text:
    No. 86-1055.
    Price et al. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, et al.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Communications Workers v. Beck, ante, p. 735.


source: Caselaw Access Project

license: Public Domain

text:
    No. 86-1343.
    Tafoya v. New Mexico.
   Ct. App. N. M. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Coy v. Iowa, ante, p. 1012. Justice Blackmun would deny the petition.


text:
    No. 86-1661.
    Battles Farm Co. et al. v. Pierce, Secretary of Housing and Urban Development.
   C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Pierce v. Underwood, ante, p. 552.


text:
    No. 87-251.
    Bowen, Secretary of Health and Human Services v. Russell.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Pierce v. Underwood, ante, p. 552.


text:
    No. 87-893.
    Emanuel v. Marsh, Secretary of the Army, et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Watsoyi v. Fort Worth Bank & Trust, ante, p. 977.


text:
    No. 87-6129.
    Jones v. Mississippi.
   Sup. Ct. Miss. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Thompson v. Oklahoma, ante, p. 815, and Maynard v. Cartwright, 486 U. S. 356 (1988).


text:
    No. 87-6135.
    Powell v. Texas.
   Ct. Crim. App. Tex. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Satterwhite v. Texas, 486 U. S. 249 (1988).


text:
    No. 87-6190.
    Conley v. Wisconsin.
   Ct. App. Wis. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Coy v. Iowa, ante, p. 1012.


text:
    No. 87-6639.
    Bowie v. California.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Houston v. Lack, ante, p. 266.


text:
    No.-.
    Mincey v. Superintendent, Arizona State Prison.
   Motion to direct the Clerk to file petition for writ of

certiorari out of time denied.


text:
    No. A-900.
    Winslow et al. v. Williams et al.
   Applica-

tion for injunction and other relief, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-930.
    McDonald v. Metropolitan Government, Acting by and Through the Taxicab and Wrecker Licensing Board.
   Chan. Ct., Davidson County, Tenn. Application for stay and other relief, addressed to Justice Kennedy and referred to the Court, denied.


text:
    No. A-974.
    Detroit Free Press et al. v. Wayne Circuit Judge.
   Application for injunction and other relief, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-704.
    In re Disbarment of Pacione.
   Disbarment entered. [For earlier order herein, see 485 U. S. 1019.]


text:
    No. D-706.
    In re Disbarment of Purvis.
   Disbarment entered. [For earlier order herein, see 485 U. S. 1033.]


text:
    No. 108,
    Orig.
    Nebraska v. Wyoming et al.
   Motion of the Special Master for award of interim compensation and for reimbursement of expenses granted, and the Special Master is awarded $101,129.97 to be paid one-half by Nebraska and one-half by Wyoming. [For earlier order herein, see, e. g., 485 U. S. 931.]


text:
    No. 112,
    Orig.
    Wyoming v. Oklahoma.
   Motions of Wyoming Mining Association and Alabama Power Co. for leave to file briefs as amici curiae granted. Motion for leave to file bill of complaint granted. Defendant is allowed 60 days within which to file an answer.


text:
    No. 87-107.
    Patterson v. McLean Credit Union.
   C. A. 4th Cir. [Certiorari granted, 484 U. S. 814.] Motion of American Jewish Congress et al. for leave to file a brief as amici curiae out of time granted.


text:
    No. 87-796.
    Cities Service Gas Co. et al. v. Mobil Oil Corp. et al.
   C. A. 10th Cir. Motion of the parties to defer consideration of the petition for writ of certiorari granted.


text:
    No. 87-1346.
    Bonito Boats, Inc. v. Thunder Craft Boats, Inc.
   Sup. Ct. Fla. [Certiorari granted, 486 U. S. 1004.] Charles Lipsey, Esq., of Washington, D. C., is invited to brief and argue this case in support of the judgment below as amicus curiae.


text:
    No. 87-1589.
    No. 87-1888.
    Pittsburgh & Lake Erie Railroad Co. v. Railway Labor Executives’ Assn. et al. Pittsburgh & Lake Erie Railroad Co. v. Railway Labor Executives’ Assn. et al.
   C. A. 3d Cir.; and

C. A. 3d Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 87-7028.
    No. 87-1904.
    Mistretta v. United States; and United States v. Mistretta.
   C. A. 8th Cir. [Certiorari granted, 486 U. S. 1054.] Motion of the Solicitor General for divided argument to permit the United States Sentencing Commission to participate in oral argument as amicus curiae and for additional timé for oral argument granted, and 20 additional minutes are allotted for that purpose to be divided as follows: Mistretta, 40 minutes; the Solicitor General, 25 minutes; and the United States Sentencing Commission, 15 minutes.


text:
    No. 87-1911.
    Railway Labor Executives’ Assn. et al. v. Guilford Transportation Industries, Inc., et al.
   C. A. 1st Cir. Motion of petitioners to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 87-2049.
    Railway Labor Executives’ Assn. et al. v. Chicago & North Western Transportation Co. et al.
   C. A. 8th Cir. Motion of petitioners to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 87-6980.
    Venturi v. California.
   Ct. App. Cal., 5th App. Dist. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until July 21, 1988, 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. 87-7128.
    In re Mahdi.
   Petition for writ of habeas corpus denied.


text:
    No. 87-1224.
    Oring v. State Bar of California.
   Appeal from Sup. Ct. Cal. Probable jurisdiction noted.


text:
    No. 87-1939.
    No. 87-2008.
    Barnard, Chairman of the Committee of Bar Examiners of the Virgin Islands v. Thorstenn et al.; and Virgin Islands Bar Assn. v. Thorstenn et al.
   C. A. 3d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 842 F. 2d 1393.


text:
    No. 87-1387.
    Wards Cove Packing Co., Inc., et al. v. Atonio et al.
   C. A. 9th Cir. Certiorari granted limited to Questions 1, 2, and 3 presented by the petition.


text:
    No. 87-5666.
    High v. Zant, Warden.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 1 presented by the petition and case set for oral argument in tandem with No. 87-6026, Wilkins v. Missouri, immediately infra.


text:
    No. 87-6026.
    Wilkins v. Missouri.
   Sup. Ct. Mo. Motion of petitioner for leave to proceed in forma pauperis granted. Cer-tiorari granted limited to Question 1 presented by the petition and case set for oral argument in tandem with No. 87-5666, High v. Zant, Warden, immediately supra.


text:
    No. 87-6177.
    Penry v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted limited to Questions 1 and 2 presented by the petition.


text:
    No. 85-1529.
    Grumman Aerospace Corp. v. Shaw.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-379.
    Dowd et al. v. Textron, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-674.
    Tozer et al. v. LTV Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-678.
    Silvestri v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-966.
    Beck et al. v. Communications Workers of America et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-1386.
    Salgado v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-1573.
    Conner Air Lines, Inc. v. Federal Aviation Administration.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-2013.
    Whitehorn, aka Morrison v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-6712.
    Van Orsow v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-7065.
    Tackett v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 87-372.
    Amoco Production Co. v. Hodel, Secretary of the Interior, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-436.
    No. 87-620.
    Lombardi et al. v. Dow Chemical Co. et al.; and Krupkin et al. v. Dow Chemical Co. et al.
   C. A. 2d Cir. Certiorari denied. Reported below: No. 87-436, 818 F. 2d 187; No. 87-620, 818 F. 2d 179.


text:
    No. 87-593.
    Maine v. Events International, Inc., et al.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 87-1124.
    Byrd v. Ohio.
   Ct. App. Ohio, Warren County. Certiorari denied.


text:
    No. 87-1498.
    Robbins et al. v. Easter Enterprises, Inc., dba Ace Lines, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1499.
    Anderson et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1505.
    Flavel v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 87-1516.
    Frank, Postmaster General of the United States Postal Service v. Shidaker.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 87-1547.
    California Teamsters Public, Professional & Medical Employees Union Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Ghebreselassie.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 87-1569.
    Pimentel et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-1607.
    Silverstein et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-1609.
    Griffin & Brand of McAllen, Inc., et al. v. Reyes et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-1642.
    No. 87-1814.
    Cablevision Co. v. Motion Picture Association of America, Inc., et al.; and National Cable Television Assn., Inc. v. Columbia Pictures Industries, Inc., et al.
   C. A. D. C. Cir. Certiorari denied. Reported below: 266 U. S. App. D. C. 435, 836 F. 2d 599.


text:
    No. 87-1676.
    Saul et al., Co-Executors of the Estate of Saul v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-1685.
    No. 87-1841.
    Shell Oil Co. v. City of Santa Monica; and City of Santa Monica v. Shell Oil Co.
   C. A. 9th Cir. Certiorari denied. Reported below: 830 F. 2d 1052.


text:
    No. 87-1715.
    Hale v. McLaughlin, Secretary of Labor, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-1733.
    Sampson et ux. v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-1735.
    Fishman et al. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-1795.
    Rainbow Tours, Inc., dba Rainbow Coaches v. National Labor Relations Board.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 87-1803.
    United States Fidelity & Guaranty Co. v. United States.
   C. Á. 3d Cir. Certiorari denied.


text:
    No. 87-1834.
    Pearson v. Louisiana.
   Ct. App. La., 2d Cir. Certiorari denied.


text:
    No. 87-1843.
    Kolenberg v. Board of Education of Stamford, Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 87-1846.
    Lambert Gravel Co., Inc. v. J. A. Jones Construction Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-1851.
    Davis Pacific Corp. v. Ventura County Flood Control District.
   Ct. App. Cal., 2d App. Dist. Cer-tiorari denied.


text:
    No. 87-1856.
    Ramsey Associates, Inc., et al. v. Coty et al.
   Sup. Ct. Vt. Certiorari denied.


text:
    No. 87-1857.
    Drummer v. Noel et al.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 87-1859.
    Air Transport Association of America et al. v. Public Utilities Commission of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-1863.
    Compliance Marine, Inc. v. Campbell, Trustee.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1871.
    Cave v. Pittsburgh Corning Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1872.
    No. 87-6673.
    No. 87-6808.
    Rosenstein et al. v. United States; Nigo-Martinez et al. v. United States; and Wilson v. United States.
   C. A. 7th Cir. Certiorari denied. Reported below: 841 F. 2d 1300.


text:
    No. 87-1875.
    Lee v. Albemarle County, Virginia, School Board et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1881.
    Wickstrom, by Wickstrom et al., Conservators of the Person and Estate of Wickstrom v. Maplewood Toyota, Inc. , et al.
   Ct. App. Minn. Certiorari denied.


text:
    No. 87-1887.
    Shelley v. City of Los Angeles.
   C. A. 9th Cir. ' Certiorari denied.


text:
    No. 87-1913.
    Reshard v. Burnley, Secretary, United States Department of Transportation.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 87-1952.
    VanLandingham v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1982.
    Avery v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-1993.
    Robinson v. Virginia State Bar ex rel. Third District Committee.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 87-1996.
    Ayars et ux. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-1998.
    Fernandez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-1999.
    Pfluger et ux. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-2005.
    Henry v. Mrosak et ux.
   Ct. App. Minn. Certiorari denied.


text:
    No. 87-5940.
    Whitehorn v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-6615.
    Riley v. Smith.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-6625.
    Tracy v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 87-6651.
    Reid v. Missouri.
   Ct. App. Mo., Western Dist. Certiorari denied.


text:
    No. 87-6667.
    Leach v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-6754.
    Allen v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-6837.
    Spencer v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-6850.
    Greene v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 87-6861.
    Rush v. United States.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 87-6884.
    Felton v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6890.
    No. 87-6945.
    Reidt v. United States; and Geurin v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 87-6898.
    Justice v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 87-6937.
    Robinson v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6951.
    Rachals v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 87-6960.
    Rauser v. Freeman, Superintendent, State Correctional Institution and Diagnostic and Classification Center at Camp Hill, Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-6961.
    Strickland v. Lane, Director, Illinois Department of Corrections.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-6967.
    Cortez v. Hoke, Superintendent, Eastern New York Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-6970.
    Jackson v. Cleveland State University.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-6972.
    Hicks v. Loffredo et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 87-6973.
    Daniels v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 87-6975.
    Sebastian-Andres v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 87-6988.
    Cloyd, aka Francis v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6990.
    Gorman v. Jones, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6991.
    Finch v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6999.
    Beals v. Bennett, Sheriff, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 87-7007.
    May v. Bertelsman; and May v. Court of Appeals, First Appellate District of Ohio, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-7017.
    Flores et al. v. Municipality of Carolina.
   Super. Ct. P. R. Certiorari denied.


text:
    No. 87-7030.
    Mobley v. Whitfield.
   C. A. D. C. Cir. Cer-tiorari denied.


text:
    No. 87-7032.
    Colon v. New York.
   Ct. App. N. Y. Certio-rari denied.


text:
    No. 87-7046.
    Schroeder v. Oregon et al.
   Ct. App. Ore. Certiorari denied.


text:
    No. 87-7064.
    Davis v. United States.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 87-7073.
    Brown v. Murray, Director, Virginia Department of Corrections, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-7090.
    Arrington v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 87-7091.
    Cadavid-Gomez v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-7104.
    Sanchez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-7106.
    Towns v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-7113.
    Gittleman v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-7130.
    Turner v. Sullivan, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-7133.
    Thornberg v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-7155.
    Mathews v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-1302.
    Gushiken et al. v. Fujikawa.
   C. A. 9th Cir. Certiorari denied.

Justice White and Justice O’Connor would grant certiorari.


text:
    No. 87-1497.
    Easter Enterprises, Inc., dba Ace Lines, Inc. v. Robbins et al.
   C. A. 8th Cir. Certiorari denied.

Justice Brennan, Justice White, and Justice Kennedy would grant certiorari.


text:
    No. 87-1693.
    Knies v. United States.
   C. A. 7th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 87-1712.
    Doe et al. v. United States.
   C. A. 4th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 87-1701.
    Dugger, Secretary, Florida Department of Corrections v. Foster.
   Sup. Ct. Fla. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 87-1756.
    Sundquist v. Chastain.
   C. A. D. C. Cir. Certiorari denied.

Justice White, Justice Blackmun, and Justice O’Connor would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 87-5418.
    No. 87-5876.
    Housel v. Georgia. Cordova v. Texas. Foster v. Dugger, Secretary, Florida Department of Corrections. Barrientes v. Texas. King v. Florida. Aranda v. Texas. Jackson v. Texas. Rosales v. Texas.
   Sup. Ct. Ga.;

Ct. Crim. App. Tex.;

No. 87-6137.

No. 87-6381.

No. 87-6436.

No. 87-6873.

No. 87-6886.

No. 87-7255.

C. A. 11th Cir.;

Ct. Crim. App. Tex.;

Sup. Ct. Fla.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.; and

Ct. Crim. App. Tex. Cer-tiorari denied. Reported below: No. 87-5418, 257 Ga. 115, 355 S. E. 2d 651; No. 87-5876, 733 S. W. 2d 175; No. 87-6137, 823 F. 2d 402; No. 87-6381, 752 S. W. 2d 524; No. 87-6436, 514 So. 2d 354; No. 87-6873, 736 S. W. 2d 702; No. 87-6886, 745 S. W. 2d 4; No. 87-7255, 748 S. W. 2d 451.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 87-6437.
    Baker v. Piggott.
   C. A. 11th Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


author: Justice Marshall,

text:
    No. 87-6977.
    Nicks v. Alabama.
   Sup. Ct. Ala. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

I continue to believe that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting). But even if I did not hold this view, I would grant the petition for writ of certiorari and vacate the death sentence in this case, because the sentence was secured in flagrant violation of our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985).

In Caldwell we vacated a sentence of death because the prosecutor “sought to minimize the jury’s sense of the importance of its role” by stressing to the jury that its verdict would be subject to appellate review. Id., at 325. The prosecutor told the jury during the sentencing phase that “your decision is not the final de-cisión. . . . Your job is reviewable.” Ibid. We held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id., at 328-329.

Petitioner’s sentence of death cannot be squared with our decision in Caldwell. The prosecutor in this case made the following argument to the jury at the penalty phase of petitioner’s trial:

“The opinion, which you will come to a conclusion when you go back and deliberate — Let me say this, it will be only an advisory opinion. The law provides for you to present this to the Court for their consideration. The ultimate decisions [sic] rests with Judge Reynolds. He will be the one to take whatever ruling that you send out and decide whether it will be life without parole or death by electrocution in the electric chair.” Pet. for Cert. 3.

This argument, perhaps even more baldly than the statements in Caldwell, sought to minimize the jury’s sense of its awesome responsibility to determine whether petitioner would live or die by encouraging the jury to view its verdict as merely “advisory.” This shifting of the jury’s sense of responsibility to another decisionmaker, as we explained at length in Caldwell, undermines the reliability of the jury’s decision and conditions the jury to return the death penalty. See 472 U. S., at 330-333.

That the prosecutor in this case told the jury that the trial judge would make the ultimate decision, whereas the prosecutor in Caldwell identified the appellate court as the ultimate decisionmaker, is a distinction without a difference. Caldwell makes plain that a death penalty cannot stand where the jury is led to believe that the defendant’s life rests in some other hands. The constitutional infirmity here is thus no different from that in Caldwell, and the sentence of death no less intolerable. I therefore would grant the petition and reverse the judgment of the Supreme Court of Alabama to the extent it sustains the imposition of the death penalty.


text:
    No. 87-7185.
    Byrne v. Butler, Warden.
   C. A. 5th Cir. Certiorari denied.

Justice Brennan and Justice Blackmun would dismiss the petition for writ of certiorari as moot.


text:
    No. 87-4.
    No. 87-1692.
    No. 87-5946.
    No. 87-6189.
    No. 87-6331.
    No. 87-6490.
    No. 87-6491.
    No. 87-6598.
    No. 87-6612.
    No. 87-6613.
    No. 87-6621.
    No. 87-6627.
    No. 87-6650.
    No. 87-6659.
    No. 87-6715.
    No. 87-6776.
    No. 87-6790.
    No. 87-6834.
    No. 87-6843.
    Wheat v. United States, Marotta v. United States, Johnson v. Artim Transportation System, Inc., et al., Erickson v. Illinois, Finney v. Texas, Fabbri v. Sheraton Plaza la Reina Hotel, Pavlico v. United States, Phillippe v. Shapell Industries, Inc., Williams v. York Steak House et al., Swift v. Lewis, Director, Arizona Department of Corrections, Bilder v. City of Akron, Ohio, Frazier v. Georgia, Watson v. Jarvis, Sheriff, DeKalb County, Georgia, Van Straten v. Keene et al., Seltzer v. Office of Personnel Management, McGovern v. United States, In re Martin, Fields v. Steinbrenner et al., Johnson v. Bowen, Secretary of Health, and Human Services,
   486 U. S. 153;

486 U. S. 1009;

486 U. S. 1023;

486 U. S. 1017;

486 U. S. 1010;

486 U. S. 1024;

486 U. S. 1034;

486 U. S. 1011;

486 U. S. 1044;

486 U. S. 1029;

486 U. S. 1011;

486 U. S. 1017;

486 U. S. 1034;

486 U. S. 1012;

486 U. S. 1024;

486 U. S. 1014;

486 U. S. 1041;

486 U. S. 1058; and

486 U. S. 1045. Petitions for rehearing denied.


text:
    No. 86-1145.
    Patrick v. Burget et al.,
   486 U. S. 94. Petition for rehearing denied.

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


text:
    No. 87-391.
    Chaser Shipping Corp. et al. v. United States,
   484 U. S. 1004. Motion for leave to file petition for rehearing denied.

Justice Kennedy took no partin the consideration or decision of this motion.


text:
    No. 87-1202.
    Hutter Northern Trust et al. v. City of Chicago et al.,
   485 U. S. 936. Motion for leave to file petition for rehearing denied.


text:
    July 11, 1988
    No. 87-1957.
    Allen-Sherman-Hoff Co., Inc., et al. v. Hardy.
   C. A. 3d Cir. Certiorari dismissed under this Court’s

Rule 53.


text:
    July 28, 1988
    No. 88-5174 (A-84).
    Messer v. Zant, Warden.
   C. A. 11th

Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231-241 (1976) (Marshall, J., dissenting), I would grant the application for stay and the petition for writ of certiorari and would vacate the death sentence in this case.

But even if I did not hold these views, I would grant the stay and vacate petitioner’s death sentence for the reasons I expressed in Messer v. Kemp, 474 U. S. 1088 (1986) (dissent from denial of certiorari). Petitioner has clearly met the standard that this Court set in Strickland v. Washington, 466 U. S. 668 (1984), for establishing ineffective assistance of counsel during the sentencing phase of his trial.


text:
    August 2, 1988
    No. 87-2095.
    Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Wilson.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 3, 1988
    No. 87-796.
    Cities Service Gas Co. et al. v. Mobil Oil Corp. et al.
   C. A. 10th Cir. Joint application to vacate the stay entered on June 13, 1988 [486 U. S. 1051], presented to Justice White, and by him referred to the Court, granted only to the limited extent that this Court’s order of June 13, 1988, granting the motion for recall and stay of the mandate of the' United States Court of Appeals for the Tenth Circuit in this case pending this Court’s action on the petition for certiorari, shall be modified in the following respect: The United States Court of Appeals for the Tenth Circuit is authorized to remand the case to the United States District Court for the District of Kansas for the sole purpose of determining whether the settlement should be approved. The District Court is authorized only to carry out the necessary proceedings to determine whether the settlement should be approved, and either to disapprove the settlement or to enter the appropriate orders disposing of the case if the settlement is approved. If the settlement is disapproved, then this Court’s order of June 13, 1988, remains in effect without further modification. This Court’s order of June 30, 1988 [ante, p. 1231], granting the motion to defer consideration of the petition for certiorari in this case, remains in effect without modification.


text:
    August 4, 1988
    No.-.
    No. 87-1122.
    No. 87-1391.
    No. 87-1251.
    No. 87-1492.
    No. 87-1523.
    No. 87-1582.
    No. 87-1601.
    Molina v. United States, Crowley Maritime Corp. et al. v. Zipfel et al., Halliburton Co. et al. v. Zipfel et al., In re Sowell, Spiegel v. Continental Illinois National Bank & Trust Company of Chicago et al., Morris v. Compagnie Maritime des Chargeurs Reunis, S. A., et al., Fitzgerald v. Montana Department of Family Services et al., Bell, Individually and dba Wes Outdoor Advertising Co. v. New Jersey et al., Rose v. Texas, Hyslep et ux. v. Commissioner of Internal Revenue, Roberts v. Roberts, Fisher v. Oklahoma, Kyles v. Louisiana, Gardner v. North Carolina, Knox v. Texas, Levert v. Estelle, Warden, et al., Miranda v. California, May v. Pro-Guard, Inc., Williams v. Planned Parenthood Federation of America et al., Trotz, Individually and as Administratrix of the Estate of Trotz v. Lawruk et al., t/a Penn Alto Hotel, Spencer v. Illinois, Trotz v. Pennsylvania Unemployment Compensation Board of Review, Foster v. Illinois, Waters v. Neubert et al., Johnson v. Illinois, McGee v. Randall Division of Textron, Inc., of Grenada, Mississippi, Flores et al. v. Municipality of Carolina,
   ante, p. 1214;

486 U. S. 1054;

486 U. S. 1054;

484 U. S. 1057;

485 U. S. 1009;

485 U. S. 1022;

ante, p. 1201;

486 U. S. 1001;

No. 87-1694.

No. 87-1820.

No. 87-5425.

No. 87-6008.

No. 87-6096.

No. 87-6196.

No. 87-6365.

No. 87-6486.

No. 87-6746.

No. 87-6816.

No. 87-6817.

No. 87-6863.

No. 87-6864.

No. 87-6875.

No. 87-6905.

No. 87-6912.

No. 87-6926.

No. 87-6959.

No. 87-7017.

486 U. S. 1055;

486 U. S. 1044;

485 U. S. 963;

486 U. S. 1061;

486 U. S. 1027;

486 U. S. 1061;

486 U.. S. 1061;

ante, p. 1207;

486 U. S. 1038;

486 U. S. 1045;

486 U. S. 1047;

ante, p. 1220;

ante, p. 1208;

ante, p. 1208;

486 U. S. 1047;

ante, p. 1209;

486 U. S. 1047;

ante, p. 1209; and

ante, p. 1239. Petitions for rehearing denied.


text:
    No. 87-1520.
    Wiley v. Mississippi,
   486 U. S. 1036. Motion of petitioner for leave to proceed further herein informa pauperis granted. Petition for rehearing denied.


text:
    No. 87-1780.
    Burt v. Justices of the Supreme Court of Idaho et al.,
   486 U. S. 1061. Petition for rehearing denied.

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


text:
    No. 87-6447.
    Thacker v. Bumgarner, Superintendent, North Carolina Southern Correctional Center,
   485 U. S. 1011. Motion for leave to file petition for rehearing denied.


text:
    No. 87-6752.
    Gaunce v. United States; Gaunce v. DeVincentis et al.; and Gaunce v. National Transportation Safety Board et al.,
   486 U. S. 1039. Motion for leave to file petition for rehearing denied.

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


text:
    August 9, 1988
    No. 87-1790.
    American Management & Amusement, Inc. v. Barona Group of the Capitan Grande Band of Mission Indians.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan, Justice Marshall,

text:
    August 23, 1988
    No. 88-236 (A-120).
    Monroe v. Butler, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting), I would grant the application for stay and the petition for writ of certiorari and would vacate the death sentence in this case.

But even if I did not hold these views, I would grant the stay and vacate petitioner’s death sentence for the reasons I expressed in Monroe v. Butler, 485 U. S. 1024, 1024-1028 (1988) (dissent from denial of certiorari). After petitioner was convicted, state officials became aware of, but suppressed, information strongly suggesting that petitioner did not commit the crime for which he was found guilty. Petitioner has, however, neither been released nor received a new trial. Because petitioner has received woefully inadequate relief to vindicate the State’s violation of his constitutional rights under Brady v. Maryland, 373 U. S. 83 (1963), I would stay his death sentence.


text:
    August 25, 1988
    No. D-677.
    In re Disbarment of Belmont.
   Disbarment entered. [For earlier order herein, see 485 U. S. 952.]


text:
    No. D-701.
    In re Disbarment of Meros.
   Disbarment entered. [For earlier order herein, see 485 U. S. 1002.]


text:
    No. D-703.
    In re Disbarment of Gussow.
   Disbarment entered. [For earlier order herein, see 485 U. S. 1019.]


text:
    No. D-707.
    In re Disbarment of Blecher.
   Disbarment entered. [For earlier order herein, see 486 U. S. 1003.]


text:
    No. D-708.
    In re Disbarment of Lewis.
   Disbarment entered. [For earlier order herein, see 486 U. S. 1003.]


text:
    No. D-709.
    In re Disbarment of Kantor.
   Disbarment entered. [For earlier order herein, see 486 U. S. 1030.]


text:
    No. D-713.
    In re Disbarment of Foote.
   Disbarment entered. [For earlier order herein, see 486 U. S. 1041.]


text:
    No. D-716.
    In re Disbarment of Tirelli.
   Disbarment entered. [For earlier order herein, see ante, p. 1202.]


text:
    No. D-722.
    In re Disbarment of Doherty.
   It is ordered that Jerome J. Doherty, of Seattle, Wash., 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-723.
    In re Disbarment of Stark.
   It is ordered that William C. Stark, of Chicago, Ill., 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-724.
    In re Disbarment of Storts.
   It is ordered that Brick P. Storts III, of Tucson, Ariz., 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-725.
    In re Disbarment of Paul.
   It is ordered that Jerome Paul, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-726.
    In re Disbarment of Chowaniec.
   It is ordered that Chester L. Chowaniec, of Oak Lawn, Ill., 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-727.
    In re Disbarment of Blumthal.
   It is ordered that William J. Blumthal, of Libertyville, Ill., 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-728.
    In re Disbarment of Lorenz.
   It is ordered that Gary Richard Lorenz, of Louisville, Ky., 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-729.
    In re Disbarment of Bongiorno.
   It is ordered that Peter T. Bongiorno, of Paterson, N. J., 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-730.
    In re Disbarment of Swofford.
   It is ordered that Herbert Reginald Swofford, of Orlando, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-731.
    In re Disbarment of Clayton.
   It is ordered that William Norris Clayton, 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. 85-1529.
    No. 86-379.
    No. 86-5309.
    No. 87-171.
    No. 87-377.
    No. 87-1509.
    No. 87-1563.
    No. 87-1826.
    No. 87-1913.
    No. 87-1993.
    No. 87-1996.
    No. 87-5418.
    No. 87-6573.
    No. 87-6760.
    No. 87-6794.
    No. 87-6922.
    No. 87-6975.
    No. 87-7022.
    Grumman Aerospace Corp. v. Shaw, Dowd et al. v. Textron, Inc., et al., Ross v. Oklahoma, Copley et al. v. Heil-Quaker Corp. et al., McIntosh et al. v. Carlucci, Secretary of Defense, et al., Hodder v. United States, Matt v. Larocca, Commissioner, New York State Department of Transportation, Smith v. Rolewick, Administrator, Illinois Attorney Registration and Disciplinary Commission, Reshard v. Burnley, Secretary, United States Department of Transportation, Robinson v. Virginia State Bar ex rel. Third District Committee, Ayars et ux. v. United States, Housel v. Georgia, Lewis v. Modular Quarters et al., Burr v. Florida, Lockett v. Mississippi (two cases), Agnes, aka Martin v. United States, Sebastian-Andres v. United States, Muza v. United States,
   ante, p. 1233;

ante, p. 1233;

ante, p. 81;

ante, p. 1204;

ante, p. 1217;

ante, p. 1218;

486 U. S. 1007;

ante, p. 1219;

ante, p. 1237;

ante, p. 1237;

ante, p. 1237;

ante, p. 1240;

ante, p. 1226;

ante, p. 1201;

ante, p. 1210;

ante, p. 1221;

ante, p. 1239; and

ante, p. 1222. Petitions for rehearing denied.


text:
    No. 87-1792.
    No. 87-6527.
    Ganoe et al. v. Lummis, Temporary Administrator of the Estate of Hughes, Jones v. St. Louis-San Francisco Railway,
   ante, p. 1206; and

486 U. S. 1010. Motions for leave to file petitions for rehearing denied.


text:
    August 26, 1988
    No. 87-7346.
    Vasquez v. California.
   Ct. App. Cal., 2d Ápp. Dist. Certiorari dismissed under this Court’s Rule 53.


text:
    September 1, 1988
    No. A-172.
    No. A-173.
    No. A-174.
    No. A-175.
    Spallone v. United States et al.; Longo et al. v. United States et al.; Chema v. United States et al.; and City of Yonkers v. United States et al.
   C. A. 2d Cir. Applications for stay of Henry G. Spallone, Nicholas Longo, Edward Fagan, and Peter Chema, presented to Justice Marshall, and by him referred to the Court, granted pending the timely filing and disposition by this Court of petitions for writs of certiorari. Application for stay of city of Yonkers, presented to Justice Marshall, and by him referred to the Court, denied.

Justice Marshall,

joined by Justice Brennan,

concurring in the denial of stay in No. A-175, and dissenting from the grant of stay in Nos. A-172, A-173, and A-174.

On August 26, 1988, the Court of Appeals for the Second Circuit upheld both the District Court’s determination that the city of Yonkers and four members of its city council were in contempt of court and its imposition of sanctions for their failure to abide by a consent decree committing the city to implement a housing desegregation plan. 856 F. 2d 444. The Court of Appeals stayed issuance of its mandate until September 2, to permit application for a stay of the contempt sanctions pending filing and consideration of petitions for writs of certiorari. The city of Yonkers and the four councilmembers have sought such a stay. Today the Court denies a stay as to the city but grants it as to the four coun-cilmembers. I believe that the Court should deny the stay as to the councilmembers as well.

I

In 1980, the United States filed suit against the city of Yonkers, claiming it had intentionally perpetuated and aggravated residential racial segregation in violation of the Constitution and Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, 42 U. S. C. §§3601-3619, and had intentionally segregated its schools in violation of the Constitution. The National Association for the Advancement of Colored People (NAACP) was accorded plaintiff-intervenor status. In 1985, the District Court held the city liable for intentional housing and school segregation, United States v. Yonkers Board of Education, 624 F. Supp. 1276 (SDNY 1985), finding, inter alia, that the city had deliberately concentrated virtually all of its public and subsidized housing in southwest Yonkers in order to maintain residential segregation. The District Court issued a Housing Remedy Order which directed the city to establish a fair housing policy, to construct 200 units of public housing, and to plan additional units of subsidized housing. The Court of Appeals for the Second Circuit affirmed both the liability and remedy rulings, United States v. Yonkers Board of Education, 837 F. 2d 1181 (1987), and the Court denied the city’s petition for a writ of certiorari. 486 U. S. 1055 (1988).

On November 15, 1986, the city informed the District Court that it would not comply with the Housing Remedy Order. The United States and the NAACP moved for an adjudication of civil contempt and the imposition of coercive sanctions, but the District Court instead sought voluntary compliance with its earlier order. After negotiations, the city council — the city’s sole governing authority-agreed to appoint an outside housing adviser to identify sites for the 200 units of public housing and to draft a long-term plan for subsidized housing. Over a year passed. On January 28, 1988, the parties entered into a consent decree, approved by the District Court, which set a new timetable for the construction of the 200 public housing units. The city pledged that it would not seek further review of the Housing Remedy Order or any subsequently entered decree relating to these 200 units. In addition, the city agreed that the construction of 800 units of subsidized housing was an appropriate remedy and pledged to make good-faith efforts to build the additional 600 units within the next three years. Section 17 of the consent decree obligated the city “to adopt . . . legislation” necessary to meet the goal of 800 units, including tax abatements, zoning changes, and, within 90 days, a package of incentives for local development. Section 18 provided for further negotiations and the submission of a draft of a second consent decree setting forth long-range plans for subsidized housing by February 15, 1988. The council approved the consent decree by a vote of 5 to 2.

Within two months, the city demonstrated its unwillingness to comply with the consent decree by moving unsuccessfully to delete the provision in which it promised not to seek further review of its obligation to build the 200 units, and by offering to return approximately $30 million in federal funds in the event this Court set aside the public housing provisions of the Housing Remedy Order. On April 12, 1988, the city announced that it was “not interested” in completing negotiations on the long-term plan for subsidized housing as required by § 18 of the consent decree. Following a hearing on June 13, the District Court entered a Long Term Plan Order outlining the legislation that the city had committed itself to adopt in § 17 of the consent decree. The order was based on a draft prepared by the city’s lawyers during earlier negotiations and accommodated most of the city’s objections.

The next day, June 14, 1988, the council adopted a resolution declaring a moratorium on all public housing construction in Yonkers. A week later, on June 21, the city announced that it had retained a consulting firm to draft housing legislation, and that the next council meeting was tentatively scheduled for August. The District Court, expressing concern about delay, asked the council to pass a resolution adopting the provisions of the Long Term Plan Order. On June 28, the council voted down a resolution indicating its commitment to implementing the Housing Remedy Order, the consent decree, and the Long Term Plan Order. The following day, the District Court directed the plaintiffs to submit an order requiring the city to take “specific implementing action” under a prescribed timetable on penalty of a contempt adjudication and imposition of fines. At a hearing held to consider the proposed order, the city stated that it would not voluntarily comply with the Long Term Plan Order and urged the court to enter an order adopting the necessary legislation. The city also objected to the creation of an Affordable Housing Commission to exercise the council’s responsibilities for implementing the District Court’s orders and the consent decree. The city argued that such a commission would impermissibly interfere with the council’s “core legislative as well as executive functions.”

On July 26, 1988, the District Court ordered the city to enact by August 1 “the legislative package relating to the long-term plan as described in Section 17 of the [consent decree] and the Long Term Plan Order.” This “legislative package” was set forth in a detailed Affordable Housing Ordinance drafted by the city’s consultants. The July 26 order warned that if the legislation were not adopted by August 1, the city and the councilmembers would face contempt adjudication and the following fines: on the city, a fine starting at $100 on August 1 and doubling every day until the legislation was passed, so that the cumulative total of the fines would exceed $10,000 by day 7, $1 million by day 14, $200 million by day 21, and $26 billion by day 28; on the councilmembers, a fine of $500 per day on each member who voted against the legislative package, with the additional threat of incarceration on August 10 if the package were not adopted by the council by that time. To accommodate the city’s expressed concern that it could not adopt legislation by August 1 without running afoul of state notice and hearing requirements, the District Court specified that its July 26 order would be “satisfied if the City Council, on or before August 1st, adopts a resolution committing itself to enact the Affordable Housing Ordinance within the minimum time prescribed for notice pursuant to state law.” On August 1, the council rejected such a resolution by a vote of 4 to 3.

As contemplated by the July 26 order, the District Court held a hearing on August 2 to afford the city and councilmembers an opportunity to show cause why they should not be adjudicated in civil contempt. As for the city, the District Court “rejected] [its] contention that a dichotomy can be drawn between the city and the city council.” Further, the District Court declined to adopt the Affordable Housing Ordinance for the city, as requested by the city, noting that the city should directly meet its responsibilities under the Constitution and the consent decree. As for the four councilmembers who had voted against the resolution of intent to adopt the Affordable Housing Ordinance, the District Court rejected their request for a continuance, observing that they had been on notice since July 26 of the prospect of contempt and the need for counsel, and that they had rejected the court’s offer of an immediate evidentiary hearing. The District Court agreed nonetheless that it would permit argument at a later date on any theory or circumstance not then available to counsel. The District Court held the city and the councilmembers in contempt and imposed the sanctions set forth in the July 26 order.

On August 9, the Court of Appeals stayed the District Court’s contempt sanctions against the city and the four councilmembers pending appeal. On August 26, the Court of Appeals, in a unanimous opinion by Judge Newman, affirmed the District Court’s contempt orders and the imposition of coercive monetary sanctions, with one modification in the city’s sanctions. 856 F. 2d 444. First addressing the claims of the councilmembers, the Court of Appeals found that the procedural due process requirements attendant to the contempt adjudications were, with one exception, fully observed. The July 26 order provided sufficient notice to councilmembers of the consequences of noncompliance. Each member appeared with counsel and had an opportunity to present evidence and legal argument. Although the Court of Appeals found that it would have been preferable to have accorded counsel a few days to prepare, it declined to remand the matter given the absence of factual disputes and its decision on the merits. The Court of Appeals also rejected the councilmembers’ First Amendment argument, stating that the public interest in obtaining compliance with federal-court judgments that remedy constitutional violations justifies whatever burden there may have been on the councilmembers’ free expression rights.

As for the argument that the councilmembers were entitled to some form of legislative immunity, the Court of Appeals noted that, even if such immunity extends to individuals performing legislative functions at the purely local level, it would not bar district court orders requiring compliance with decrees redressing constitutional violations. The Court of Appeals stressed, however, that it was not necessary to answer the broad question whether a district court could order local legislators to vote in favor of a particular ordinance to redress a constitutional violation, because the council had approved, and the city had signed, a consent decree requiring the enactment of legislation necessary to implement the District Court’s earlier order. The Court of Appeals found that all council-members, including those who had voted against the consent decree, were obligated to enforce it, and that their failure to do so made appropriate contempt adjudications and the imposition of sanctions.

Along these same lines, the Court of Appeals also decided that the District Court did not abuse its discretion in directing the council to adopt the Affordable Housing Ordinance, and in imposing coercive contempt sanctions to compel compliance, given that the city had agreed in the consent decree to adopt necessary implementing legislation. As for the claim that the July 26 order compelled the council to violate state notice and hearing requirements, the Court of Appeals stressed the supremacy of federal court orders in implementing remedies for constitutional violations. The Court of Appeals added that, in any event, the council could have satisfied the July 26 order by passing a resolution committing itself to enact the legislation in accordance with state-law procedures. As for the city’s claims, the Court of Appeals rejected the defense of impossibility, noting that the city had not done everything it could under city law to obtain compliance with the orders of the District Court. In particular, the city had not tried to coerce councilmembers into compliance by applying to the Emergency Financial Control Board to take action with respect to the city’s financial affairs, or by requesting the Governor of New York to remove the recalcitrant councilmembers for misconduct. In any event, the Court of Appeals concluded, “[f]or purposes of taking official governmental action, the City of Yonkers is the City Council and vice versa.” 856 F. 2d, at 458. The Court of Appeals noted in this regard that the city has no separate executive authority in that its mayor merely serves on the council, and that the city manager serves at the pleasure of the council.

Finally, as to the amount of the coercive fines, the Court of Appeals found that the Excessive Fines Clause of the Eighth Amendment does not apply to civil contempt sanctions imposed to obtain compliance with court orders. Although the court noted that the Due Process Clause of the Fifth Amendment arguably provides a limit, it relied on an abuse-of-discretion standard to review the amount of the fines. The Court of Appeals held that the District Court acted within its discretion in imposing cumulative fines and in starting the fine schedule at $100 a day, but it modified the schedule so that the fine would be $1 million on day 15 and $1 million for every subsequent day of noncompliance. Given the city’s annual budget of $337 million, the Court of Appeals found that a $1 million a day fine was within “reasonable limits.” 856 F. 2d, at 460.

II

The city argues that the fines imposed by the District Court violate the Excessive Fines Clause of the Eighth Amendment and the Due Process Clause of the Fifth Amendment; that the Court of Appeals erred in affirming the contempt adjudication because the District Court did not adopt less restrictive alternatives; that the city had a valid impossibility defense; and that the order violated state law. Councilmembers Spallone and Chema claim legislative immunity. Chema also argues that the contempt sanction violates the First Amendment and his procedural due process rights.' Councilmembers Longo and Fagan claim generally that the sanction was an abuse of discretion and unconstitutional.

A. The City

The city’s first contention is that the Excessive Fines Clause of the Eighth Amendment is applicable to contempt sanctions and that the particular sanctions imposed here were constitutionally excessive. The city accurately observes in this regard that the Court has indicated that the applicability of this Clause to punitive damages in civil cases is “a question of some moment and difficulty.” Bankers Life & Casualty Co. v. Crenshaw, 486 U. S. 71, 79 (1988). But, even if the Clause applies to punitive damages, the city offers no compelling reason why we should extend its reach to civil contempt sanctions. Indeed, it appears settled that the Cruel and Unusual Punishments Clause does not apply to civil contempt sanctions. See Ingraham v. Wright, 430 U. S. 651, 668 (1977). This is not surprising since the Cruel and Unusual Punishments Clause, like the Excessive Fines Clause, applies to punishments for past conduct, while civil contempt sanctions are designed to secure future compliance with judicial decrees. See ibid.; Uphaus v. Wyman, 360 U. S. 72, 81 (1959). In any event, even assuming that the size of monetary contempt sanctions is limited by the Excessive Fines Clause or even the Due Process Clause, I do not think that the fines against the city, as modified by the Court of Appeals, are unreasonable. The city of Yonkers has an annual budget of $337 million. At one point, it offered to forfeit $30 million in federal funds to avoid compliance with the consent decree. Under these circumstances, a fine schedule which imposes $1 million a day only after noncompliance for 15 consecutive days can hardly be deemed unreasonable.

The city’s second contention is that the contempt adjudication itself was improper because the District Court should have adopted less restrictive alternatives such as direct enactment of the legislation or appointment of an Affordable Housing Commission, and because the city had a valid impossibility defense. Neither contention has merit. First, the District Court had no need to resort to its equitable authority, codified in Federal Rule of Civil Procedure 70, to deem the legislation enacted, as the city had committed itself to adopting that legislation in a court-approved consent order. Surely it is both less disruptive and more effective to order compliance with that order than to usurp completely the council’s legislative authority and enact the legislation directly. Second, having previously objected to the creation of an Affordable Housing Commission, the city cannot now claim that the District Court should have created such an entity. The city also contends the District Court erred by rejecting its impossibility defense. It claims that it does not have the ability to compel the councilmembers to enact the legislation or to remove recalcitrant members. The city’s attempt to divorce itself from the actions of its councilmembers is disingenuous. As the city repeatedly points out in its application, “Yonkers is relatively unique in that most of the governmental power in the city is centralized in the legislative branch.” For this reason, the city is the council. Indeed, because the council sets municipal policy, see Pembaur v. Cincinnati, 475 U. S. 469, 481 (1986), it is reasonable to attribute to the city the acts of its elected policymakers.

B. The Councilmembers

The councilmembers’ primary argument is that a federal court lacks authority to order an individual local legislator, as opposed to the body in which he serves, to enact specific legislation. In the councilmembers’ view, a federal court, by entering such an order, runs roughshod over what they see as the local legislator’s right to be absolutely free from such restraints. While this issue arguably is of substantial interest, this case is not a proper vehicle for addressing it. In the first place, the broad question raised by the councilmembers is not presented by these facts. As the Court of Appeals stressed below, this is not a case where a federal court enjoined local legislators to vote in favor of a particular bill in order to remedy a constitutional violation. Far from that, this case presents the much more narrow question whether a federal court may order local officials to abide by an explicit obligation— here, a promise to enact legislation — contained in a consent decree that the officials voted to adopt and that the District Court agreed to accept. In short, this case is about a District Court’s ability to enforce its consent decrees. In no way did the Court of Appeals even hint that federal courts possess the broad powers over local legislators that the councilmembers claim that the Court of Appeals arrogated to itself and the District Court.

In any event, it is not at all clear that federal courts lack authority in all circumstances to enter orders affecting a local legislator’s performance of his legislative duties. In Milliken v. Bradley, 433 U. S. 267 (1977), the Court' held that a District Court could order local school authorities to implement certain programs designed to ameliorate the effects of prior segregation policies. As a practical matter, the import of the Court’s decision was that the individual members of the local school authority were required to vote a certain way for specific remedial programs. This necessary effect of a remedial order is highlighted by the Court’s earlier decision in Griffin v. Prince Edward County School Board, 377 U. S. 218 (1964). There, the Court noted that a District Court possessed authority to order county supervisors “to exercise the power that is theirs to levy taxes” in order to reopen public schools that had been closed in an attempt to avoid a prior desegregation order. Id., at 233. As in this case, the individual local officials in Griffin openly flouted clear commands of a District Court.

Although cases like Milliken and Griffin may stand for the proposition that the district courts may enjoin local legislators to take certain affirmative steps in order to remedy constitutional violations, the Court has never squarely addressed the question whether these local legislators are entitled to some form of legislative immunity. In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 404, n. 26 (1979), the Court specifically left open the question whether local legislators are entitled to any immunity. (Earlier, in Tenney v. Brandhove, 341 U. S. 367, 376 (1951), state legislators were afforded absolute immunity for activities within “the sphere of legislative activity”; Lake Country extended such immunity to “regional legislators,” 440 U. S., at 405.) Since Lake Country issued, seven Courts of Appeals have held that local legislators are entitled to absolute legislative immunity. None of these cases, however, involved situations where the District Court sought to compel certain behavior to redress constitutional violations, let alone situations where the District Court merely sought to enforce a consent decree. Instead, the cases typically involved private-party damages actions against individual members of local governing boards. It would seem sensible to allow the lower courts to be the first to resolve the question whether legislative immunity protects local officials against the imposition of contempt sanctions for noncompliance with a consent decree imposing legislative obligations.

Even assuming that this question warrants the Court’s immediate attention, the instant case contains a factual peculiarity that makes it unsuitable for review. The city stresses its “extraordinary” system of governance, in which the council exercises both legislative and executive powers. This necessarily complicates any legislative immunity analysis, particularly if one believes that the council exercised its executive prerogatives by not complying with the consent decree, and by not abiding by the July 26, 1988, order. Before the Court takes up the issue of local legislative immunity, it should wait for a case in which the legislative body is exercising only legislative powers.

Finally, the First Amendment and procedural due process claims strike me as totally meritless for the reasons articulated in the Court of Appeals’ opinion. In any event, they involve the application of settled law to a particular set of facts.

Ill

In my view, the claims presented by the city and the four coun-cilmembers do not merit review by the Court. .1 therefore vote to deny the applications for stay.


text:
    September 8, 1988
    No. 88-5098.
    Brown et ux. v. First National Bank in Lenox.
   C. A. 8th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-1985.
    Joynes, Legal Representative of the Future Tort Claimants of A. H. Robins Co., Inc. v. A. H. Robins Co., Inc., et al.
   C. A. 4th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-2038.
    Honda Motor Co., Ltd. v. Salzman.
   Sup. Ct. Alaska. Certiorari dismissed under this Court’s Rule 53.


text:
    September 14, 1988
    No. A-215.
    Bridge v. Lynaugh, Director, Texas Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, granted pending the timely filing and disposition by this Court of a petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.

The Chief Justice, Justice White, and Justice O’Connor would deny the application.


text:
    September 15, 1988
    No. A-45.
    Laupot v. Berley et al.
   Application for stay and other relief, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-106.
    Alexander v. United States.
   Application for immediate release or reinstatement of bond, addressed to Justice White and referred to the Court, denied.


text:
    No. D-697.
    In re Disbarment of Reddan.
   Disbarment entered. [For earlier order herein, see 485 U. S. 985.]


text:
    No. D-700.
    In re Disbarment of Culmer.
   Disbarment entered. [For earlier order herein, see 485 U. S. 1002.]


text:
    No. D-721.
    In re Disbarment of Roman.
   Disbarment entered. [For earlier order herein, see ante, p. 1214.]


text:
    No. D-732.
    In re Disbarment of Anton.
   It is ordered that Donald C. Anton, of St. Louis, Mo., 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. 87-107.
    Patterson v. McLean Credit Union.
   C. A. 4th Cir. [Certiorari granted, 484 U. S. 814.] Motion of American Bar Association for leave to file a brief as amicus curiae granted. Motion of Members of the United States Senate et al. for leave to add 27 Members of the United States House of Representatives to the amici curiae brief granted.


text:
    No. 87-201.
    Mansell v. Mansell.
   Ct. App. Cal., 5th App. Dist. [Probable jurisdiction noted, ante, p. 1217.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 87-821.
    Pittston Coal Group et al. v. Sebben et al.
   C. A. 8th Cir. [Certiorari granted, 484 U. S. 1058];


text:
    No. 87-827.
    McLaughlin, Secretary of Labor, et al. v. Sebben et al.
   C. A. 8th Cir. [Certiorari granted, 484 U. S. 1058]; and


text:
    No. 87-1095.
    Director, Office of Workers’ Compensation Programs, United States Department of Labor v. Broyles et al.
   C. A. 4th Cir. [Certiorari granted, 485 U. S. 987.] Motion of the Solicitor General for divided argument granted.


text:
    No. 87-826.
    No. 87-1101.
    Goldberg et al. v. Sweet, Director, Illinois Department of Revenue, et al.; and GTE Sprint Communications Corp. v. Sweet, Director, Illinois Department of Revenue, et al.
   Sup. Ct. Ill. [Probable jurisdiction noted, 484 U. S. 1057.] Motion of MCI Telecommunications Corp. for leave to file a brief as amicus curiae granted.


text:
    No. 87-980.
    Mississippi Band of Choctaw Indians v. Holyfield et al.
   Sup. Ct. Miss. [Probable jurisdiction postponed, 486 U. S. 1021.] Motions of Navajo Nation, Menominee Indian Tribe of Wisconsin, and Association on American Indian Affairs, Inc., et al. for leave to file briefs as amici curiae granted.


text:
    No. 87-996.
    Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, as Receiver of FirstSouth, F. A.
   C. A. 5th Cir. [Certiorari granted, 485 U. S. 933.] Motion of Federal Home Loan Bank of Dallas et al. for leave to file a brief as amici curiae granted.


text:
    No. 87-1055.
    Chan et al. v. Korean Air Lines, Ltd.
   C. A. D. C. Cir. [Certiorari granted, 485 U. S. 986.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 87-1327.
    Cotton Petroleum Corp. et al. v. New Mexico et al.
   Ct. App. N. M. [Probable jurisdiction noted, 485 U. S. 1005.] Motion of Jicarilla Apache Tribe for leave to file a brief as amicus curiae granted.


text:
    No. 87-1372.
    Argentine Republic v. Amerada Hess Shipping Corp. et al.
   C. A. 2d Cir. [Certiorari granted, 485 U. S. 1005.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 87-1485.
    Blanchard v. Bergeron et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 1217.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    No. 87-1651.
    Massachusetts v. Oakes.
   Sup. Jud. Ct. Mass. [Certiorari granted, 486 U. S. 1022.] Motions of Massachusetts Society for Prevention of .Cruelty to Children et al. and Covenant House et al. for leave to file briefs as amici curiae granted.


text:
    No. 87-1905.
    Midland Asphalt Corp. et al. v. United States.
   C. A. 2d Cir. [Certiorari granted, ante, p. 1217.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 87-5840.
    McNamara v. County of San Diego Department of Social Services.
   Ct. App. Cal, 4th App. Dist. [Probable jurisdiction postponed, 485 U. S. 1005.] Motion of American Civil Liberties Union et al. for leave to file a brief as amici curiae granted.


text:
    No. 86-1386.
    No. 86-1685.
    No. 87-1799.
    No. 87-5546.
    No. 87-6393.
    No. 87-6460.
    No. 87-6811.
    No. 87-6814.
    No. 87-6839.
    No. 87-6860.
    No. 87-6870.
    No. 87-6903.
    No. 87-6918.
    No. 87-6977.
    Salgado v. United States, Florida et al. v. Long et al., Nobel Scientific Industries, Inc. v. Beckman Instruments, Inc., Franklin v. Lynaugh, Director, Texas Department of Corrections, Faraga v. Mississippi, Rupe v. Washington, Smego v. United States District Court for the Western District of Pennsylvania, In re Zuschlag, Kramer v. Secretary, United States Department of the Army, et al., Walen v. Michigan, Fisher v. Slate, Judge, Morgan County Circuit, et al., Martin v. Shank et al., Bury v. City of Lakeland, Florida, et al., Nicks v. Alabama,
   ante, p. 1233;

ante, p. 223;

ante, p. 1226;

ante, p. 164;

ante, p. 1210;

486 U. S. 1061;

ante, p. 1220;

ante, p. 1203;

ante, p. 1208;

ante, p. 1208;

ante, p. 1208;

ante, p. 1220;

ante, p. 1220; and

ante, p. 1241. Petitions for rehearing denied.


text:
    No. 86-1992.
    No. 86-2019.
    Immigration and Naturalization Service v. Pangilinan et al.; and Immigration and Naturalization Service v. Manzano,
   486 U. S. 875. Petition of respondent Litonjua for rehearing denied.

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


text:
    No. 87-1388.
    Atonio et al. v. Wards Cove Packing Co., Inc., et al.,
   485 U. S. 989. Motion for leave to file petition for rehearing denied.


text:
    September 19, 1988
    No. 87-1916.
    Zant, Warden v. Godfrey.
   C. A. 11th Cir.

Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan,

text:
    No. 88-5328 (A-142).
    Allen v. California.
   Sup. Ct. Cal. Application for stay of execution of sentence of death, presented to Justice O’Connor, and by her referred to the Court, denied. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

I dissent and would grant the stay and the petition for certiorari.

This Court’s denials today of certiorari and of the stay of execution, of course, have no effect on the current proceedings in the United States District Court for the Eastern District of California. While Allen’s applications were pending here, he sought and obtained from the District Court a stay of execution pending disposition of his petition for habeas corpus, and that stay continues undisturbed.


text:
    September 20, 1988
    No. 88-322.
    Ambico, Inc., et al. v. Diamond Scientific Co.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 23, 1988
    No. 87-796.
    Cities Service Gas Co. et al. v. Mobil Oil Corp. et al.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. A-216.
    Preston v. Florida.
   Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, granted pending the timely filing and disposition by this Court of a petition for writ of certio-rari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    September 26, 1988
    No. A-240.
    Meyers, Guardian ad Litem v. Lewis.
   Ct. App. Mich. Application for stay, presented to Justice Scalia, and by him referred to the Court, denied. Motion of petitioner to dispense with printing the petition for writ of certiorari denied.


text:
    No. A-244.
    Lewis v. Lewis.
   Ct. App. Mich. Application for stay, presented to Justice Scalia, and by him referred to the Court, denied.


text:
    September 27, 1988
    No. 87-1782.
    Gordon v. United States.
   C. A. 11th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. A-198.
    Clark et al. v. Roemer, Governor of Louisiana, et al.
   Application to vacate a stay entered by the United States Court of Appeals for the Fifth Circuit, presented to Justice Marshall, and by him referred to the Court, denied.


text:
    September 29, 1988
    No. 88-297.
    CNA Casualty of California v. Rouhe.
   Ct. App. Cal., 4th App. Dist. Certiorari dismissed under' this Court’s Rule 53.


text:
    September 30, 1988
    No. 88-110.
    Brady v. United States.
   C. A. 11th Cir. Cer-tiorari dismissed under this Court’s Rule 53.


author: Per Curiam. Justice Marshall, Justice Blackmun,

text:
    RHODES et al. v. STEWART
    No. 88-139.
    Decided October 17, 1988
   Per Curiam.

After entry of a judgment for the plaintiffs in a suit by two prisoners under 42 U. S. C. § 1983, the District Court for the Southern District of Ohio, Eastern Division, ordered the defendants to pay the plaintiffs’ attorney’s fees pursuant to 42 U. S. C. § 1988. There is no entitlement to attorney’s fees, however, unless the requesting party prevails; and by the time the District Court entered its judgment in the underlying suit one of the plaintiffs had died and the other was no longer in custody. In this posture, the plaintiffs were not prevailing parties under the rule we set forth in Hewitt v. Helms, 482 U. S. 755 (1987), and the Court of Appeals for the Sixth Circuit erred in affirming the award of fees by the District Court.

I

On January 17, 1978, while in the custody of the Ohio Department of Rehabilitation and Correction, Albert Reese and Larry Stewart filed a complaint alleging violations of their First and Fourteenth Amendment rights by officials who refused them permission to subscribe to a magazine. On April 2, 1981, the District Court issued an opinion and an order, later amended in respects no longer pertinent to the case. The court ruled that correctional officials had not applied the proper procedural and substantive standards in denying the inmates their request, and ordered compliance with those standards.

Two months later, the District Court entered an award of fees in favor of the attorneys for Reese and Stewart in the amount of $5,306.25. The Court of Appeals for the Sixth Circuit affirmed. 703 F. 2d 566 (1982). We granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for further consideration in light of Hensley v. Eckerhart, 461 U. S. 424 (1983). Rhodes v. Stewart, 461 U. S. 952 (1983). On remand from the Court of Appeals, the District Court confirmed its earlier award.

None of the opinions or orders cited thus far made reference to, or showed awareness of, two salient facts: Reese died on February 18, 1979; and Stewart, the sole respondent now before us, was paroled on March 15, 1978, and given a final release from parole on January 17, 1980. In consequence, when the District Court issued its original order on April 2, 1981, neither plaintiff was in the State’s custody. For reasons that remain unexplained, petitioners here did not raise this matter until their appeal of the District Court’s order after remand.

A divided Court of Appeals upheld the award of fees, concluding that the mootness of the claim when the judgment was issued did not undermine respondent’s status as a prevailing party eligible for attorney’s fees. Affirmance order, 845 F. 2d 327 (1988). In an unpublished opinion, the majority characterized the relief plaintiffs had received as declaratory relief. The panel majority noted our recent holding in Hewitt v. Helms, supra, that a plaintiff must receive some relief on the merits of his claim before he can be said to have prevailed within the meaning of § 1988. It observed, however, that the plaintiff in Hewitt, unlike Stewart, had not won a declaratory judgment, and concluded that the declaratory judgment issued in this case justified the granting of attorney’s fees.

II

The Court of Appeals misapprehended our holding in Hewitt. Although the plaintiff in Hewitt had not won a declaratory judgment, nothing in our opinion suggested that the entry of such a judgment in a party’s favor automatically renders that party prevailing under § 1988. Indeed, we confirmed the contrary proposition:

“In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement — what makes it a proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff 482 U. S., at 761 (emphasis in original).

A declaratory judgment, in this respect, is no different from any other judgment. It will constitute relief, for purposes of § 1988, if, and only if, it affects the behavior of the defendant toward the plaintiff. In this case, there was no such result. The lawsuit was not brought as a class action, but by two plaintiffs. A modification of prison policies on magazine subscriptions could not in any way have benefited either plaintiff, one of whom was dead and the other released before the District Court entered its order. This case is thus controlled by our holding in Hewitt, where the fact that the respondent had “long since been released from prison” and “could not get redress” from any changes in prison policy caused by his lawsuit compelled the conclusion that he was ineligible for an award of fees. 482 U. S., at 763. The case was moot before judgment issued, and the judgment therefore afforded the plaintiffs no relief whatsoever. In the absence of relief, a party cannot meet the threshold requirement of § 1988 that he prevail, and in consequence he is not entitled to an award of attorney’s fees.

■ Certiorari is granted, and the decision of the Court of Appeals is reversed.

It is so ordered.

Justice Marshall,

dissenting.

I continue to believe that it is unfair to litigants and damaging to the integrity and accuracy of this Court’s decisions to reverse a decision summarily without the benefit of full briefing on the merits of the question decided. Buchanan v. Stanships, Inc., 485 U. S. 265, 269-270 (1988) (Marshall, J., dissenting); Commissioner v. McCoy, 484 U. S. 3, 7-8 (1987) (Marshall, J., dissenting); Montana v. Hall, 481 U. S. 400, 405-410 (1987) (Marshall, J., dissenting).

The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court’s review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking review by this Court and deprives them of the opportunity to argue the merits of their claim before judgment. Moreover, briefing on the merits leads to greater accuracy in our decisions and helps this Court to reduce as much as is humanly possible the inevitable incidence of error in our opinions. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court.

It is my view that when the Court is considering summary disposition of a case, it should, at the very least, so inform the litigants and invite them to submit supplemental briefs on the merits. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than outweigh any burden associated with such a modest accommodation.

I dissent.

Justice Blackmun,

with whom

Justice Brennan joins, dissenting.

Because courts usually do not award remedies in cases that are moot, the novel legal issues presented here do not require this Court’s plenary consideration, at least at this time. I therefore would just deny the petition for certiorari. Inasmuch, however, as the Court has chosen to grant the petition, I would give the case plenary consideration with full briefing and argument. Because I believe that summary reversal is inappropriate, I dissent.

The Court summarily reverses the Court of Appeals’ judgment for being contrary to “our holding in Hewitt [v. Helms, 482 U. S. 755 (1987)],” ante, at 3. That case clearly does not control here. In Heivitt, the plaintiff never obtained a “formal judgment in his favor,” 482 U. S., at 761, and the question there was whether he nonetheless could qualify as a “prevailing party,” thereby making him eligible for attorney’s fees under 42 U. S. C. § 1988. The Court ruled that he could not because nothing about his lawsuit changed the defendants’ behavior towards him.

Here, however, respondent did obtain a “formal judgment in his favor,” although he no longer was incarcerated at the time. Thus, this case presents the question whether to be a “prevailing party” it is enough to win one’s lawsuit. Heivitt did not decide this question, nor could it have, since it did not concern a plaintiff who had obtained “all or some of the relief he sought through a judgment.” 482 U. S., at 760.

The Court quotes a passage from Hewitt and construes it as stating that the entry of a declaratory judgment, without practical consequences, would not suffice for the purposes of § 1988. Ante, at 3-4. In context, however, this passage simply bolsters the Court’s point about when a nonfinal “statement of law” in a judicial opinion may be deemed the functional “equivalent of declaratory relief” under § 1988. 482 U. S., at 761. Indeed, it would be ironic if this passage purported to resolve a question not before the Court in Hewitt, as it extols the “judicial pronouncement” limited to resolving the particular “case or controversy” at hand rather than rendering an “advisory opinion” on a question not presented by the facts of the immediate dispute. Ibid. Thus, I believe that the Hewitt opinion was not meant to tell us, or the Court of Appeals, how to decide this case. But even if it did, I would not summarily reverse the Court of Appeals on this basis for the very reason that our own pronouncements lose their controlling authority when they attempt to decide questions not before the Court at the time.

Quite apart from the Court’s interpretation of Hewitt, I have doubts about its interpretation of the term “prevailing party” in § 1988. In ordinary usage, “prevailing” means winning. In the context of litigation, winning means obtaining a final judgment or other redress in one’s favor. While the victory in this case may have been an empty one, it was a victory nonetheless. In the natural use of our language, we often speak of victories that are empty, hollow, or Pyrrhic. Thus, there is nothing anomalous about saying that respondent prevailed although he derived no tangible benefit from the judgment entered in his favor. Certainly the language of the statute does not so obviously compel a contrary conclusion as to warrant summary reversal.

It is true that respondent here should not have obtained his judgment, since his case had become moot. But the fact that a party should not have “prevailed” ordinarily would not deprive him of attorney’s fees. Perhaps an exception should be made when the defect in the judgment goes to the court’s jurisdiction, as mootness does, but the resolution of this issue is not obvious. It surely is not one that should be decided without benefit of briefing and oral argument.

I dissent from the Court’s summary disposition of this case.

       See United States v. Hollywood Motor Car Co., 458 U. S. 263, 272, 275 (1982) (dissenting opinion) (summary reversal is inappropriate when this Court’s prior precedents do not “mandate” or “compel” reversal). See also EEOC v. FLRA, 476 U. S. 19, 26, n. 5 (1986) (Stevens, J., dissenting) (this Court customarily reserves summary dispositions for settled issues of law).

       See Ganey v. Edwards, 759 F. 2d 337, 340 (CA4 1985) (plaintiff is entitled to attorney’s fees simply because judgment was entered in his favor). In addition, other Courts of Appeals have held that a judgment of nominal damages suffices for § 1988. E. g., Skoda v. Fontani, 646 F. 2d 1193 (CA7 1981); Perez v. University of Puerto Rico, 600 F. 2d 1 (CA1 1979).

       For example, if a defendant failed to raise a statute of limitations defense and the court entered a judgment for the plaintiff, and that judgment became final, I assume that the defendant later could not object to an award of attorney’s fees on the ground that the plaintiff should not have prevailed because his claim was barred by the statute of limitations.

        Cf. Garrity v. Sununu, 752 F. 2d 727, 736, n. 8, 738 (CA1 1984) (an Eleventh Amendment issue not previously raised may not be used “to collaterally attack the court’s judgment solely for the purpose of avoiding payment of the fees award”) (footnote omitted).


author: Per Curiam. Justice Marshall, Justice Stevens,

text:
    PENNSYLVANIA v. BRUDER
    No. 88-161.
    Decided October 31, 1988
   Per Curiam.

Because the decision of the Pennsylvania Superior Court in this case is contrary to Berkemer v. McCarty, 468 U. S. 420 (1984), we grant the petition for a writ of certiorari and reverse.

In the early morning of January 19, 1985, Officer Steve Shallis of the Newton Township, Pennsylvania, Police Department observed respondent Thomas Bruder driving very erratically along State Highway 252. Among other traffic violations, he ignored a red light. Shallis stopped Bruder’s vehicle. Bruder left his vehicle, approached Shallis, and when asked for his registration card, returned to his car to obtain it. Smelling alcohol and observing Bruder’s stumbling movements, Shallis administered field sobriety tests, including asking Bruder to recite the alphabet. Shallis also inquired about alcohol. Bruder answered that he had been drinking and was returning home. Bruder failed the sobriety tests, whereupon Shallis arrested him, placed him in the police car, and gave him Miranda warnings. Bruder was later convicted of driving under the influence of alcohol. At his trial, his statements and conduct prior to his arrest were admitted into evidence. On appeal, the Pennsylvania Superior Court reversed, 365 Pa. Super. 106, 528 A. 2d 1385 (1987), on the ground that the above statements Bruder had uttered during the roadside questioning were elicited through custodial interrogation and should have been suppressed for lack of Miranda warnings. The Pennsylvania Supreme Court denied the State’s appeal application.

In Berkemer v. McCarty, supra, which involved facts strikingly similar to those in this case, the Court concluded that the “noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda” Id., at 440. The Court reasoned that although the stop was unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops typically are brief, unlike a prolonged station house interrogation. Second, the Court emphasized that traffic stops commonly occur in the “public view,” in an atmosphere far “less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Id., at 438-439. The detained motorist’s “freedom of action [was not] curtailed to ‘a degree associated with formal arrest.’” Id., at 440 (citing California v. Beheler, 463 U. S. 1121, 1125 (1983)). Accordingly, he was not entitled to a recitation of his constitutional rights prior to arrest, and his roadside responses to questioning were admissible.

The facts in this record, which Bruder does not contest, reveal the same noncoercive aspects as the Berkemer detention: “a single police officer ask[ing] respondent a modest number of questions and requesting] him to perform a simple balancing test at a location visible to passing motorists.” 468 U. S., at 442 (footnote omitted). Accordingly, Berkemer s rule, that ordinary traffic stops do not involve custody for purposes of Miranda, governs this case. The judgment of the Pennsylvania Superior Court that evidence was inadmissible for lack of Miranda warnings is reversed.

It is so ordered.

Justice Marshall,

dissenting.

1 agree with Justice Stevens that the Court should not disturb the decision of the court below, and accordingly I join his dissent. I write separately to note my continuing belief that it is unfair to litigants and damaging to the integrity and accuracy of this Court’s decisions to reverse a decision summarily without the benefit of full briefing on the merits of the question decided. Rhodes v. Stewart, ante, p. 1 (Marshall, J., dissenting); Buchanan v. Stanships, Inc., 485 U. S. 265, 269 (1988) (Marshall, J., dissenting); Commissioner v. McCoy, 484 U. S. 3, 7 (1987) (Marshall, J., dissenting). I therefore dissent from the Court’s decision today to reverse summarily the decision below.

Justice Stevens,

with whom

Justice Marshall joins, dissenting.

The Court explains why it reverses the decision of the Superior Court of Pennsylvania in this drunken driving case, but it does not explain why it granted certiorari.

In Berkemer v. McCarty, 468 U. S. 420, 440-442 (1984), the Court concluded that Miranda warnings are not required during a traffic stop unless the citizen is taken into custody; that there is no bright-line rule for determining when detentions short of formal arrest constitute custody; and that “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation,” 468 U. S., at 442. The rule applied in Pennsylvania is strikingly similar to this Court’s statement in Berkemer. As the Pennsylvania Superior Court explained in this case:

“In Pennsylvania, ‘custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest. . . . Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.’ Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A. 2d 517, 521 (1980) (quoting Commonwealth v. Brown, 473 Pa. 562, 570, 375 A. 2d 1260, 1264 (1977)....
“In Commonwealth v. Meyer, the Pennsylvania Supreme Court ruled that the driver of a car involved in an accident who was suspected of driving under the influence of alcohol and who was told by police to wait at the scene until additional police arrived was in custody for purposes of Miranda. The Meyer court reasoned that because the defendant had a reasonable belief that his freedom of action had been restricted, statements elicited before he received his Miranda warnings should have been suppressed. 488 Pa. at 307, 412 A. 2d at 522.” 365 Pa. Super. 106, 111-112, 528 A. 2d 1385, 1387 (1987).

In its Berkemer opinion, this Court cited the Pennsylvania Supreme Court’s opinion in Commonwealth v. Meyer, 488 Pa. 297, 412 A. 2d 517 (1980), with approval. 468 U. S., at 441, n. 34. Thus, there appears to be no significant difference between the rule of law that is generally applied to traffic stops in Pennsylvania and the rule that this Court would approve in other States.

There is, however, a difference of opinion on the question whether the rule was correctly applied in this case. The Superior Court of Pennsylvania was divided on the issue. See 365 Pa. Super., at 117, 528 A. 2d, at 1390 (Rowley, J., concurring and dissenting). It was therefore quite appropriate for the prosecutor to seek review in the Supreme Court of Pennsylvania. That court summarily denied review without opinion. See 518 Pa. 635, 542 A. 2d 1365 (1988). That action was quite appropriate for the highest court of a large State like Pennsylvania because such a court is obviously much too busy to review every arguable misapplication of settled law in cases of this kind.

For reasons that are unclear to me, however, this Court seems to welcome the opportunity to perform an error-correcting function in cases that do not merit the attention of the highest court of a sovereign State. See, e. g., Florida v. Meyers, 466 U. S. 380 (1984) (per curiam); Illinois v. Batchelder, 463 U. S. 1112 (1983) (per curiam). Although there are cases in which “there are special and important reasons” for correcting an error that is committed by another court, see this Court’s Rule 17.1, this surely is not such a case. The Court does not suggest that this case involves an important and unsettled question of federal law or that there is confusion among the state and federal courts concerning what legal rules govern the application of Miranda to ordinary traffic stops. Rather, the Court simply holds that the Superior Court of Pennsylvania misapplied our decision in Berkemer to “[t]he facts in this record.” Ante, at 11. In my judgment this Court’s scarce resources would be far better spent addressing cases that are of some general importance “beyond the facts and parties involved,” Boag v. MacDougall, 454 U. S. 364, 368 (1982) (Rehnquist, J., dissenting), than in our acting as “self-appointed . . . supervisors of the administration of justice in the state judicial systems,” Florida v. Meyers, 466 U. S., at 385 (Stevens, J., dissenting).

Accordingly, because I would not disturb the decision of the Supreme Court of Pennsylvania — which, incidentally, is the court to which the petitioner asks us to direct the writ of certiorari — I respectfully dissent.

       We did not announce an absolute rule for all motorist detentions, observing that lower courts must be vigilant that police do not “delay formally arresting detained motorists, and . . . subject them to sustained and intimidating interrogation at the scene of their initial detention.” Berkemer v. McCarty, 468 U. S. 420, 440 (1984).

       Reliance on the Pennsylvania Supreme Court’s decision in Commonwealth v. Meyer, 488 Pa. 297, 412 A. 2d 517 (1980), to which we referred in Berkemer, see 468 U. S., at 441, and n. 34, is inapposite. Meyer involved facts which we implied might properly remove its result from Berkemer’s application to ordinary traffic stops; specifically, the motorist in Meyer could be found to have been placed in custody for purposes of Miranda safeguards because he was detained for over half an hour, and subjected to questioning while in the patrol car. Thus, we acknowledged Meyer’s relevance to the unusual traffic stop that involves prolonged detention. We expressly disapproved, however, the attempt to extrapolate from this sensitivity to uncommon detention circumstances any general proposition that custody exists whenever motorists think that their freedom of action has been restricted, for such a rationale would eviscerate Berkemer altogether. See Berkemer, supra, at 436-437.

       We thus do not reach the issue whether recitation of the alphabet in response to custodial questioning is testimonial and hence inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966).