source: Caselaw Access Project

author:
      Justice Stevens
      Justice Rehnquist,

license: Public Domain

text:
    SPORHASE et al. v. NEBRASKA ex rel. DOUGLAS, ATTORNEY GENERAL
    No. 81-613.
    Argued March 30, 1982 —
    Decided July 2, 1982

      Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 961.

      Richard A. Dudden argued the cause and filed a brief for appellants.

      G. Roderic Anderson, Assistant Attorney General of Nebraska, argued the cause for appellee. With him on the brief was Paul L. Douglas, Attorney General, and Steven C. Smith, Special Assistant Attorney General.

       Briefs of amici curiae urging affirmance were filed by Jeff Bing aman, Attorney General, and Richard A. Simms, Jeffrey L. Fomaciari, and Stephen D. Dillon, Special Assistant Attorneys General, for the State of New Mexico; by John P. Frank and William L. Lutz for the Elephant Butte Irrigation District et al.; by Jon T. Brown, William B. Bonvillian, and Stephen E. Roady for the National Agricultural Lands Center et al.; and by Patrick A. Parenteau for the National Wildlife Federation et al.
      Briefs of amici curiae were filed for the State of California by George Deukmejian, Attorney General, R. H. Connett, Assistant Attorney General, and Roderick Walston and Gregory K. Wilkinson, Deputy Attorneys General; for the State of Colorado et al. by J. D. MacFarlane, Attorney General of Colorado, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, and Dennis M. Montgomery and William A. Paddock, Assistant Attorneys General, Steven F. Freudenthal, Attorney General of Wyoming, Walter Perry, Senior Assistant Attorney General, and Laurrance J. Wolfe, Assistant Attorney General, Robert T. Stephan, Attorney General of Kansas, Mark D. Meierhenry, Attorney General of South Dakota, John Ashcroft, Attorney General of Missouri, Richard H. Bryan, Attorney General of Nevada, and George Campbell, Deputy Attorney General, Robert O. Wefald, Attorney General of North Dakota, and David L. Wilkinson, Attorney General of Utah; and for the City of El Paso by Harry M. Reasoner and Charles J. Meyers.

   Justice Stevens

delivered the opinion of the Court.

Appellants challenge the constitutionality of a Nebraska statutory restriction on the withdrawal of ground water from any well within Nebraska intended for use in an adjoining State. The challenge presents three questions under the Commerce Clause: (1) whether ground water is an article of commerce and therefore subject to congressional regulation; (2) whether the Nebraska restriction on the interstate transfer of ground water imposes an impermissible burden on commerce; and (3) whether Congress has granted the States permission to engage in ground water regulation that otherwise would be impermissible.

Appellants jointly own contiguous tracts of land in Chase County, Nebraska, and Phillips County, Colorado. A well physically located on the Nebraska tract pumps ground water for irrigation of both the Nebraska tract and the Colorado tract. Previous owners of the land registered the well with the State of Nebraska in 1971, but neither they nor the present owners applied for the permit required by Neb. Rev. Stat. §46-613.01 (1978). That section provides:

“Any person, firm, city, village, municipal corporation or any other entity intending to withdraw ground water from any well or pit located in the State of Nebraska and transport it for use in an adjoining state shall apply to the Department of Water Resources for a permit to do so. If the Director of Water Resources finds that the withdrawal of the ground water requested is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare, he shall grant the permit if the state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska.”

Appellee brought this action to enjoin appellants from transferring the water across the border without a permit. The trial court rejected the defense that the statute imposed an undue burden on interstate commerce and granted the injunction. The Nebraska Supreme Court affirmed. 208 Neb. 703, 305 N. W. 2d 614 (1981). It held that, under Nebraska law, ground water is not “a market item freely transferable for value among private parties, and therefore [is] not an article of commerce.” Id., at 705, 305 N. W. 2d, at 616. The Chief Justice, while agreeing that the statutory criteria governing the transfer of water to an adjoining State did not violate the Commerce Clause, dissented on the narrow ground that appellee violated both the Federal and Nebraska Constitutions by attempting “to absolutely prohibit the transfer of water, without regard to its need or availability, based solely upon the acts of another state oyer which citizens of this state have no control.” Id., at 713, 305 N. W. 2d, at 620.

I

In holding that ground water is not an article of commerce, the Nebraska Supreme Court and appellee cite as controlling precedent Hudson County Water Co. v. McCarter, 209 U. S. 349 (1908). In that case a New Jersey statute prohibited the interstate transfer of any surface water located within the State. The Hudson County Water Co. nevertheless contracted with New York City to supply one of its boroughs with water from the Passaic River in New Jersey. The State Attorney General sought from the New Jersey courts an injunction against fulfillment of the contract. Over the water company’s objections that the statute impaired the obligation of contract, took property without just compensation, interfered with interstate commerce, denied New York citizens the privileges afforded New Jersey citizens, and denied New York citizens the equal protection of the laws, the injunction was granted. This Court, in an opinion by Justice Holmes, affirmed.

Most of the Court’s opinion addresses the just compensation claim. Justice Holmes refused to ground the Court’s holding, as did the New Jersey state courts, on “the more or less attenuated residuum of title that the State may be said to possess.” Id,., at 355. For the statute was justified as a regulatory measure that, on balance, did not amount to a taking of property that required just compensation. Putting aside the “problems of irrigation,” the State’s interest in preserving its waters was well within its police power. That interest was not dependent on any demonstration that the State’s water resources were inadequate for present or future use. The State “finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will.” Id., at 357.

Having disposed of the just compensation claim, Justice Holmes turned very briefly to the other constitutional challenges. In one paragraph, he rejected the Contract Clause claim. In the remaining paragraph of the opinion, he rejected all the other defenses. His treatment of the Commerce Clause challenge consists of three sentences: “A man cannot acquire a right to property by his desire to use it in commerce among the States. Neither can he enlarge his otherwise limited and qualified right to the same end. The case is covered in this respect by Geer v. Connecticut, 161 U. S. 519 [(1896)].” Ibid.

While appellee relies upon Hudson County, appellants rest on our summary affirmance of a three-judge District Court judgment in City of Altus v. Carr, 255 F. Supp. 828 (WD Tex.), summarily aff’d, 385 U. S. 35 (1966). The city of Altus is located near the southern border of Oklahoma. Large population increases rendered inadequate its source of municipal water. It consequently obtained from the owners of land in an adjoining Texas county the contractual right to pump the ground water underlying that land and to transport it across the border. The Texas Legislature thereafter enacted a statute that forbade the interstate exportation of ground water without the approval of that body. The city filed suit in Federal District Court, claiming that the statute violated the Commerce Clause.

The city relied upon West v. Kansas Natural Gas Co., 221 U. S. 229 (1911), which invalidated an Oklahoma statute that prevented the interstate transfer of natural gas produced within the State, and Pennsylvania v. West Virginia, 262 U. S. 553 (1923), which invalidated a West Virginia statute that accorded a preference to the citizens of that State in the purchase of natural gas produced therein. The Texas Attorney General defended the statute on two grounds. First, he asserted that its purpose was to conserve and protect the State’s water resources by regulating the withdrawal of ground water. The District Court rejected that defense because similar conservation claims had met defeat in West v. Kansas Natural Gas Co., supra, and Pennsylvania v. West Virginia, supra. Second, the State argued that the statute regulated ground water and that ground water is not an article of commerce, citing Geer v. Connecticut, 161 U. S. 519 (1896), and Hudson County Water Co. v. McCarter, 209 U. S. 349 (1908). The court rejected this argument since the statute directly regulated the interstate transportation of water that had been pumped from the ground, and under Texas law such water was an article of commerce. The court then had little difficulty in concluding that the statute imposed an impermissible burden on interstate commerce.

In summarily affirming the District Court in City of Altus, we did not necessarily adopt the court’s reasoning. Our affirmance indicates only our agreement with the result reached by the District Court. Metromedia, Inc. v. San Diego, 453 U. S. 490, 499 (1981). That result is not necessarily inconsistent with the Nebraska Supreme Court’s holding in this case. For Texas law differs significantly from Nebraska law regarding the rights of a surface owner to ground water that he has withdrawn. According to the District Court in City ofAltus, the “rule in Texas was that an owner of land could use all of the percolating water he could capture from the wells on his land for whatever beneficial purposes he needed it, on or off the land, and could likewise sell it to others for use on or off the land and outside the basin where produced, just as he could sell any other species of property.” 255 F. Supp., at 833, n. 8. Since ground water, once withdrawn, may be freely bought and sold in States that follow this rule, in those States ground water is appropriately regarded as an article of commerce. In Nebraska the surface owner has no comparable interest in ground water. As explained by the Nebraska Supreme Court, “ ‘the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.’” 208 Neb., at 705, 305 N. W. 2d, at 617 (quoting Olson v. City of Wahoo, 124 Neb. 802, 811, 248 N. W. 304, 308 (1933)).

City of Altus, however, is inconsistent with Hudson County. For in the latter case the Court found Geer v. Connecticut, supra, to be controlling on the Commerce Clause issue. Geer, which sustained a Connecticut ban on the interstate transportation of game birds captured in that State, was premised on the theory that the State owned its wild animals and therefore was free to qualify any ownership interest it might recognize in the persons who capture them. One such restriction is a prohibition against interstate transfer of the captured animals. This theory of public ownership was advanced as a defense in City of Altus. The State argued that it owned all subterranean water and therefore could recognize ownership in the surface owner who withdraws the water, but restrict that ownership to use of the water within the State. That theory, upon which the Commerce Clause issue in Hudson County was decided, was rejected by the District Court in City of Altus. In expressly overruling Geer three years ago, this Court traced the demise of the public ownership theory and definitively recast it as “ ‘but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’” Hughes v. Oklahoma, 441 U. S. 322, 334 (1979) (quoting Toomer v. Witsell, 334 U. S. 385, 402 (1948)). See also Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371, 384-387 (1978); Douglas v. Seacoast Products, Inc., 431 U. S. 265, 284r-285 (1977). In Hughes the Court found the State’s interests insufficient to sustain a ban on the interstate transfer of natural minnows seined from waters within the State.

Appellee insists, however, that Nebraska water is distinguishable from other natural resources. The surface owner who withdraws Nebraska ground water enjoys a lesser ownership interest in the water than the captor of game birds in Connecticut or minnows in Oklahoma or ground water in Texas, for in Geer, Hughes, and City of Altus the States permitted intrastate trade in the natural resources once they were captured. Although appellee’s greater ownership interest may not be irrelevant to Commerce Clause analysis, it does not absolutely remove Nebraska ground water from such scrutiny. For appellee’s argument is still based on the legal fiction of state ownership. The fiction is illustrated by municipal water supply arrangements pursuant to which ground water is withdrawn from rural areas and transferred to urban areas. Such arrangements are permitted in Nebraska, see Metropolitan Utilities District v. Merritt Beach Co., 179 Neb. 783, 140 N. W. 2d 626 (1966), but the Nebraska Supreme Court distinguished them on the ground that the transferor was only permitted to charge as a price for the water his costs of distribution and not the value of the water itself. 208 Neb., at 708, 305 N. W. 2d, at 618. Unless demand is greater than supply, however, this reasoning does not distinguish minnows, the price of which presumably is derived from the costs of seining and of transporting the catch to market. Even in cases of shortage, in which the seller of the natural resource can demand a price that exceeds his costs, the State’s rate structure that requires the price to be cost-justified is economically comparable to price regulation. A State’s power to regulate prices or rates has never been thought to depend on public ownership of the controlled commodity. It would be anomalous if federal power to regulate economic transactions in natural resources depended on the characterization of the payment as compensation for distribution services, on the one hand, or as the price of goods, on the other. Cf. In re Rahrer, 140 U. S. 545, 558 (1891).

The second asserted distinction is that water, unlike other natural resources, is essential for human survival. Appellee, and the amici curiae that are vitally interested in conserving and preserving scarce water resources in the arid Western States, have convincingly demonstrated the desirability of state and local management of ground water. But the States’ interests clearly have an interstate dimension. Although water is indeed essential for human survival, studies indicate that over 80% of our water supplies is used for agricultural purposes. The agricultural markets supplied by irrigated farms are worldwide. They provide the archtypical example of commerce among the several States for which the Framers of our Constitution intended to authorize federal regulation. The multistate character of the Ogallala aquifer — underlying appellants’ tracts of land in Colorado and Nebraska, as well as parts of Texas, New Mexico, Oklahoma, and Kansas — confirms the view that there is a significant federal interest in conservation as well as in fair allocation of this diminishing resource. Cf. Arizona v. California, 373 U. S. 546 (1963).

The Western States’ interests, and their asserted superior competence, in conserving and preserving scarce water resources are not irrelevant in the Commerce Clause inquiry. Nor is appellee’s claim to public ownership without significance. Like Congress’ deference to state water law, see infra, at 958-960, these factors inform the determination whether the burdens on commerce imposed by state ground water regulation are reasonable or unreasonable. But appellee’s claim that Nebraska ground water is not an article of commerce goes too far: it would not only exempt Nebraska ground water regulation from burden-on-commerce analysis, it would also curtail the affirmative power of Congress to implement its own policies concerning such regulation. See Philadelphia v. New Jersey, 437 U. S. 617, 621-623 (1978). If Congress chooses to legislate in this area under its commerce power, its regulation need not be more limited in Nebraska than in Texas and States with similar property laws. Ground water overdraft is a national problem and Congress has the power to deal with it on that scale.

II

Our conclusion that water is an article of commerce raises, but does not answer, the question whether the Nebraska statute is unconstitutional. For the existence of unexercised federal regulatory power does not foreclose state regulation of its water resources, of the uses of water within the State, or indeed, of interstate commerce in water. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 766-767 (1945); United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 548-549 (1944); Cooley v. Board of Wardens, 12 How. 299, 319 (1852). Determining the validity of state statutes affecting interstate commerce requires a more careful inquiry:

“Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970) (citation omitted).

The only purpose that appellee advances for §46-613.01 is to conserve and preserve diminishing sources of ground water. The purpose is unquestionably legitimate and highly important, and the other aspects of Nebraska’s ground water regulation demonstrate that it is genuine. Appellants’ land in Nebraska is located within the boundaries of the Upper Republican Ground Water Control Area, which was designated as such by the Director of the Nebraska Department of Water Resources based upon a determination that there is “[a]n inadequate ground water supply to meet present or reasonably foreseeable needs for beneficial use of such water supply.” Neb. Rev. Stat. §46-658(1) (Supp. 1981); see App. 56-60. Pursuant to §46-666(1), the Upper Republican Natural Resources District has promulgated special rules and regulations governing ground water withdrawal and use. See App. 61-82. The rules and regulations define as “critical” those townships in the control area in which the annual decline of the ground water table exceeds a fixed percentage; appellants’ Nebraska tract is located within a critical township. The rules and regulations require the installation of flow meters on every well within the control area, specify the amount of water per acre that may be used for irrigation, and set the spacing that is required between wells. They also strictly limit the intrastate transfer of ground water: transfers are only permitted between lands controlled by the same ground water user, and all transfers must be approved by the District Board of Directors. Id., at 68-69.

The State’s interest in conservation and preservation of ground water is advanced by the first three conditions in §46-613.01 for the withdrawal of water for an interstate transfer. Those requirements are “that the withdrawal of the ground water requested is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare.” Although Commerce Clause concerns are implicated by the fact that §46-613.01 applies to interstate transfers but not to intrastate transfers, there are legitimate reasons for the special treatment accorded requests to transport ground water across state lines. Obviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State. An exemption for interstate transfers would be inconsistent with the ideal of evenhandedness in regulation. At least in the area in which appellants’ Nebraska tract is located, the first three standards of §46-613.01 may well be no more strict in application than the limitations upon intrastate transfers imposed by the Upper Republican Natural Resources District.

Moreover, in the absence of a contrary view expressed by Congress, we are reluctant to condemn as unreasonable, measures taken by a State to conserve and preserve for its own citizens this vital resource in times of severe shortage. Our reluctance stems from the “confluence of [several] realities.” Hicklin v. Orbeck, 437 U. S. 518, 534 (1978). First, a State’s power to regulate the use of water in times and places of shortage for the purpose of protecting the health of its citizens — and not simply the health of its economy — is at the core of its police power. For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulation, on the other. See H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 533 (1949). Second, the legal expectation that under certain circumstances each State may restrict water within its borders has been fostered over the years not only by our equitable apportionment decrees, see, e. g., Wyoming v. Colorado, 353 U. S. 953 (1957), but also by the negotiation and enforcement of interstate compacts. Our law therefore has recognized the relevance of state boundaries in the allocation of scarce water resources. Third, although appellee’s claim to public ownership of Nebraska ground water cannot justify a total denial of federal regulatory power, it may support a limited preference for its own citizens in the utilization of the resource. See Hicklin v. Orbeck, supra, at 533-534. In this regard, it is relevant that appellee’s claim is logically more substantial than claims to public ownership of other natural resources. See supra, at 950-951. Finally, given appellee’s conservation efforts, the continuing availability of ground water in Nebraska is not simply happenstance; the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage. See Reeves, Inc. v. Stake, 447 U. S. 429 (1980); cf. Philadelphia v. New Jersey, 437 U. S., at 627-628, and n. 6; Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371 (1978). A facial examination of the first three conditions set forth in §46-613.01 does not, therefore, indicate that they impermissibly burden interstate commerce. Appellants, indeed, seem to concede their reasonableness.

Appellants, however, do challenge the requirement that “the state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska” — the reciprocity provision that troubled the Chief Justice of the Nebraska Supreme Court. Because Colorado forbids the exportation of its ground water, the reciprocity provision operates as an explicit barrier to commerce between the two States. The State therefore bears the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Hughes v. Oklahoma, 441 U. S., at 336; Dean Milk Co. v. City of Madison, 340 U. S. 349, 354 (1951).

The reciprocity requirement fails to clear this initial hurdle. For there is no evidence that this restriction is narrowly tailored to the conservation and preservation rationale. Even though the supply of water in a particular well may be abundant, or perhaps even excessive, and even though the most beneficial use of that water might be in another State, such water may not be shipped into a neighboring State that does not permit its water to be used in Nebraska. If it could be shown that the State as a whole suffers a water shortage, that the intrastate transportation of water from areas of abundance to areas of shortage is feasible regardless of distance, and that the importation of water from adjoining States would roughly compensate for any exportation to those States, then the conservation and preservation purpose might be credibly advanced for the reciprocity provision. A demonstrably arid State conceivably might be able to marshal evidence to establish a close means-end relationship between even a total ban on the exportation of water and a purpose to conserve and preserve water. Appellee, however, does not claim that such evidence exists. We therefore are not persuaded that the reciprocity requirement — when superimposed on the first three restrictions in the statute — significantly advances the State’s legitimate conservation and preservation interest; it surely is not narrowly tailored to serve that purpose. The reciprocity requirement does not survive the “strictest scrutiny” reserved for facially discriminatory legislation. Hughes v. Oklahoma, supra, at 337.

III

Appellee’s suggestion that Congress has authorized the States to impose otherwise impermissible burdens on interstate commerce in ground water is not well founded. The suggestion is based on 37 statutes in which Congress has deferred to state water law, and on a number of interstate compacts dealing with water that have been approved by Congress.

Abstracts of the relevant sections of the 37 statutes relied upon by appellee were submitted in connection with the Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 302-310 (1964). Appellee refers the Court to that submission but only discusses § 8 of the Reclamation Act of 1902, 32 Stat. 390. That section, it turns out, is typical of the other 36 statutes. It contains two parts. The first provides that “nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation.” Such language defines the extent of the federal legislation’s pre-emptive effect on state law. New England Power Co. v. New Hampshire, 455 U. S. 331, 341 (1982); Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 49 (1980). The second part provides that “the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws.” Such language mandates that questions of water rights that arise in relation to a federal project are to be determined in accordance with state law. See California v. United States, 438 U. S. 645 (1978).

The interstate compacts to which appellee refers are agreements among States regarding rights to surface water. See The Council of State Governments, Interstate Compacts and Agencies 25-29, 31-32 (1979). Appellee emphasizes a compact between Nebraska and Colorado involving water rights to the South Platte River, see 44 Stat. (part 2) 195, and a compact among Nebraska, Colorado, and Kansas involving water rights to the Republican River, see 57 Stat. 86.

Although the 37 statutes and the interstate compacts demonstrate Congress’ deference to state water law, they do not indicate that Congress wished to remove federal constitutional constraints on such state laws. The negative implications of the Commerce Clause, like the mandates of the Fourteenth Amendment, are ingredients of the valid state law to which Congress has deferred. Neither the fact that Congress has chosen not to create a federal Water law to govern water rights involved in federal projects, nor the fact that Congress has been willing to let the States settle their differences over water rights through mutual agreement, constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. In the instances in which we have found such consent, Congress’ “ ‘intent and policy’ to sustain state legislation from attack under the Commerce Clause” was “‘expressly stated.’” New England Power Co. v. New Hampshire, supra, at 343 (quoting Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 427 (1946)). Cf. Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 155, n. 21 (1982).

The reciprocity requirement of Neb. Rev. Stat. §46-613.01 (1978) violates the Commerce Clause. We leave to the state courts the question whether the invalid portion is severable. The judgment of the Nebraska Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Justice Rehnquist,

with whom Justice O’Connor joins,

dissenting.

The issue presented by this case, and the only issue, is whether the existence of the Commerce Clause of the United States Constitution by itself, in the absence of any action by Congress, invalidates some or all of Neb. Rev. Stat. §46-613.01 (1978), which relates to ground water. But instead of confining its opinion to this question, the Court first quite gratuitously undertakes to answer the question of whether the authority of Congress to regulate interstate commerce, conferred by the same provision of the Constitution, would enable it to legislate with respect to groundwater overdraft in some or all of the States.

That these two questions are quite distinct leaves no room for doubt. Congress may regulate not only the stream of commerce itself, but also activities which affect interstate commerce, including wholly intrastate activities. See, e. g., Kirschbaum Co. v. Walling, 316 U. S. 517 (1942); United States v. Darby, 312 U. S. 100 (1941); Houston & Texas R. Co. v. United States, 234 U. S. 342 (1914). The activity upon which the regulatory effect of the congressional statute falls in many of these cases does not directly involve articles of commerce at all. For example, in Kirschbaum, the employees were engaged in the operation and maintenance of a loft building in which large quantities of goods for interstate commerce were produced; no one contended that these employees themselves, or the work which they actually performed, dealt with articles of commerce. Nonetheless, the provisions of the Fair Labor Standards Act were applied to them because Congress extended the terms of the Act not only to those who were “engaged in commerce” but also to those who were engaged “in the production of goods for commerce.” 316 U. S., at 522.

Thus, the authority of Congress under the power to regulate interstate commerce may reach a good deal further than the mere negative impact of the Commerce Clause in the absence of any action by Congress. Upon a showing that ground-water overdraft has a substantial economic effect on interstate commerce, for example, Congress arguably could regulate ground-water overdraft, even if ground water is not an “article of commerce” itself. See, e. g., Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 281-283 (1981); id., at 310-313 (Rehnquist, J., concurring in judgment); Wickard v. Filburn, 317 U. S. 111 (1942). It is therefore wholly unnecessary to decide whether Congress could regulate ground-water overdraft in order to decide this case; since Congress has not undertaken such a regulation, I would leave the determination of its validity until such time as it is necessary to decide that question.

The question actually involved in this case is whether Neb. Rev. Stat. §46-613.01 (1978) runs afoul of the unexercised authority of Congress to regulate interstate commerce. While the Court apparently agrees that our equitable apportionment decrees in cases such as Wyoming v. Colorado, 353 U. S. 953 (1957), and the execution and approval of interstate compacts apportioning water have given rise to “the legal expectation that under certain circumstances each State may restrict water within its borders,” ante, at 956, it insists on an elaborate balancing process in which the State’s “interest” is weighed under traditional Commerce Clause analysis.

I think that in more than one of our cases in which a State has invoked our original jurisdiction, the unsoundness of the Court’s approach is manifest. For example, in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), the Court said:

“This is a suit by a State for an injury to it in its capacity of gwcm-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

Five years earlier, in Kansas v. Colorado, 185 U. S. 125, 142, 145-146 (1902), the Court had made clear that a State’s quasi-sovereign interest in the flow of surface and subterranean water within its borders was of the same magnitude as its interest in pure air or healthy forests.

In my view, these cases appropriately recognize the traditional authority of a State over resources within its boundaries which are essential not only to the well-being but often to the very lives of its citizens. In the exercise of this authority, a State may so regulate a natural resource as to preclude that resource from attaining the status of an “article of commerce” for the purposes of the negative- impact of the Commerce Clause. It is difficult, if not impossible, to conclude that “commerce” exists in an item that cannot be reduced to possession under state law and in which the State recognizes only a usufructuary right. “Commerce” cannot exist in a natural resource that cannot be sold, rented, traded, or transferred, but only used.

Of course, a State may not discriminate against interstate commerce when it regulates even such a resource. If the State allows indiscriminate intrastate commercial dealings in a particular resource, it may have a difficult task proving that an outright prohibition on interstate commercial dealings is not such a discrimination. I had thought that this was the basis for this Court’s decisions in Hughes v. Oklahoma, 441 U. S. 322 (1979), Pennsylvania v. West Virginia, 262 U. S. 553 (1923), and West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). In each case, the State permitted a natural resource to be reduced to private possession, permitted an intrastate market to exist in that resource, and either barred interstate commerce entirely or granted its residents a commercial preference.

By contrast, Nebraska so regulates ground water that it cannot be said that the State permits any “commerce,” intrastate or interstate, to exist in this natural resource. As with almost all of the Western States, Nebraska does- not recognize an absolute ownership interest in ground water, but grants landowners only a right to use ground water on the land from which it has been extracted. Moreover, the landowner’s right to use ground water is limited. Nebraska landowners may not extract ground water “in excess of a reasonable and beneficial use upon the land in which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.” Olson v. City of Wahoo, 124 Neb. 802, 811, 248 N. W. 304, 308 (1933). With the exception of municipal water systems, Nebraska forbids any transportation of ground water off the land owned or controlled by the person who has appropriated the water from its subterranean source. 208 Neb. 703, 710, 305 N. W. 2d 614, 619 (1981). See App. 68-69.

Nebraska places additional restrictions on ground-water users within certain areas, such as the portion of appellants’ land situated in Nebraska, where the shortage of ground water is determined to be critical. Water users in appellants’ district are permitted only to irrigate the acreage irrigated in 1977, or the average number of acres irrigated between 1972 and 1976, whichever is greater, and must obtain permission from the water district’s board before any additional acreage may be placed under irrigation. The amount of ground water that may be extracted is strictly limited on an acre-inch-per-irrigated-acre basis. There are also detailed regulations as to the spacing of wells and the use and operation of flow meters. Id., at 71-82.

Since Nebraska recognizes only a limited right to use ground water on land owned by the appropriator, it cannot be said that “commerce” in ground water exists as far as Nebraska is concerned. Therefore, it cannot be said that Neb. Rev. Stat. §46-613.01 (1978) either discriminates against, or “burdens,” interstate commerce. Section 46-613.01 is simply a regulation of the landowner’s right to use ground water extracted from lands he owns within Nebraska. Unlike the Court, I cannot agree that Nebraska’s limitation upon a landowner’s right to extract water from his land situated in Nebraska for his own use on land he owns in an adjoining State runs afoul of Congress’ unexercised authority to regulate interstate commerce.

       Article I, §8, cl. 3, of the United States Constitution provides: “The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” For general explanations of Commerce Clause analysis, see, e. g., Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U. S. 648, 652-653 (1981); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 766-770 (1945).

       Because of the reciprocity requirement of § 46-613.01, appellants would not have been granted a permit had they applied for one. Their failure to submit an application therefore does not deprive them of standing to challenge the legality of the reciprocity requirement. Cf. Larson v. Valente, 456 U. S. 228 (1982).

       The Nebraska Supreme Court also rejected appellants’ equal protection and due process challenges. Appellants renew those challenges before this Court, but we need not reach these issues in light of our disposition of the Commerce Clause claim.

       The Court quoted the statute: “ ‘It shall be unlawful for any person or corporation to transport or carry, through pipes, conduits, ditches or canals, the waters of any fresh water lake, pond, brook, creek, river or stream of this State into any other State, for use therein.’ ” 209 U. S., at 353.

       “The Courts below assumed or decided and we shall assume that the defendant represents the rights of a riparian proprietor, and on the other hand, that it represents no special chartered powers that give it greater rights than those. On these assumptions the Court of Errors and Appeals pointed out that a riparian proprietor has no right to divert waters for more than a reasonable distance from the body of the stream or for other than the well-known ordinary uses, and that for any purpose anywhere he is narrowly limited in amount. It went on to infer that his only right in the body of the stream is to have the flow continue, and that there is a residuum of public ownership in the State. It reinforced the State’s rights by the State’s title to the bed of the stream where flowed-by the tide, and concluded from the foregoing and other considerations that, as against the rights of riparian owners merely as such, the State was warranted in prohibiting the acquisition of the title to water on a larger scale.” Id., at 354.

       “The problems of irrigation have no place here. Leaving them on one side, it appears to us that few public interests are more obvious, indisputable and independent of particular theory than the interest of the public of a State to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use.” Id., at 356.

       The District Court quoted the statute: ‘“No one shall withdraw water from any underground source in this State for use in any other state by drilling a well in Texas and transporting the water outside the boundaries of the State unless the same be specifically authorized by an Act of the Texas Legislature and thereafter as approved by it.’” 255 F. Supp., at 830.

       Justiee Holmes, the author of the Court’s opinion in Hudson County, noted his dissent. See 221 U. S., at 262.

       Justice Holmes dissented, expressing the view that the Court’s decision was inconsistent with Hudson County. See 262 U. S., at 603.

       The District Court opinion, 255 F. Supp., at 839, included these quotations from the two cases:
      “The statute of Oklahoma recognizes [natural gas] to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. In other words, the purpose of its conservation is in a sense commercial — the business welfare of the State, as coal might be, or timber. Both of these products might be limited in amount, and the same consideration of the public welfare which would confine gas to the use of the inhabitants of a State would confine them to the inhabitants of the State. If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle?” West v. Kansas Natural Gas Co., 221 U. S., at 255.
      “Another consideration advanced to the same end is that natural gas is a natural product of the State and has become a necessity therein, that the supply is waning and no longer sufficient to satisfy local needs and be used abroad, and that the act is therefore a legitimate measure of conservation in the interest of the people of the State. If the situation be as stated, it affords no ground for the assumption by the State of the power to regulate interstate commerce, which is what the act attempts to do. That power is lodged elsewhere.” Pennsylvania v. West Virginia, 262 U. S., at 598.

       “Considering the statute in question only with regard to whether it regulates the transportation and use of water after it has been withdrawn from a well and becomes personal property, such statute constitutes an unreasonable burden upon and interference with interstate commerce. Moreover, on the facts of this case it appear[s] to us that [the Texas statute] does not have for its purpose, nor does it operate to conserve water resources of the State of Texas except in the sense that it does so for her own benefit to the detriment of her sister States as in the case of West v. Kansas Natural Gas Co. In the name of conservation, the statute seeks to prohibit interstate shipments of water while indulging in the substantial discrimination of permitting the unrestricted intrastate production and transportation of water between points within the State, no matter how distant; for example, from Wilbarger County to El Paso County, Texas. Obviously, the statute had little relation to the cause of conservation.” 255 F. Supp., at 839-840.

       “This statute, however, seeks to prohibit the production of underground water for the purpose of transporting same in interstate commerce, and has the effect of prohibiting the interstate transportation of such water after it has become personal property. Whether a statute by its phraseology prohibits the interstate transportation of an article of commerce after it has become the personal property of someone as in the Pennsylvania and West cases, or prohibits the withdrawal of such substance where the intent is to transport such in interstate commerce, the result upon interstate commerce is the same. In both situations, the purpose and intent of the statute and the end result thereof is to prohibit the interstate transportation of an article of commerce.” Id., at 840.

       In California v. United States, 438 U. S. 645, 648 (1978), we explained some of the circumstances that support a general policy of local water management under differing legal systems:
      “The very vastness of our territory as a Nation, the different times at which it was acquired and settled, and the varying physiographic and climate regimes which obtain in its different parts have all but necessitated the recognition of legal distinctions corresponding to these differences. Those who first set foot in North America from ships sailing the tidal estuaries of Virginia did not confront the same problems as those who sailed flat boats down the Ohio River in search of new sites to farm. Those who cleared the forests in the old Northwest Territory faced totally different physiographic problems from those who built sod huts on the Great Plains. The final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the ‘Great American Desert,’ brought the participants in that expansion face to face with the necessity for irrigation in a way that no previous territorial expansion had.”

       Soil Conservation Service, U. S. Dept. of Agriculture, America’s Soil and Water: Conditions and Trends 21 (1980).

       Comptroller General, Report to Congress, Ground Water Overdrafting Must Be Controlled 7-8 (1980).

       See Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U. S. 179, 188 (1950) (“Insofar as conservation is concerned, the national interest and the interest of producing states may well tend to coincide”).

       Colorado Rev. Stat. § 37-90-136 (1973) provides as follows:
      “For the purpose of aiding and preserving unto the state of Colorado and all its citizens the use of all ground waters of this state, whether tributary or nontributary to a natural stream, which waters are necessary for the health and prosperity of all the citizens of the state of Colorado, and for the growth, maintenance, and general welfare of the state, it is unlawful for any person to divert, carry, or transport by ditches, canals, pipelines, conduits, or any other manner any of the ground waters of this state, as said waters are in this section defined, into any other state for use therein.”

       The reciprocity requirement cannot, of course, be justified as a response to another State’s unreasonable burden on commerce. Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366, 379-381 (1976).

       “The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress.” California v. United States, 438 U. S., at 653.

       Similarly, this Court has encouraged States to resolve their water disputes through interstate compacts rather than by equitable apportionment adjudication. See Colorado v. Kansas, 320 U. S. 383, 392 (1943).

       See, e. g., Prudential Ins. Co. v. Benjamin, 328 U. S. 408 (1946) (McCarran-Ferguson Act, 59 Stat. 33); International Shoe Co. v. Washington, 326 U. S. 310 (1945) (§ 1606(a) of the Internal Revenue Code, 53 Stat. 1391); Whitfield v. Ohio, 297 U. S. 431 (1936) (Hawes-Cooper Act, 45 Stat. 1084); In re Rahrer, 140 U. S. 545 (1891) (Wilson Act, 26 Stat. 313).

       Similarly, in City of Altus v. Carr, 255 F. Supp. 828 (WD Tex.), summarily aff’d, 385 U. S. 35 (1966), Texas placed no restrictions upon the use or the intrastate sale of ground water. The “rule in Texas was that an owner of land could use all of the percolating water he could capture from the wells on his land for whatever beneficial purposes he needed it, on or off the land, and could likewise sell it to others for use on or off the land and outside the basin where produced, just as he could sell any other species of property.” 255 F. Supp., at 833, n. 8. Texas’ absolute ownership rule is an anomaly among the Western States. See 5 R. Clark, Waters and Water Rights §441 (1972 and 1978 Supp.). In Nebraska, as in most of the Western States, ground water is not treated as “any other species of property.”

       Unlike several other Western States, Nebraska does not entirely forbid ground water extracted in Nebraska to be used in other States. See Brief for City of El Paso as Amicus Curiae 2, n. 3. As noted by the Court, Nebraska merely places conditions on such a use of the State’s ground water. A permit must be obtained from the Nebraska Department of Water Resources. If the requested withdrawal of ground water is determined to be “reasonable,. . . not contrary to the conservation and use of ground water, and . . . not otherwise detrimental to the public welfare,” a permit will be issued so long as the “state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska.” Neb. Rev. Stat. § 46-613.01 (1978).

       The Court today invalidates only the reciprocity provision in § 46-613.01. Ante, at 957-958. Appellants, however, have never applied for the permit required by the Nebraska statute. I see nothing in the Court’s opinion that would preclude the Nebraska Department of Water Resources from prohibiting appellants from transporting ground water into the Colorado portion of their land until they obtain the permit required by the statute. I also see nothing in the Court’s opinion that would preclude the Department of Water Resources from denying appellants a permit because of a failure to satisfy the remaining conditions in the statute.


author: Per Curiam. Justice Stevens,

text:
    BOARD OF EDUCATION OF ROGERS, ARKANSAS, et al. v. McCLUSKEY, by his next friend, McCLUSKEY
    No. 81-1577.
    Decided July 2, 1982
   Per Curiam.

Respondent, a 10th-grade student in the Rogers, Ark., School District, left school on October 21,1980, after the first period without permission, and, with four other students, consumed alcohol and became intoxicated. When he returned to school later that day to go on a band trip, he was notified that he was suspended from school. His parents were notified the next day that their son had been suspended pending a hearing before the Rogers School Board; a hearing was scheduled for October 29. At the hearing before the Board, none of the five students denied that they had been drinking, and the Board voted to expel all five for the remainder of the semester.

Respondent immediately sought injunctive relief under 42 U. S. C. § 1983 (1976 ed., Supp. IV), and the case was heard by the United States District Court for the Western District of Arkansas on December 4. The District Court decided that the School Board had violated respondent’s right to substantive due process, and ordered that he be granted credit for the semester during which he was suspended and that all references to his suspension be expunged from his school records.

The District Court’s action was based on its interpretation of the School Board’s rules and its conclusions concerning which rules the Board invoked in suspending respondent. There is no doubt that the Board had the authority to suspend respondent under §§9 and 10 of its written Policies on Pupil Suspension. Section 9 provides that the Board may suspend or expel any student “for good cause.” Section 10 defines “good cause,” and provides that it includes “sale, use or possession of alcoholic beverages or illegal drugs.” Thus it was clearly within the Board’s discretion to suspend a student for becoming intoxicated.

The District Court decided that the Board had acted under § 11 of its rules, which provides for mandatory suspension when it applies. Section 11 provides:

“For the protection of other pupils in the school grades 9-12, the school board shall expel for the remainder of the semester with loss of credit for the semester’s work any pupil whenever it has been established to the satisfaction of the board, or the superintendent, or the principal, or his assistant in charge, that the pupil has on school premises or at school sponsored activities (including trips) used, sold, been under the influence of, or been in possession of narcotics or other hallucinogenics, drugs, or controlled substances classified as such by Act 590 of 1971, as amended.”

There was conflicting testimony concerning which section the Board had invoked. The letters sent to respondent’s parents informing them of the suspension and the hearing cited both § 10 and § 11. Adams, a Board member and a lawyer, testified that he based his motion to expel McCluskey on § 10 because he had doubts about the applicability of §11. The Chairman of the Board testified that the Board had suspended students under § 11 for alcohol offenses for the past five years.

The District Court found as a matter of fact that the Board acted under §11 when it suspended respondent. It then went on to decide that § 11 did not apply to alcohol. Section 11 applies to “narcotics or other hallucinogenics, drugs, or controlled substances classified as such by Act 590 of 1971, as amended.” Act 590, Ark. Stat. Ann. §82-2602(e) (Supp. 1981), specifically exempts alcohol from its coverage; therefore, alcohol is not a “controlled substance.” Nor is it a “narcotic or other hallucinogenic.” The District Court also concluded that alcohol is not a “drug.” While technically alcohol is a drug, the District Court noted, it is not considered a drug in common parlance. For this reason, the District Court concluded, the Board had acted unreasonably by suspending respondent under § 11. It held that the Board violated substantive due process by suspending him under the mandatory terms of § 11, even though the Board had discretion to suspend him under § 10.

A divided Court of Appeals for the Eighth Circuit affirmed. 662 F. 2d 1263 (1981). It reviewed the District Court’s conclusion that the Board acted under § 11 rather than §10 under the clearly-erroneous standard of Federal Rule of Civil Procedure 52(a), and held that the District Court’s conclusion passed muster. It also affirmed the District Court’s holding that §11 cannot reasonably be interpreted to apply to alcohol because “the express terms of section 11 apply only to ‘drugs’ and expressly exempt alcohol.” 662 F. 2d, at 1267. For this reason, the Court of Appeals concluded, Wood v. Strickland, 420 U. S. 308 (1975), was distinguishable. There this Court had stated that “§1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations.” Id., at 326. Although this Court had plainly stated that federal courts were not authorized to construe school regulations, the Court of Appeals concluded that Wood v. Strickland was distinguishable because the school board in that case had construed its regulations reasonably while here the Board had construed its regulations unreasonably. 662 F. 2d, at 1267. Judge McMillian dissented because he concluded that Wood v. Strickland barred federal courts from construing the school regulations involved in this case differently than the Board had construed them.

Wood v. Strickland plainly requires that the Court of Appeals be reversed. There high school girls were expelled for “spiking” a punch served at a school meeting by adding two bottles of malt liquor. The malt liquor had an alcoholic content of 3.2% and the alcoholic content of the spiked punch was estimated at 0.91%. 420 U. S., at 326. The Court of Appeals had set aside the girls’ expulsions because they had been expelled for adding an alcoholic beverage to the punch, but a state statute defined “intoxicating liquor” as a beverage with an alcoholic content exceeding 5%, and the court thought the 5% rule of the statute should apply to the school regulation. We held that the court erred in substituting its own notions for the school board’s definition of its rules:

“[T]he Court of Appeals was ill advised to supplant the interpretation of the regulation of those officers who adopted it and are entrusted with its enforcement.” Id., at 325.

The Court continued, as noted supra, by stating that

“§ 1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations.” Id., at 326 (emphasis added).

The Court of Appeals and the District Court plainly erred in distinguishing Wood v. Strickland on the ground that the Board’s interpretation of § 11 in this case was unreasonable while the school board’s construction of “alcoholic beverage” in Wood v. Strickland was reasonable. A case may be hypothesized in which a school board’s interpretation of its rules is so extreme as to be a violation of due process, but this is surely not that case. The Board’s interpretation of § 11 is reasonable. Contrary to the Court of Appeals, alcohol is not expressly exempted from the coverage of § 11. Section 11 covers “controlled substances classified as such by Act 590,” and Act 590 expressly exempts alcohol from its coverage. Therefore, alcohol is not a “controlled substance” under § 11. But § 11 also covers “drugs,” and, as the District Court conceded, alcohol is a “drug.” Moreover, § 11 mandates suspension of students under the influence of drugs while on school premises. Section 10, which gives the Board discretion to suspend students for drug use, is not limited in its application to drug use on school premises. It is reasonable to conclude that the regulations require suspension for any drug use, including use of alcohol, on school premises, while permitting suspension for drug use off school premises.

In any case, even if the District Court’s and the Court of Appeals’ views of § 11 struck us as clearly preferable to the Board’s — which they do not — the Board’s interpretation of its regulations controls under Wood v. Strickland. The Chairman of the Board testified that the Board had interpreted § 11 as requiring the suspension of students found intoxicated on school grounds for a number of years prior to respondent’s suspension, and it is undisputed that the Board had the authority to suspend students for that reason. We conclude that the District Court and the Court of Appeals plainly erred in replacing the Board’s construction of § 11 with their own notions under the facts of this case. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is

Reversed.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

dissenting.

As Justice Rehnquist has reminded us, in “our zeal to provide ‘equal justice under law,’ we must never forget that this Court is not a forum for the correction of errors.” Boag v. MacDougall, 454 U. S. 364, 367-368 (1982) (dissenting opinion). “To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.” This case illustrates how ineffectively the Court is supervising its discretionary docket.

The case is not of sufficient importance to warrant full briefing and argument. It is not worthy of an opinion signed by a Member of this Court. The disposition is explained by an anonymous author writing “per curiam,” — that is to say, “for the Court.” In ever-increasing numbers, appeals throughout the federal system are being decided in this anonymous fashion. It is not uncommon for courts of appeals to issue opinions that are not to be cited as authority in other cases. In one recent published case — which was sufficiently important to induce this Court to grant certiorari even before a conflict in the circuits had developed — the court purported to justify such an ad hoc adjudication by asserting that it lacked “precedential character.” The threat to the quality of our work that is presented by the ever-increasing impersonalization and bureaucratization of the federal judicial system is far more serious than is generally recognized. Regrettably the example set by this Court in cases of this kind is not one of resistance, but rather of encouragement, to the rising administrative tide.

We are far too busy to correct every error that we perceive among the thousands of cases that litigants ask us to review. In recent years, when we have exercised our discretionary jurisdiction and issued per curiam rulings deciding cases summarily, we have most frequently come to the aid of a prosecutor or a warden who has been rebuffed by another court. Today we exercise our majestic power to enforce a School Board’s suspension of a 10th-grade student who consumed too much alcohol on October 21, 1980.

If the student had been unjustly suspended, I wonder if the Court would consider the matter of sufficient national importance to require summary reversal. I doubt it.

I respectfully dissent.

       The Board has since amended its regulations so as to remove all question that suspension for the remainder of the semester is mandatory if a student is intoxicated on school premises.

       Address of Chief Justice Vinson before the American Bar Association, September 7, 1949 (quoted in R. Stern & E. Gressman, Supreme Court Practice 258 (5th ed. 1978)).

       See Reynolds & Richman, The Non-Precedential Precedent — Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978); Note, Unreported Decisions in the United States Courts of Appeals, 63 Cornell L. Rev. 128 (1977).

        Rowley v. Board of Education of Hendrick Hudson Central School District, 632 F. 2d 945, 948, n. 7 (CA2 1980), rev’d, ante, p. 176.

       In this Term, see Duckworth v. Serrano, 454 U. S. 1 (1981); Jago v. Van Curen, 454 U. S. 14 (1981); Leeke v. Timmerman, 454 U. S. 83 (1981); California ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater, 454 U. S. 90 (1981); Harris v. Rivera, 454 U. S. 339 (1981); Hutto v. Davis, 454 U. S. 370 (1982); Wainwright v. Torna, 455 U. S. 586 (1982); Sumner
        v. Mata 455 U. S. 591 (1982); Fletcher v. Weir, 455 U. S. 603 (1982); United States v. Hollywood Motor Car Co., ante, p. 263; Michigan v. Thomas, ante, p. 259. But see Boag v. MacDougall, 454 U. S. 364 (1982).
      It certainly cannot be said that egregious error is presented only in cases in which prosecutors and wardens seek review. See, e. g., McKinney v. Estelle, 657 F. 2d 740 (CA5 1981), cert. denied, 456 U. S. 937 (1982); Tejeda-Mata v. INS, 626 F. 2d 721 (CA9 1980), cert. denied, 456 U. S. 994 (1982).


text:
    June 28, 1982
    No. 81-2062.
    New York Shipping Assn., Inc. , et al. v. Waterfront Commission of New York Harbor.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 81-634.
    Sharon Steel Corp. et al. v. Insurance Commissioner of New Hampshire et al.
   Appeal from Sup. Ct. N. H. Judgment vacated and case remanded for further consideration in light of Edgar v. MITE Corp., 457 U. S. 624 (1982).


text:
    No. 80-1699.
    Plante, Commissioner of Institutions and Agencies of New Jersey, et al. v. Scott, by and through his Guardian, Weintraub.
   C. A. 3d Cir. Motion of American Psychiatric Association for leave to file a brief as amicus curiae granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Youngberg v. Romeo, 457 U. S. 307 (1982).


text:
    No. 80-6397.
    Graham v. New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Johnson, 457 U. S. 537 (1982).


text:
    No. 80-6758.
    Miller v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Johnson, 457 U. S. 537 (1982).


text:
    No. 81-261.
    Meachum et al. v. Longval.
   C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Goodwin, 457 U. S. 368 (1982).


text:
    No. 81-835.
    Iron Arrow Honor Society v. Schweiker, Secretary of Health and Human Services, et al.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of North Haven Board of Education v. Bell, 456 U. S. 512 (1982). Justice Brennan, Justice White, Justice Marshall, and Justice Blackmun dissent.


text:
    No. 81-1134.
    Ashcroft, Attorney General of Missouri v. National Organization for Women, Inc.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Nixon v. Fitzgerald, 457 U. S. 731, 741-743 (1982).


text:
    No. 81-1580.
    Sanborn et al. v. Wolfel.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Harlow v. Fitzgerald, 457 U. S. 800 (1982). See Butz v. Economou, 438 U. S. 478, 504 (1978) (deeming it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under [42 U. S. C.] §1983 and suits brought directly under the Constitution against federal officials”).


text:
    No. 81-5871.
    Ford v. Kentucky.
   Sup. Ct. Ky. Motion of petitioner for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Johnson, 457 U. S. 537 (1982).


text:
    No. 81-6225.
    Gilmore v. Pennsylvania.
   Sup. Ct. Pa. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Johnson, 457 U. S. 537 (1982).


text:
    No. A-1039.
    (No. 81-6915);
    (No. 81-6916).
    Weigang v. Smith, Attorney General and In re Weigang
   Application for injunction, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-1041.
    Monex International Ltd. et al. v. Commodity Futures Trading Commission et al.
   C. A. 6th Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.

Justice Rehn-QUIST took no part in the consideration or decision of this application.


text:
    No. A-1075.
    American Laundry Press Co. et al. v. OK NYO Rexrode.
   D. C. Kan. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. 81-1095.
    Morris, Warden v. Slappy.
   C. A. 9th Cir. [Certiorari granted, 456 U. S. 904.] Motion of National Legal Aid and Defender Association for leave to participate in oral argument as amicus curiae and for additional time for oral argument denied.


text:
    No. 81-1114.
    Illinois v. Abbott & Associates, Inc., et al.
   C. A. 7th Cir. [Certiorari granted, 455 U. S. 1015.] Motion of the Solicitor General for divided argument granted.


text:
    No. 81-185.
    No. 81-1255.
    No. 81-1623.
    Simopoulos v. Virginia. Planned Parenthood Association of Kansas City, Missouri, Inc., et al. v. Ashcroft, Attorney General of Missouri, et al. Ashcroft, Attorney General of Missouri, et al. v. Planned Parenthood Association of Kansas City, Missouri, Inc., et al.
   Sup. Ct. Va. [Probable jurisdiction noted, 456 U. S. 988];

C. A. 8th Cir. [Certiorari granted, 456 U. S. 988]; and

C. A. 8th Cir. [Certiorari granted, 456 U. S. 988.] Motions of Legal Defense Fund for Unborn Children for leave to file briefs as amicus curiae granted. Motions of Alan Ernest to represent children unborn and born alive denied.


text:
    No. 81-746.
    No. 81-1172.
    City of Akron v. Akron Center for Reproductive Health, Inc., et al.; and Akron Center for Reproductive Health, Inc., et al. v. City of Akron et al.
   C. A. 6th Cir. [Certiorari granted, 456 U. S. 988.] Motion of Alan Ernest to represent children unborn and born alive denied.


text:
    No. 81-1686.
    Watt, Secretary of the Interior, et al. v. Western Nuclear, Inc.
   C. A. 10th Cir. [Certiorari granted, 456 U. S. 988.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 81-6857.
    In re Guice.
   Petition for writ of habeas corpus denied.


text:
    No. 81-2156.
    No. 81-6771.
    No. 81-6878.
    In re Holland et al.; In re Kulwiec; and In re Shabazz.
   Petitions for writs of mandamus denied.


text:
    No. 81-469.
    Bush v. Lucas.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 81-1314.
    W. R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 81-1998.
    Price Waterhouse v. Panzirer et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 81-1335.
    District of Columbia Court of Appeals et al. v. Feldman et al.
   C. A. D. C. Cir. Motion of Conference of Chief Justices for leave to file a brief as amicus curiae granted. Certiorari granted.


text:
    No. 81-6633.
    Bearden v. Georgia.
   Ct. App. Ga. Motion of petitioner for leave to proceed informa pauperis and certiorari granted.


text:
    No. 80-1058.
    Hampton Roads Shipping Assn. et al. v. International Longshoremen’s Assn. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1501.
    No. 80-1528.
    Sullivan et al. v. First Tennessee Bank N. A. Memphis, Executor, et al.; and Smith et al. v. First Tennessee Bank N. A. Memphis, Executor, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6609.
    Wilkerson v. Blackburn, Warden.
   Sup. Ct. La. Certiorari denied.


text:
    No. 81-585.
    Hondo Boats, Inc. v. McCraine et al.
   Sup. Ct. La. Certiorari denied.


text:
    No. 81-806.
    Lord et al. v. Local Union No. 2088, International Brotherhood of Electrical Workers, AFL-CIO, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1526.
    No. 81-1537.
    Feldman v. District of Columbia Court of Appeals et al.; and Hickey v. District of Columbia Court of Appeals et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-1674.
    Alabama v. Graddick.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 81-1689.
    Huey v. Teledyne, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1803.
    No. 81-2056.
    City of Stamford v. Ieva et al.; and Ieva v. City of Stamford et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-1818.
    Casari, Director of the Section of Hospital and Medical Facilities of the Nebraska Department of Health, et al. v. First Federal Savings & Loan Association of Lincoln.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-1908.
    Rheaume v. Saffell.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1940.
    No. 81-2001.
    No. 81-2060.
    Arthur Young & Co. v. Summer et al.; Raymond, James & Associates, Inc. v. Summer et al.; and Land & Leisure, Inc., et al. v. Summer et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1973.
    Irwin v. Montgomery County, Maryland, et al.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 81-1980.
    Arthur Treacher’s Fish & Chips, Inc., et al. v. Horstmyer et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1989.
    Wilson v. Wilson.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1990.
    Oppenheim et al. v. Moreau et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-1993.
    Capps v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 81-2007.
    District Court in and for the Seventeenth Judicial District of Colorado et al. v. Marks et al.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 81-2010.
    Wilder v. Gilman Paper Co.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-2011.
    Panzirer v. Wolf et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-2013.
    Johnson v. Johnson et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-2016.
    Ruppel v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-2021.
    Fannon et al. v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 81-2024.
    Wiesen v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 81-2031.
    Williams Enterprises, Inc. v. Binkley Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-2033.
    ABC Containerline, N.V., et al. v. Kingston Shipping Co., Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-2045.
    Niemi v. National Broadcasting Co., Inc., et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 81-2053.
    McGraw-Edison Co. v. Sikes et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-2063.
    Scott v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.


text:
    No. 81-2091.
    Wilt et al., dba Roy Wilt & Son, et al. v. Aetna Insurance Co.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 81-2128.
    Marinello et al. v. City of New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 81-2168.
    Advance Ross Electronics Corp. et al. v. Green, Trustee.
   Ct. App. Tex., 12th Sup. Jud. Dist. Certiorari denied.


text:
    No. 81-2172.
    Option Advisory Service, Inc. v. Board of Governors of the Federal Reserve System et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-2181.
    Andrews v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-2204.
    Goldfarb et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-2194.
    Hood v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-5509.
    Norris v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5725.
    Stevens v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 81-6093.
    Thompson v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 81-6386.
    Gault v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6548.
    Devine v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 81-6631.
    Kelly v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6654.
    United States ex rel. Miller v. McCarthy, Superintendent, California Men’s Colony, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6666.
    Perry v. Perry.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-6677.
    Romano v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied.


text:
    No. 81-6679.
    Wedra v. Thomas et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-6690.
    Villareal v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-6688.
    Hogan v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 81-6691.
    Sutain et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6692.
    Howell v. Steffey.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6694.
    Glover-El v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 81-6705.
    Harris v. Housewright, Warden, Illinois State Penitentiary.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-6732.
    Reynolds v. Attorney General of the United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-6743.
    Smith v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-6752.
    Jackson v. Leeke et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-6755.
    Miller v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-6765.
    Olson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-6769.
    Ingram v. Smith, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6780.
    Stine v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6783.
    Pope v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6797.
    Adams et al. v. Howerton, Acting District Director, Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6803.
    Snyder v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-6804.
    Nebeker v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-6806.
    Rice v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-6810.
    Troy v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6825.
    Quiros v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-6845.
    Combs et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-6862.
    Tatum v. Burlington Northern Railroad Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-879.
    United States v. Gillespie.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 81-1875.
    Zant, Warden, Georgia Diagnostic and Classification Center v. Spivey.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 81-2048.
    Estelle, Director, Texas Department of Corrections v. Moore.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 81-2041.
    Spencer, dba J&M Design Co., et al. v. American Consulting Assn., Inc.
   App. Ct. Ill., 1st Dist. Certiorari denied. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 81-2097.
    Mariscal, as Next Friend of Mariscal v. Johnson, Executor.
   Ct. Civ. App. Tex., 13th Sup. Jud. Dist. Certiorari denied. Justice White would grant certiorari.


text:
    No. 81-5783.
    Frazier v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.

Justice Brennan, Justice Marshall, and Justice Blackmun would grant certiorari.


text:
    No. 81-6340.
    Dawson v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.

Justice Brennan, Justice Marshall, and Justice Blackmun would grant certiorari.


author: Justice White,

text:
    No. 81-6629.
    Etlin v. Robb, Governor of Virginia, et al.
   C. A. 4th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan joins,

dissenting.

This case arises from a child custody dispute between private parties. A Virginia trial court awarded petitioner’s ex-wife custody of their 3-year-old son and ordered petitioner to pay child support. Petitioner then brought this action under 42 U. S. C. § 1983 against the trial judge, the State Governor, and the State Attorney General. His complaint sought monetary, injunctive, and declaratory relief, premised on allegations that the custody and support award violated the First, Fifth, Thirteenth, and Fourteenth Amendments. The District Court dismissed the suit without prejudice because the constitutional questions could be addressed in the state-court custody action.

The Court of Appeals for the Fourth Circuit affirmed. 673 F. 2d 1309 (1981). In a brief per curiam opinion, the court explained:

“Under Virginia law, child custody determinations and support orders may be subject to modification at any time. See Va. Code Ann. § 16.1-242 (1981 Cum. Supp.); §20-108 (1975 Repl. Vol.); §31-17 (1979 Repl. Vol.). Because custody proceedings are considered ongoing proceedings in Virginia, they afford a disappointed litigant, such as [petitioner], an adequate opportunity to present his constitutional claims. Younger v. Harris, 401 U. S. 37, 49 (1971). See Juidice v. Vail, 430 U. S. 327, 337 (1977). Therefore, it is clear that the doctrine of abstention applies in this instance. See Moore v. Sims, 442 U. S. 415 (1979).” App. to Pet. for Cert. A-2.

Petitioner now seeks a writ of certiorari, and presents, as his fourth question, the question of whether the Court of Appeals has properly applied the Younger doctrine.

This question is not easily answered because the Fourth Circuit has, in at least two respects, gone beyond our cases in dismissing the action under Younger v. Harris, 401 U. S. 37 (1971). First, this Court has never applied the Younger doctrine to a case where the State was not a party to the pending state proceedings. Younger and its early progeny were criminal proceedings, in which, of course, the State is always a party. In Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), the initial application of Younger to a civil proceeding, the Court relied heavily on the State’s direct participation.

“Younger, however, also rests upon the traditional reluctance of courts of equity, even within a unitary system, to interfere with a criminal prosecution. Strictly speaking, this element of Younger is not available to mandate federal restraint in civil cases. But whatever may be the weight attached to this factor in civil litigation involving private parties, we deal here with a state proceeding which in important respects is more akin to a criminal prosecution than are most civil cases. The State is a party to the Court of Common Pleas proceeding, and the proceeding is both in aid of and closely related to criminal statutes . . . .” 420 U. S., at 604.

Accordingly, subsequent extensions of Younger in the civil context have occurred only when the State was directly involved in a pending state proceeding. The Fourth Circuit’s invocation of Younger in this case, a “civil litigation involving private parties,” represents a substantial broadening of the doctrine.

Second, the Court of Appeals held that deference was justified despite the fact that there were no ongoing or pending state proceedings in the usual sense. Dismissal of the federal action was deemed appropriate because child custody orders in Virginia are subject to modification at any time and petitioner could follow that avenue in order to raise his constitutional claims. It is clear that, under the Court of Appeals’ reasoning, custody proceedings would never be final and petitioner would be forced to attempt to reopen state proceedings before receiving a hearing in federal court on any constitutional grounds. None of our Younger decisions contemplates this result, which, in effect, imposes an exhaustion requirement upon petitioner before he may bring a §1983 suit in federal court. Assertion of a federal claim under § 1983, as a general matter, need not be preceded by an attempt to vindicate that claim in state court. McNeese v. Board of Education, 373 U. S. 668, 672 (1963). Although there are recognized exceptions when “strands of local law are woven into the case” whose resolution should precede consideration by a federal court, id., at 673, this is not suggested to be such a case. Moreover, if it were, the District Court should refrain temporarily from exercising its jurisdiction, but should not dismiss the case outright. See Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941).

A case of this type has not previously been thought to fall within the reach of the Younger doctrine. Obviously, the extension of Younger to pending civil suits between private litigants where the State is not a party is an issue requiring ultimate resolution by this Court. Indeed, the applicability of Younger to all civil litigation is a question that has expressly been reserved for another day on no less than four occasions. Moore v. Sims, 442 U. S. 415, 423, n. 8 (1979); Trainor v. Hernandez, 431 U. S. 434, 445, n. 8 (1977); Juidice v. Vail, 430 U. S. 327, 336, n. 13 (1977); Huffman v. Pursue, Ltd., supra, at 607. Now that the day has arrived with the decision of the Fourth Circuit, I would grant certiorari.

       I agree that review of the three other questions presented in the petition, concerning the merits of his cause and the absence of an automatic right of appeal, is unwarranted.

       See Juidice v. Vail, 430 U. S. 327 (1977) (civil contempt proceedings); Trainor v. Hernandez, 431 U. S. 434 (1977) (state civil enforcement action brought by state officials seeking return of fraudulently obtained welfare benefits); Moore v. Sims, 442 U. S. 415 (1979) (civil proceeding brought by state officials to seize custody of abused children); Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423 (1982) (attorney disciplinary proceedings).


author: Justice Brennan and Justice Marshall,

text:
    No. 81-6657.
    Baker v. Zant.
   Super. Ct. Ga., Butts County. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 79-6584.
    No. 81-155.
    No. 81-1796.
    No. 81-1814.
    No. 81-5379.
    No. 81-5562.
    No. 81-5944.
    No. 81-6285.
    No. 81-6371.
    No. 81-6393.
    No. 81-6440.
    No. 81-6466.
    No. 81-6482.
    No. 81-6495.
    No. 81-6564.
    No. 81-6599.
    No. 81-6667.
    In re Trapp et al., Board of Trustees of Institutions of Higher Education et al. v. Mississippi Council on Human Relations et al., Coward v. United States, Lake Carriers’ Assn. et al. v. Kelley, Attorney General of Michigan, et al., Sireci v. Florida, Gilreath v. Georgia, Messer v. Florida, Mathis v. United States, Wade v. United States, Ahmed v. Eikerenkoetter, Paschal v. Florida Department of Labor and Employment Security, Division of Employment Security, et al., Wright v. Leighton, Judge, United States District Court for the Northern District of Indiana, Chaney v. Warden, Maryland Penitentiary, Thompson v. Morrow et al., Cook v. United States, Montgomery v. United States, Campbell v. Civiletti et al.,
   456 U. S. 967;

456 U. S. 971;

456 U. S. 946;

456 U. S. 985;

456 U. S. 984;

456 U. S. 984;

456 U. S. 984;

456 U. S. 992;

456 U. S. 934;

456 U. S. 979;

456 U. S. 981;

456 U. S. 992;

456 U. S. 993;

456 U. S. 993;

456 U. S. 982;

456 U. S. 994; and

457 U. S. 1110. Petitions for rehearing denied.


text:
    No. 80-1765.
    American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp.,
   456 U. S. 556. Motion of American Association of Engineering Societies, Inc., for leave to file a brief as amicus curiae denied. Petition for rehearing denied.


text:
    No. 79-5932.
    Doe et al. v. Delaware,
   450 U. S. 382 and 451 U. S. 964. Motion for leave to file second petition for rehearing denied.

An order of The Chief Justice designating and assigning Justice Stewart (retired) to perform judicial duties in the United States Court of Appeals for the Ninth Circuit for the period September 13, 1982, to September 17, 1982, and for such further time as may be required to complete unfinished business, pursuant to 28 U. S. C. § 294(a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295.


text:
    July 2, 1982
    No. 81-922.
    Pan American Savings & Loan Assn. et al. v. Panko et al.
   Appeal from Ct. App. Cal., 1st App. Dist. Judgment vacated and case remanded for further consideration in light of Fidelity Federal Savings & Loan Assn. v. De la Cuesta, ante, p. 141.


text:
    No. 81-992.
    No. 81-993.
    Glendale Federal Savings & Loan Assn. et al. v. Hehir et ux.; and California Federal Savings & Loan Assn. v. Tan et al.; and California Federal Savings & Loan Assn. v. Romagnoli et al.
   Appeals from Ct. App. Cal., 4th App. Dist. Judgments vacated and cases remanded for further consideration in light of Fidelity Federal Savings & Loan Assn. v. De la Cuesta, ante, p. 141.


text:
    No. 81-1139.
    Glendale Federal Savings & Loan Assn. et al. v. Gross et al.
   Appeal from Ct. App. Cal., 4th App. Dist. Judgment vacated and case remanded for further consideration in fight of Fidelity Federal Savings & Loan Assn. v. De la Cuesta, ante, p. 141.


text:
    No. 80-1888.
    Chastain et al. v. Davis.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lehman v. Lycoming County Children’s Services Agency, ante, p. 502. Reported below: 640 F. 2d 599.


text:
    No. 81-471.
    United States v. Marquez-Amaya.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Valenzuela-Bernal, ante, p. 858. Reported below: 647 F. 2d 173.


text:
    No. 81-596.
    Springdale School District No. 50 of Washington County v. Grace et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Board of Education of Hendrick Hudson Central School District v. Rowley, ante, p. 176. Reported below: 656 F. 2d 300.


text:
    No. 81-774.
    No. 81-1511.
    Moore v. Black Panther Party et al.; and Smith, Attorney General, et al. v. Black Panther Party et al.
   C. A. D. C. Cir. Certiorari granted, judgment vacated, and cases remanded to the Court of Appeals with directions that it instruct the United States District Court for the District of Columbia to dismiss the complaint with prejudice.

Justice Marshall would deny the petitions for writs of certiorari. Justice Powell and Justice Stevens took no part in the consideration or decision of these cases.


text:
    No. 81-1860.
    J. P. Stevens & Co., Inc. v. National Labor Relations Board et al.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Summit Valley Industries, Inc. v. Carpenters, 456 U. S. 717 (1982).


text:
    No. 81-5534.
    Rennie et al. v. Klein, Commissioner, Department of Human Services, et al.
   C. A. 3d Cir. Motion of petitioners for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Youngberg v. Romeo, 457 U. S. 307 (1982).


text:
    No. 88, Orig.
    California v. Texas et al.
   Motion for issuance of a restraining order denied without prejudice.

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

[For earlier decision herein, see 457 U. S. 164.]


text:
    No. 92, Orig.
    Arkansas v. Mississippi.
   It is ordered that Justice Paul C. Reardon (retired) of Boston, Mass., be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Special Master is directed to submit such reports as he may deem appropriate.

The compensation of the Special Master, the allowances to him, the compensation paid to his technical, stenographic, clerical, and legal assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein. [For earlier order herein, see 456 U. S. 912.]


text:
    No. 80-1832.
    No. 80-2170.
    No. 80-2171.
    Immigration and Naturalization Service v. Chadha et al. United States House of Representatives v. Immigration and Naturalization Service et al. United States Senate v. Immigration and Naturalization Service et al.
   C. A. 9th Cir. [Probable jurisdiction postponed, 454 U. S. 812];

C. A. 9th Cir. [Certiorari granted, 454 U. S. 812]; and

C. A. 9th Cir. [Certiorari granted, 454 U. S. 812.] Cases restored to calendar for reargument.

Justice Brennan and Justice Blackmun dissent.


text:
    No. 81-1774.
    Estelle, Director, Texas Department of Corrections v. Bullard.
   C. A. 5th Cir. [Certiorari granted, 457 U. S. 1116.] Motion for appointment of counsel granted, and it is ordered that Kenneth E. Houp, Jr., Esquire, of Austin, Tex., be appointed to serve as counsel for respondent in this case.

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


text:
    No. 81-1675.
    Kush et al. v. Rutledge.
   C. A. 9th Cir. Certiorari granted limited to Question 2 presented by the petition.


text:
    No. 81-2150.
    Jim McNeff, Inc. v. Todd et al.
   C. A. 9th Cir. Certiorari granted. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 80-1906.
    Allied International, Inc. v. International Longshoremen’s Assn., AFL-CIO, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-1192.
    Glendale Federal Savings & Loan Assn. et al. v. Fox et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-1290.
    Scanlon, Secretary of Education of Pennsylvania, et al. v. Tokarcik et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-1503.
    California v. Glendale Federal Savings & Loan Assn. et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-1744.
    Federal Home Loan Bank Board v. Gulf Federal Savings & Loan Association of Jefferson Parish.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-361.
    Bramkamp et al. v. Puerto Rico ex rel. Barez, Secretary of Labor and Human Resources.
   C. A. 2d Cir. Certiorari denied.

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


text:
    No. 81-465.
    Porter et al. v. Pennsylvania et al.
   C. A. 3d Cir. Certiorari denied.

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


text:
    No. 81-1047.
    United States v. Sher.
   C. A. 3d Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 81-1692.
    Estelle, Director, Texas Department of Corrections v. Von Burleson.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 81-1548.
    Vasquez v. McAllen Bag & Supply Co.
   C. A. 5th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 81-1895.
    Bronze Shields, Inc., et al. v. New Jersey Department of Civil Service et al.; and Howard et al. v. New Jersey Department of Civil Service et al.
   C. A. 3d Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 81-5578.
    No. 81-5731.
    No. 81-6606.
    Brewer v. Indiana. Hyman v. South Carolina. Francois v. Florida.
   Sup. Ct. Ind.;

Sup. Ct. S. C.; and

Sup. Ct. Fla. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    July 6, 1982
    No. 92, Orig.
    Arkansas v. Mississippi.
   Motion for leave to file a counterclaim referred to the Special Master. [For earlier order herein, see, e. g., ante, p. 1119.]


text:
    August 5, 1982
    No. 81-1888.
    Morgan Drive Away, Inc., et al. v. Samford et al.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 10, 1982
    No. A-147.
    Mitchell, Warden, et al. v. Lawrence, Next Friend Acting on Behalf of Coppola.
   This matter came on before The Chief Justice as Circuit Justice for the Fourth Circuit on the application of James P. Mitchell, Warden, and Gerald L. Baliles, Attorney General of Virginia, and was referred by him to the Court. There being only four Members of the Court available in Washington, a conference call was arranged to include those outside Washington except Justice O’Connor who was outside the United States. After consideration of the matters presented by the application, the application is granted and the stay entered by Circuit Judge John D. Butzner, Jr., of the United States Court of Appeals for the Fourth Circuit is hereby vacated.

JUSTICE Brennan and Justice Marshall would deny the application. Justice Stevens would call for a response from J. Gray Lawrence, Jr., the respondent above named. Justice O’Connor took no part in the consideration or decision of this application.


text:
    August 12, 1982
    No. 81-2333.
    Anderson et al. v. Flateau et al.
   Appeal from D. C. S. D. N. Y. dismissed under this Court’s Rule 53.


text:
    August 19, 1982
    No. 81-1810.
    Naranjo et al. v. Corriz.
   C. A. 10th Cir. [Certiorari granted, 456 U. S. 971.] Stipulation to dismiss the writ of certiorari was filed, and the case was dismissed pursuant to this Court’s Rule 53.


text:
    No. A-169.
    Kallenberger v. Buchanan, Secretary of State of Colorado.
   Application for injunction, addressed to Justice Brennan and referred to the Court, denied.

Justice Blackmun would grant the application. Justice Marshall would defer consideration of the application pending the filing of a response by the respondent. Justice O’Connor took no part in the consideration or decision of this application.


text:
    August 24, 1982
    No. 82-75.
    Horizons Apartments Associates, Ltd., et al. v. Lee County, Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari dismissed under this Court’s Rule 53.


text:
    September 7, 1982
    No. 81-1685.
    Limmer et al. v. Fernandes, aka Santani.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 9, 1982
    No. A-958.
    McDonald v. Alexander, Governor of Tennessee, et al.
   Application for injunction, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-1138.
    Pfister v. Delta Air Lines, Inc., et al.
   C. A. D. C. Cir. Application for stay, addressed to Justice White and referred to the Court, denied.


text:
    No. A-22.
    Hale v. United States.
   C. A. 10th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.