author:
Justice Blackmun
      Justice Stevens,

text:
    SORENSON v. SECRETARY OF THE TREASURY et al.
    No. 84-1686.
    Argued January 15, 1986
    Decided April 22, 1986

      Blackmun, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 866.

      Peter Greenfield argued the cause for petitioner. With him on the briefs was J. Bruce Smith.

      Richard Farber argued the cause for respondents. With him on the brief were Solicitor General Fried, Assistant Attorney General Archer, Albert G. Lauber, Jr., Michael L. Paup, and Steven I. Frahm.

         Joseph I. Lieberman, Attorney General of Connecticut, and Joseph X. Dumond, Jr., Assistant Attorney General, filed a brief for the State of Connecticut as amicus curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court. The Internal Revenue Code and the Social Security Act direct the Secretary of the Treasury to “intercept” certain tax refunds payable to persons who have failed to meet child-support obligations. In this case, the United States Court of Appeals for the Ninth Circuit ruled that payments involving eamed-income credits could be intercepted. 752 F. 2d 1433 (1985). We granted certiorari, 472 U. S. 1016 (1985), because this ruling was in conflict with decisions of the Courts of Appeals for the Second and Tenth Circuits. See Rucker v. Secretary of Treasury, 751 F. 2d 351 (CA10 1984); Nelson v. Regan, 731 F. 2d 105 (CA2), cert. denied sub nom. Manning v. Nelson, 469 U. S. 853 (1984).

I

A

Stanley Sorenson, the husband of petitioner Marie Soren-son, was legally obligated to make child-support payments for a child of his previous marriage who was in the custody of his former wife. Mr. Sorenson was unemployed because of a disability and fell behind on those support payments. His former wife applied for welfare benefits from the State of Washington. Since 1975, the program for Aid to Families with Dependent Children (AFDC) has required, as a condition of eligibility, that applicants for welfare assign to the State concerned any right to child-support payments that has accrued at the time of assignment. Pub. L. 93-647, § 101(c)(5)(C), 88 Stat. 2359, 42 U. S. C. §602(a)(26)(A). Thus, Stanley Sorenson’s former wife turned over to the State her right to collect the payments Mr. Sorenson had failed to make.

Stanley and Marie Sorenson also had their own dependent child living with them. They thus were potentially eligible to receive an earned-income credit. For the calendar year 1981, the time relevant to this lawsuit, § 43 of the Internal Revenue Code of 1954, as amended, provided that an individual responsible for the support of a child living with him was allowed “as a credit against the tax imposed ... for the taxable year an amount equal to 10 percent of so much of the earned income for the taxable year as does not exceed $5,000.” As the amount of the taxpayer’s earned income increased, the amount of the credit decreased, reaching zero when the taxpayer’s adjusted gross income reached $10,000.

Unlike certain other credits, which can be used only to offset tax that would otherwise be owed, the earned-income credit is “refundable.” Thus, if an individual’s earned-income credit exceeds his tax liability, the excess amount is “considered an overpayment” of tax under § 6401(b), as it then read, of the 1954 Code. Subject to specified setoffs, § 6402(a) directs the Secretary to credit or refund “any overpayment” to the person who made it. An individual who is entitled to an earned-income credit that exceeds the amount of tax he owes thereby receives the difference as if he had overpaid his tax in that amount.

B

In February 1982, petitioner and her husband timely filed a joint federal income tax return for the calendar year 1981. Petitioner had worked during part of that year, and all the Sorenson family income for the year was attributable to her wages and unemployment compensation benefits. By the return so filed, the Sorensons anticipated a refund of $1408.90, consisting in part of excess withholding on petitioner’s wages and in part of an earned-income credit. The Internal Revenue Service, however, notified the Sorensons that $1,132 of the anticipated refund was being retained, under the authority granted it by the tax-intercept law, and would be paid over to the State of Washington because that State had been assigned the right to collect Mr. Sorenson’s unpaid child-support obligations. See Second Declaration of Peter Greenfield, Exh. B, Sorenson v. Secretary of Treasury, No. C82-441C (WD Wash.).

The tax-intercept law essentially directs the Secretary to give priority to a State’s claim for recoupment of welfare payments made to a family who failed to receive child support, see § 402(a)(26)(A) of the Social Security Act, as amended, 42 U. S. C. § 602(a)(26)(A), over an individual’s claim for refund of tax overpayment. See § 6402(a), as amended, of the 1954 Code. The intercept law originally was enacted as part of the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, §2331, 95 Stat. 860. First, OBRA § 2331(a) added §464 to the Social Security Act, 42 U. S. C. §664. That section directs the Secretaries of the Treasury and of Health and Human Services to establish a scheme by which a State is to notify the Secretary of the Treasury of persons who owe past-due child-support payments that have been assigned to it, and directs the Secretary of the Treasury to intercept tax-refund payments that would otherwise be paid to those persons:

“Upon receiving notice from a State agency administering [an AFDC plan]. . . that a named individual owes past-due support which has been assigned to such State pursuant to section 402(a)(26), the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual’s home address) for distribution in accordance with section 457(b)(3).” § 464(a), 42 U. S. C. § 664(a).

Section 2331(c) of OBRA amended the Internal Revenue Code. It added a new subsection to the provision governing the Secretary of the Treasury’s authority to refund overpay-ments to taxpayers. The new subsection, § 6402(c), requires the Secretary to withhold from the refund otherwise due the taxpayer the amount owed the State in past-due child support and to remit the amount withheld to the State:

“The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person’s future liability for an internal revenue tax.”

C

After negotiations concerning the status of tax refunds in community property States such as Washington — issues that are not germane to the question now presented to this Court — the Secretary ultimately withheld only half of the refund increment the Sorensons claimed. Petitioner then filed a class action in the United States District Court for the Western District of Washington seeking, among other things, a declaration that §464 of the Social Security Act did not reach a refund attributable to an excess earned-income credit. The District Court rejected the Secretary’s jurisdictional arguments, which were renewed on appeal to the Court of Appeals but which are not pressed in this Court. See Brief for Respondents 5, n. 1. But it agreed with the Secretary’s arguments on the merits and granted summary judgment for the Government. 557 F. Supp. 729 (1982).

The Court of Appeals affirmed that judgment. 752 F. 2d 1433 (CA9 1985). It rejected petitioner’s statutory construction arguments, and held that, since the Code expressly defined excess earned-income credits as “overpayments,” and disbursed those excess credits to recipients through the income tax refund process, the credits were “payable ‘as’ refunds of federal taxes paid” and therefore could be intercepted. Id., at 1441 (emphasis in original). Congress used the broad terms “any amounts” and “any overpayment” in the tax-intercept law and gave no indication that it intended to exclude earned-income credit payments from these terms.

The Court of Appeals also rejected petitioner’s argument that the Secretary’s position conflicted with Congress’ intention to provide benefits to the poor through the earned-income credit. First, the legislative history of §43 did not suggest that the earned-income credit was intended primarily as a type of welfare grant; rather, it was meant to negate the disincentive to work caused by Social Security taxes. Since the earned-income credit was payable as a lump sum, it was more like excess withholding, which was clearly reachable by the intercept program, than it was like wages, a portion of which Congress exempted from the assessment and collection process. See 752 F. 2d, at 1443, n. 1. Second, had Congress intended to exempt earned-income credit payments from the intercept program, it could have done so expressly. Instead, it provided that any amount payable through the federal tax-refund process might be intercepted. “In the face of this rather clear statutory mandate,” said the Court of Appeals, “we conclude that we are not free to speculate that Congress intended otherwise.” Id., at 1443.

HH hH

Petitioner advances two arguments to support her claim that an excess earned-income credit cannot be intercepted. First, she claims that the language and structure of the interlocking statutory provisions that make up the intercept law exclude an earned-income credit from its reach: excess earned-income credits are neither “overpayments” nor “refunds of Federal taxes paid,” and only those items are subject to interception. Second, she claims that permitting interception of an earned-income credit would frustrate Congress’ aims in providing the credit, and thus that Congress could not have intended the intercept law to reach earned-income credits. We find neither argument persuasive.

A

The Internal Revenue Code’s treatment of earned-income credits supports the Government’s position. An individual can receive the amount by which his entitlement to an earned-income credit exceeds his tax liability only because § 6401(b) of the Code defines that amount as an “overpayment,” and § 6402 provides a mechanism for disbursing over-payments, namely, the income tax refund process. The re-fundability of the earned-income credit is thus inseparable from its classification as an overpayment of tax. Petitioner therefore acknowledges that the excess earned-income credit is an “overpayment” for purposes of § 6402(a), the general provision that authorizes all tax refunds. See n. 4, supra. If it were not, the Secretary would lack authorization for refunding it to her. She claims, however, that while an excess earned-income credit is an “overpayment” for purposes of § 6402(a), it is not an “overpayment” for purposes of § 6402(c), which requires that the “amount of any overpayment . . . shall be reduced by the amount of any past-due support” assigned to the State.

The normal rule of statutory construction assumes that “ ‘identical words used in different parts of the same act are intended to have the same meaning.’” Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87 (1934), quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). That the Internal Revenue Code includes an explicit definition of “overpayment” in the same sub-chapter strengthens the presumption. And that both subsections concern the tax-refund treatment of “overpayment[s]” is especially damaging to any claim that “the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent.” Stockholms Enskilda Bank, 293 U. S., at 87.

Petitioner and the two Courts of Appeals that have excluded excess earned-income credits from the definition of “overpayment” used in § 6402(c) offer two bases for their position. First, they believe that § 6402(c) limits §6401(b)’s broad definition “by [using] the phrase ‘overpayment to be refunded to the person making the overpayment.’” Nelson v. Regan, 731 F. 2d, at 111; see Rucker v. Secretary of Treasury, 751 F. 2d, at 356. Not all overpayments, they suggest, are refunded to persons who “made” them, since some— those consisting of earned-income credits — may be refunded to persons who actually have not paid any tax. We disagree. All refunds made by the Secretary under § 6402(a) are paid to “the person who made the overpayment.” The phrase merely identifies the person entitled to the refund; it does not restrict the nature of the refund itself. Petitioner must characterize herself as a person who has “made” an overpayment; otherwise, she cannot claim her excess earned-income credit. The phrase in § 6402(c) on which petitioner and the Second and Tenth Circuits relied is virtually identical to the phrase used in § 6402(a). Since the words cannot have the limiting effect petitioner proposes when used in § 6402(a), no justification exists for giving them such a construction in § 6402(c).

Second, petitioner and the Second and Tenth Circuits perceive a tension between § 6401(b)’s and § 6402(a)’s treatment of excess earned-income credits and §464(a)’s treatment of interceptable amounts. As used in those Code sections, “overpayment” includes more than “refunds of Federal taxes paid,” the phrase used in the Social Security Act. Since §464 and § 6402(c) were enacted simultaneously as part of OBRA, petitioner and the two Circuits believe that § 6402(c) should be harmonized with §464 rather than with §§ 6401(b) and 6402(a). See Rucker v. Secretary of Treasury, 751 F. 2d, at 357; Nelson v. Regan, 731 F. 2d., at 111.

This second argument, it seems to us, misperceives the structure of the tax-intercept law, and manufactures a tension that need not exist. OBRA’s placement of provisions regarding interception in both Acts reflects a division of functions. The tax-intercept program lies at the intersection of the Social Security Act’s concern in Subchapter IV, Part D, with child support, and the Internal Revenue Code’s concern in Chapter 65, Subchapter A, with the treatment of credits in the tax-refund process. Section 464 addresses the concerns of the States that have received AFDC-related grants. It defines past-due child support, authorizes procedures by which the States can notify the Secretary of the Treasury of their entitlement to recover such past-due support, and directs the Secretary to aid the States, through his control over the tax-refund process, in recouping that support. Sections 6401 and 6402 address the operation of the tax-refund process under the Internal Revenue Code. They define the status of certain tax credits, set up a mechanism for disbursing refunds, and direct the Secretary to divert certain amounts from the refund process. To the extent that the tax-intercept law regulates the relationship of the Secretary of the Treasury to refund claimants, it does so through § 6402, and not through a provision that governs the Secretary’s relationship to state agencies.

Petitionerj however, views §6402(c)’s reference to §464 as indicating that § 464(a) is meant to be read into § 6402(c) as a limitation on the Secretary’s intercept powers. This argument depends on a somewhat strained construction of § 6402(c)’s statement that “[t]he amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support. . . owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act.” Petitioner claims that “[t]he words ‘in accordance with section 464 of the Social Security Act’... do not modify ‘has been notified by a State,’ as one might initially assume. Rather they belatedly modify the words ‘shall be reduced.’” Brief for Petitioner 18. In petitioner’s view, her construction would lead to the conclusion that a refund can be reduced only to the extent that the refund represents a refund of tax actually paid, since that is all § 464(a) permits.

We disagree with both petitioner’s construction of § 6402(c) and her reading of § 464(a). First, it seems far more plausible that the words modify the nearest verb. If they are given this more natural reading, then § 6402(c) directs the Secretary to intercept only that amount which properly is classified as past-due support and of which he properly has been notified.

But even if the reference in § 6402(c) to §464 were read to refer solely to § 464(a), nothing in that subsection exempts excess earned-income credits from interception. Petitioner and the Second and Tenth Circuits recast their argument regarding the meaning of “overpayment” by contending that the amount of a refund that is attributable to an excess earned-income credit is not a “refun[d] of Federal taxes paid,” and that § 464(a) permits interception of only “amounts, as refunds of Federal taxes paid”:

“A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer’s liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax.” Rucker v. Secretary of Treasury, 751 F. 2d, at 356.

But just as eligibility for an earned-income credit does not depend upon an individual’s actually having paid any tax, the Code’s classification of the credit as an “overpayment” to be refunded is similarly independent of the individual’s actually having made any payment. Cf. § 6401(c). The Ninth Circuit correctly held that, to the extent an excess earned-income credit is “payable” to an individual, it is payable as if it were a refund of tax paid. 752 F. 2d, at 1441. Section 464(a)’s reference to the tax-refund process is best understood as a directive to the Secretary that he follow the procedures established by the Internal Revenue Code for calculating and disbursing refunds, rather than as an attempt implicitly to redefine terms given special meaning by the Code.

B

Nor do we agree with petitioner’s claim that Congress did not intend the intercept program to reach excess earned-income credits. Petitioner and the Government agree that Congress never mentioned the earned-income credit in enacting OBRA. See Brief for Petitioner 24; Tr. of Oral Arg. 21. But it defies belief that Congress was unaware, when it provided in § 6402(c) that “any overpayment to be refunded . . . shall be reduced by the amount of any past-due support” (emphasis added), that this would include refunds attributable to excess earned-income credits. Congress had previously expressly defined an excess earned-income credit as an “overpayment,” in § 6401(b) of the Internal Revenue Code — the section immediately preceding the section to which Congress added the intercept provision.

What petitioner and the Second and Tenth Circuits are really claiming is that the intercept law should be read narrowly to avoid frustrating the goals of the earned-income credit program. The earned-income credit was enacted to reduce the disincentive to work caused by the imposition of Social Security taxes on earned income (welfare payments are not similarly taxed), to stimulate the economy by tunneling funds to persons likely to spend the money immediately, and to provide relief for low-income families hurt by rising food and energy prices. Each is an undeniably important objective. It is impossible, however, for us to say that these goals outweigh the goals served by the subsequently enacted tax-intercept program — securing child support from absent parents whenever possible and reducing the number of families on welfare. Congress of course could conclude that families eligible for earned-income credits have a more compelling claim to the funds involved than do either the States or non-AFDC families. But it is equally clear that Congress could have decided that the more pressing need was to alleviate the “devastating consequences for children and the taxpayers” of the epidemic of nonsupport. See Hearings before the Senate Committee on Finance on Spending Reduction Proposals, 97th Cong., 1st Sess., pt. 1, p. 34 (1981) (statement of Secretary Schweiker).

The ordering of competing social policies is a quintessentially legislative function. In light of Congress’ decision to direct the interception of any overpayment otherwise refundable to a taxpayer, the Ninth Circuit correctly refused to “speculate that Congress intended otherwise.” 752 F. 2d, at 1443. Its judgment, accordingly, is affirmed.

It is so ordered.

Justice Stevens,

dissenting.

The class of persons that Congress intended to benefit by creating the “Earned Income Credit” Program in 1975 is composed entirely of low-income families. The Court has fairly described the purposes of the 1975 legislation:

“The earned-income credit was enacted to reduce the disincentive to work caused by the imposition of social security taxes on earned income (welfare payments are not similarly taxed), to stimulate the economy by tunneling funds to persons likely to spend the money immediately, and to provide relief for low-income families hurt by rising food and energy prices.” Ante, at 864.

The mechanism by which Congress tunneled the funds to those persons was to treat the credits as though their recipients had overpaid their taxes, giving them a right to a “refund” of a hypothetical overpayment. This relatively obscure provision of the Internal Revenue Code gave rise to no particular difficulties for the ensuing six years.

The principal beneficiaries of the Intercept Program enacted by Congress as part of what is appropriately called the Omnibus Budget Reconciliation Act of 1981 were state governments which had claims for recoupment of welfare payments made to families that were unable to enforce a departed parent’s child-support obligations. Thus, the real adversaries in this case are the Sorensons — a low-income family — on the one hand, and the State of Washington, on the other, which will ultimately receive the intercepted “refund” under the Court’s holding. The question is whether Congress in 1981 intended to divert these federal funds from the original beneficiaries of the Earned Income Credit Program to the treasuries of state governments. Notwithstanding the Court’s careful and admittedly accurate parsing of the language of the statute, I am not persuaded that Congress had any such intent.

The Court confidently asserts that “it defies belief that Congress was unaware” of the impact of its Intercept Program upon the Earned Income Credit Program when it enacted OBRA in 1981. See ante, at 863. The Court does not pause to tell us why, if that be so, Congress did not even mention this important change at any point in the legislative history of OBRA. With all due respect to the Court and to our hardworking neighbors in the Congress, I think “it defies belief” to assume that a substantial number of legislators were sufficiently familiar with OBRA to realize that somewhere in that vast piece of hurriedly enacted legislation there was a provision that changed the 6-year-old Earned Income Credit Program.

I agree that the Court’s reading of the statutory language is faithful to its grammar. I am not persuaded, however, that it actually reflects the intent of the Congress that enacted OBRA. I therefore would accept the construction of the relevant statutes adopted by the Courts of Appeals for the Second and Tenth Circuits. See Rucker v. Secretary of Treasury, 751 F. 2d 351, 356-357 (CA10 1984); Nelson v. Regan, 731 F. 2d 105, 110-112 (CA2), cert. denied sub nom. Manning v. Nelson, 469 U. S. 853 (1984). I respectfully dissent.

       Section 402(a)(26)(A) of the Social Security Act, as amended, 42 U. S. C. § 602(a)(26)(A), requires the assignment to the State of “any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed.”

       By the Tax Reform Act of 1984, Pub. L. 98-369, § 471(c)(1), 98 Stat. 826, Congress redesignated § 43 as § 32. By § 1042 of that Act, 98 Stat. 1043, it raised the earned-income percentage from 10 to 11 percent, the maximum amount of the credit from $500 to $550, and the eligibility ceiling from $10,000 to $11,000.

       At the time relevant to this lawsuit, § 6401(b) of the 1954 Code provided, in pertinent part:
      “If the amount allowable as credits under sections 31 (relating to tax withheld on wages), and 39 (relating to certain uses of gasoline, special fuels, and lubricating oil), and 43 (relating to earned income credit), exceeds the tax imposed by subtitle A (reduced by the credits allowable under subpart A of part IV of subehapter A of chapter 1, other than the credits allowable under sections 31, 39, and 43), the amount of such excess shall be considered an overpayment.”
      Section 6401(b) was amended by the Tax Reform Act of 1984. Section 474(r)(36) of that Act, 98 Stat. 846, designated existing § 6401(b) as § 6401(b)(1) and substituted the following language for the language quoted above:
      “If the amount allowable as credits under subpart C of part IV of sub-chapter A of chapter 1 (relating to refundable credits) exceeds the tax imposed by subtitle A (reduced by the credits allowable under subparts A, B, and D of such part IV), the amount of such excess shall be considered an overpayment.”

        The earned-income credit remains refundable under the revised provision, since it is within the category of “refundable credits.” See Tax Reform Act of 1984, §471, 98 Stat. 825.

       The version of § 6402(a) in effect for the tax year 1981 provided:
      “In the case of any overpayment, the Secretary, within the applicable period of limitations, may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of an internal revenue tax on the part of the person who made the overpayment and shall, subject to subsection (c), refund any balance to such person.”
      The question presented by this case is the scope of subsection (c) — the provision governing the offset of past-due child-support payments.
      Section 2653(b)(2) of the Spending Reduction Act of 1984, 98 Stat. 1155, amended § 6402(a). Under amended § 6402(a), the Secretary’s authority, with respect to refunds payable after December 31, 1985, and before January 1, 1988, see § 2653(c) of the 1984 Act, 98 Stat. 1156, is restricted by a new subsection (d) as well as by subsection (e) of § 6402. Section 2653(b)(1) of the 1984 Act, 98 Stat. 1154, added the new subsection (d). Section 6402(d) requires the offset of debts owed to various federal agencies. Under § 6402(d)(2), the collection of past-due child-support payments pursuant to § 6402(c) has priority over the collection of debts covered by § 6402(d).

       Section 464(a) was amended by the Child Support Enforcement Amendments of 1984, Pub. L. 98-378, § 21, 98 Stat. 1322, which authorized the interception and diversion of refunds for the benefit of non-AFDC children as well as children receiving AFDC benefits. The Amendments also provided additional procedural protections for refund claimants whose refunds are intercepted.

       In light of Congress’ specific reference to § 464(c) earlier in § 6402(c), it seems particularly likely that Congress would have referred to subsection (a) of § 464 expressly had it meant “in accordance with § 464(a)” rather than in accordance with the entire scheme for identifying past-due support payments and notifying the Federal Government of such obligations set out in §464.

       That Congress could not have viewed the earned-income credit as immune from seizure to satisfy child-support obligations is suggested by a number of other factors as well. As the Government notes, once an individual has actually received his tax-refund payment, the proceeds of that refund, even if they reflect an earned-income credit component, are subject to levy under § 6305 of the Code. The fact that the Government may not have used this cumbersome procedure, see Tr. of Oral Arg. 23-25, reflects the economic inefficiency of locating and pursuing a payment that cannot exceed $550 rather than a lack of authority to do so. And certainly no one has suggested that the former spouse to whom a support obligation not assigned to the State is owed would be precluded from employing the judicial process to attach and seize the credit once the recipient had received it.

       See, e. g., S. Rep. No. 94-36, pp. 11, 33 (1975); H. R. Rep. No. 94-19, pp. 3-4, 29-31 (1975); Hearings on H. R. 2166 before the Senate Committee on Finance, 94th Cong., 1st Sess., 66, 315 (1975); Hearings before the House Committee on Ways and Means on the President’s Authority to Adjust Imports of Petroleum; Public Debt Ceiling Increase; and Emergency Tax Proposals, 94th Cong., 1st Sess., 661, 742-743, 797 (1975); 121 Cong. Rec. 4609 (1975).

       See, e. g., S. Rep. No. 98-387, pp. 5-8 (1984); Hearings before the Senate Committee on Finance on Spending Reduction Proposals, 97th Cong., 1st Sess., pt. 1, pp. 19, 34-35, 81, 312 (1981); Hearings before the House Committee on Ways and Means on Tax Aspects of the President’s Economic Program, 97th Cong., 1st Sess., pt. 1, pp. 159, 237 (1981).

       Even if Congress’ sole concern were providing funds to the neediest children involved, it is far from certain that all children living in households receiving refunds of earned-income credits are needier than all children owed past-due child support. When the earned-income credit is claimed at the end of the tax year (an individual can, pursuant to § 3507 of the Code, receive an advance on his earned-income credit over the course of the year), it may in fact go to a recipient who is not currently needy. For example, an individual, with a dependent child, who was unemployed during most of 1981 and therefore earned only $5,000, but found a job paying $20,000 per year on January 1, 1982, would have been able to claim in a tax return filed in April 1982 an earned-income credit of $500, despite the fact that, in late spring 1982, when the refund check ultimately arrived, the individual might no longer be needy.

       121 Cong. Rec. 8861 (1975) (remarks of Sen. Long).

       “Smoking a big cigar, the Speaker [of the House of Representatives] got angry again over the slap-dash quality of the bill [that became the Omnibus Budget Reconciliation Act of 1981], with parts of it photocopied from memorandums, other parts handwritten at the last minute, and some final sections hastily crossed out in whorls of pencil marks.

      “But then he smiled, too, noting such cryptic and accidental entries in the bill as a name and phone number — ‘Ruth Seymour, 225-4844’ — standing alone as if it were a special appropriation item.” N. Y. Times, July 1, 1981, p. A16, col. 1.


source: Caselaw Access Project

author: Justice Rehnquist Justice Marshall,

license: Public Domain

text:
    NEW YORK v. P. J. VIDEO, INC., dba NETWORK VIDEO, et al.
    No. 85-363.
    Argued March 4, 1986
    Decided April 22, 1986
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 884.

      John J. DeFranks argued the cause for petitioner. With him on the briefs was Richard J. Arcara.

      Paul John Cambria, Jr., argued the cause and filed a brief for respondents.

         Charles B. Ruttenberg and James P. Mercurio filed a brief for the Video Software Dealers Association as amicus curiae urging affirmance.

   Justice Rehnquist

delivered the opinion of the Court.

This case concerns the proper standard for issuance of a warrant authorizing the seizure of materials presumptively protected by the First Amendment. Respondents P. J. Video, Inc., and James Erhardt were charged in the village of Depew, New York, Justice Court with six counts of obscenity in the third degree under § 235.05(1) of the New York Penal Law. Respondents moved to suppress five videocassette movies that had been seized from respondents’ store, and that formed the basis for the obscenity charges against respondents, on the ground that the warrant authorizing the seizure was issued without probable cause to believe that the movies were obscene. The Justice Court granted the motion and dismissed the informations under which respondents were charged, and both the County Court of Erie County and the New York Court of Appeals affirmed. 65 N. Y. 2d 566, 483 N. E. 2d 1120 (1985). We granted certiorari to resolve the conflict between the decision of the New York Court of Appeals in the instant case and the decisions in Sequoia Books, Inc. v. McDonald, 725 F. 2d 1091 (CA7 1984), and United States v. Pryba, 163 U. S. App. D. C. 389, 502 F. 2d 391 (1974), cert. denied, 419 U. S. 1127 (1975). 474 U. S. 918 (1985). We now reverse the judgment of the Court of Appeals.

The obscenity charges against respondents arose out of an investigation by the Erie County District Attorney’s Office. Investigator David J. Groblewski was assigned to review 10 videocassette movies that had been rented from respondents’ store by a member of the Erie County Sheriff’s Department. Groblewski viewed the movies in their entirety, and executed affidavits summarizing the theme of, and conduct depicted in, each film. The affidavits were attached to an application filed by the village of Depew Police Department for a warrant to search respondents’ store.

A justice of the New York Supreme Court issued the warrant, authorizing the search of the store and the seizure of the movies. The warrant was executed the next day and, according to a sworn, itemized inventory statement, the police seized 1 or 2 copies of each of the 10 movies. A total of 13 videocassettes were seized. The justice who had issued the warrant ordered that the videocassettes be temporarily retained by the police as evidence for trial. See N. Y. Crim. Proc. Law §§690.05-690.55 (McKinney 1984).

Respondents ultimately were charged in the village of Depew Justice Court with violating the New York obscenity laws with respect to only 5 of the 10 movies. The affidavits describing these five movies appear in full in the Appendix to this opinion. Respondents moved for suppression of the seized videocassettes, alleging that the warrant authorizing their seizure was not supported by probable cause because the issuing justice had not personally viewed the movies. The Justice Court granted the motion and dismissed the in-formations under which respondents were charged, and on the State’s appeal the County Court of Erie County affirmed.

The New York Court of Appeals likewise affirmed, although on a different theory than that of the Justice Court. According to the Court of Appeals, “there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs, for example (Roaden v. Kentucky, [413 U. S. 496], 504 [1973]; Marcus v. Search Warrant, 367 U. S. 717, 730-731 [1961]). In applying the [Fourth] Amendment to such items, the court must act with ‘scrupulous exactitude’ (Stanford v. Texas, 379 U. S. 476, 481-485 [1965]; see also, Maryland v. Macon, 472 U. S. 463 [1985]).” 65 N. Y. 2d, at 569-570, 483 N. E. 2d, at 1123 (footnote omitted). Using this “higher” probable-cause standard to review the affidavits submitted in support of the warrant application, the Court of Appeals stated:

“Many of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard, but the allegations of the affidavits do not indicate whether they constitute all, most or a few of the scenes presented in the films. . . . The descriptions of the action are not supplemented by references to the narrative or dialogue of the films and the affiant attempted to describe the ‘character’ or ‘theme’ of the movies by settings having nothing to do with the plot .... He made no attempt to reveal the story line (or lack of one) of the films or demonstrate that their ‘predominant appeal’ was to prurient interest. In short, none of the affidavits permit an inference that the scenes described are more than a catalog of offensive parts of the whole.” Id., at 570-571, 483 N. E. 2d, at 1124.

The Court of Appeals concluded that the affidavits did not contain sufficient information to permit the issuing justice, “applying contemporary community standards, to judge the films as a whole and determine that they are within the statutory definitions of obscenity and thus are not entitled to constitutional protection.” Id., at 572, 483 N. E. 2d, at 1124 (footnote omitted). One judge dissented, arguing that the affidavits contained enough information for the issuing justice “to reasonably believe that the video movies were obscene as legislatively defined.” Id., at 573, 483 N. E. 2d, at 1125 (Jasen, J., dissenting).

We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures. For this reason, we have required that certain special conditions be met before such seizures may be carried out. In Roaden v. Kentucky, 413 U. S. 496 (1973), for example, we held that the police may not rely on the “exigency” exception to the Fourth Amendment’s warrant requirement in conducting a seizure of allegedly obscene materials, under circumstances where such a seizure would effectively constitute a “prior restraint.” In A Quantity of Books v. Kansas, 378 U. S. 205 (1964), and Marcus v. Search Warrant, 367 U. S. 717 (1961), we had gone a step farther, ruling that the large-scale seizure of books or films constituting a “prior restraint” must be preceded by an adversary hearing on the question of obscenity. In Heller v. New York, 413 U. S. 483 (1973), we emphasized that, even where a seizure of allegedly obscene materials would not constitute a “prior restraint,” but instead would merely preserve evidence for trial, the seizure must be made pursuant to a warrant and there must be an opportunity for a prompt postseizure judicial determination of obscenity. And in Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968), we held that a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead must be supported by affidavits setting forth specific facts in order that the issuing magistrate may “focus searchingly on the question of obscenity.” Marcus, supra, at 732; see also Stanford v. Texas, 379 U. S. 476, 486 (1965).

The New York Court of Appeals construed our prior decisions in this area as standing for the additional proposition that an application for a warrant authorizing the seizure of books or films must be evaluated under a “higher” standard of probable cause than that used in other areas of Fourth Amendment law. But we have never held or said that such a “higher” standard is required by the First Amendment. In Heller, we said:

“[S]eizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party,' the seizure is constitutionally permissible. . . .
“The necessity for a prior judicial determination of probable cause will protect against gross abuses . . . .” 413 U. S., at 492-493 (emphasis added; footnotes omitted).

We think that this passage from Heller, emphasizing the requirement that the magistrate determine probable cause as a means of safeguarding First Amendment interests, and eschewing any suggestion that the standard of probable cause in the First Amendment area is different than in other contexts, suggests that we saw no need for the latter requirement. In our view, the longstanding special protections described above, and enunciated in cases such as Roaden, A Quantity of Books, Marcus, Heller, and Lee Art Theatre, are adequate to ensure that First Amendment interests will not be impaired by the issuance and execution of warrants authorizing the seizure of books or films. We think, and accordingly hold, that an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.

That standard was recently set forth by this Court in Illinois v. Gates, 462 U. S. 213 (1983):

“‘[T]he term “probable cause,” . . . means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion.’ [Locke v. United States, 7 Cranch 339, 348 (1813).] . . . Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision.
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for. . . concluding,]’ [Jones v. United States, 362 U. S. 257, 271 (1960),] that probable cause existed.” Id., at 235, 238-239.

Applying the Gates standard to the affidavits in the instant case, we think it clear beyond peradventure that the warrant was supported by probable cause to believe that the five films at issue were obscene under New York law. Respondents concede that the affidavits describing the five films adequately established probable cause with respect to the second of the three elements of obscenity under the statute, namely, that the movies depicted “in a patently offensive manner” the various kinds of sexual conduct specified in the statute. See N. Y. Penal Law §235.00(l)(b) (McKinney 1980). Our review of the affidavits convinces us that the issuing justice also was given more than enough information to conclude that there was a “fair probability” that the movies satisfied the first and third elements of the statutory definition, namely, that the “predominant appeal [of the movies] is to the prurient interest in sex,” and that the movies “lac[k] serious literary, artistic, political, and scientific value.” See N. Y. Penal Law §§235.00(l)(a), (c) (McKinney 1980). As Judge Jasen of the Court of Appeals noted in his dissent in the present case:

“Each of the affidavits describing the films clearly state at the outset that ‘the content and character of the above mentioned video movie is as follows.’ Inasmuch as the magistrate was reviewing affidavits describing movies which were advertised by defendants as ‘adult cassette movies,’ it was reasonable for him to believe that the affidavits faithfully and accurately described the substance of each movie as a whole. Each affidavit describes the numerous acts of deviate sexual intercourse and the objectification of women occurring in each film which the majority concede to be offensive. Each film is of relatively short duration. Manifestly, the acts described in each movie consume a substantial time span. Thus, the magistrate may reasonably have concluded that the described, successive acts of deviate sexual intercourse pervaded each film. When the title of each movie is considered together with its plot and setting, its general theme and serious value, if any, may reasonably be discerned. The films were described in each of the five nonconclusory affidavits in such a fashion as to permit the magistrate to focus searchingly on the issue of obscenity. Under these circumstances, there was a reasonable basis for the magistrate to authorize the seizure of the films in question.” 65 N. Y. 2d, at 580, 483 N. E. 2d, at 1130 (emphasis in original).

We believe that the analysis and conclusion expressed by the dissenting judge are completely consistent with our statement in Gates that “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” 462 U. S., at 244, n. 13. We hold that, evaluated under the correct standard of probable cause, the warrant was properly issued and the videocassettes of the five movies should not have been suppressed. The judgment of the New York Court of Appeals is accordingly reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

AFFIDAVIT

STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 26th, 1983 I viewed the video tape movie “CALIFORNIA VALLEY GIRLS,” which was rented on September 20th, 1983, from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 12:00 Noon and lasted until 1:33 P.M.
The content and character of the above mentioned video movie is as follows: Six white females, approximately 18 to 25 years of age, are unemployed and attempt to make a living by becoming prostitutes. The first scene is a bedroom scene where two females are involved in love making, fondling and cunnilingus. The second scene depicts a white male and a white female having intercourse in the back of a van. The third scene is a house scene where six girls, all white females are introduced to the art of love making. One male, approximately 35 years of age, is teaching the girls the art of fellatio with each one of them performing this act on him. The next scene is a bedroom scene in a home where a husband and wife, a white male and a white female, alone with a girl, a white female, perform various sexual acts which include intercourse, fellatio, anal intercourse and cunnilingus. The movie ends with some lesbianism where the wife performs cunnilingus on the girl while she performs fellatio on the husband and they engage in intercourse and anal intercourse.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983.
[Signature] Notary Public

AFFIDAVIT

STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 23rd, 1983, I viewed the video tape movie “TABOO II,” which was rented on September 20th, 1983, from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 9:00 A.M. and with several interruptions lasted until 12:12 P.M.
The content and character of the above mentioned video movie: The theme of the movie is a middle-class neighborhood where a home is the place where all the sexual acts are performed. The movie starts with a brother and sister, a white male and white female, fondling each other. The second scene is another house scene where a white male and white female are giving a rubdown to a white female. The sexual acts that follow include cunnilingus and fellatio. There is also intercourse and the scene closes with the male placing his penis between the girl’s breasts and ejaculating into and over her mouth. In another scene there is some incestuous type activity between the brother and the sister where again fellatio and intercourse are performed. At one point during the movie the mother enters the bedroom and observes the two performing the sexual acts and becomes depressed about the situation. In a later scene the son and his mother are on a couch where they become involved in sexual acts of intercourse and fellatio. The movie closes with the mother and father asleep in their bedroom at which time the daughter enters and sleeps next to her father, where they perform incestuous acts of intercourse, and she performs fellatio on her father.
[Signature]
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public

AFFIDAVIT

STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 29th, 1983, I viewed the video tape movie “TABOO,” which was rented on September 27th, 1983 from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 11:00 A.M. and lasted until 11:55 A.M. and watched again commencing at 1:42 P.M. and lasting until 2:23 P.M.
The content and character of the above mentioned video movie is as follows: The first scene is a bedroom scene where two white females and one white male perform various acts of fellatio, cunnilingus and intercourse. The second scene is a house party scene where many white males and white females are involved in various acts of intercourse, fellatio and cunnilingus. There is also a scene where females perform acts of cunnilingus on each other. The movie portrays at one point a bedroom scene with a white male, the son, laying in bed naked, at which time his mother, a white female enters the room. She makes love to him and incestuous acts of intercourse, placing of the penis between her breasts, ejaculation and cunnilingus are performed.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public

AFFIDAVIT

STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 28th, 1983, Detective Sergeant Vincent Costanza, a Member of the Erie County Sheriff’s Department and I viewed the video tape movie “ALL AMERICAN GIRLS,” which was rented on September 27th, 1983 from Network Video, 5868 Transit Road, Depew, New York. This movie was viewed in my office starting at 11:35 A.M., and lasted until 1:00 P.M.
The content and character of the above mentioned video movie is as follows: The theme of the movie is a home of one of the six girls, all white females who had previously attended high school and were meeting for a reunion. The first scene is two girls in a room performing acts of lesbianism, namely cunnilingus on each other. They are met by a white male and they perform acts of fellatio on him, have intercourse and all leave the room. Throughout the movie the girls reminisce about their high school days with each one depicting her sexual acts with her male partner. The sexual acts which followed included intercourse, fellatio and eunnilingus.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public

AFFIDAVIT

STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On October 3rd, 1983, Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department and I viewed the video tape movie “DEBBIE DOES DALLAS,” which was rented on September 30th, 1983, by Vincent Costanza from Network Video, 5868 Transit Road, Depew, New York. This movie was viewed in my office starting at 2:50 P.M. and lasted until 4:23 P.M.
The content and character of the above mentioned video movie is as follows: The theme of the movie is a girl moving out west for a change of atmosphere. The first scene is a jail scene where a white female is in jail after she had been put there by the so-called Sheriff, a white male, and she performs fellatio on him. The two then perform intercourse, at which time he removes his pants and ejaculates over her buttocks. The second scene is the ranch, a so-called house of ill repute, a bedroom scene in which a white male and a white female are involved in various sexual acts including fellatio, cunnilingus and intercourse. At the end of the scene the male ejaculates in and over the female’s mouth. The third scene, a bathroom scene, depicts some lesbianism involving three girls. They participate in love making, foreplay and performing cunnilingus on each other. Throughout, the movie depicts some lesbianism along with sexual acts of intercourse, fellatio and cunnilingus.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public

Justice Marshall,

with whom, Justice Brennan and Justice Stevens join, dissenting.

Under New York law, a film depicting specified sexual acts in a patently offensive manner is obscene if “the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex,” and if “considered as a whole, it lacks serious literary, artistic, political, and scientific value.” N. Y. Penal Law §§235.00(l)(a), (c) (McKinney 1980). The question before this Court is whether three New York state courts erred in holding that the affidavits at issue in this case failed to establish probable cause that those standards were met. The determination of what the standards of §235.00(1) mean and how they should be applied in individual cases, of course, is in the first instance a matter of state law and the rightful province of the state courts. While the majority describes it as “clear beyond peradventure,” ante, at 876, that the affidavits set out the requisite probable cause, I do not find that result “clear” at all, and I would not overturn the state courts’ contrary judgment.

I — I

The affidavits at issue in this case were first found inadequate at a suppression hearing in the Depew Justice Court. The court, per Justice Wick, noted that the issuing Magistrate had apparently not himself viewed the films, and that the retired state trooper who compiled the affidavits had “obviously paid no attention to contemporary community standards” and “made no further determination if the presentations had any literary, artistic, political or scientific value.” App. to Pet. for Cert. A-37. Without stating clearly the exact basis of its decision, the court noted that “[t]he material contained [in the films] may be of the type proscribed by Section 235.05 of the Penal Law but equally, it may be . . . ‘coarse, puerile, offensive and distasteful (and still not) obscene under the law or proscribable.’ ” Id., at A-38, quoting People v. Stabile, 58 Misc. 2d 905, 296 N. Y. S. 2d 815 (N. Y. C. Crim. Ct. 1969). The court'granted respondents’ suppression motion.

The Erie County Court affirmed. Justice LaMendola noted the absence of a transcript of the proceedings, if any, before the issuing Magistrate, and declared it within the lower court’s discretion to hold that “under New York law, the issuing magistrate had failed to make an adequate finding of probable cause . . . because he relied solely on the affidavits of the police officers without any further investigation or viewing of the materials to be confiscated.” App. to Pet. for Cert. A-33. Justice LaMendola’s reference to “further investigation or viewing” makes it plain that she did not regard the issuing Magistrate’s viewing of the film as an invariable requisite to issuance of a warrant. The affidavits in this case, however, unsupported by further investigation, provided insufficient basis for a warrant authorization.

The New York Court of Appeals affirmed. 65 N. Y. 2d 566, 483 N. E. 2d 1120 (1985). The court recognized that “the task of the issuing magistrate was not to decide guilt or innocence but to determine in a preliminary way from the information submitted and available to him whether there was probable cause to believe that the material to be seized was obscene within the tripartite definition of the statute.” Id., at 570, 483 N. E. 2d, at 1123. Applying that standard, it held the affidavits insufficient.

Near the beginning of its opinion, the New York court reiterated this Court’s recent direction that the Fourth Amendment be applied with “‘scrupulous exactitude’” in cases of searches for and seizures of presumptively protected materials, Maryland v. Macon, 472 U. S. 463, 468 (1985); see also Stanford v. Texas, 379 U. S. 476 (1965), and noted a “higher standard” for warrant determinations when books and films are seized, citing Roaden v. Kentucky, 413 U. S. 496 (1973). The New York court did not go on, however, to apply any extraordinary standard of scrutiny to the determination of probable cause. Rather, its holding was a simple one: “There must be enough information before [the issuing magistrate] in one form or other ... to enable him to judge the obscenity of the film, not of isolated scenes from it.” 65 N. Y. 2d, at 571, 483 N. E. 2d, at 1124. The affidavits, the court explained, merely cataloged offensive sex acts depicted in the films. Such catalogs say nothing about the “predominant appeal” of a film, its impact “considered as a whole,” or its overall literary or artistic value. “Undoubtedly, similar lists could readily be compiled by excerpting descriptions of scenes from books and movies having recognized merit. Stanley Kubrick’s ‘Clockwork Orange’ and Federico Fellini’s ‘Satyricon’ come quickly to mind.” Ibid. Because obscenity law requires examination of the films as a whole, the court held, probable cause cannot be inferred from the description of a few excerpted scenes. Id., at 572, 483 N. E. 2d, at 1124.

II

Taken in the abstract, the New York court’s reasoning is unassailable. A mere fisting of sex acts depicted in a film, or a description of excerpted scenes, says little about the predominant effect of the film considered as a whole. It says nothing about whether the film, considered as a whole, has any artistic value. And it says nothing about how the film should be regarded in fight of contemporary community standards. Such a description, then, cannot establish even probable cause to believe that the film is obscene. “[S]ex and obscenity are not synonomous.” Roth v. United States, 354 U. S. 476, 487 (1957). A magistrate armed only with such a description cannot “ ‘focus searchingly on the question of obscenity,”’ as the majority, ante, at 874, concedes he is obligated to do.

The majority’s rejection of the New York court’s reasoning appears to derive from a largely unarticulated feeling that that reasoning is inappropriately applied in the present case. As a result, notwithstanding the sweeping legal principles set out in the majority’s opinion, the decision of this case ultimately rests on the mundane application of clear law to undisputed facts. The majority suggests that the New York court wrongly applied its law because the affidavits described more than excerpted scenes: they allowed the Magistrate to discern the “‘general theme and serious value’” of the films, and established that sex acts “ ‘pervaded’ ” each film. Ante, at 877.

The problem with the majority’s approach is that it is unsupported in the texts of the affidavits. Although a boilerplate sentence in each affidavit invokes the “content” of the films, and two of the affidavits conclusorily assert that certain sex acts are depicted “throughout” the film, the affidavits do not attempt to describe every scene in the films or even most of the scenes. Rather, the scenes described in the affidavits are simply those the author chose to describe. While descriptions of sex acts pervade the affidavits, it is hardly clear that depictions of sex acts pervade the films. Similarly, while the “general tone” of the affidavits is clear, we have little basis for a conclusion about the “general tone” of the films.

The affidavits do not purport to be exhaustive. They can be meaningful in considering the artistic value of the films, taken as a whole, or the films’ predominant appeal, only if one assumes that everything, or almost everything, worth noting in the films was incorporated into the affidavits. Nothing in the affidavits, however, justifies that assumption. The affidavits are precisely what the New York Court of Appeals condemned: mere listings of selected scenes from the films that involved depictions of sex. The films described could as well be “Last Tango in Paris.”

The majority’s decision upholding a warrant authorization uninformed by any information relating to crucial elements of the definition of obscenity is especially incongruous because the majority overrules the institution most closely attuned to the content of those elements: the New York courts. The New York courts are well suited to decide whether, on the basis of “contemporary community standards,” the information supporting a warrant authorization allows the magistrate to focus searchingly on the question of obscenity, and to find probable cause that given material is obscene. The New York courts have unanimously held in this case that the affidavits were insufficient to achieve that end. The majority’s eagerness to reverse that fact-bound determination in order to expedite an obscenity prosecution is inappropriate and reflects a dubious notion of this Court’s institutional role. Cf. California v. Carney, 471 U. S. 386, 395 (1985) (Stevens, J., dissenting).

I dissent.

       Section 235.05(1) (McKinney Supp. 1986) provides:
      “A person is guilty of obscenity in the third degree when, knowing its content and character, he:
      “1. Promotes, or possesses with intent to promote, any obscene material. . . .”
      “Obscenity in the third degree is a class A misdemeanor.”
      The statutory definition of “obscenity,” which is derived from Miller v. California, 413 U. S. 15 (1973), appears at § 235.00(1) (McKinney 1980):
      “. . . Any material or performance is ‘obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audiences.”

       The 10 movies were entitled “California Valley Girls,” “Taboo II,” “Taboo,” “All American Girls,” “Debbie Does Dallas,” “Body Magic,” “Deep Throat,” “Every Which Way She Can,” “Filthy Rich,” and “Little Girls Blue.”

       The five movies that formed the basis for the obscenity charges against respondents were “California Valley Girls,” “Taboo II,” “Taboo,” “All American Girls,” and “Debbie Does Dallas.”

       Respondents argue that the decision of the New York Court of Appeals rested on adequate and independent state grounds, namely, provisions of the New York Constitution and various state-court decisions, and that we therefore lack jurisdiction to review that decision. We disagree. As we explained in Caldwell v. Mississippi, 472 U. S. 320 (1985):
      “[W]e will not assume that a state-court decision rests on adequate and independent state grounds when the ‘state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.”’ Id., at 327, quoting Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983).
      Here, the New York Court of Appeals cited the New York Constitution only once,'near the beginning of its opinion, and in the same parenthetical also cited the Fourth Amendment to the United States Constitution. Moreover, the Court of Appeals repeatedly referred to the “First Amendment” and “Fourth Amendment” during its discussion of the merits of the case, strongly indicating that it believed that its decision was governed by federal law. Finally, although the Court of Appeals cited several state-court decisions, the only citations appended to the crucial language quoted in the text were to the federal decisions in Roaden v. Kentucky, 413 U. S. 496 (1973), Marcus v. Search Warrant, 367 U. S. 717 (1961), Stanford v. Texas, 379 U. S. 476 (1966), and Maryland v. Macon, 472 U. S. 463 (1985). We conclude, in the absence of a “plain statement” to the contrary, that the decision of the Court of Appeals was premised on federal, not state, law.

       Contrary to the position apparently taken by the Justice Court in the instant case, we have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. See Lee Art Theatre, Inc. v. Virginia, 392 U. S., at 637. On the contrary, we think that a reasonably specific affidavit describing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause to believe that the film is obscene, and whether a warrant authorizing the seizure of the film should issue.

       Respondents contend that the seizure in the instant case was not limited to only one copy of each film, but instead extended to all copies of the films that the police were able to find during their search of respondents’ store. According to respondents, the seizure had the effect of severely restricting public access to the films, and thereby constituted a “prior restraint.” Respondents therefore argue that this case is properly governed not by Heller v. New York, 413 U. S. 483 (1973), but by Roaden v. Kentucky, supra, where this Court stated that the seizure of an allegedly obscene film, under circumstances where the seizure “brought to an abrupt halt an orderly and presumptively legitimate . . . exhibition” of the film, “calls for a higher hurdle in the evaluation of reasonableness.” Id., at 504.
      We reject this contention. Our reference in Roaden to a “higher hurdle ... of reasonableness” was not intended to establish a “higher” standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the “exigency” exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate who has ‘“foeus[ed] searchingly on the question of obscenity.’” Id., at 506, quoting Marcus v. Search Warrant, supra, at 732.
      We also note that the burden is on the defendant to make a pretrial showing of a “substantial restraint” if he wishes to escape the rule of Heller, supra, that a mere seizure to preserve evidence does not impose on the State a duty to conduct an adversary hearing of the sort described in Marcus, supra. Respondents made no such pretrial showing in this case.

       The New York Court of Appeals held that the third branch of the statute, providing that a film, to be obscene, must depict specified sexual acts “in a patently offensive manner, actual or simulated,” §235.00(l)(b), was satisfied by the descriptions in the affidavits in this case. 65 N. Y. 2d 566, 570, n. 1, 483 N. E. 2d 1120, 1123, n. 1 (1985).

       Obscene material, considered as a whole, must not only be without serious literary or other merit, but it must, applying contemporary community standards, also appeal predominantly to a “shameful or morbid” interest in sex. See Brackett v. Spokane Arcades, Inc., 472 U. S. 491 (1985). Indeed, three of the very films described by the affidavits in this ease have been declared outside the constitutional boundaries of obscenity. See United States v. Various Articles of Obscene Merchandise, 709 F. 2d 132 (CA2 1983) (“Deep Throat,” “Debbie Does Dallas,” and “Little Girls Blue” not obscene, applying community standards of Southern District of New York).


text:
    February 24, 1986
    No. 85-1090.
    Hudnut, Mayor of City of Indianapolis, Indiana, et al. v. American Booksellers Assn., Inc., et al.
   Affirmed on appeal from C. A. 7th Cir.

The Chief Justice, Justice Rehnquist, and Justice O’Connor would note probable jurisdiction and set case for oral argument.


text:
    No. 85-979.
    Svendrowski v. Missouri.
   Appeal from Ct.

App. Mo., Eastern Dist., dismissed for want of substantial federal question.


text:
    No. 85-1080.
    San Diego Gas & Electric Co. v. Public Utilities Commission of California.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.


text:
    No. 85-1091.
    Leoni et al. v. State Bar of California.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.


text:
    No. 85-1232.
    Stamos, Individually and as Next Friend of Stamos, a Minor, et al. v. Spring Branch Independent School District et al.
   Appeal from Sup. Ct. Tex. dismissed for want of substantial federal question.


text:
    No. 85-1035.
    Crocker National Bank v. Perdue.
   Appeal from Sup. Ct. Cal. dismissed for want of jurisdiction.


text:
    No. 85-1040.
    Kerner v. Judges of the Worcester Probate Court et al.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-1113.
    Carter v. Virginia.
   Appeal from Sup. Ct. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-5931.
    Dyson v. Texas.
   Appeal from C. A. 5th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-5947.
    Stevenson v. Legal Aid Society of Hawaii.
   Appeal from Int. Ct. App. Haw. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6001.
    Dooley v. Belcher.
   Appeal from Ct. App. Ohio, Montgomery County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6002.
    Dooley v. Federal Home Loan Mortgage Corporation et al.
   Appeal from Ct. App. Ohio, Montgomery County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-1050.
    Trahan v. Trahan.
   Appeal from Ct. App. Tex., 3d Sup. Jud. Dist., dismissed for want of substantial federal question.

Justice White would postpone further consideration of question of jurisdiction to a hearing of the case on the merits.


text:
    No. 85-5650.
    Taylor v. Robinson, Warden.
   Appeal from Sup. Ct. Conn, dismissed for want of substantial federal question.

Justice White, Justice Powell, and Justice O’Connor would note probable jurisdiction and set case for oral argument.


text:
    No. 85-182.
    Northwest Central Pipeline Corp. et al. v. Corporation Commission of Kansas et al.
   Appeal from Sup. Ct. Kan. Judgment vacated and case remanded for further consideration in light of Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Board, 474 U. S. 409 (1986).


text:
    No. 84-1237.
    Thigpen, Commissioner, Mississippi Department of Corrections, et al. v. Jones.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Cabana v. Bullock, 474 U. S. 376 (1986).


text:
    No. - - -.
    No. - - -.
    Agee et al. v. Equal Employment Opportunity Commission; and Vessichio v. Connecticut.
   Motions of petitioners to direct the Clerk to file petitions for writs of certiorari that do not comply with the Rules of this Court denied.


text:
    No. - - -.
    Andrews v. California Cooler, Inc.
   Motion of petitioner to direct the Clerk to file a petition for writ of certiorari out of time and for relief from the requirement of Rule 28.2 denied.


text:
    No. D-445.
    In re Disbarment of Nicholas.
    [For earlier order herein, see 468 U. S. 1223.]
   Disbarment entered.


text:
    No. D-524.
    In re Disbarment of Wetherbee.
    [For earlier order herein, see 474 U. S. 897.]
   Disbarment entered.

Justice Stevens dissents.


text:
    No. D-535.
    In re Disbarment of Romano.
   Salvatore L. Romano, Jr., of Providence, R. I., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on December 9, 1985 [474 U. S. 1017], is hereby discharged.


text:
    No. D-544.
    In re Disbarment of Tilley.
   It is ordered that Kenneth L. Tilley, of Houston, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-545.
    In re Disbarment of Willis.
   It is ordered that David A. Willis, of Valparaiso, Ind., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-546.
    In re Disbarment of August.
   It is ordered that Irving A. August, of Birmingham, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


author: Chief Justice Burger,

text:
    No. 65,
    Orig.
    Texas v. New Mexico.
    [For earlier order herein, see, e. g., 468 U. S. 1202.]
   Motion of the Special Master for allowance of interim fees and disbursements granted and a total of $34,213.09 is allowed.

Chief Justice Burger,

with whom Justice Blackmun and Justice Rehnquist join,

dissenting.

In Louisiana v. Mississippi, 466 U. S. 921 (1984), I dissented from an order of the Court granting fees to the Special Master. The basis for my dissent was that the hourly rates at which the Special Master sought fees for work performed by his junior associates, some of whom were only “summer law clerks,” were not supported and were unreasonable.

In the present case, the Special Master (who also sat in the Louisiana case) has applied for interim fees in the amount of $33,511. I dissent because the Special Master has elected to give the Court even less information supporting the fee request than he did in Louisiana. The Special Master omits any information concerning the experience levels of the four attorneys for whose services he seeks to charge. (I assume, although it is not so stated, that they are in fact members of the bar, for I cannot believe such a claim would be made for services of any persons not admitted to practice.) We are not informed as to the hourly rates charged for his work and the work of those attorneys. Instead, we are provided only with enough information to conclude that the average hourly rate charged by the attorneys is $140 per hour. The Court and the parties are thus necessarily left to speculate as to whether that average reflects a charge in excess of $100 per hour for work performed only by junior associates.

As I noted in Louisiana,

“[t]he fees and expenses charged by a Special Master when allowed by this Court, represent our assurance to the parties that the charges are reasonable and proper.” Id., at 923.

This applies with equal force where, as here, the parties do not oppose the application. The present application for interim fees is made by an adjudicator who has yet to adjudicate. I draw no inferences, affirmative or negative, from the fact that the parties have elected not to express their views concerning the Special Master’s application.

However, in dissenting in Louisiana, I stated:

“A Special Master of this Court is a surrogate of the Court and in that sense the service performed is an important public duty of high order in much the same way as is serving in the Judiciary. I do pot suggest that Special Masters should serve without compensation, as for example, Senior Federal Judges have done for a number of years in such cases, but I believe the public service aspect of the appointment is a factor that is not to be wholly ignored in determining the reasonableness of fees charged in a case like this.” Id., at 921.

Even if the public service aspect of the function of a Special Master of this Court should not enter into the fixing of fees, I am unwilling to act without being provided with at least as much information as private clients routinely receive from their privately retained counsel. The contending litigants have a right to expect this Court to exercise its independent judgment on fees rather than requiring each or both of them to challenge the amounts.

I would defer action on the application for interim fees until adequate information is provided. Without such data, this Court cannot protect the legitimate public interests implicated.


text:
    No. 84-902.
    Wardair Canada Inc. v. Florida Department of Revenue.
   Sup. Ct. Fla. [Probable jurisdiction noted, 474 U. S. 943.] Motion of National Governors’ Association et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-1905.
    Bowen, Secretary of Health and Human Services v. Owens et al.
   D. C. C. D. Cal. [Probable jurisdiction noted sub nom. Heckler v. Owens, 474 U. S. 899.] Motion of appellee Buenta Owens to be substituted as representative of appellee Kenneth Owens, deceased, granted.


text:
    No. 85-93.
    No. 85-428.
    Bazemore et al. v. Friday et al.; and United States et al. v. Friday et al.
   C. A. 4th Cir. [Certiorari granted, 474 U. S. 978.] Motion of respondents for divided argument denied.

Justice Brennan would grant this motion.


text:
    No. 85-117.
    Baker et al. v. General Motors Corp. et al.
   Sup. Ct. Mich. [Probable jurisdiction noted, 474 U. S. 899.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-227.
    Smalis et al. v. Pennsylvania.
   Sup. Ct. Pa. [Certiorari granted, 474 U. S. 944.] Motion of petitioners for divided argument denied.

Justice Brennan would grant this motion.


text:
    No. 85-236.
    Eichenlaub v. Yurky et al.
   C. A. 3d Cir. [Certiorari granted, 474 U. S. 1049.] Motion for appointment of counsel granted, and it is ordered that David Rudovsky, Esquire, of Philadelphia, Pa., be appointed to serve as counsel for respondent David A. Yurky in this case.


text:
    No. 85-372.
    Christensen et al. v. United States.
   C. A. 9th Cir. Motion of petitioners to consolidate this case with No. 85-546, United States v. Mottaz [certiorari granted, 474 U. S. 994], denied.


text:
    No. 85-437.
    Arcara, District Attorney of Erie County v. Cloud Books, Inc., dba Village Book & News Store, et al.
   Ct. App. N. Y. [Certiorari granted, 474 U. S. 978.] Motion of American Civil Liberties Union et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-519.
    Randall et al. v. Loftsgaarden et al.
   C. A. 8th Cir. [Certiorari granted, 474 U. S. 978.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-530.
    O’Connor et al. v. Ortega.
   C. A. 9th Cir. [Certiorari granted, 474 U. S. 1018.] Joel I. Klein, Esquire, of Washington, D. C., a member of the Bar of this Court, is invited to brief and argue this case as amicus curiae in support of the judgment below.


text:
    No. 85-558.
    No. 85-559.
    No. 85-560.
    O’Connor et ux. v. United States; Coplin et ux. v. United States; and Mattox et ux. v. United States.
   C. A. Fed. Cir. [Certiorari granted, 474 U. S. 1050.] Motion of petitioners to dispense with printing the joint appendix granted.


text:
    No. 85-568.
    Nantahala Power & Light Co. et al. v. Thornburg, Attorney General of North Carolina, et al.
   Sup. Ct. N. C. [Probable jurisdiction noted, 474 U. S. 1018.] Motions of Edison Electric Institute and New England Electric System for leave to file briefs as amici curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of ap-pellees for divided argument denied.

Justice Brennan would grant this motion. Justice Powell took no part in the consideration or decision of these motions.


text:
    No. 85-621.
    No. 85-642.
    Commodity Futures Trading Commission v. Schor et al.; and ContiCommodity Services, Inc. v. Schor et al.
   C. A. D. C. Cir. [Certiorari granted, 474 U. S. 1018.] Motion of petitioner ContiCommodity Services, Inc., for divided argument granted. Motion of respondents for divided argument denied.

Justice Brennan would grant this motion.


text:
    No. 85-632.
    Atkins, Commissioner, Massachusetts Department of Public Welfare v. Rivera et al.
   Sup. Jud. Ct. Mass. [Certiorari granted, 474 U. S. 1018.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-905.
    Salisbury v. James River Corp. et al.,
   474 U. S. 1061. Motion of United Paperworkers International Union for damages and fees denied.


text:
    No. 85-954.
    No. 85-955.
    Japan Whaling Assn. et al. v. American Cetacean Society et al.; and Baldrige, Secretary of Commerce, et al. v. American Cetacean Society et al.
   C. A. D. C. Cir. [Cer-tiorari granted, 474 U. S. 1053.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 85-1030.
    No. 85-1043.
    No. 85-1066.
    Radol et al. v. Thomas et al. Pilot Life Insurance Co. v. Dedeaux. Martin, Governor of North Carolina, et al. v. Haith.
   C. A. 6th Cir.;

C. A. 5th Cir.; and

Appeal from D. C. E. D. N. C. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 85-5542.
    Ford v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. [Certiorari granted, 474 U. S. 1019.] Motions of American Psychological Association et al., Office of the Capital Collateral Representative for Florida et al., and American Psychiatric Association for leave to file briefs as amici curiae granted.


text:
    No. 85-5699.
    Wilson v. Schillinger et al.
   C. A. 3d Cir. Motion of petitioner to grant the petition for writ of certiorari, vacate the judgment, and remand the case to the United States Court of Appeals for the Third Circuit for further consideration denied.


text:
    No. 85-6233.
    Shewchun v. United States.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until March 17, 1986, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

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

dissenting.

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


text:
    No. 85-851.
    In re Carson.
   C. A. 6th Cir. Petition for writ of common-law certiorari and/or mandamus denied.


text:
    No. 85-6142.
    In re Johnson.
   Petition for writ of habeas corpus denied.


text:
    No. 85-5921.
    No. 85-6090.
    In re Murphy; and In re Braaten.
   Petitions for writs of mandamus denied.


text:
    No. 85-5971.
    In re Barritt.
   Petition for writ of mandamus and/or prohibition denied.


text:
    No. 85-6141.
    In re Green.
   Petition for writ of prohibition and/or mandamus denied.


text:
    No. 85-732.
    Western Air Lines, Inc., et al. v. Board of Equalization of the State of South Dakota et al.
   Appeal from Sup. Ct. S. D. Probable jurisdiction noted.


text:
    No. 85-1377.
    No. 85-1378.
    No. 85-1379.
    Bowsher, Comptroller General of the United States v. Synar, Member of Congress, et al.; United States Senate v. Synar, Member of Congress, et al.; and O’Neill, Speaker of the United States House of Representatives, et al. v. Synar, Member of Congress, et al.
   Appeals from D. C. D. C. Probable jurisdiction noted, cases consolidated, and a total .of one hour allotted each side for oral argument. Motion of the parties to dispense temporarily with printing and to set an expedited briefing schedule and argument date granted. Reported below: 626 F. Supp. 1374.


text:
    No. 85-1021.
    No. 85-1022.
    R. J. Reynolds Tobacco Co. v. Durham County, North Carolina, et al. R. J. Reynolds Tobacco Co. v. Durham County, North Carolina, et al.
   Appeal from Sup. Ct. N. C.; and

Appeal from Ct. App. N. C. Further consideration of question of jurisdiction postponed to hearing of cases on the merits. Cases consolidated and a total of one hour allotted for oral argument. Reported below: No. 85-1021, 314 N. C. 540, 335 S. E. 2d 21; No. 85-1022, 73 N. C. App. 475, 326 S. E. 2d 911.


text:
    No. 85-782.
    Immigration and Naturalization Service v. Cardoza-Fonseca.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 85-1033.
    Kelly, Connecticut Chief State’s Attorney, et al. v. Robinson.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 85-686.
    No. 85-688.
    Metropolitan Life Insurance Co. v. Taylor; and General Motors Corp. v. Taylor.
   C. A. 6th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 763 F. 2d 216.


text:
    No. 85-759.
    Maryland v. Garrison.
   Ct. App. Md. Motion of respondent for leave to proceed in forma pauperis and certio-rari granted.


text:
    No. 85-937.
    West Virginia v. United States.
   C. A. 4th Cir. Certiorari granted limited to Question 2 presented by the petition.


text:
    No. 84-6075.
    Tison v. Arizona (two cases).
   Sup. Ct. Ariz. Motions of petitioners for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 85-5454.
    Gray v. Mississippi.
   Sup. Ct. Miss. Motion of petitioner for leave to proceed informa pauperis and certiorari granted.


text:
    No. 84-1692.
    No. 84-1851.
    Bibby v. United States; and Gillock v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 752 F. 2d 1116.


text:
    No. 85-125.
    Walton et al. v. Colville Confederated Tribes et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-591.
    W. C. Garcia & Associates, Inc. v. Sassi, District Director, Internal Revenue Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-596.
    Arnsberg v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-670.
    Ethyl Corp. v. United Steelworkers of America, AFL-CIO-CLC, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-708.
    No. 85-1017.
    All Souls Episcopal Church v. Federal Deposit Insurance Corporation et al.; and Rocket Oil Co. v. Federal Deposit Insurance Corporation et al.
   C. A. 10th Cir. Certiorari denied. Reported below: 769 F. 2d 658.


text:
    No. 85-713.
    Beerly, Trustee of the Gustav E. Beerly Trust v. Department of the Treasury et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-728.
    Carr v. United States.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 85-746.
    Albano et al. v. Craig Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-758.
    City of Prior Lake, Minnesota v. Shakopee Mdewakanton Sioux Community et al.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 85-775.
    Mastropaolo v. Mastropaolo.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-796.
    No. 85-797.
    American Financial Services Assn. v. Federal Trade Commission et al.; and South Carolina Department of Consumer Affairs v. Federal Trade Commission et al.
   C. A. D. C. Cir. Certiorari denied. Reported below: 247 U. S. App. D. C. 167, 767 F. 2d 957.


text:
    No. 85-821.
    Florida Department of Business Regulation et al. v. United States Department of the Interior et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-822.
    Amoco Production Co. v. Equal Employment Opportunity Commission.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-840.
    Ginsburg v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-843.
    Long v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-850.
    Purvis et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-854.
    Esposito et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-857.
    Simmons v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 85-861.
    Haddon House Food Products, Inc., et al. v. National Labor Relations Board et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-867.
    Hodges v. Department of Transportation, Federal Aviation Administration.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-876.
    Vicars v. Superior Court of California, County of Alameda (Eppler et al., Real Parties in Interest).
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-884.
    Banks et al. v. Pan American World Airways, Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-897.
    Kowalchuk v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-904.
    Herford v. Sun Pipe Line Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-907.
    Fromm et al. v. Rosewell, Treasurer of Cook County, Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-924.
    Murphy v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-927.
    Shokrian v. Carroll, Superintendent of Prisons, Department of Corrections of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-930.
    No. 85-1097.
    Chambless et ux. v. Masters, Mates & Pilots Pension Plan et al.; and Masters, Mates & Pilots Pension Plan et al. v. Chambless et ux.
   C. A. 2d Cir. Certiorari denied. Reported below: 772 F. 2d 1032.


text:
    No. 85-935.
    Jones v. Illinois.
   App. Ct. Ill., 2d Dist. Cer-tiorari denied.


text:
    No. 85-938.
    Ross v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 85-940.
    De Luca v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 85-942.
    Fern v. Fern.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-950.
    Marchant v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-956.
    Clopton v. City of Dallas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-959.
    Township of Lacey v. Jersey Central Power & Light Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-964.
    Libertarian Party of Virginia et al. v. Davis et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-975.
    Ross Bicycles, Inc. v. Cycles USA, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-978.
    Korey v. City of Davenport, Iowa.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-980.
    Ernest v. United States Attorney for the Southern District of Alabama et al.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 85-982.
    Sampson v. Raskin et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 85-984.
    International Association of Machinists & Aerospace Workers, AFL-CIO v. Qantas Airways, Ltd.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-985.
    Masin et ux. v. Drain et ux.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 85-986.
    Gissaro v. Gross & Hecht Trucking, Inc.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 85-989.
    Quilici v. Second Amendment Foundation et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-992.
    Freese, Next Friend for Freese, et ux. v. Corning Glass Works.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1000.
    Facer Insurance Agency, Inc. v. Fabe, Superintendent of Insurance of Ohio.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 85-1001.
    Bohn et ux. v. County of Dakota et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-1002.
    Ciampitti et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1004.
    Beaird v. Miller’s Mutual Insurance Association of Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 85-1006.
    Sinha v. Veterans Administration.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-1008.
    Britt v. Simi Valley Unified School District et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1009.
    Yarbough et al. v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 85-1013.
    Rittenhouse v. DeKalb County, Georgia, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1014.
    Smith v. Louisiana.
   Ct. App. La., 2d Cir. Certiorari denied.


text:
    No. 85-1015.
    Leebro Management, Inc., dba Samson Buick, Inc. v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1016.
    McKnight et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-1019.
    Russell v. Colorado.
   Ct. App. Colo. Cer-tiorari denied.


text:
    No. 85-1023.
    Jon-T. Chemicals, Inc., et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1024.
    Pliska v. Steel King Industries, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-1025.
    Williams, t/a Williams Electric v. School Board of the City of Pittsburgh.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1029.
    Starkman v. Marathon Oil Co. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1031.
    Hucks et al. v. Bell Telephone Laboratories, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1032.
    M. J. M. Exhibitors, Inc. v. Stern, Individually and as Chairman of the New York State Urban Development Corporation, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-1034.
    Jackson v. Cabinet for Human Resources of the Commonwealth of Kentucky.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 85-1039.
    Quansah v. Jim Butler & Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1041.
    Llano, Inc. v. International Minerals & Chemical Corp.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-1044.
    Quarles v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.


text:
    No. 85-1046.
    Ramirez v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-1047.
    Mikulec v. Braun, Sheriff of Erie County.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 85-1049.
    Chrysler Plastic Products Corp. v. Erebia.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1055.
    Pyle, by Straub, a Successor Guardian of her Estate v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-1056.
    Biscayne 21 Condominium, Inc. v. South Atlantic Financial Corp.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1057.
    Otari Corp. v. King Instrument Corp.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-1059.
    Doe v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 85-1060.
    Raytheon Co. v. CVD, Inc., et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-1062.
    Hornbuckle v. Arco Oil & Gas Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1068.
    Demjanjuk v. Petrovsky, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1069.
    Coe v. Coe.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1070.
    No. 85-5961.
    Jones et al. v. Thorne; and Thorne et ux. v. Jones et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 765 F. 2d 1270.


text:
    No. 85-1072.
    Angel v. Superior Court of California, County of San Diego (Renn, Real Party in Interest).
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-1073.
    Blue Bell, Inc. v. Wilhelm et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1075.
    Daniel v. Security Pacific National Bank et al.
   C. A. 9th Cir. Certiorari denied.