No. 78-1614, pp. 7-8.

In short, both cases involve controversies surrounding transportation to nonpublic schools outside the relevant district in accordance with a statute that also happens to provide for educational field trips for nonpublic school children. Neither case, however, involves any claim that the field-trip provision, as distinguished from the provision for transportation to and from nonpublic schools, is a forbidden establishment of religion. In neither case did the state courts address such an issue, and in neither was the field-trip provision expressly included in or subsumed by the question presented in the jurisdictional statement. Indeed, the Pennsylvania Supreme Court in School District of Pittsburgh, upon which case the Pennsylvania Commonwealth Court in the instant suit relied, App. to Juris. Statement 4a, expressly declared that the field-trip “portion of Act 372 is not before us” and that the court “need not consider the constitutionality of the field trip provision.” Springfield School Dist. v. Department of Ed., 483 Pa. 539, 553, n. 6, 397 A. 2d 1154, 1161, n. 6 (1979). It is apparent, therefore, that we have no jurisdiction to decide the validity of the part of the statute dealing with field trips. Cardinale v. Louisiana, 394 U. S. 437 (1969); Crowell v. Randell, 10 Pet. 368, 391 (1836). See R. Stem & E. Gress-man, Supreme Court Practice § 3.27, p. 214 (5th ed. 1978) (“It has long been established that the Supreme Court is vested with no jurisdiction unless a federal question was raised and decided in the state court below”).

Ill

Affirming this case thus would involve no inconsistency with Wolman v. Walter, 433 U. S. 229 (1977), where this Court saw lurking behind a routine exercise in local pedagogy, the educational field trip, the menacing hulk of an established state religion. Since Mr. Justice Blackmun’s concurrence adverts to Wolman as authority in this area, however, that case merits further examination.

In Wolman the Ohio Legislature had enacted a multifaceted program designed to provide assistance to nonpublic schools, presumably in recognition of the central importance of these schools in fulfilling the Nation’s educational mission. See Committee for Public Education v. Nyquist, 413 U. S. 756, 813-820 (1973) (White, J., dissenting). The program in-eluded, inter alia, the loaning of secular textbooks to nonpublic school students or their parents; the supplying to nonpublic schools of standardized tests and scoring services; and the granting to nonpublic schools of field trips and transportation services such as are provided to public school students. The Court found certain aspects of the program acceptable under the Establishment Clause — e. g., secular textbooks, standardized tests and scoring — but other aspects, including the field-trip provision, did not fare so well.

The Court believed that the field-trip provision had several troubling features. First, “the nonpublic school controls the timing of the trips and, within a certain range, their frequency and destinations,” indicating that “the schools, rather than the children, truly are the recipients of the service. . . .” 433 U. S., at 253. Second, the Court observed that, “although a trip may be to a location that would be of interest to those in public schools, it is the individual teacher who makes a field trip meaningful,” ibid., and this poses “an unacceptable risk of fostering of religion [as] an inevitable byproduct.” Id., at 254. Finally, to ensure that nonpublic schools do not pursue sectarian ends on their field trips would entail supervision by public school authorities, which “would create excessive [governmental] entanglement” in the affairs of sectarian institutions. Ibid.

In the present case, as in Wolman, we are not faced with a legislative enactment evincing a sectarian purpose. Id., at 236. Fortunately, all of us continue to regard the achievement of educational quality as a valid secular end that States may pursue. A secular legislative purpose, however, is only one of the Court’s Establishment Clause indicia. To pass muster a statute must also have “a principle or primary effect that neither advances nor inhibits religion” and “must not foster an excessive government entanglement with religion.” Ibid. See Roemer v. Maryland Public Works Bd., 426 U. S. 736, 748 (1976); Committee for Public Education v. Nyquist, supra, at 772-773; Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). In Wolman, the Court concluded that the challenged statute fails the latter two tests by subsidizing field trips for nonpublic school students.

What is the “principal or primary effect” of such a provision? The most reasonable appraisal surely suggests that the principal or primary effect of field trips for nonpublic school students is that boys and girls whose parents have exercised their constitutional right to send their children to private schools, Pierce v. Society of Sisters, 268 U. S. 510 (1925), will expand their educational horizons, just as the public school children benefiting from the same experience will expand theirs. Is this a danger from which we must shield the American public? The Court in Wolman failed to explain why we should not consider the venerable institution of the field trip as firmly grounded in sound educational policy and the effect sought to be created by educators and legislators as pedagogical and not religious. In Wolman, the Court could do no more than voice insubstantial and baseless fears that field trips might be used for religious indoctrination.

And what of excessive entanglement? As I read the instant statute, the State of Pennsylvania has devised no mechanism for “policing” nonpublic schools. The Supreme Court of Pennsylvania has similarly concluded that the “Act before us does not in any manner require the state to engage in ‘a, comprehensive, discriminating and continuing’ surveillance of the nonpublic school teachers.” 483 Pa., at 566, 397 A. 2d, at 1168, quoting Lemon v. Kurtzman, supra, at 619. Nor had the State of Ohio in Wolman devised such a mechanism. Yet there the Court, without the benefit of any record facts showing actual entanglement, went on to conclude that, if the State of Ohio were ever to police nonpublic school field trips, excessive entanglement would result.

The precedential — or, for that matter, the persuasive— force of such ex cathedra wanderings is deservedly minimal. A decision that concedes a secular purpose, describes no actual religious effect, and allows that there is no present excessive entanglement furnishes very little guidance for subsequent Establishment Clause inquiries. Insofar as field trips were concerned, Wolman, at bottom, was a decision predicated on fear of a series of unsubstantiated eventualities: What if the nonpublic school controls the timing, frequency, and destination of field trips so as to create a religious effect? 433 U. S., at 253. What if a nonpublic school teacher contrives, in making the field trip “meaningful,” to exalt religion? Ibid. What if the State were ever to police nonpublic schools to make sure the field trips remained secular in character? Id., at 254.

Responding to such fears is a difficult, if not impossible, task. One can say “it isn’t so” on the indisputable ground that “it isn’t.” This would be one way of declining to find in the record what is not there. Perhaps the best response, however, is to observe that we ought “not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment,” Lemon v. Kurtzman, supra, at 618, quoted in Wolman v. Walter, 433 U. S., at 254, and to remind the Court “that legislation having a secular purpose and extending governmental assistance to sectarian schools in the performance of their secular functions does not constitute ‘law[s] respecting an establishment of religion’ forbidden by the Pirst Amendment merely because a secular program may incidentally benefit a church in fulfilling its religious mission.” Lemon v. Kurtzman, supra, at 663-664 (White, J., concurring in part and dissenting in part).

Mr. Justice Blacicmun,

with whom Mr. Justice Brennan joins,

concurring.

Section 1361 of the Pennsylvania Public School Code of 1949 (Pa. Stat. Ann., Tit. 24, § 13-1361 (Purdon 1962)), as amended by 1972 Pa. Laws No. 372, authorizes a public school district of the Commonwealth of Pennsylvania to provide free transportation for its kindergarten, elementary, and secondary school pupils, and also to provide free transportation to and from any point in the Commonwealth for educational field trips. The statute states, in addition, that when such transportation is provided for public school pupils, the district “shall also make identical provision” for pupils who attend nonprofit, nonpublic schools located within the district or outside the district at a distance not exceeding 10 miles.

Appellant district challenged the Pennsylvania statute as violative of the Fourteenth Amendment’s Equal Protection Clause and of the First Amendment’s Establishment Clause. The Commonwealth Court of Pennsylvania upheld the statute against that challenge. 38 Pa. Commw. 290, 392 A. 2d 912 (1978). The Supreme Court of Pennsylvania denied a petition for allowance of an appeal.

I join the Court’s dismissal of this case only on the specific assumption that the issue of the constitutionality of the field-trip provision of the Pennsylvania statute is not before us. The absence of that issue, for me at least, is not automatically apparent from the jurisdictional statement and the motion to dismiss that have been filed with this Court, or from the summary opinion of the Commonwealth Court. That opinion, however, states: “No issue of law or fact distinguishes this case from earlier eases decided by this Court and upholding the Secretary’s interpretation of the Act and the Act’s constitutionality as so interpreted.” 38 Pa. Commw., at 291, 392 A. 2d, at 912. That court’s “earlier cases” cited are School Dist. of Pittsburgh v. Commonwealth Dept. of Ed., 33 Pa. Commw. 535, 382 A. 2d 772 (1978); Springfield School Dist. v. Commonwealth Dept. of Ed., 35 Pa. Commw. 71, 384 A. 2d 1049 (1978); and Pequea Valley School Dist. v. Commonwealth Dept. of Ed., 36 Pa. Commw. 403, 387 A. 2d 1022 (1978).

On appeal to the Supreme Court of Pennsylvania, those three decisions of the Commonwealth Court were affirmed by a divided vote in a single opinion. Springfield School Dist. v. Department of Ed., 483 Pa. 539, 397 A. 2d 1154 (1979). In its opinion, the Supreme Court of Pennsylvania construed the basic free-transportation provision of the Pennsylvania statute in such a way as to alleviate federal constitutional concern. It specifically noted, however, that the field-trip provision of the Act “is not before us in these appeals,” and that the constitutionality of the field-trip provision need not be considered. Id., at 553, n. 6, 397 A. 2d, at 1161, n. 6. The court went on to observe, ibid., that the Attorney General of Pennsylvania has ruled the field-trip provision of the Act unconstitutional in its application to sectarian nonpublic schools. 1977 Op. Atty. Gen. No. 15.

In the present case I therefore assume that when the Commonwealth Court observed that no issue of law or fact distinguished this case from its cited “earlier cases,” it necessarily means that the constitutionality of the field-trip provision was not at issue. It is only on that assumption that I join the Court in its dismissal of the appeal, for in Wolman v. Walter, 433 U. S. 229, 252-255 (1977), the Court flatly ruled that field-trip reimbursements to parochial schools are violative of the First Amendment. The continuing vitality of Wolman as controlling precedent in this area was recognized in Committee for Public Education v. Regan, 444 U. S. 646, 654 (1980).

       Even a cursory glance at the statutory language, see post, at 977, n. *, confirms that the two provisions are distinct and severable. School district action that implicates one provision need not, and does not here, implicate the other.

       In this respect it is useful to bear in mind Mr. Justice Blackmun’s

        admonition in Roemer v. Maryland Public Works Bd., 426 U. S. 736, 747 (1976) (footnote omitted), quoted in Committee for Public Education v. Regan, 444 U. S. 646, 658, n. 6 (1980):
      “The Court has not been blind to the fact that in aiding a religious institution to perform a secular task, the State frees the institution’s resources to be put to sectarian ends. If this were impermissible, however, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair. The Court never has held that religious activities must be discriminated against in this way.”

      “The board of school directors in any school district may, out of the funds of the district, provide for the free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled, provided that such school is not operated for profit and is located within the district boundaries or outside the district boundaries at a distance not exceeding ten miles by the nearest public highway, . . . and to and from any points in the Commonwealth in order to provide field trips for any purpose connected with the educational pursuits of the pupils. When provision is made by a board of school directors for the transportation of public school pupils to and from such schools or to and from any points in the Commonwealth in order to provide field trips as herein provided, the board of school directors shall also make identical provision for the free transportation of pupils who regularly attend nonpublic kindergarten, elementary and high schools not operated for profit to and from such schools or to and from any points in the Commonwealth in order to provide field trips as herein provided.” Pa. Stat. Ann., Tit. 24, § 13-1361 (Purdon Supp. 1979-1980).


source: Caselaw Access Project

license: Public Domain

text:
    No. 79-1563.
    Yakima County Deputy Sheriff's Assn. v. Board of Commissioners for Yakima County, Washington, et al.
   Appeal from Sup. Ct. Wash, dismissed for want of substantial federal question.


text:
    No. 79-1608.
    Taylor et al. v. Wisconsin Tax Appeals Commission et al.
   Appeal from Sup. Ct. Wis. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 79-6393.
    Doe v. Sears.
   Appeal from Sup. Ct. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 79-6219.
    Nelson v. State Accident Insurance Fund.
   Appeal from. Ct. App. Ore. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Mr. Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 79-6290.
    Dupris v. United States.
   C. A. 8th Cir. Motion of Cheyenne River Sioux Tribe of- Cheyenne River Reservation for leave to file a brief as amicus curiae granted. Motion of petitioner for leave to proceed in -forma pauperis and certiorari granted. Judgment vacated and case remanded to the United States District Court for the District of South Dakota (Central Division) to consider the question of mootness.


text:
    No. A-946.
    Blum, Commissioner of New York State Department of Social Services v. Caldwell et al.
   Application to stay injunction of the United States District Court for the Northern District of New York, entered December 3, 1979, addressed to Mr. Justice Stevens and referred to the Court, denied.


text:
    No. 79-1457.
    No. 79-1617.
    International Brotherhood of Electrical Workers, AFL-CIO, Local 1969, et al. v. Bise et al. Department of Transportation of Oklahoma v. Pile.
   C. A. 9th Cir.; and

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


text:
    No. 79-1266.
    Steadman v. Securities and Exchange Commission.
   C. A. 5th Cir. [Certiorari granted, ante, p. 917.] Motion of petitioner to dispense with printing appendix granted.


text:
    No. A-995 (79-1791).
    Flynt v. Georgia.
   Application for stay of execution and enforcement of mandate of the Court of Appeals of Georgia, presented to Mr. Justice Powell, and by him referred to the Court, denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would grant the application.


text:
    No. A-990 (79-1839).
    Fazio et al. v. United States.
   Application for stay of mandate of the United States Court of Appeals for the Fifth Circuit, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. 79-6390.
    No. 79-6412.
    No. 79-6446.
    Matthews v. United States; Muina v. Department of Professional Licensing of Montana et al.; and Jones v. Porter, U. S. District Judge.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 79-1136.
    Brown & Root, Inc., et al. v. Joyner et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-1280.
    No. 79-1281.
    First Investment Annuity Company of America v. Miller, Secretary of the Treasury, et al.; and Investment Annuity, Inc. v. Miller, Secretary of the Treasury, et al.
   C. A. D. C. Cir. Cer-tiorari denied. Reported below: 197 U. S. App. D. C. 235, 609 F. 2d 1.


text:
    No. 79-1315.
    Doyle et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 79-1199.
    Texas v. Battarbee.
   183d Jud. Dist. Ct. Tex., Harris County. Certiorari denied.


text:
    No. 79-1343.
    Diggs v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 79-1351.
    Babic v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-1354.
    Club Recreation & Pleasure et al. v. Oregon ex rel. Haas, District Attorney for Multnomah County.
   Ct. App. Ore. Certiorari denied.


text:
    No. 79-1361.
    Beattie v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-1425.
    No. 79-1447.
    Wilderness Public Rights Fund v. Andrus, Secretary of the Interior, et al.; and Eiseman et al. v. Andrus, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied. Reported below: 608 F. 2d 1250.


text:
    No. 79-1432.
    Southern Pacific Transportation Co. v. Hector Martinez & Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-1444.
    Zangrillo v. Ambach, Commissioner of Education of New York, et al.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 79-1455.
    Kulik v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-1458.
    No. 79-1459.
    Morgan Guaranty Trust Company of New York v. Rinier, Agent for Certain Employees of Bankrupt, et al.; and Rodman, Trustee in Bankruptcy v. Rinier, Agent for Certain Employees of Bankrupt, et al.
   C. A. 2d Cir. Certiorari denied. Reported below: 620 F. 2d 319.


text:
    No. 79-1485.
    United Steelworkers of America, AFL-CIO-CLC v. Dunbar et al.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 79-1493.
    Pellon et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 79-1558.
    Theodosopoulos v. New Hampshire.
   Sup. Ct. N. H. Certiorari denied.


text:
    No. 79-1562.
    Baldwin et al. v. Mills et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 79-1572.
    Revere Copper & Brass Inc. v. Overseas Private Investment Corp.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 79-1584.
    Vango v. Mitchell, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-1600.
    Bombardier Ltd. et al. v. Engine Specialties, Inc.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 79-1604.
    Hall v. Alabama.
   Ct. Crina. App. Ala. Certiorari denied.


text:
    No. 79-1607.
    Sherard v. Shelton, Director, Department of Social Services of Wayne County.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 79-1620.
    Lombard, Sheriff, et al. v. Cooper et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 79-1627.
    Green v. County of Alameda et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-1692.
    Famolare, Inc. v. Edison Brothers Stores, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-1699.
    Hawaiian Telephone Co. et al. v. Department of Labor and Industrial Relations of Hawaii et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-1715.
    Parrish et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-1745.
    Scafidi v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-1758.
    Erickson et ux. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 79-1773.
    Erickson et ux. v. Eubanks, U. S. District Judge.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 79-6035.
    Garcia v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-6134.
    Christian v. Texas.
   Ct. Crina. App. Tex. Certiorari denied.


text:
    No. 79-6165.
    Lumsden v. Missouri.
   Sup. Ct. Mo. Cer-tiorari denied.


text:
    No. 79-6172.
    Sharp v. Rhodes et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 79-6179.
    Chavez v. Wyoming.
   Sup. Ct. Wyo. Cer-tiorari denied.


text:
    No. 79-6189.
    McCoy v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 79-6196.
    Geromette v. General Motors Corp.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 79-6200.
    Thomas v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 79-6213.
    Beal v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-6226.
    Campbell v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 79-6255.
    Quinones v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 79-6283.
    Markt v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-6297.
    Wade v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-6304.
    Taylor v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 79-6314.
    Irvin v. Nanni et al.
   Ct. App. Tenn. Certiorari denied.


text:
    No. 79-6339.
    Harbolt v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-6346.
    Honeycutt v. Ward, Corrections Commissioner.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 79-6381.
    Short v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 79-6382.
    Scott, Administratrix v. Lane.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 79-6401.
    Rice v. Pennsylvania.
   Sup. Ct. Pa. Cer-tiorari denied.


text:
    No. 79-6402.
    Shird v. Warden, Maryland Correctional Institution.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-6405.
    Davis v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 79-6408.
    Nunn v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 79-6409.
    Stevens v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-6414.
    Harris v. Garrison et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-6416.
    Doe v. Anker et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 79-6420.
    Henderson v. Lane, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-6464.
    Brissette v. Macchiarola, Chancellor, New York City Board of Education.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 79-6480.
    Bullock v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-6492.
    Morgan v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 79-6497.
    Goodwin v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 79-6508.
    Flanagan v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 79-6518.
    Moore v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-6523.
    Peden v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-6528.
    Gause v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-6538.
    Nunn v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-6539.
    Roman v. Le Fevre, Correctional Superintendent, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 79-6547.
    Hood v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-6567.
    Kearney v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 79-6572.
    Dukajgini v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 79-1225.
    Fidelity Union Life Insurance Co v. Perry.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Blackmun would grant certiorari.


text:
    No. 79-1348.
    Worldwide Church of God, Inc., et al. v. Superior Court of California, County of Los Angeles (California, Real Party in Interest); and Helge et al. v. Superior Court of California, County of Los Angeles (California, Real Party in Interest).
   Ct. App. Cal., 2d App. Dist. Motions for leave to file briefs as amici curiae filed by the following were granted: National Council of Churches of Christ et al., American Civil Liberties Union of Southern California et al., Holy Spirit Association for the Unification of World Christianity et al., Church of the Nazarene, and Catholic League for Religious and Civil Rights. Certiorari denied.


text:
    No. 79-6588.
    Jones v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-1290.
    Community Loan Corporation of Richmond County et al. v. Cody et al.
   C. A. 5th Cir. Cer-tiorari denied.

Mr. Justice Stewart and Mr. Justice Blackmun would grant certiorari.


text:
    No. 79-1438.
    No. 79-5921.
    No. 79-6194.
    No. 79-6250.
    No. 79-6422.
    Otey v. Nebraska. Blake v. Georgia. O'Bryan v. Texas. Gray v. Mississippi. Burger v. Georgia.
   Sup. Ct. Neb.;

Sup. Ct. Ga.;

Ct. Crim. App. Tex.;

Sup. Ct. Miss.; and

Sup. Ct. Ga. Certio-rari denied. Reported below: No. 79-1438, 205 Neb. 90, 287 N. W. 2d 36; No. 79-5921, 244 Ga. 466, 260 S. E. 2d 876; No. 79-6194, 591 S. W. 2d 464; No. 79-6250, 375 So. 2d 994; No. 79-6422, 245 Ga. 458, 265 S. E. 2d 796.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our 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, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 79-1581.
    Coca-Cola Bottling Company of Arkansas v. Chauffeurs, Teamsters & Helpers Local Union No. 878.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Black-mun took no part in the consideration or decision of this petition.


text:
    No. 79-1621.
    Reynolds Metals Co. v. Aluminum Company of America et al.
    C. A. 7th Cir. Certiorari denied. Mr. Justice Powell would grant certiorari.


author: Mr. Justice Blackmun,

text:
    No. 79-6121.
    Hyman v. Rickman et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Blackmun,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

Petitioner, an inmate at the Stateville Correctional Center in Joliet, Ill., filed pro se a civil rights action pursuant to 42 U. S. C. § 1983, alleging that the defendants he named (the warden and three officers of the prison guard) had deprived him of his constitutional rights by failing to afford him appropriate medical treatment for glaucoma, a sight-threatening eye condition. According to appointed counsel’s statement of the case, petitioner’s .condition, while made known to the prison authorities at the beginning of his incarceration, did not receive the attention of an eye doctor during his first four months at Stateville, and he was denied the medication that eventually was prescribed for him until he was hospitalized some eight months after entering the prison. Pet. for Cert. 2. After being released from the hospital, petitioner continually had to prod the guards to give him his medicine, and they sometimes denied it to him. His eyes were permanently injured. Ibid.

The United States District Court for the Northern District of Illinois initially granted the defendants’ motion for summary judgment on all of petitioner’s claims. Although granting leave to proceed in forma pauperis, that court failed to act upon petitioner’s motion, under 28 U. S. C. § 1915 (d), for the appointment of counsel. The United States Court of Appeals for the Seventh Circuit, after appointing counsel to represent petitioner on appeal, reversed the District Court’s judgment in part, remanding the case for further proceedings on petitioner’s claim that respondents intentionally had deprived him of medication.

On remand, petitioner again moved the District Court for the appointment of counsel, and, unlike the Court of Appeals, the District Court denied his motion. Petitioner presented his own case in a 4-day jury trial. At the conclusion of his presentation of evidence, the District Court granted directed verdicts in favor of the warden and two of the guards, who evidently had little responsibility for petitioner’s treatment on a day-to-day basis. Petitioner based his case against the fourth defendant, Lt. James L. Rickman, on allegations that this officer had sometimes denied petitioner medication on weekends. The case was submitted to the jury but they were unable to reach a verdict. Following a second trial, during which petitioner again represented himself, the jury found for Rickman.

Petitioner appealed a second time, and the Court of Appeals again appointed counsel to represent him. Petitioner argued that the District Court’s failure to appoint counsel to represent him at trial had been an abuse of discretion and reversible error because his claim in fact was colorable (as evidenced by the Court of Appeals’ earlier reversal of the District Court’s entry of summary judgment), because the trial issues were factually and legally complex, because the constitutional right at stake was serious, and because the presence of counsel would have substantially aided petitioner in presenting his case. The Court of Appeals rejected this argument, holding, in an unpublished opinion, that the decision to appoint counsel for a civil rights litigant proceeding in forma pauperis rests with the discretion of the trial court. It repeated the standard it had articulated in earlier cases,' that “[o]nly when a 'denial [of counsel] would result in fundamental unfairness impinging on due process rights’ . . . will an appeals court overturn a decision of the district court not to appoint counsel.” App. to Pet. for Cert. 3 (quoting Heidelberg v. Hammer, 577 F. 2d 429, 431 (CA7 1978)).

The Court of Appeals found no abuse of discretion in this case because the record revealed that petitioner understood the issue that was remanded for trial and had introduced evidence on that issue. Even conceding that counsel may have amended petitioner’s complaint after the first appeal to expand his claim concerning the denial of medical treatment, the court concluded that petitioner had received a fair opportunity to state his case.

Petitioner contends that if his motion for the appointment of counsel had been granted by the District Court, counsel no doubt would have amended petitioner’s complaint to add as defendants the prison physicians who were most responsible for his inadequate medical treatment. Counsel, unlike petitioner, would not have focused the jury’s attention on isolated instances in which a single guard failed to give petitioner his medication, but rather would have concentrated on the lengthy period during which petitioner received no treatment at all for his sight-threatening condition.. Appointed counsel would have obtained expert testimony to testify that glaucoma, if not treated properly, progressively leads to total blindness and irreversible damage.

I believe that under the controlling standards governing the appointment of counsel in civil rights cases that have been adopted by other Courts of Appeals, a district court would have granted petitioner’s § 1915 (d) motion. See Gordon v. Leeke, 574 F. 2d 1147, 1153 (CA4), cert. denied, 439 U. S. 970 (1978) (“If it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him”); Shields v. Jackson, 570 F. 2d 284, 286 (CA8 1978) (where an indigent prisoner is in no position to investigate his case, his complaint states a cause of action, and the appointment of counsel will advance the administration of justice, the case will be remanded with directions to the district court to appoint counsel). See also Chubbs v. City of New York, 324 F. Supp. 1183, 1191 (EDNY 1971) (“If the case has merit and a trial is required counsel should be appointed. The prisoner himself can simply not prepare and try the case effectively”) ; and n. 2, supra.

Questions concerning the standards by which district courts are to exercise their discretion in appointing counsel under § 1915 (d), and the degree to which the exercise of that discretion is to be controlled, are of obvious importance to the administration of justice, and to the enforcement of federal civil rights, particularly in our Nation’s penal institutions. Because I believe that petitioner’s motion for the appointment of trial counsel would have been granted in other circuits, and that he may well have been prejudiced in presenting his case by the failure of the District Court to appoint counsel, I would grant certiorari and set the case for argument.

       Title 28 U. S. C. § 1915 (d) provides that in in forma pauperis cases “[t]he court may request an attorney to represent any such person unable to employ counsel. . . .”

       The standard of review articulated by the court in this case is derived from its earlier decision in LaClair v. United States, 374 F. 2d 486, 489 (CA7 1967). In Chapman v. Kleindienst, 507 F. 2d 1246, 1250, n. 6 (CA7 1974), the court refrained from deciding whether LaClair’s standard should be replaced by that articulated in Dreyer v. Jalet, 349 F. Supp. 452, 486 (SD Tex. 1972), affirmance order, 479 F. 2d 1044 (CA5 1973) : “[I]f a civil action brought by an indigent acting pro se, including prison inmates, has merit requiring an evidentiary hearing, then counsel should be appointed to properly present the claim.” In Heidelberg v. Hammer, 577 F. 2d, at 431, the court stated: “We are not now disposed to overrule the holding of LaClair. . .


text:
    No. 79-6359.
    White v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Brennan would grant cer-tiorari.


text:
    No. 78-1756.
    United States v. Mitchell et al.,
   445 U. S. 535. Petition for rehearing denied.


text:
    No. 78-1779.
    No. 79-1265.
    No. 79-1285.
    No. 79-5993.
    No. 79-6040.
    No. 79-6043.
    Owen v. City of Independence, Missouri, et al., Caterina v. Pennsylvania, Maschhoff v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al., Fairris v. Estelle, Corrections Director, Beede v. New Hampshire, Kibert v. Blankenship, Correctional Superintendent,
   445 U. S. 622;

445 U. S. 963;

445 U. S. 964;

ante, p 920;

445 U. S. 967; and

ante, p. 911. Petitions for rehearing denied.


text:
    June 4, 1980
    No. 79-1805.
    Maryland v. Whitfield.
   Ct. App. Md. Certiorari dismissed under this Court’s Rule 60.


text:
    June 5, 1980
    No. 79-1803.
    Grassi et al. v. Louisiana.
   Sup. Ct. La. Certiorari dismissed as to petitioner Grassi under this Court’s Rule 60.


author: Mr. Justice Rehnquist.

text:
    HANRAHAN et al. v. HAMPTON et al.
    No. 79-912.
    Decided April 30, 1980

      Together with No. 79-914, Johnson et al. v. Hampton et al.

   Mr. Justice Rehnquist.

Plaintiffs-respondents and their counsel in these cases have moved that I “be recused from the proceedings in this case” for the reasons stated in their 14-page motion and their five Appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state-defendant petitioners in the action. Since generally the Court as an institution leaves such motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer, see Jewell Ridge Coal Corp. v. Mine Workers, 325 U. S. 897 (1945) (denial of petition for rehearing) (Jackson, J., concurring), I shall treat the motion as addressed to me individually. I have considered the motion, the Appendices, the response of the state defendants, 28 U. S. C. § 455 (1976 ed. and Supp. Ill), and the current American Bar Association Code of Judicial Conduct, and the motion is accordingly

Denied.


author: Me. Justice Rehnquist,

text:
    SUMNER, WARDEN v. MATA
    No. A-882 (79-1601).
    Decided May 1, 1980
   Me. Justice Rehnquist,

Circuit Justice.

Applicant seeks to stay the mandate of the United States Court of Appeals for the Ninth Circuit under which a writ of habeas corpus would issue unless the State of California grants respondent Robert Mata a new trial on the charge of murder. See Mata v. Sumner, 611 F. 2d 754 (1979). On April 15, 1980, I temporarily stayed that mandate pending consideration of a response to the application and further order, in order to see whether there was a conflict among the Courts of Appeals or a substantial doctrinal difference from cases decided by this Court that would distinguish this decision from the numerous mine-run decisions on the reliability of identification that could not possibly be individually reviewed by this Court.

In 1972 respondent, then a prisoner at a medium-security prison in Tehachapi, Cal., was charged with the murder of another prisoner, Leonard Arias. While investigating the murder, prison officials showed two prisoners who had witnessed the killing a series of photographic arrays containing pictures of respondent and his two alleged accomplices. Without recounting the details of each display, see id., at 755-757, it suffices to say that the two witnesses eventually selected respondent’s photograph from the arrays and subsequently identified him at trial as one of the persons involved in the killing.

On direct appeal from his conviction, respondent challenged the pretrial identification procedures and claimed they tainted the subsequent in-court identifications. The California Court of Appeal rejected this challenge, finding that there had been “no showing of influence by the investigating officers; that the witnesses had an adequate opportunity to view the crime; and that their descriptions [were] accurate.” App. to Pet. for Cert. C-4 — C-5. The California courts also rejected respondent’s petition for a writ of habeas corpus, which petition similarly challenged the identification procedures employed by prison officials.

On respondent’s subsequent petition for a federal writ of habeas corpus, the District Court concluded that, although “irregularities occurred in the pre-trial photographic identification” of respondent, those irregularities “did not so taint the in-court identifications ... as to establish a constitutional violation. . . .” Id., at D-3.

A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. In evaluating the admissibility of the in-court identifications, the majority of the Court of Appeals employed a “two-part approach.” First, it considered whether photographic identification, as opposed to a lineup, was necessary under the circumstances. It answered this inquiry in the negative. Second, the majority inquired “whether there was a very substantial likelihood of irreparable misiden tification ’ ’ due to the less-than-ideal procedures employed. It answered this inquiry in the affirmative. In summarizing this latter holding, the court clearly indicated that it considered the feasibility of a lineup a significant factor in its determination:

“Based upon the lack of necessity [for a photographic array], the diversion of the witnesses’ attention at the time the crime was committed, the hazy and very general description of the appellant [by one of the witnesses], and the inescapable focusing of attention upon the [respondent] by the investigating authorities, we are driven to the conclusion that the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.” 611 F. 2d, at 759.

In his petition for a writ of certiorari, applicant contends that the majority of the Court of Appeals gave undue weight to the failure of the prison officials to employ a lineup as opposed to a photographic array in the present case. To the extent that the Court of Appeals did overturn respondent’s conviction because it believed that “less suggestive” procedures were available, I believe that its decision ignores this Court’s indication in Manson v. Braithwaite, 432 U. S. 98, 114 (1977), holding that reliability, not necessity, is the “linchpin in determining the admissibility of identification testmony . . . ,” a conclusion in turn derived from our decision in Neil v. Biggers, 409 U. S. 188, 199-200 (1972). The decision of the majority of the Court of Appeals in this regard would also seem to conflict with United States v. Gidley, 527 F. 2d 1345 (CA5), cert. denied, 429 U. S. 841 (1976), where the United States Court of Appeals for the Fifth Circuit stated that the availability of less suggestive methods of identification is “not relevant” in determining whether a photographic display is impermissibly suggestive. 527 F. 2d, at 1350.

Two arguments offered by respondent merit brief mention. First, respondent asserts that the Court of Appeals’ “two-part approach” incorporates the necessity of a challenged procedure only in determining whether that procedure, although suggestive, was nevertheless constitutionally permissible given the exigencies of the situation. A close reading of the appellate court’s opinion, however, belies that interpretation, and demonstrates instead that the court considered the availability of less suggestive procedures an “important factor” in determining the reliability of the procedures actually employed. See 611 F. 2d, at 767, 769. Second, respondent suggests that this Court has declined on several prior occasions to review the two-part approach employed in the Ninth Circuit. See United States v. Crawford, 576 F. 2d 794 (CA9), cert. denied, 439 U. S. 851 (1978); United States v. Pheaster, 544 F. 2d 353 (CA9 1976), cert. denied, 429 U. S. 1099 (1977); United States v. Calhoun, 542 F. 2d 1094 (CA9 1976), cert. denied sub nom. Stephenson v. United States, 429 U. S. 1064 (1977); United States v. Valdivia, 492 F. 2d 199 (CA9 1973), cert. denied, 416 U. S. 940 (1974). In addition to the hazards of reading any meaning into this Court’s denials of certiorari, I would also note that each of the aforecited cases came to this Court after the Court of Appeals had upheld the identification procedures there employed. We thus were not presented with opportunities to consider the relevance of the feasibility of less suggestive procedures to a determination that the procedure actually employed was unconstitutionally suggestive.

In this case the Court of Appeals rejected the uniform conclusion, of several state courts and another federal court that the identification procedures employed here were not so suggestive as to taint the witnesses’ in-court identification of respondent. Given the tension between the analysis employed by the majority of the Court of Appeals for the Ninth Circuit in this case and our decisions in Manson, supra, and Neil, supra, and given the apparent conflict between the decision of the Court of Appeals for the Ninth Circuit in this case and the decision of the Court of Appeals for the Fifth Circuit in Oidley, supra, I have decided to grant applicant’s request for an order staying the mandate in Mata v. Sumner (the present case), 611 F. 2d 754 (CA9 1979), cert. pending, No. 79-1601, because I am of the opinion that four Members of this Court are likely to vote to grant certiorari in that case when presented. As nearly as I can determine, that case should be considered by the Court on certiorari in the near future, and the stay which I am presently issuing shall expire without further action of the Court in the event that cer-tiorari is denied. If certiorari is granted, the stay shall remain in effect until final disposition of the case or further order of the Court.

Accordingly, the application for the stay of mandate of the United States Court of Appeals in this case is

Granted.


author: Mr. Justice Rehnquist,

text:
    PACILEO, SHERIFF v. WALKER
    No. A-894.
    Decided May 1, 1980
   Mr. Justice Rehnquist,

Circuit Justice.

Applicant Sheriff of El Dorado County, Cal., applies for a stay of an order of the Supreme Court of California issued April 9, 1980. The order was made in connection with a request for extradition of respondent Walker by the demanding State of Arkansas to the rendering State of California pursuant to the Extradition Clause of the Constitution and federal statutes implementing it. The stay is requested pending consideration by this Court of a petition for certiorari' to review the order, which is sufficiently short to permit its pertinent parts to be set forth in haec verba:

“The Sheriff of the County of El Dorado is ordered to show cause before the Superior Court of El Dorado County with directions to that court to conduct hearings to determine if the penitentiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and thereafter decide the petition on its merits.
“Pending final determination of this proceeding execution of the Governor’s Warrant of Extradition is stayed, and the Sheriff of the County of El Dorado is directed not to release petitioner into the custody of any agent of the State of Arkansas.”

Though there are numerous factual allegations in both the application and in the response for which I called, the only one which is verified was made to Governor Brown of California in urging him to refuse to issue an extradition warrant in this case. In that affidavit, a practicing attorney in Little Rock, Ark., stated: “I have no hesitation in stating that I fear if James Dean Walker is returned to the Arkansas penitentiary system that he faces grave danger to his physical well being.”

Nonetheless, on February 18, 1980, the Governor of California honored the requisition for the arrest and rendition of respondent James Dean Walker, who was then within the State of California and who escaped from an Arkansas prison prior to completing a sentence imposed upon him in that State following his conviction for murder. The legal issues posed by the applicant’s request for a stay can probably be best understood in the light of the legal proceedings which have ensued since Governor Brown issued the warrant of arrest and rendition.

Respondent Walker first challenged his extradition by filing a petition for a writ of habeas corpus in the Superior Court of El Dorado County, Cal., then in the California Court of Appeal, Third Appellate District, and then in the United States District Court for the Eastern District of California. Each of these efforts was unsuccessful.

It was only upon this final application to the Supreme Court of California that he obtained the relief which he sought, and the Sheriff of El Dorado County who is his present custodian is now the applicant before me. Thus the executive aspect of extradition, and the legal obligation of the Governor of one State to surrender a fugitive found in that State to the Governor of a demanding State upon his request discussed in Kentucky v. Dennison, 24 How. 66 (1861), are not involved here. The Governor of California has already issued an extradition warrant in response to the request of the Governor of Arkansas, and the question is to what extent may the courts of the so-called “asylum” or “rendering” State inquire beyond the face of the extradition warrant and its conformity to state law.

This Court most recently considered that question in Michigan v. Doran, 439 U. S. 282 (1978), in which it stated that “[interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution.” Id., at 288. We further stated in that case:

“Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.” Id., at 289.

In an earlier decision, Sweeney v. Woodall, 344 U. S. 86 (1952), the Court stated:

“The scheme of interstate rendition, as set forth in both the Constitution and the statutes which Congress has enacted to implement the Constitution, contemplates the prompt return of a fugitive from justice as soon as the state from which he fled demands him; these provisions do not contemplate an appearance by Alabama in respondent’s asylum to defend against the claimed abuses of its prison system.” Id., at 89-90 (footnotes omitted).

In this case, the demanding State is Arkansas, whose prisons were the subject of our opinion in Hutto v. Finney, 437 U. S. 678 (1978). The asylum State is California, and the Superior Court of El Dorado County, Chi., has been ordered by the Supreme Court of that State “to conduct hearings to determine if the penitentiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and thereafter decide the petition on its merits.”

The 1970 census conducted by the United States indicates that El Dorado County, Cal., has a population of 43,833 persons. Its county seat, Placerville, with a population indicated by the same census as being in the neighborhood of 5,000 persons, is located between Sacramento and the Nevada border on the south side of Lake Tahoe. While there is in terms no doctrine of “jorum non conveniens,” the doctrines of this Court in Sweeney v. Woodall, supra, and Michigan v. Doran, supra, indicate that the interstate rendition of fugitives has a federal constitutional and statutory basis, and cannot be decided solely in accordance with the principles of law enunciated by the courts of one State. Here the Governor of California has granted the request for extradition, which is in compliance with federal standards. And under Sweeney the proper forum for respondent’s challenge to Arkansas prison conditions is in the Arkansas courts.. It seems to me that the order issued by the ■ Supreme Court of California is very much at odds with principles set forth in Doran and Sweeney, and I have therefore decided to grant the application of applicant Pacileo for a stay pending timely filing of a writ of certiorari in this Court to review the order of the Supreme Court of California. In the event that the petition is denied, the stay issued by me shall expire of its own force. In the event that the petition for certiorari is granted, the stay shall continue in force until final disposition of the case by this Court or further order of the Court.


author: Me. Justice Marshall,

text:
    BLUM, COMMISSIONER OF NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES v. CALDWELL et al.
    No. A-946.
    Decided May 6, 1980
   Me. Justice Marshall,

Circuit Justice.

Applicant Barbara Blum, the Commissioner of the New York State Department of Social Services, seeks a stay of the mandate of the United States Court of Appeals for the Second Circuit pending filing and disposition of her petition for a writ of certiorari. The mandate of the Court of Appeals will issue on May 7, 1980, and that court has denied a motion for a stay. This application for a stay was filed on May 5, 1980. Oral argument was heard in chambers. For the reasons that follow, I deny the application for a stay.

I

This case involves medical assistance to the needy pursuant to the Medicaid program. Subchapter XIX of the Social Security Act, 42 U. S. C. §§ 1396-1396k, establishes the federal statutory guidelines which govern plans for medical assistance if a State chooses to participate in the Medicaid program. Any State which participates in Medicaid must extend medical benefits to all persons receiving supplemental security income (SSI) benefits under Subchapter XVI (Supplemental Security Income for the Aged, Blind, and Disabled), see 42 U. S. C. § 1396a (a) (10)(A). Such persons are known as the “categorically needy.” The State may also provide medical assistance under Medicaid for persons “who would, except for income and resources, be eligible ... to have paid with respect to them supplemental security income benefits under subchapter XVI of this chapter, and who have insufficient (as determined in accordance with comparable standards) income and resources to meet the costs of necessary medical and remedial care and services,” 42 U. S. C. § 1396a (a)(10)(C)(i). Such persons are known as the “medically needy.”

New York opted to participate in the Medicaid program and to provide Medicaid payments to the medically needy as well as the categorically needy. The State has imposed an eligibility requirement for those persons seeking to qualify as medically needy. New York Soc. Serv. Law § 366.1 (e) (McKinney Supp. 1979) limits eligibility to those persons who have not made “a voluntary transfer of property (i) for the purpose of qualifying for such [medical] assistance, or (ii) for the purpose of defeating any current or future right to recovery of medical assistance paid, or for the purpose of qualifying for, continuing eligibility for or increasing need for medical assistance.” A transfer of property within 18 months prior to application for Medicaid is presumed to have been for the purpose of qualifying for medical assistance. Any such transfer results in the denial of Medicaid benefits. See also 18 N. Y. C. R. R. § 360.8 (1979). No such “no-transfer” rule applies to the categorically needy, since an applicant is allowed to transfer property in order to qualify for SSI benefits. See 42 U. S. C. § 1382b (b).

Respondents are aged, blind, or disabled persons who would be eligible for SSI benefits but for their income and resources and who have been denied medical assistance benefits for the medically needy because they voluntarily transferred property prior to application for such benefits or while receiving such benefits. They filed suit in the Federal District Court for the Northern District of New York pursuant to 42 U. S. C. § 1983 to challenge N. Y. Soc. Serv. Law § 366.1 (e) (McKinney Supp. 1979) and 18 N. Y. C. R. R. § 360.8 as vio-lative of due process, equal protection, and the Supremacy Clause. The District Court found jurisdiction under 28 U. S. C. § 1343 (3). The suit was certified by the District Court as a class action on behalf of all aged, blind, or disabled persons who have been denied or will in the future be denied medical assistance benefits for the medically needy in New York State on the basis of a transfer of assets in violation of Soc. Serv. Law § 366.1 (e) and 18 N. Y. C. R. R. § 360.8.

The District Court granted respondents’ motion for a preliminary injunction. The court concluded first that there had been a sufficient showing by respondents of likelihood of success on the merits. The Social Security Act provides that if the State chooses to provide benefits to the medically needy, the State must make such assistance available to all persons who would, except for income and resources, be eligible for SSI benefits “and who have insufficient (as determined in accordance with comparable standards) income and resources to meet the costs of necessary medical and remedial care and services.” 42 U. S. C. § 1396a (a) (10) (C) (i) (emphasis supplied). The Department of Health, Education, and Welfare (HEW) in its accompanying regulation has provided that a state agency “must not use requirements for determining eligibility [for Medicaid benefits] for optional coverage groups [such as the medically needy] that are . . . (2) For aged, blind and disabled individuals, more restrictive than those used under SSI. . . .” 42 CFR § 435.401 (c) (1979). Since under SSI an applicant may transfer assets voluntarily in order to become eligible, the District Court concluded that the more restrictive no-transfer rule of New York for the medically needy was in “apparent” conflict with federal law. The court noted that HEW officials had notified New York that its no-transfer rule violated federal requirements. The court therefore found that the respondents’ likelihood of success was “strong.” The District Court also concluded that the balance of harms weighed in favor of granting the injunction, because “the very survival of these individuals and those class members in similar situations is threatened by a denial of medical assistance benefits during the pendency of these actions.”

The preliminary injunction was entered by the District Court on December 3, 1979. Pursuant to a stipulation by the parties, the Court of Appeals entered a temporary stay of the injunction on January 3, 1980. On April 16, 1980, the Court of Appeals affirmed the grant of the preliminary injunction, “substantially for the reasons stated by Judge Munson.” The Court of Appeals noted that the only other Court of Appeals to address this issue reached the same result, see Fabula v. Buck, 598 F. 2d 869 (CA4 1979) (Maryland no-transfer rule). The New York Supreme Court, Appellate Division, has also found that Soc. Serv. Law § 366.1 (e) conflicts with the Social Security Act and therefore violates the Supremacy Clause, see Scarpuzza v. Blum, 73 App. Div. 2d 237, 426 N. Y. S. 2d 505 (1980). The Court of Appeals also noted that Congress is considering legislation to authorize States to impose a no-transfer rule for Medicaid benefits, which suggests that such a rule is not presently allowed. The Court of Appeals agreed with the District Court that the “balance of hardships . . . would tip decidedly toward [respondents] if relief were denied.” The court also vacated its stay. On April 30, 1980, the Court of Appeals denied a motion for a stay of the mandate pending filing of a petition for writ of certiorari.

II

Applicant states in her motion papers that she will argue in her petition for certiorari that Congress has not expressed any intention to pre-empt state no-transfer rules. Applicant will also argue that HEW regulation 42 CFR § 435.401 (c) (1979), interpreting the Social Security Act to prohibit the New York no-transfer rule, is beyond the authority of the agency.

The criteria for determining whether to grant a stay pending the filing and disposition of a petition for writ of certiorari are well established. First, the Circuit Justice must balance the equities to determine on which side the risk of irreparable harm weighs most heavily. Holtzman v. Schlesinger, 414 U. S. 1304, 1308-1309 (1973) (Marshall, J., in chambers); Beame v. Friends of the Earth, 434 U. S. 1310, 1312 (1977) (Marshall, J., in chambers). Second, if the balance of equities favors the applicant, the Circuit Justice must determine whether it is likely that four Members of this Court would vote to grant a writ of certiorari. Holtzman v. Schlesinger, supra, at 1310; Beame v. Friends of the Earth, supra, at 1312. The burden of persuasion on both these issues is on the applicant, ibid. That burden is particularly heavy here since the Court of Appeals has vacated its original stay and denied the motion for a new stay. Cf. ibid, (stay denied by District Court and Court of Appeals).

The applicant has not satisfied her burden in this case. Blum contends that compliance with the preliminary injunction will cost the State of New York “millions” of dollars. At oral argument on this application counsel for applicant estimated that the State will have to expend an additional $150 million per year in Medicaid benefits as a result of the deeision below, but the economic harm to be considered on this stay application is only the additional expenditure during the time in which the petition for certiorari is pending. Such harm must be considerably less than $150 million. On the other side of the balance are the life and health of the members of this class: persons who are aged, blind, or disabled and unable to provide for necessary medical care because of lack of resources. The District Court noted that some of the members of the class have already died since this suit was filed, and the denial of necessary medical benefits during the months pending filing and disposition of a petition for writ of certiorari could well result in the death or serious medical injury of members of this class. The balance of equities therefore weighs in favor of the respondents.

In addition, Blum has failed to carry her burden of showing that four Members of this Court would be likely to vote to grant a writ of certiorari. There is no conflict in the courts of appeals, but rather uniformity of decision in the two Circuits which have addressed the issue. The intermediate appellate court in New York is also in agreement with the decision below. The terms of the Social Security Act support the judgment of the Court of Appeals, and the agency responsible for administering the Act is in complete accord with the decision below. Finally, Congress is presently considering legislation to amend the Act on this very issue. Under the circumstances, it is not sufficiently likely that four Members of this Court would vote to grant a writ of cer-tiorari to warrant issuing a stay of the mandate.

The application for a stay is denied.

      New York entered into an agreement with HEW in 1973 whereby the Secretary of HEW determines the eligibility for medical assistance benefits of persons who are also eligible for SSI benefits. This eliminates the need for a separate medical assistance application and eligibility determination by New York State. Blum has notified the Secretary of HEW that New York will terminate the agreement in 120 days, as provided by the agreement, because of HEW’s determination that the New York no-transfer rule violates federal eligibility requirements. Applicant cites the added administrative costs to New York of having to establish an eligibility agency of its own as an additional harm to be weighed in the balance on this stay application. The cancellation of the agreement, however, is a voluntary act by Blum, and the added burdens of that voluntary act should not weigh in the balance of equities here.


author: Mr. Justice Powell,

text:
    BARNSTONE v. UNIVERSITY OF HOUSTON et al.
    No. A-978.
    Decided May 12, 1980
   Mr. Justice Powell,

Circuit Justice.

On May 9, 1980, the District Court for the Southern District of Texas entered a temporary restraining order compelling respondents to broadcast “The Death of a Princess,” a television program to be distributed by the Public Broadcasting Service, on May 12, 1980, at 8 p. m. Today, the Court of Appeals for the Fifth Circuit vacated the District Court order on condition that the respondents “tape and preserve the program in issue.” Applicant seeks relief from the Court of Appeals order. The respondents oppose the application, and represent that “The Death of a Princess” will be preserved on videotape' for later airing should the applicant obtain a permanent injunction. The Public Broadcasting Service has filed an amicus brief also asking that the application of the applicant be denied.

Although applicant requests that the Court grant certiorari and reverse the judgment of the Court of Appeals, in purpose and effect applicant is requesting that the order of that court be vacated, thereby reinstating the temporary restraining order of the District Court. Such a request normally comes to me as Circuit Justice. Although I may have considered referring this to the entire Court, a quorum is not present. I therefore exercise my authority as Circuit Justice to rule on applicant’s application.

Upon consideration of the papers, I deny the application.

I have consulted informally with each of my Brethren who was present at the Court when these papers arrived late this afternoon. Although no other Justice has participated in the drafting of this order, I am authorized to state that each of the three whom I consulted would vote to deny this application. Of course, this action should not be taken as expressing a view on the merits of the questions raised in this case. See Graves v. Barnes, 405 U. S. 1201, 1204 (1972) (Powell, J., in chambers).


text:
    MARTEN et ux. v. THIES, DIRECTOR OF COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, et al.
    No. A-972.
    Decided May 16, 1980
   Mr. Justice Rehnquist,

Circuit Justice.

Applicants Kelly Marten and Kathy Marten have asked me to stay an order of the California Court of Appeal declining to continue their right to visit their prospective adoptive daughter, Sarah, pending disposition of applicants’ appeal or petition for a writ of certiorari to this Court. The Court of Appeal earlier had rejected applicants’ appeal from an order of the Superior Court upholding the decision of the respondent placement agency to terminate applicants’ status as Sarah’s prospective adoptive parents. Because I do not believe that four Members of this Court will vote to hear applicants’ ultimate appeal or petition, and because the Court of Appeal specifically found that further legal obstacles to Sarah’s placement in another adoptive home would be to the child’s detriment, I will deny the requested stay.

The historical facts in this case are not in dispute and may be gleaned from the application and the opinion of the California Court of Appeal. In early 1976, applicants, who are husband and wife, qualified as prospective adoptive parents with respondent San Bernadino County Adoption Services (the Agency). On May 17, 1977, Sarah, then 15 weeks old, was placed in applicants’ home on a “quasi-adoptive” basis pending final adoption at some later date. At that time, applicants agreed to inform the Agency of any change in their domestic circumstances.

Unbeknownst to the Agency, applicants had been experiencing marital problems even before they took custody of Sarah. These problems finally culminated in a separation in January 1978, when Kelly Marten left his wife and Sarah and moved in with another woman. Contrary to their original agreement, however, applicants did not inform the Agency of this change in circumstances. Applicants apparently remain separated as of this date.

In April 1978 the Agency learned of applicants’ separation through a third party. The Agency sent first one and then another social worker to Kathy Marten’s home to interview Ms. Marten and to assess Sarah’s environment. The first advised applicants that removal of Sarah from their custody was a possibility, but that she would have to consult her superiors. The second social worker concluded that Ms. Marten’s psychological state was deteriorating and recommended that Sarah be removed from applicants’ home. Upon receiving these reports, the Agency’s acting chief of adoptions and its director agreed that Sarah should be removed from Ms. Marten’s custody and that the removal should take place without notice to applicants. This latter determination was based on their belief that notice would place Sarah in “imminent danger” because of the perceived likelihood that Ms. Marten would flee from the State with the child. On, August 21, 1978, Sarah was, in fact, removed from Ms. Marten’s custody without prior notice and was placed in a foster home.

Pursuant to applicable California law, applicants sought administrative review of the Agency’s decision to terminate their status as Sarah’s prospective adoptive parents. After a hearing, the “Review Agent” issued a decision upholding the Agency. He found, inter alia, that there had been substantial cause to believe that Sarah was a child whose health and safety had been in jeopardy, that she had been in imminent danger, and that the jeopardy would have been greatly increased if prior notice of the removal had been given to applicants.

On applicants’ petition to Superior Court for a writ of mandate, that court found that the conclusions of the Review Agent were amply supported by the record and that return of Sarah to applicants “ ‘would not be in the best interest of the child, and in fact would be detrimental to the child.’ ” 99 Cal. App. 3d 161, 167, 160 Cal. Rptr. 57, 60 (1979).

The Court of Appeal affirmed, rejecting each of the contentions that applicants claim they will advance in their appeal or petition to this Court. First, the appellate court concluded that, while preremoval notice to custodial “parents” in applicants’ position was a normal requisite of procedural due process, California law specifically permitted removal without notice where “[t]he agency director has reasonable cause to believe the child is in imminent danger. . . .” 22 Cal. Admin. Code § 30684 (d) (1) (A) (1976). Here, according to the Court of Appeal, substantial evidence supported a finding that Ms. Marten might flee if notified and that such flight would endanger the child. In particular, the Court of Appeal cited

“(1) the husband and wife’s concealment of their marital differences in order to obtain the adoptive placement; (2) their failure to report their separation as required by their agreement with the Agency; (3) the wife’s previous conduct in taking the child to an unauthorized destination out of the state; (4) the wife’s emotional instability and over-dependence on the child for her emotional needs; (5) insensitivity of both husband and wife to the child’s emotional and developmental needs; and (6) the fact that the fear of losing the child had been the stated reason for their untruthfulness and subterfuge.” 99 Cal. App. 3d, at 172, 160 Cal. Rptr., at 63.

Second, the Court of Appeal confronted applicants’ contention that their marital separation should not disqualify them “a fortiori” from adopting Sarah. According to the court, however, applicants’ separation was only one factor in the Agency’s decision to terminate their status as prospective adoptive parents. Other important considerations included "emotional stability of the parents, parental sensitivity to the child’s developmental needs, trustworthiness of the parents and their willingness to abide by the rules, maturity of the parents, motivation to correct deficiencies, and economic security.” Id., at 173, 160 Cal. Rptr., at 64. Looking to the record, the appellate court concluded that all these considerations supported the Agency’s decision.

Finally, the Court of Appeal rejected applicants’ claim, raised for the first time in their reply brief to that court, that the Review Agent should have appointed independent counsel to represent Sarah at the administrative hearing. Overlooking the belated nature of this argument, the court found no evidence of any divergence of interest between the Agency and Sarah, and therefore no need “to further encumber the . . . placement procedure” by requiring provision of independent counsel. Id., at 174, 160 Cal. Rptr., at 64.

Prior to their appeal to the Court of Appeal, applicants had been visiting Sarah twice a week at her foster home pursuant to an agreement reached with the Agency. During its consideration of applicants’ case, the Court of Appeal entered an order permitting applicants to continue their visits. When that court entered its judgment, however, it specifically vacated that order, noting that applicants had “already delayed the child’s placement in a proper adoptive home by several months, to the child’s detriment,” and that “[further legal maneuvers to perpetuate a relationship initiated by their own wrongful act should not be tolerated.” Id., at 175, 160 Cal. Rptr., at 64. After the Supreme Court of California declined to hear applicants’ appeal, the Court of Appeal denied applicants’ motion to recall its mandate and to grant them continued visitation rights pending appeal or petition to this Court. It is this last order that applicants would have me stay so as to grant them the visitation rights terminated by the court below.

Applicants state that in their ultimate appeal or petition to this Court they will raise each of the three aforementioned contentions rejected by the Court of Appeal. I find it highly unlikely that four Members of this Court would vote to grant plenary review on any of these issues.

In regard to applicants’ claim that they were entitled as a matter of procedural due process to preremoval notice, I would note initially that such a claim depends entirely upon their ability to show that they have been deprived of some protected interest in life, liberty, or property. As I read this Court’s opinion in Smith v. Organization of Foster Families, 431 U. S. 816, 842-847 (1977), their success on this threshold issue is far from certain. See also id., at 856-863 (Stewart, J., concurring in judgment). Even assuming such success, however, applicants candidly, and somewhat cryptically, pose the primary issue presented to this Court as whether authorities can dispense with preremoval notice on a finding of “ 'prospective’ imminent danger” to the child as opposed to “actual imminent danger'.” Statement of Points and Authorities 7. Like the court below, I find this distinction somewhat elusive. In any event, I am reasonably certain that, given the uniform conclusion of the agencies and courts below that there was indeed an imminent danger to Sarah, four of my colleagues would not vote to examine that conclusion.

As for applicants’ contention that they were disqualified as prospective adoptive parents “merely” because they had separated, I note only that this contention finds no support in the decision of the Court of Appeal or in any of the documents filed in support of the application.

Finally, applicants reassert their contention that Sarah was entitled to independent counsel in the administrative proceeding. Absent a showing of actual conflict or other prejudice to Sarah, however, I see little chance that this argument will receive plenary review.

Applicants argue doggedly that the equities in this case favor continuation of their visitation privileges pending disposition of their case by this Court. They rely in particular upon affidavits by various child psychologists indicating that such visits would not harm Sarah and actually would assist her in overcoming the trauma of removal from applicants’ home. The Court of Appeal also was presented with these affidavits, however, and concluded on the basis of all the evidence that further visitation would not be in Sarah’s best interest. In a passage I consider quite telling, that court stated:

“The concealment of [applicants’] marital difficulties and [their] failure to report their separation suggests that the initial placement may have been sought in an effort to salvage a failing marriage. It is unfortunate when natural parents resort to such practices; to permit adoption to be used for such purpose would be a serious breach of duty on the part of the Agency.” 99 Cal. App. 3d, at 173, 160 Cal. Rptr., at 64.

Removed as I am from the actual events at issue by nearly 3,000 miles and by several layers of judicial proceedings, I decline to make my own assessment of Sarah’s best interests and instead defer to the amply supported conclusions of the courts below.

The application is accordingly

Denied.


author: Mr. Chief Justice Burger

text:
    UNITED STATES v. CALIFORNIA
    No. 5,
    Orig.
    Argued March 17, 1980
    Decided June 9, 1980

      BurgeR, C. J., delivered the opinion of the Court, in which all other Members joined, except Marshall, J., who took no part in the consideration or decision of the ease.

      John Briscoe, Deputy Attorney General of California, argued the cause for defendant. With him on the briefs were George Deukmejian, Attorney General, N. Gregory Taylor, Assistant Attorney General, and Nancy A. Saggese, Deputy Attorney General.

      Stephen M. Shapiro argued the cause for the United States. On the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Allan A. Ryan, Jr., Bruce C. Rashkow, and Michael W. Reed

        Avrum M. Gross, Attorney General, and G. Thomas Koester, Assistant Attorney General, filed an amicus curiae brief for the State of Alaska.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

I

The United States began this original action against the State of California under Art. Ill, § 2, of the Constitution in 1945 to determine whether the right to exploit natural resources under the submerged lands off the California coast belongs to the United States or to California.

In 1947, this Court decreed that the United States owned all submerged lands extending seaward of the ordinary low-water mark on the California coast. United States v. California, 332 U. S. 804, 805. See also United States v. California, 332 U. S. 19 (1947). When Congress enacted the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. § 1301 et seq., the United States, in effect, quitclaimed to California whatever interest the Federal Government may have had in, and to, all lands and natural resources lying within three geographical miles seaward of the California coastline. §3 (b)(1), 43 U. S. C. § 1311 (b)(1). Congress subsequently enacted the Outer Continental Shelf Lands Act of 1953, 67 Stat. 462, 43 U. S. C. § 1331 et seq., which declared that the United States owned all submerged lands seaward of those granted to California by the Submerged Lands Act. §§ 1332, 1333.

In 1978, the parties filed cross-motions for entry of a supplemental decree. Although those motions proposed three issues for resolution, only one is presently before the Court. That issue is whether the coastline follows the mean lower low-water line along the natural shore, or whether it follows the seaward edge of 15 piers and the Rincon Island complex projecting into the sea from the shore.

This Court appointed a Special Master who received evidence and submitted recommendations. The Master made the following findings of fact:

Rincon Island is a privately owned artificial “island” off the shore near Punta Gorda, Ventura County, which is used to service offshore oil facilities. It is built upon large concrete tetrapods which rest on the ocean floor, and it has a surface consisting of rock and dirt fill. There are buildings and other structures on the island, all of which are related to an active oil well. On the seaward side of the island is a large dock equipped with hardware for the berthing of vessels.

The island is connected to the mainland by a structure commonly known and identified on maps as the Punta Gorda Causeway. Oil is pumped to shore by a pipeline running beneath and alongside the causeway structure. The wooden causeway deck surface rests on a steel frame supported by pilings filled with gravel and capped with concrete. Water flows freely underneath. Neither the structure nor the island has had any noticeable effect on the shoreline, and the complex is not a coast protective work.

The 15 piers have asphalt, wood, or concrete deck surfaces mounted on precast concrete, steel, or wood pilings. They vary in length from 500 feet (at the Santa Barbara Biltmore Hotel) to 3,500 feet (at Ocean Beach). All are attached to the mainland, and water flows freely underneath each. The piers have no effect on the shoreline; they are not coast protective works. One pier is privately owned by a hotel; 3 others are privately owned and used to supply offshore oil rigs; the remaining 11 are operated by the California State Department of Parks and Recreation as docking facilities or for recreational purposes.

The Special Master concluded that neither the Rincon Island complex nor the piers constitute extensions of the coast. The California coastline, he determined, follows the natural coast in the vicinity of these structures for purposes of measuring to the federal-state boundary under the Submerged Lands Act. California filed an exception to the Master’s conclusion.

II

Since passage of the Submerged Lands Act granting California and other States ownership of submerged lands within three miles of their respective coasts, this Court has adverted to the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T. 1606, T. I. A. S. No. 5369, for guidance in the definition of the term “coastline.” See Louisiana Boundary Case, 394 U. S. 11 (1969); United States v. California, 381 U. S. 139, 165 (1965). The definitional contexts tend to be highly fact bound, and the Convention provides no rule for automatic application. The Submerged Lands Act does not indicate whether the word “coast” was intended by Congress to encompass only the natural shore, or to include structures extending seaward from shore. Although we have recognized in earlier proceedings of this case that some kinds of structures may modify the California coastline, see the 1977 decree, 432 U. S. 40, this Court has never adopted a view that all structures erected on the coast may be considered extensions of the coast.

Open piers, such as those at issue here, are elevated above the surface of the ocean on pilings. Accordingly, they do not conform to the general rule for establishing a baseline from which to measure the extent of a coastal state’s jurisdiction. That rule, contained in Art. 3 of the Convention, states:

“[T]he normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”

The type of construction of the piers does not, without more, require a determination adverse to California. See, e. g., United States v. California, 381 U. S., at 176-177. But the absence of a “lower low-water line” deprives the piers of a “normal baseline,” and precludes them from falling within the ambit of Art. 3.

The ultimate conclusion of the Special Master implicitly recognizes this proposition. He did not view the discontinuity of the waterline as dispositive, correctly noting that some breakwaters, for example, also have discontinuous waterlines, and have been held to be part of the coastline. But by considering and disposing of California’s claim under Art. 8 of the Convention, in effect on exception to the general rule embodied in Art. 3, see discussion infra, he necessarily found the criteria of Art. 3 were not satisfied.

The fact that every National Ocean Survey chart of the California coast “officially recognized” by the United States displays a black line connoting the coastal low-water mark following the configuration of the seaward edge of the 16 structures, as it does groins, breakwaters, and other structures that extend seaward, is likewise not dispositive. We agree with the Master’s finding that the charts contain an aggregate of errors and in many places depict the territorial sea without regard to the coastline. And each chart, as the Master found, includes a disclaimer to that effect.

California suggests that Art. 8 of the Convention also affords support for its position. Article 8 provides:

“For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.”

Although in an earlier stage of this litigation we incorporated this text into the decree, 382 U. S. 448, 449 (1966), we did not construe the language as encompassing all structures erected on the shore.

The piers and the island complex involved in this case are not a part of outermost harbor works; nor do they form an integral part of a harbor system. We held in the Louisiana Boundary Case, supra, that the term “harbour works” refers to “ ‘[structures erected along the seacoast at inlets or rivers for protective purposes, or for enclosing sea areas adjacent to the coast to provide anchorage and shelter.’ ” 394 U. S., at 37, n. 42. These structures neither “protect,” “enclose,” nor “shelter”; they do not constitute harbor works within the meaning of Art. 8.

A “harbor” under Art. 8 is a body of water providing a haven for safe anchorage and shelter for vessels. See Louisiana Boundary Case, supra, at 37, n. 42, citing 1 A. Shalo-witz, Shore and Sea Boundaries 60, n. 65 (1962). That the piers and the Rincon Island complex provide no protection has been noted; that they are not bodies of water states the obvious. It follows that since the structures are neither harbor works nor harbors, they cannot constitute an integral part of a harbor system.

The State seeks to import language from the International Law Commission’s Commentary to the final draft of Art. 8, primarily Comment 2, Report of the International Law Commission to the General Assembly, U. N. Gen. Ass. Off. Rec., 11th Sess., Supp. No. 9, U. N. Doc. A/3159, p. 16 (1956), as support for its position that Art. 8 should be construed to cover these structures. Comment 2 states:

“Permanent structures erected on the coast and jutting out to sea (such as jetties and coast protective works) are assimilated to harbour works.”

Comment 2 has been held to envision erosion jetties, but we have highlighted the beach protection or harbor protection role they fulfill as well. Louisiana Boundary Case, supra, at 49-50, n. 64. A construction of the Comment as including these piers and the island complex which concededly do not fulfill such a role would unwarrantedly extend the most generous intimation of the Comment.

Finally, the State relies upon decisions in which the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, 33 U. S. C. § 901 et seq., was applied to accidents which occurred on piers as evidence that Congress intended domestic rather than admiralty law to control judicial construction of the Submerged Lands Act. E. g., Nacirema Co. v. Johnson, 396 U. S. 212 (1969); Travelers Insurance Co. v. Shea, 382 F. 2d 344 (CA5 1967); Michigan Mutual Liability Co. v. Arrien, 344 F. 2d 640 (CA2 1965); East v. Oosting, 245 F. Supp. 51 (ED Va. 1965); Johnson v. Traynor, 243 F. Supp. 184 (Md. 1965). It suggests this is at least an implicit congressional declaration that piers are land, and are thus part of the coastline. However, in an earlier incarnation of this case, we held to the contrary. United States v. California, 381 U. S., at 150-154; see also, Louisiana Boundary Case, supra, at 19. Nothing that has occurred since that ruling indicates that Congress has withdrawn from the courts the authority to define “coastline.” We have looked to the Convention to give content to the Submerged Lands Act; no reason is advanced which persuades us to do otherwise today.

The exception of the State of California to the report of the Special Master is overruled. The Special Master shall prepare a proposed form of decree consistent with this opinion and present it to this Court for entry in due course.

It is so ordered.

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

       The other issues involve the location of the seaward limit of inland waters at the Port of San Pedro and at the mouth of San Diego Bay. The parties acquiesce in the Master’s conclusion as to these issues and anticipate their resolution by agreement.

       These blocks resemble giant versions of a child's “jacks.''

       As the Master correctly noted, “Rincon Island could not qualify as an ‘island' for purposes of delimiting the territorial sea under the Geneva Convention because it is an artificial island.” See Art. 10, Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T. 1606, T. I. A. S. No. 5369: For all intents and purposes, then, the island complex is treated the same as the piers at issue.

       The piers are not unlike fishing piers found in many coastal areas.

       The Master noted that though some shipping is handled at some of the piers, it is insufficient to justify defining them as “ports.” For example, one of them is fitted with a coin-operated davit for lowering small boats into the water. We agree with this conclusion. The island, as an island, was disqualified from serving as a base point for measuring the territorial sea because of its artificiality. See n.'3, swpra.

       For other discussions on the significance of factual distinctions and their attendant implications among jetties, groins, breakwaters, and spoil banks, see Texas v. Louisiana, 426 U. S. 465, 469, and n. 3 (1976); United States v. Louisiana) 389 U. S. 155, 158 (1967).

       In ruling in the Boundary Case that Louisiana’s dredged channels were not “harbour works,” we said:
      “. . . Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal that the term ‘harbour works’ connoted ‘structures’ and ‘installations’ which were ‘part of the land’ and which in some sense enclosed and sheltered the waters within.” 394 U. S., at 36-37 (emphasis added).

       California’s coastal engineering expert testified that these piers are designed to have no effect on the movement of the sea. By contrast, groins and jetties are intended to affect wave action.

       Even if we were to assume, as did the Master, that “jetties” means “piers,” we would also agree with his conclusion, as we have, that these piers do not fall within Art. 8 because they are not part of a harbor or harbor system. But in light of our disposition it is unnecessary, and we decline, to join the dispute between the parties over the precise definition of “jetties” as contained in the English and French versions of the Convention.