source: Caselaw Access Project

author: Per Curiam. Justice Marshall, Justice Powell,

license: Public Domain

text:
    ZANT, WARDEN v. STEPHENS
    No. 81-89.
    Argued February 24, 1982
    Decided May 3, 1982

      Daryl A. Robinson, Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the brief were Michael J. Bowers, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion 0. Gordon and John C. Walden, Senior Assistant Attorneys General.

      John Charles Boger argued the cause for respondent. With him on the brief were James C. Bonner, Jr., Jack Greenberg, James M. Nabrit III, Joel Berger, Deborah Fins, and Anthony G. Amsterdam.

      A brief for the State of Alabama et al. as amici curiae urging reversal was filed by Charles A. Graddick, Attorney General of Alabama, George Deukmejian, Attorney General of California, Jim Smith, Attorney General of Florida, William J. Guste, Jr., Attorney General of Louisiana, William A. Attain, Attorney General of Mississippi, John D. Ashcroft, Attorney General of Missouri, and John M. Morris III, Assistant Attorney General, Michael T. Greely, Attorney General of Montana, Paul L. Douglas, Attorney General of Nebraska, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, Daniel R. McLeod, Attorney General of South Carolina, and David L. Wilkinson, Attorney General of Utah.

        Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió filed a brief for the Washington Legal Foundation as amicus curiae.

   Per Curiam.

The respondent was convicted of murder in a Georgia Superior Court. His sentencing jury found the following statutory aggravating circumstances:

“(1) that the offense of murder was committed by a person with a prior record of conviction of a capital felony, Code Ann. §27-2534.1(b)(1); (2) that the murder was committed by a person who has a substantial history of serious assaultive criminal convictions, Code Ann. §27-2534.1(b)(1), supra; and, (3) that the offense of murder was committed by a person who had escaped from the lawful custody of a peace officer or a place of lawful confinement, Code Ann. §27-2534.1(b)(9).” Stephens v. Hopper, 241 Ga. 596, 597-598, 247 S. E. 2d 92, 94, cert. denied, 439 U. S. 991 (1978).

The jury imposed the death penalty. On direct appeal, the Georgia Supreme Court affirmed. Stephens v. State, 237 Ga. 259, 227 S. E. 2d 261, cert. denied, 429 U. S. 986 (1976). On the authority of Arnold v. State, 236 Ga. 534, 224 S. E. 2d 386 (1976), it set aside the second statutory aggravating circumstance found by the jury. It upheld the death sentence, however, on the ground that in Arnold “that was the sole aggravating circumstance found by the jury,” whereas in the case under review “the evidence supports the jury’s findings of the other statutory aggravating circumstances, and consequently the sentence is not impaired.” 237 Ga., at 261-262, 227 S. E. 2d, at 263.

After exhausting his state postconviction remedies, Stephens v. Hopper, supra, the respondent applied for a writ of habeas corpus in Federal District Court. Relief was denied by that court, but the United States Court of Appeals for the Fifth Circuit “reverse[d] the district court’s denial of habeas corpus relief insofar as it le[ft] standing the [respondent’s] death sentence, and . . . remanded for further proceedings.” 631 F. 2d 397, 407 (1980), modified, 648 F. 2d 446 (1981). We granted the petition for certiorari. 454 U. S. 814.

In Gregg v. Georgia, 428 U. S. 153 (1976), we upheld the Georgia death penalty statute because the standards and procedures set forth therein promised to alleviate to a significant degree the concern of Furman v. Georgia, 408 U. S. 238 (1972), that the death penalty not be imposed capriciously or in a freakish manner. We recognized that the constitutionality of Georgia death sentences ultimately would depend on the Georgia Supreme Court’s construing the statute and reviewing capital sentences consistently with this concern. See 428 U. S., at 198, 201-206 (opinion of Stewart, Powell, and Stevens, JJ.); id., at 211-212, 222-224 (White, J., concurring in judgment). Our review of the statute did not lead us to examine all of its nuances. It was only after the state law relating to capital sentencing was clarified in concrete cases that we confronted and addressed more specific constitutional challenges in Coker v. Georgia, 433 U. S. 584 (1977), Presnell v. Georgia, 439 U. S. 14 (1978), Green v. Georgia, 442 U. S. 95 (1979), and Godfrey v. Georgia, 446 U. S. 420 (1980).

Today, we are asked to decide whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence. The Georgia Supreme Court consistently has asserted that authority. Its construction of state law is clear: “Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon.” Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), cert. denied, 445 U. S. 938 (1980).

Despite the clarity of the state rule we are asked to review, there is considerable uncertainty about the state-law premises of that rule. The Georgia Supreme Court has never explained the rationale for its position. It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions. In this Court, the Georgia Attorney General offered as his understanding the following construction of state law: The jury must first find whether one or more statutory aggravating circumstances have been established beyond a reasonable doubt. The existence of one or more aggravating circumstances is a threshold finding that authorizes the jury to consider imposing the death penalty; it serves as a bridge that takes the jury from the general class of all murders to the narrower class of offenses the state legislature has determined warrant the death penalty. After making the finding that the death penalty is a possible punishment, the jury then makes a separate finding whether the death penalty should be imposed. It bases this finding “not upon the statutory aggravating circumstances but upon all the evidence before the jury in aggravation and mitigation of punishment which ha[s] been introduced at both phases of the trial.” Brief for Petitioner 13.

In view of the foregoing uncertainty, it would be premature to decide whether such determinations, or any of the others we might conceive as a basis for the Georgia Supreme Court’s position, might undermine the confidence we expressed in Gregg v. Georgia, 428 U. S. 153 (1976), that the Georgia capital-sentencing system, as we understood it then, would avoid the arbitrary and capricious imposition of the death penalty and would otherwise pass constitutional muster. Suffice it to say that the state-law premises of the Georgia Supreme Court’s conclusion of state law are relevant to the constitutional issue at hand.

The Georgia Supreme Court under certain circumstances will decide questions of state law upon certification from this Court. See Ga. Code §24-4536 (Supp. 1980). We invoke that statute to certify the following question: What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?

The Clerk of this Court is directed to transmit this certificate, signed by The Chief Justice and under the official seal of the Court, as well as the briefs and record filed with the Court, to the Supreme Court of Georgia, and simultaneously to transmit copies of the certificate to the attorneys for the respective parties.

It is so ordered.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Six years ago in Gregg v. Georgia, 428 U. S. 153, 193 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), this Court declared:

“Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law. . . . When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.” (Footnote omitted.)

In today’s decision, a majority of this Court intimates that a post hoc construction of a death penalty statute by the State’s highest court may remedy the fact that a jury was improperly instructed with respect to the very factors that save the Georgia statute from unconstitutionality. See Gregg v. Georgia, supra. Because I cannot see how the Georgia Supreme Court’s response to this Court’s certification could constitutionally justify the imposition of the death penalty in this case, I must dissent.

I

I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Gregg v. Georgia, supra, at 231. Even if I believed that the death penalty could constitutionally be imposed under certain circumstances, however, I believe that respondent Stephens’ sentence must be vacated and his case remanded to the Georgia state courts for resentencing.

II

In my opinion, remanding this case for resentencing is compelled by this Court’s decisions upholding the constitutionality of the Georgia death penalty statute, and by well-recognized principles of appellate review. Therefore, whether or not the Georgia Supreme Court’s construction of the statute in response to this Court’s certification might avoid the constitutional infirmity inherent in respondent’s sentence in some future case, it can do nothing to alter the fact that respondent’s death sentence may have been based in part on consideration of an unconstitutional aggravating circumstance.

Under Georgia law, certification is appropriate “[w]hen it shall appear to the Supreme Court of the United States . . . that there are involved in any proceeding before it questions or propositions of the laws of this State which are determinative of said cause and there are no clear controlling precedents in the appellate court decisions of this State.” Ga. Code § 24-4536(a) (Supp. 1980) (emphasis added). The majority attempts to bring this case within the ambit of this certification procedure by indicating that “[i]t may be that . . . multiple findings of statutory aggravating circumstances are superfluous, or . . . the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions.” Ante, at 415. The majority then requests the Georgia Supreme Court to clarify “the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury.” Ante, at 416-417.

I wholeheartedly agree that we do not know the answers to these questions. The majority recognizes that we do not possess this information because “[t]he Georgia Supreme Court has never explained the rationale for its position” that a death sentence may be reaffirmed when one of the aggravating circumstances relied on by the jury is declared invalid. Ante, at 415. I submit, however, that we are not alone in our ignorance. There is absolutely no indication that the jury sentencing respondent to death or the judge who instructed that jury was any more aware of the answers to these questions than we are today. Indeed, by certifying these questions to the Georgia Supreme Court, the majority concedes that it was impossible for anyone to know the answers to these questions at the time respondent was sentenced to death, because “there are no controlling precedents” in Georgia on these issues. Given this Court’s prior treatment of cases in which a defendant received a sentence, particularly a death sentence, on the basis of erroneous jury instructions, I do not understand how the Georgia Supreme Court’s answer to the certified question could possibly be “determinative” of this case.

In Furman v. Georgia, 408 U. S. 238 (1972), this Court struck down death penalties imposed pursuant to a Georgia statute. Shortly thereafter, the Georgia Legislature enacted the current death penalty statute. This statute provides for a separate sentencing proceeding after the defendant has been found guilty of a capital offense. During the sentencing phase, the trial judge shall instruct the jury to consider “any of the [10] statutory aggravating circumstances which may be supported by the evidence.” Ga. Code § 27-2534.1(b) (1978). The aggravating circumstances found by the judge to be warranted by the evidence are submitted to the jury in writing to be used during its deliberations. § 27-2534.1(c). If the jury recommends a death sentence, it “shall designate in writing ... the aggravating circumstance or circumstances which it found beyond a reasonable doubt.” Ibid. Even if it finds that one or more aggravating circumstances has been established beyond a reasonable doubt, the jury is not required to impose the death penalty. See Bowen v. State, 241 Ga. 492, 246 S. E. 2d 322 (1978). The jury’s verdict to impose the death penalty must be unanimous. Miller v. State, 237 Ga. 557, 229 S. E. 2d 376 (1976). The trial judge is bound by the jury’s recommendation of sentence, whether that recommendation be life or death. Ga. Code §§ 26-3102, 27-2514 (1978).

In Gregg v. Georgia, 428 U. S. 153 (1976), this Court held that this statutory scheme satisfied the constitutional guarantee against cruel and unusual punishment. In reaching this conclusion, the two principal opinions relied heavily on the fact that the aggravating circumstances served to guide the jury’s discretion. The joint opinion announcing the judgment of the Court emphasized that because “the members of a jury will have had little, if any, previous experience in sentencing,” id., at 192 (opinion of Stewart, Powell, and Stevens, JJ.), they should be given specific standards to guide their sentencing deliberations, such as those provided in the Model Penal Code, which catalogs “ ‘the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other’” by the jury. Id., at 193 (quoting ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959)) (emphasis in original). That opinion found that the new Georgia statute satisfied this requirement because, through the statutory aggravating circumstances, “[t]he new Georgia sentencing procedures . . . focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant.” 428 U. S., at 206 (emphasis added). Justice White, joined by The Chief Justice and Justice Rehnquist, concurring in the judgment, placed an even stronger emphasis on the role of the statutory aggravating circumstances:

“The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute .... As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries — even given discretion not to impose the death penalty — will impose the death penalty in a substantial portion of the cases so defined.” Id., at 222 (first emphasis added).

In Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion of Stewart, J., joined by Blackmun, Powell, and Stevens, JJ.), this Court reaffirmed the role of aggravating circumstances in protecting against the arbitrary imposition of the death penalty. The Godfrey Court addressed the constitutionality of a death sentence imposed in reliance on aggravating circumstance § (b)(7), which allows a jury to impose the death sentence if it finds that the murder “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code § 27-2534.1(b)(7) (1978).

The plurality opinion found: “There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman.’ ” 446 U. S., at 428-429. Section (b)(7), if construed broadly enough to encompass every murder, would be unconstitutional because it provides “no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Id., at 433. The plurality found it significant that this interpretation of § (b)(7) “may . . . have been one to which the members of the jury in this case subscribed,” and that, if the jury did hold this view “their preconceptions were not dispelled by the trial judge’s sentencing instructions.” Id., at 429. Therefore, the jury was not given appropriate guidance, and the death sentence could not constitutionally be imposed.

In my view, this reasoning requires that respondent’s death sentence be vacated and that this case be remanded so he can be resentenced by a properly instructed jury. It is conceded that the jury in this case was instructed on an aggravating circumstance that the Georgia Supreme Court has since declared unconstitutional. If this were the only aggravating circumstance found by the jury, it is also undisputed that the State would be unable to impose the death sentence, see Arnold v. State, 236 Ga. 534, 224 S. E. 2d 386 (1976), even if the Georgia Supreme Court determined that the evidence supported a finding of other statutory aggravating circumstances. Cf. Presnell v. Georgia, 439 U. S. 14, 16 (1978). Petitioner argues, however, because the jury found two other statutory aggravating circumstances that the Georgia Supreme Court found to be supported by the evidence, that court could reaffirm the death sentence. This argument flies in the face of the reasoning of the Godfrey plurality which found it crucial that the jury’s decision to impose the death sentence be guided by clear and appropriate instructions.

Moreover, this argument is patently contrary to the settled principle that “if the jury has been instructed to consider several grounds for conviction, one of which proves to be unconstitutional, and the reviewing court is thereafter unable to determine from the record whether the jury relied on the unconstitutional ground, the verdict must be set aside.” 631 F. 2d 397, 406 (CA5 1980) (case below); see Stromberg v. California, 283 U. S. 359 (1931). Since 1931, this Court has consistently declined to speculate about whether a particular jury would have reached the same conclusion in the absence of an unconstitutional instruction. See, e. g., id., at 367-368. Accord, Bachellar v. Maryland, 397 U. S. 564, 570-571 (1970); Street v. New York, 394 U. S. 576, 585-588 (1969); Yates v. United States, 354 U. S. 298, 311-312 (1957). In light of this Court’s consistent recognition that “the penalty of death is qualitatively different from a sentence of imprisonment,” Woodson v. North Carolina, 428 U. S. 280, 305 (1980) (opinion of Stewart, Powell, and Stevens, JJ.); see, e. g., Eddings v. Oklahoma, 455 U. S. 104, 117-118 (1982) (O’Connor, J., concurring), there is certainly no reason to engage in such speculation here. Yet, the jury is not required to recommend death even if it finds that one or more aggravating circumstances have been established beyond a reasonable doubt. Therefore, to adopt the bald pronouncement that “[wjhere two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death thereon,” Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), we would have to speculate that the jury’s decision to impose the death penalty was not influenced by the presence of the unconstitutional aggravating circumstance.

Recognizing that settled law normally requires that sentences arguably imposed on the basis of unconstitutional instructions cannot stand, petitioner and several States in an amicus curiae brief attempt to distinguish the Stromberg line of cases by arguing that, as a matter of statutory construction, a jury’s finding that 1 of the 10 aggravating circumstances has been established beyond a reasonable doubt is irrelevant to its ultimate conclusion that the death penalty should be imposed. Specifically, petitioner argues that the term “aggravating circumstance” actually has two entirely different meanings, with each meaning representing a separate task that a capital sentencing jury must perform. First, the jury must determine whether any of the 10 statutory “aggravating circumstances” has been established beyond a reasonable doubt. This, petitioner argues, is a threshold determination that only allows the jury to consider the death penalty, but has no impact on whether that penalty should be imposed. After reaching this threshold determination, the jury may consider any “evidence in aggravation” or mitigation in reaching its conclusion as to whether the dealth penalty should be imposed. According to petitioner, the jury performs this second task free of any influence from the very “legislative guidelines” that, by “focus[ing] the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant,” prevent the death penalty from being wantonly and freakishly imposed. Gregg v. Georgia, 428 U. S., at 206-207 (joint opinion of Stewart, POWELL, and Stevens, JJ.).

Putting to one side both the plausibility and the constitutionality of petitioner’s construction of the Georgia death penalty statute, it is patently obvious that this ex post facto attempt to avoid the clear mandate of Stromberg cannot possibly remedy the constitutional infirmity of respondent’s sentence. This conclusion is compelled by this Court’s decision in Sandstrom v. Montana, 442 U. S. 510 (1979). In Sandstrom, a defendant was convicted of “deliberate homicide,” which, under Montana law, required the State to prove that he “purposefully or knowingly” caused the death of the victim. Id., at 512. At the close of all the evidence, the judge instructed the jury that “‘[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.’” Id., at 513. The defendant objected to this instruction on the ground that it unconstitutionally shifted the burden of proof on the issue of intent. On direct appeal, the Montana Supreme Court conceded that shifting the burden of proof in a criminal case was unconstitutional. It nevertheless upheld the challenged instruction on the ground that under its interpretation, the instruction only shifted the burden of production rather than the burden of persuasion. Id., at 513-514. In the proceedings before this Court, the State argued that the Montana Supreme Court’s interpretation of the effect of the presumption was conclusive on this Court. Id., at 516.

This Court unanimously rejected the State’s attempt to avoid the constitutional issue by the use of a post hoc narrowing construction by the State’s highest court. While acknowledging that “[t]he Supreme Court of Montana is . . . the final authority on the legal weight to be given a presumption under Montana law, ... it is not the final authority on the interpretation which a jury could have given the [challenged] instruction.” Id., at 516-517 (emphasis added). Instead, this Court defined the relevant question as whether “a reasonable juror could well have been misled by the instruction.” Id., at 517. Even assuming the constitutionality of the Montana Supreme Court’s interpretation of the presumption, an interpretation that this Court conceded might have been in the minds of “some jurors,” the fact that “a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom’s jurors actually did proceed upon one or the other of these latter interpretations.” Id., at 519 (emphasis added). “Because David Sandstrom’s jury may have interpreted the judge’s instruction as constituting either a burden-shifting presumption ... or a conclusive presumption,” id., at 524, this Court held the instruction unconstitutional and remanded the case to the state courts for proceedings not inconsistent with the opinion.

In my view, the case presently before the Court presents even a stronger case for rejecting the relevance of an ex post facto saving construction. By certifying this question to the Georgia Supreme Court, the majority concedes that this construction has never been explicitly adopted by the Georgia courts. It must also be acknowledged that petitioner’s interpretation of the jury’s role under the Georgia law is not the only, or even the most plausible, construction of the death penalty statute. A “reasonable juror” could fairly conclude that he or she was required to place special emphasis on the existence of statutory aggravating circumstances, and weigh them against each other and against any mitigating circumstances, when deciding whether or not to impose the death penalty. Cf. Godfrey v. Georgia, 446 U. S., at 428-429. Certainly several Members of this Court have operated under this assumption. See Gregg v. Georgia, 428 U. S., at 197-198, 221-222; Godfrey v. Georgia, supra, at 436-437 (Marshall, J., concurring in judgment); Drake v. Zant, 449 U. S. 999, 1001 (1980) (Stewart, J., dissenting from denial of certiorari).

If respondent’s jury subscribed to this interpretation of their role, “their preconceptions were not dispelled by the trial judge’s sentencing instructions.” Godfrey, supra, at 429. Indeed, everything about the judge’s charge highlighted the importance of the aggravating circumstances. Not only were the circumstances submitted to the jury in writing, but also the jury was in turn required to write down each and every aggravating circumstance that it found to be established beyond a reasonable doubt. See Ga. Code § 27-2534.1(c) (1978) discussed supra, at 420. The jury instructions provide absolutely no indication that, after carefully considering each of the statutory aggravating circumstances submitted by the trial judge, the jury should, or even could, discard this list of officially sanctioned grounds for imposing the death penalty in deciding whether to actually sentence respondent to death.

Absent even a shred of evidence that respondent’s' trial judge and jury were cognizant of petitioner’s asserted construction of the Georgia death penalty statute, a construction never acknowledged by any Georgia appellate court, we can only speculate whether “the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance.” 631 F. 2d, at 406. It is precisely to guard against such speculation that this Court has uniformly refused to uphold a conviction or sentence that might have been based even in part on an unconstitutional ground. See supra, at 423. Furthermore, in Gregg v. Georgia, supra, at 189, this Court made clear that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” See also Furman v. Georgia, 408 U. S. 238 (1972). Because nothing the Supreme Court of Georgia can say in response to this Court’s certification will assure us that respondent’s jury was “suitably directed,” I must dissent.

Justice Powell,

dissenting.

I am in essential agreement with the views expressed by Justice Marshall in Part II of his dissenting opinion, and with his conclusion that the death sentence was imposed under instructions that could have misled the jury. I would not hold, however, that the case must be remanded for re-sentencing by a jury.

The Court of Appeals for the Fifth Circuit simply reversed and remanded, thus leaving it to the Georgia Supreme Court to determine whether resentencing by a jury is required in this case. It may be that under Georgia law the State Supreme Court lacks authority to resentence. If that should be the case, I would leave open — also for the Supreme Court of Georgia to decide — whether it has authority to find that the instruction was harmless error beyond a reasonable doubt.

       The trial judge instructed the sentencing jury as follows:
      “Gentlemen of the Jury, the defendant in this case has been found guilty at your hands of the offense of Murder, and it is your duty to make certain determinations with respect to the penalty to be imposed as punishment for that offense. Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. Under the law of this State every person guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case. In all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law. You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. You would so state in your verdict, and after reciting this you would state, We fix punishment at death. On the other hand, if you recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, We fix punishment at life in prison. Now, whatever your verdict may be with respect to the responsibility you have regarding sentencing please write these out, Mr. Foreman, immediately below the previous verdict you have rendered. Be sure that it is dated and that it bears your signature as foreman. Once again when you have arrived at your verdict on the sentencing phase of the case let us know. We will then receive the verdict from you and have it published here in open court. Please retire now and consider the sentence in this case.” App. 18-19.

       See Stevens v. State, 247 Ga. 698, 709, 278 S. E. 2d 398, 407 (1981); Green v. State, 246 Ga. 598, 606, 272 S. E. 2d 475, 485 (1980), cert. denied, 450 U. S. 936 (1981); Hamilton v. State, 246 Ga. 264, n. 1, 271 S. E. 2d 173, 174, n. 1 (1980), cert. denied, 449 U. S. 1103 (1981); Brooks v. State, 246 Ga. 262, 263, 271 S. E. 2d 172 (1980), cert. denied, 451 U. S. 921 (1981); Collins v. State, 246 Ga. 261, 262, 271 S. E. 2d 352, 354 (1980), cert. denied, 449 U. S. 1103 (1981); Dampier v. State, 245 Ga. 882, 883, n. 1, 268 S. E. 2d 349, 350, n. 1, cert. denied, 449 U. S. 938 (1980); Burger v. State, 245 Ga. 458, 461-462, 265 S. E. 2d 796, 799-800, cert. denied, 446 U. S. 988 (1980); Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), cert. denied, 445 U. S. 938 (1980); Stephens v. State, 237 Ga. 259, 261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986 (1976).

       Last Term, Members of this Court expressed different assumptions about the meaning — and the constitutionality — of the Georgia Supreme Court’s position. In Drake v. Zant, 449 U. S. 999 (1980), the Court declined to grant certiorari and vacate the judgments in two Georgia cases in which the death sentences — premised in part on the (b)(7) aggravating circumstance — were imposed prior to our decision in Godfrey v. Georgia, 446 U. S. 420 (1980). Justice Stevens, concurring in the disposition, expressed the opinion that the Georgia Supreme Court’s position was so clear that there was no need to remand the cases for reconsideration in light of Godfrey. 449 U. S., at 1000. Dissenting from the denial of certiorari, Justice Stewart stated that if one aggravating circumstance found by the jury “could not constitutionally justify the death sentence, Georgia law would prohibit a further finding that the error was harmless simply because of the existence of the other aggravating circumstance.” Id., at 1001. He believed that the Georgia Supreme Court’s position on the issue was inconsistent with the Georgia capital punishment scheme because “only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death.” Ibid. Justice White, also dissenting, would have remanded for reconsideration in light of Godfrey, a disposition that “would allow the Georgia Supreme Court in the first instance to determine whether the death penalty should be sustained without regard to the validity of the Godfrey circumstance.” 449 U. S., at 1002. He did “not understand the Georgia cases ... to hold either that the Georgia Supreme Court is without power to set aside a death penalty if it sustains only one of the aggravating circumstances found by the jury or that, although the court has that power, it invariably will not disturb the death penalty in such situations.” Ibid.

       “When it shall appear to the Supreme Court of the United States . . . that there are involved in any proceeding before it questions or propositions of the laws of this State which are determinative of said cause and there are no clear controlling precedents in the appellate court decisions of this State, such Federal appellate court may certify such questions or propositions of the laws of Georgia to this court for instructions concerning such questions or propositions.”

       In bench trials, the judge must consider these factors.

       To date, the majority of state courts that have confronted this issue have declined to speculate whether the jury would still have returned a death sentence in the absence of the subsequently invalidated aggravating circumstance. See, e. g., Williams v. State, 274 Ark. 9, 11-13, 621 S. W. 2d 686, 687-688 (1981); State v. Irwin, 304 N. C. 93, 106-108, 282 S. E. 2d 439, 448-449 (1981); State v. Moore, 614 S. W. 2d 348, 351-352 (Tenn. 1981); Hopkinson v. State, 632 P. 2d 79, 171-172 (Wyo. 1981). See also Cook v. State, 369 So. 2d 1251, 1255-1257 (Ala. App. 1979).

       The States of Alabama, California, Florida, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, South Carolina, and Utah submitted an amicus brief on behalf of petitioner. It is interesting to note that the appellate courts of Alabama and North Carolina have already implicitly rejected the construction now urged by these States as amici. See n. 2, supra.

         In my view, if the Georgia Supreme Court adopted this interpretation of the death penalty statute, it would raise serious questions as to the constitutionality of this statute under Gregg.

       Justice Rehnquist, joined by The Chief Justice, filed a separate opinion concurring in both the judgment and the opinion of the Court.

       The Sandstrom Court also rejected the State’s argument that the jury need not have relied on the challenged instruction in finding Sandstrom guilty of intentional murder. The State reasoned that because the tainted instruction could arguably be viewed as only relating to the defendant’s “purpose,” the jury might have convicted Sandstrom solely on the ground that he “knowingly” caused the death of the victim. Because the statute only requires that the crime be committed “purposefully or knowingly,” the State argued that there was an alternative basis on which the conviction could be sustained. 442 U. S., at 525. Relying on Stromberg v. California, 283 U. S. 359 (1931), this Court refused to engage in such speculation, since “even if a jury could have ignored the presumption and found defendant guilty because he acted knowingly, we cannot be certain that this is what they did do.” 442 U. S., at 526 (emphasis in original). There is similarly no way to tell whether respondent’s jury adopted the Georgia Supreme Court’s yet undisclosed interpretation of the Georgia death penalty statute.

       It is irrelevant whether the jury’s determination was only partially based on the presence of the unconstitutional aggravating circumstance. As this Court held in Street v. New York, 394 U. S. 576 (1969), “even assuming that the record precludes the inference that appellant’s conviction might have been based solely on [an unconstitutional ground], we are still bound to reverse if the conviction could have been based upon both” an unconstitutional and a constitutional ground. Id., at 587 (emphasis in original).

       The majority’s implication that certifying this case will give the Georgia Supreme Court an opportunity to clarify whether it has the power to “assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions,” ante, at 415, does not alter my conclusion. In affirming respondent’s death sentence, the Georgia Supreme Court did not purport to exercise such authority. Nor did the State argue that such action by the Georgia Supreme Court was permissible in the proceedings before this Court. Indeed, prior to this Court’s action today, it has always been assumed that “only the trier of fact may impose a death sentence.” Willis v. Balkcom, 451 U. S. 926, 928 (1981) (Marshall, J., joined by Brennan and Stewart, JJ., dissenting from denial of certiorari). In any event, a “reviewing court can determine only whether a rational jury might have imposed the death penalty if it had been properly instructed; it is impossible for it to say whether a particular jury would have so exercised its discretion if it had known the law.” Godfrey v. Georgia, 446 U. S. 420, 437 (1980) (Marshall, J., concurring in judgment).


author: Per Curiam.

text:
    O’DELL et al. v. ESPINOZA, as personal representative of the estate of espinoza and as guardian, et al.
    No. 81-534.
    Argued April 26, 1982
    Decided May 3, 1982

      Theodore S. Halaby argued the cause for petitioners. With him on the briefs were Louis B. Bruno and David Neil.

      Scott H. Robinson argued the cause and filed a brief for respondents.

        Charles S. Sims, Leon Friedman, Christopher A. Hansen, and Anthony F. Renzo filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Per Curiam.

Under 28 U. S. C. § 1257, this Court has jurisdiction to review only “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” Because the Colorado Supreme Court remanded this case for trial, its decision is not final “as an effective determination of the litigation.” Market Street R. Co. v. Railroad Comm’n of Cal., 324 U. S. 548, 551 (1945). Although there is a limited set of situations in which we have found finality as to the federal issue despite the ordering of further proceedings in the lower state courts, see Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), this case does not fit into any of those categories. We therefore dismiss for want of jurisdiction.

It is so ordered.


author: Chief Justice Burger Justice Blackmun,

text:
    FINNEGAN et al. v. LEU et al.
    No. 80-2150.
    Argued February 24, 1982
    Decided May 17, 1982

      BURGER, C. J., delivered the opinion for a unanimous Court. Black-mun, J., filed a concurring opinion, in which Brennan, J., joined, post, p. 442.

      Samuel G. Bolotin argued the cause and filed a brief for petitioners.

      Ted lorio argued the cause for respondents. With him on the brief was Jack Gallon and Jeffrey Julius.

        Alan Hyde and Paul Alan Levy filed a brief for the Association for Union Democracy et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Marsha Berzon, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Amy Gladstein and James Reif for the National Labor Law Center of the National Lawyers Guild.

   Chief Justice Burger

delivered the opinion of the Court.

The question presented in this case is whether the discharge of a union’s appointed business agents by the union president, following his election over the candidate supported by the business agents, violated the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U. S. C. § 401 et seq. The Court of Appeals held that the Act did not protect the business agents from discharge. We granted certiorari to resolve Circuit conflicts, 454 U. S. 813 (1981), and we affirm.

I

In December 1977, respondent Harold Leu defeated Omar Brown in an election for the presidency of Local 20 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a labor organization representing workers in a 14-county area of northwestern Ohio. During the vigorously contested campaign, petitioners, then business agents of Local 20, openly supported the incumbent president, Brown. Upon assuming office in January 1978, Leu discharged petitioners and the Local’s other business agents, all of whom had been appointed by Brown following his election in 1975. Leu explained that he felt the agents were loyal to Brown, not to him, and therefore would be unable to follow and implement his policies and programs.

Local 20’s bylaws — which were adopted by, and may be amended by, a vote of the union membership — provide that the president shall have authority to appoint, direct, and discharge the Union’s business agents. Bylaws of Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 20, Art. IX, § 3 D, Joint Exhibit 1, p. 15 (1975). The duties of the business agents include participation in the negotiating of collective-bargaining agreements, organizing of union members, and processing of grievances. In addition, the business agents, along with the president, other elected officers, and shop stewards, sit as members of the Stewards Council, the legislative assembly of the Union. Petitioners had come up through the union ranks, and as business agents they were also members of Local 20. Discharge from their positions as business agents did not render petitioners ineligible to continue their union membership.

Petitioners filed suit in the United States District Court, alleging that they had been terminated from their appointed positions in violation of the Labor-Management Reporting and Disclosure Act, 29 U. S. C. §§ 411(a)(1), 411(a)(2), 412, and 529. The District Court granted summary judgment for respondents Leu and Local 20, holding that the Act does not protect a union employee from discharge by the president of the union if the employee’s rights as a union member are not affected. Navarro v. Leu, 469 F. Supp. 832 (1979). The United States Court of Appeals for the Sixth Circuit affirmed, concluding “that a union president should be able to work with those who will cooperate with his program and carry out his directives, and that these business agents, who served at the pleasure of the union president, and actively supported the president’s opponent could be removed from their employment as union business agents.” App. to Pet. for Cert. A3.

II

The Labor-Management Reporting and Disclosure Act of 1959 was the product of congressional concern with widespread abuses of power by union leadership. The relevant provisions of the Act had a history tracing back more than two decades in the evolution of the statutes relating to labor unions. Tensions between union leaders and the rank-and-file members and allegations of union wrongdoing led to extended congressional inquiry. As originally introduced, the legislation focused on disclosure requirements and the regulation of union trusteeships and elections. However, various amendments were adopted, all aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution; not surprisingly, these amendments — ultimately enacted as Title I of the Act, 29 U. S. C. §§ 411-415—were introduced under the title of “Bill of Rights of Members of Labor Organizations.” The amendments placed emphasis on the rights of union members to freedom of expression without fear of sanctions by the union, which in many instances could mean loss of union membership and in turn loss of livelihood. Such protection was necessary to further the Act’s primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships. See 105 Cong. Rec. 6471-6472, 6476, 15530 (1959), 2 Leg. Hist. 1098-1099, 1103, 1566.

Sections 101(a)(1) and (2) of the Act, 29 U. S. C. §§ 411(a) (1) and (2), on which petitioners rely, guarantee equal voting rights, and rights of speech and assembly, to “[e]very member of-a labor organization” (emphasis added). In addition, § 609 of the Act, 29 U. S. C. § 529, renders it unlawful for a union or its representatives “to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act.” (Emphasis added.) It is readily apparent, both from the language of these provisions and from the legislative history of Title I, that it was rank-and-file union members — not union officers or employees, as such — whom Congress sought to protect.

Petitioners held a dual status as both employees and members of the Union. As members of Local 20, petitioners undoubtedly had a protected right to campaign for Brown and support his candidacy. At issue here is whether they were thereby immunized from discharge at the pleasure of the president from their positions as appointed union employees.

HH hH I — I

Petitioners contend that discharge from a position as a union employee constitutes “discipline” within the meaning of § 609; and that termination of union employment is therefore unlawful when predicated upon an employee’s exercise of rights guaranteed to members under the Act. However, we conclude that the term “discipline,” as used in §609, refers only to retaliatory actions that affect a union member’s rights or status as a member of the union. Section 609 speaks in terms of disciplining “members”; and the three disciplinary sanctions specifically enumerated — fine, suspension, and expulsion — are all punitive actions taken against union members as members. In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees. See Sheridan v. Carpenters Local No. 626, 306 F. 2d 152, 156 (CA3 1962). We discern nothing in § 609, or its legislative history, to support petitioners’ claim that Congress intended to establish a system of job security or tenure for appointed union employees.

Congress used essentially the same language elsewhere in the Act with the specific intent not to protect a member’s status as a union employee or officer. Section 101(a)(5), 29 U. S. C. § 411(a)(5), states that “[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined” without enumerated procedural protections. The Conference Report accompanying S. 1555 as finally enacted, H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959), 1 Leg. Hist. 935, explains that this “prohibition on suspension without observing certain safeguards applies only to suspension of membership in the union; it does not refer to suspension of a member’s status as an officer of the union” (emphasis added). This too is a persuasive indication that the virtually identical language in § 609 was likewise meant to refer only to punitive actions diminishing membership rights, and not to termination of a member’s status as an appointed union employee.

We hold, therefore, that removal from appointive union employment is not within the scope of those union sanctions explicitly prohibited by § 609.

>

Our analysis is complicated, however, by the fact that § 102, 29 U. S. C. § 412, provides independent authority for a suit against a union based on an alleged violation of Title I of the Act. Section 102 states that

“[a]ny person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.”

Although the intended relationship between §§ 102 and 609 is not entirely clear, it seems evident that a litigant may maintain an action under § 102 — to redress an “infringement” of “rights secured” under Title I — without necessarily stating a violation of § 609.

The question still remains, however, whether petitioners’ “rights secured” under Title I were “infringed” by the termination of their union employment. Petitioners, as union members, had a right under §§ 101(a)(1) and (2) to campaign for Brown and to vote in the union election, but they were not prevented from exercising those rights. Rather, petitioners allege only an indirect interference with their membership rights, maintaining that they were forced to “choos[e] between their rights of free expression . . . and their jobs.” See Retail Clerks Union Local 648 v. Retail Clerks International Assn., 299 F. Supp. 1012, 1021 (DC 1969).

We need not decide whether the retaliatory discharge of a union member from union office — even though not “discipline” prohibited under § 609 — might ever give rise to a cause of action under § 102. For whatever limits Title I places on a union’s authority to utilize dismissal from union office as “part of a purposeful and deliberate attempt... to suppress dissent within the union,” cf. Schonfeld v. Penza, 477 F. 2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage. To the contrary, the Act’s overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections. See Wirtz v. Hotel Employees, 391 U. S. 492, 497 (1968). Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration’s responsiveness to the mandate of the union election.

Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect. Petitioners — appointed by the defeated candidate — campaigned openly against respondent Leu, who was elected by a substantial margin. The Union’s bylaws, adopted, and subject to amendment, by a vote of the union membership, grant the president plenary authority to appoint, suspend, discharge, and direct the Union’s business agents, who have significant responsibility for the day-to-day conduct of union affairs. Nothing in the Act evinces a congressional intent to alter the traditional pattern which would permit a union president under these circumstances to appoint agents of his choice to carry out his policies.

No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure, and by supporting him risk the displeasure of his successor. However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president’s freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers.

We. therefore conclude that petitioners have failed to establish a violation of the Act. Accordingly, the decision of the Court of Appeals is

Affirmed.

Justice Blackmun,

with whom Justice Brennan joins, concurring.

I am not prepared to hold that a newly elected president of a local union may discipline, without violating the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U. S. C. § 401 et seq., and as a matter of retaliation, all union member-employees who opposed his candidacy. As the Court notes, a union member possesses, under the Act, rights to freedom of expression and of speech and assembly, ante, at 436-437, and a right to support the candidate of his choice.

I must assume that what the Court holds today is that the newly elected president may discharge the union’s appointed business agents and other appointed union member-employees who will be instrumental in evolving the president’s administrative policies. See Elrod v. Burns, 427 U. S. 347 (1976); Branti v. Finkel, 445 U. S. 507 (1980). Indeed, the Court uses the terms “staff,” ante, at 441, and “his own administrators,” ibid. In addition, this particular union’s bylaws expressly give the president plenary authority over the business agents. With that much, I have no difficulty.

On the understanding, but only on the understanding, that the Court by its opinion is not reaching out further to decide the same issue with respect to nonpolicymaking employees, that is, rank-and-file member-employees (a matter which, for me, presents another case for another day), I join the Court’s opinion.

       See, e. g., Lamb v. Miller, 212 U. S. App. D. C. 393, 660 F. 2d 792 (1981); Maceira v. Pagan, 649 F. 2d 8 (CA1 1981); Newman v. Local 1101, Communications Workers, 570 F. 2d 439 (CA2 1978); Bradford v. Textile Workers Local 1093, 563 F. 2d 1138 (CA4 1977); Gabauer v. Woodcock, 520 F. 2d 1084 (CA8 1975), cert. denied, 423 U. S. 1061 (1976); Wambles v. International Brotherhood of Teamsters, 488 F. 2d 888 (CA5 1974); Wood v. Dennis, 489 F. 2d 849 (CA7 1973) (en banc), cert. denied, 415 U. S. 960 (1974); Grand Lodge of International Assn. of Machinists v. King, 335 F. 2d 340 (CA9), cert. denied, 379 U. S. 920 (1964); Sheridan v. Carpenters Local No. 626, 306 F. 2d 152 (CA3 1962).

       Brown challenged the election results and, following an investigation, the Secretary of Labor determined that unlawful employer contributions had affected the outcome of the election. The Secretary filed suit in the United States District Court for the Northern District of Ohio, and that court ordered a rerun election under the Secretary’s supervision; the Court of Appeals for the Sixth Circuit affirmed. Marshall v. Local 20, Teamsters, 611 F. 2d 645 (1979). In the second election, Leu again defeated Brown.
      Brown and Leu had previously opposed each other in the 1974 election for the presidency. Although Leu defeated Brown by a slight margin, the election was set aside by the International Union because of irregularities at the polling places. Brown won the second election, which was held in 1975 under the supervision of a panel from the International Union.

       When Brown was elected president in 1975, see n. 2, supra, the incumbent business agents resigned.

       The original “Bill of Rights” amendment was introduced on the floor of the Senate by Senator McClellan and adopted by a vote of 47-46. 105 Cong. Rec. 6469-6493 (1959), 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1096-1119 (1959) (hereafter Leg. Hist.). However, a compromise version of the amendment introduced by Senator Kuchel was substituted shortly thereafter, 105 Cong. Rec. 6716-6727 (1959), 2 Leg. Hist. 1229-1239, and later approved by the House of Representatives as part of the Landrum-Griffin bill, H. R. 8400, 86th Cong., 1st Sess. (1959), 1 Leg. Hist. 628-633. See 105 Cong. Rec. 15711, 15859-15860, 1692-1702 (1959), 2 Leg. Hist. 1645, 1691-1692, 1693-1702.

       Section 101(a)(1) provides:
      “Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.”
      Section 101(a)(2) provides:
      “Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.”

       Section 609 provides:
      “It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act. The provisions of section 102 shall be applicable in the enforcement of this section.”

       The provisions of Title I consistently refer to the rights of union “members.” As originally passed by the Senate, § 101(a)(4)—which in its present form protects the right of “any member” to institute legal proceedings against the union, 29 U. S. C. § 411(a)(4)—applied to “any member or officer” of a labor organization (emphasis added). S. 1555, 86th Cong., 1st Sess., § 101(a)(4) (1959), 1 Leg. Hist. 520. However, the words “or officer” were deleted from the Landrum-Griffin bill, H. R. 8400, 86th Cong., 1st Sess., § 101(a)(4) (1959), 1 Leg. Hist. 630-631, and the House version was retained in Conference, see H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 31 (1959), 1 Leg. Hist. 935. See also Sheridan v. Carpenters Local No. 626, 306 F. 2d, at 156-157.

       Compare § 201(a)(5)(H) of the Act, 29 U. S. C. § 431(a)(5)(H), which requires reporting on the procedures for “discipline or removal of officers or agents for breaches of their trust” (emphasis added).

       In Grand Lodge of International Assn. of Machinists v. King, 335 F. 2d, at 344, the court held that Congress had used the “identical words . . . with quite different meanings” in the two sections. The court found that the “legislative gloss” on the words “otherwise disciplined” in § 101(a)(5) stemmed primarily from congressional concern that “wrongdoing union officials” — and particularly those guilty of misappropriating union funds— might be permitted “to remain in control while the time-consuming ‘due process’ requirements of the section were met.” Id., at 341-342. See 105 Cong. Rec. 17899 (1959) (remarks of Sen. Kennedy). However, viewing this concern as inapplicable with regard to § 609, the court concluded that “although Congress did not intend the words ‘otherwise discipline’ to include removal from union office in section 101(a)(5), it did intend the words to include such action in section 609.” 335 F. 2d, at 345. See also Maceira v. Pagan, 649 F. 2d, at 14; Wood v. Dennis, 489 F. 2d, at 853-854.
      We agree that the purposes of the two sections are different, and that the distinction drawn in King is one Congress plausibly could have chosen to make. However, we are hard pressed to discern any such distinction from either the language or legislative history of the Act. Certainly one would expect that if Congress had intended identical language to have substantially different meanings in different sections of the same enactment it would have manifested its intention in some concrete fashion. See Wood v. Dennis, supra, at 858 (Stevens, J., concurring in result).

       Section 609, of course, applies to disciplinary action taken in retaliation for the exercise of any right secured under the Act, whereas § 102 protects only rights secured by Title I. Although the two sections may be somewhat duplicative as regards union discipline imposed in retaliation for the exercise of Title I rights, this seems due in large part to the fact that the provisions derived from different sources and were originally intended to serve quite different purposes. Section 102 was first included as part of the so-called Kuchel Amendment, see n. 4, supra, and was designed to enforce the provisions of Title I by creating an individual right of action for union members. 105 Cong. Rec. 6719 (1959), 2 Leg. Hist. 1232. In contrast, the precursor of § 609 created criminal penalties for retaliatory discipline, and was included in the Senate bill prior to the addition of the bill of rights, see S. 1555, 86th Cong., 1st Sess., § 506 (1959) (as reported), 2 Leg. Hist. 390; it apparently was thought to be primarily applicable to violations of the election provisions. See 105 Cong. Rec. 6534 (1959), 2 Leg. Hist. 1140; Rothman, Legislative History of the “Bill of Rights” for Union Members, 45 Minn. L. Rev. 199, 218 (1960). The Landrum-Griffin bill retained this provision, but “temper[ed] the remedy,” 105 Cong. Rec. 15531 (1959), 2 Leg. Hist. 1567 (remarks of Rep. Griffin), providing for civil enforcement by the Secretary of Labor instead of criminal sanctions. H. R. 8400, 86th Cong., 1st Sess., § 609 (1959), 1 Leg. Hist. 676. Finally, one day before passage of the Landrum-Griffin bill, § 609 was amended to authorize private suits by making “[t]he provisions of section 102 .. . applicable in the enforcement of this section.” The amendment was promoted by Congressmen who thought that enforcement by the Secretary would lead to “unnecessary injection of the executive branch on the Federal level into law enforcement matters,” 105 Cong. Rec. 15830 (1959), 2 Leg. Hist. 1662 (remarks of Rep. Cramer). See Rothman, supra, at 219.

       We leave open the question whether a different result might obtain in a case involving nonpolicymaking and nonconfidential employees.

       We think it virtually inconceivable that Congress would have prohibited the longstanding practice of union patronage without any discussion in the legislative history of the Act. See Wood v. Dennis, 489 F. 2d, at 858 (Stevens, J., concurring in result). Had such a result been contemplated, it undoubtedly would have encountered substantial resistance. Moreover, Congress likely would have made some express accommodation to the needs of union employers to appoint and remove policymaking officials. See ibid.


author: Justice Brennan Justice O’Connor,

text:
    GREENE et al. v. LINDSEY et al.
    No. 81-341.
    Argued February 23, 1982
    Decided May 17, 1982

      Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 456.

      William L. Hoge III argued the cause and filed a brief for appellants.

      Robert Frederick Smith argued the cause for appellees. With him on the brief was Barry L. Master.

        Lynn E. Cunningham, filed a brief for the Antioch School of Law et al. as amici curiae urging affirmance.

        David M. Madway filed a brief for the National Housing Law Project as amicus curiae.

   Justice Brennan

delivered the opinion of the Court.

A Kentucky statute provides that in forcible entry or de-tainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant’s apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment.

I

Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky. Rev. Stat. § 454.030 (1975), which states:

“If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice wdth any member of the defendant’s family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court.”

In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant’s apartment. Appellees claim never to have seen these posted summonses; they state that they did not learn of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed.

Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U. S. C. § 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs.

On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in Weber v. Grand Lodge of Kentucky, F. & A. M., 169 F. 522 (1909), the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to §454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that “conditions have changed since the decision in Weber. . . and . . . that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants,” App. 41-42, the court nevertheless concluded that the procedures employed did not deny due process in light of the fact “that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises,” id., at 42.

The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. 649 F. 2d 425 (1981). Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as Pennoyer v. Neff, 95 U. S. 714 (1878); Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559 (1889); Arndt v. Griggs, 134 U. S. 316 (1890); Ballard v. Hunter, 204 U. S. 241 (1907); and Longyear v. Toolan, 209 U. S. 414 (1908), and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe Co. v. Washington, 326 U. S. 310 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U. S. 186 (1977), as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by § 454.030, the Court of Appeals noted that while there may have been “a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting ‘is not reasonably calculated to reach those who could easily be informed by other means at hand,’ ” 649 F. 2d, at 428, quoting Mullane, supra, at 319. The court held, therefore, that the notice provided pursuant to § 454.030 was constitutionally deficient. We noted probable jurisdiction, 454 U. S. 938 (1981), and now affirm.

II

A

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). And the “right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest,” Mullane, supra, at 314. Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. McDonald v. Mabee, 243 U. S. 90, 92 (1917). Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service. But we have also clearly recognized that the Due Process Clause does prescribe a constitutional minimum: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U. S., at 314 (emphasis added). It is against this standard that we evaluate the procedures employed in this case.

B

Appellants argue that because a forcible entry and detainer action is an action in rem, notice by posting is ipso facto constitutionally adequate. Appellees concede that posting has traditionally been deemed appropriate for in rem proceedings, but argue that detainer actions can now encompass more than the simple issue of the tenant’s continued right to possession, and that they therefore require the more exacting forms of notice customarily provided for proceedings in personam. Appellants counter by conceding that if the particular detainer proceeding was one in which the landlord sought to recover past due rent, personal service would be required by Kentucky law, but argue that such claims are unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession. Tr. of Oral Arg. 19-21.

As in Mullane, we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in personam. 339 U. S., at 312. See Shaffer v. Heitner, supra, at 206. That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But “ ‘[a]ll proceedings, like all rights, are really against persons.’” In this case, appellees have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes. In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice “upon the thing itself.” The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, “its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted.” North Laramie Land Co. v. Hoffman, 268 U. S. 276, 283 (1925).

It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See Mullane, supra, at 316. The frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests.

The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person’s home would, in many or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him.

But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of §454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were “not infrequently” removed by children or other tenants before they could have their intended effect. Under these conditions, notice by posting on the apartment door cannot be considered a “reliable means of acquainting interested parties of the fact that their rights are before the courts.” Mullane, 339 U.S., at 315.

Of course, the reasonableness of the notice provided must be tested with reference to the existence of “feasible and customary” alternatives and supplements to the form of notice chosen. Ibid. In this connnection, we reject appellants’ characterization of the procedure contemplated by §454.030 as one in which “ ‘posting’ is used as a method of service only as a last resort.” Brief for Appellants 7. To be sure, the statute requires the officer serving notice to make a visit to the tenant’s home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a “good percentage” of cases, posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere proforma notice might be held constitutionally adequate. Cf. Mullane, 339 U. S., at 317-318.

As noted by the Court of Appeals, and as we noted in Mullane, the mails provide an “efficient and inexpensive means of communication,” id., at 319, upon which prudent men will ordinarily rely in the conduct of important affairs, id., at 319-320. Notice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy. Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings. We need not go so far as to insist that in order to “dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required,” McDonald v. Mabee, 243 U. S., at 92, in order to recognize that where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State’s continued exclusive reliance on an ineffective means of service is not notice “reasonably calculated to reach those who could easily be informed by other means at hand.” Mullane, supra, at 319.

III

We conclude that in failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State has deprived them of property without the due process of law required by the Fourteenth Amendment. The judgment of the Court of Appeals is therefore

Affirmed.

Justice O’Connor,

with whom The Chief Justice and Justice Rehnquist join, dissenting.

Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court’s result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.

At a minimum, the Fourteenth Amendment requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950). The question before the Court is whether the notice provided by Kentucky’s statute meets this standard. In answering that question, the first “circumstances” to be considered are the nature and purpose of the action for which notice is required.

Kentucky’s forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky. Rev. Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances call for special procedures:

“There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property.” Lindsey v. Normet, 405 U. S. 56, 72-73 (1972).

The means chosen for making service of process, therefore, must be prompt and certain, for otherwise the principal purpose of a forcible entry and detainer action could be thwarted before the judicial proceedings even began.

The Kentucky statute meets this need. It directs the process server to attempt personal service on the tenant at his residence. Ky. Rev. Stat. § 454.030 (1975). If the process server cannot find the tenant on the premises, the statute directs the server to explain and leave a copy of the notice with a family member over the age of 16. Ibid. If both of these attempts fail, Kentucky authorizes the server, as a last resort, to post a copy of the notice in a conspicuous place on the premises. Ibid.

As the Court recognizes, notice procedures like Kentucky’s, though “less rigorous” than mandatory personal service, nonetheless “have enjoyed substantial acceptance throughout our legal history.” Ante, at 449. The weight of historical precedent is reinforced by the collective wisdom of the legislatures of the at least 11 States authorizing notice in summary eviction proceedings solely by posting or by leaving the notice at the tenant’s residence. The Court itself acknowledges that “posting notice on the door of a person’s home would, in many or perhaps most instances, constitute ... a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him.” Ante, at 452-453.

The Court nonetheless rejects these established procedures as unconstitutional, though it does not cite a single case, other than the decision below, supporting its position that notice by posting is constitutionally inadequate in summary eviction proceedings. Instead, the Court relies solely on the deposition testimony of a few Kentucky process servers.

The testimony is hardly compelling. For example, one process server, Mr. S. Carter Bacon, reported having seen children in the Village West housing development pull down posted writs “probably a couple of times.” App. 80; App. in No. 79-3477 (CA6), p. 103. The Court neglects to mention, however, that another process server, Mr. Gilbert Brut-scher, cast doubt on Mr. Bacon’s testimony by stating:

“I had been warned beforehand that, by Mr. Bacon, Carter Bacon, that he suspected — he wasn’t certain, but he suspected that on some occasions the Writs had been torn off the doors by kids. This is what he told me. Whether that is true or not, I don’t know. And I don’t think that he observed that, and the six months I was working at it there was no occasion where I saw anyone tear the Writs off of the door.” Id., at 112-113.

The Court also neglects to mention that another process server testified that in order to avoid problems with children, the process servers “always put [the writs] up high. So we never had any problems with that.” App. 74. Corroborating this testimony, moreover, is the testimony of yet another process server, who asserted: “we always try to put the paper up above where, a, say a small child can’t reach it.” App. in No. 79-3477 (CA6), p. 74. This server, asked whether he had “had complaints about small children ripping them off,” answered that he had never had a complaint and had never seen a child try to rip a notice off. Ibid.

Plainly, such conflicting testimony falls well short of what this Court should require before rushing to scrap Kentucky’s considered legislative judgment that, as a last resort, posted notice is an appropriate form of service of process for forcible entry and detainer actions.

The Court, however, holds that notice via the mails is so far superior to posted notice that the difference is of constitutional dimension. How the Court reaches this judgment remains a mystery, especially since the Court is unable, on the present record, to evaluate the risks that notice mailed to public housing projects might fail due to loss, misdelivery, lengthy delay, or theft. Furthermore, the advantages of the mails over posting, if any, are far from obvious. It is no secret, after all, that unattended mailboxes are subject to plunder by thieves. Moreover, unlike the use of the mails, posting notice at least gives assurance that the notice has gotten as far as the tenant’s door.

In sum, the Court has chosen to overturn Kentucky’s procedures on the basis of a wholly inadequate record. In so doing, the Court apparently indulges a presumption that the state legislation challenged here is unconstitutional until proven otherwise. Regrettably, the Court seems to forget that we have long since discarded the concept that “due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963). I respectfully dissent.

       “Posting” refers to the practice of placing the writ on the property by use of a thumbtack, adhesive tape, or other means. App. 74, 77 (deposition of process servers). Appellants describe the usual method of effecting service pursuant to § 454.030 in the following terms:
      “The officer of the court who is charged with serving notice in a forcible entry and detainer action, usually a Jefferson County Deputy Sheriff, takes the following steps in notifying a tenant. First, the officer goes to the apartment in an effort to effectuate personal in-hand service. Second, if the named tenant is absent or will not appear at the door, personal in-hand service is made on any member of the tenant’s family over sixteen years of age. Finally, if no one answers the door, a copy of the notice is posted on the premises, usually the door.” Brief for Appellants 3.

       The Court of Appeals concluded that “[Requiring Kentucky to provide notice by mail when personal service proves infeasible will not be overly burdensome. The cost will be minimal, and the state’s conceded interest in providing a summary procedure for settlement of landlord-tenant disputes will not be seriously circumscribed.” 649 F. 2d, at 428. The court then noted with approval the provisions of the New York counterpart of § 454.030, which provides that when notice is served by posting, a copy of the petition must be sent by registered or certified mail within a day of the posting. Ibid., citing Velazquez v. Thompson, 451 F. 2d 202, 205 (CA2 1971).

        Shaffer v. Heitner, 433 U. S. 186, 207, n. 22 (1977), quoting Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N. E. 812, 814 (Holmes, C. J.), writ of error dism’d, 179 U. S. 405 (1900).

       The dissent directs our attention to the “nature and purpose,” of Kentucky’s forcible entry and detainer action. Post, at 457. Such proceedings are designed to offer an expeditious means of determining who is entitled to retain possession of an apartment. But that hardly explains why we may dispense with the constitutional requirement of adequate notice. After all, detainer proceedings, while in some sense “summary,” are proceedings in which issues of fact and law are to be resolved, and important interests in property determined. We can agree with the dissent’s observation that the “means chosen for making service of process . . . must be prompt and certain.” Ibid. But it is difficult to see how, from the perspective of the landlord, any of the likely supplements to the form of service currently provided under § 454.080 will render the procedure markedly less prompt or certain. More significantly, from the perspective of the tenant, it is difficult to see how a means of serving process that fails to afford actual notice in a “not insubstantial” number of cases can be deemed either prompt or certain.

        The Mary, 9 Cranch 126, 144 (1815).

       As we noted in Mullane:

      “The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, . . . entry upon real estate in the name of law may reasonably be expected to come promptly to the owner’s attention. ... A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing,... or that he has left some caretaker under a duty to let him know that it is being jeopardized.” 339 U. S., at 316.
      Of course, the Mullane discussion of the special notice rules with respect to proceedings affecting property ownership focused on the forms of notice that might be appropriate as a supplement to the direct disturbance of the property itself. But where the State has reason to believe the premises to be occupied or under the charge of a caretaker, notice posted on the premises, if sufficiently apparent, is itself a form of disturbance, likely to come to the attention of the occupants or the caretaker.

       The depositions before the District Court included the following statements by the process servers:
      “The children — we had problems with children. They would take [the writs] off.
      “They never took them off when we were present, but we, you know, assume — the Housing Authority told us that they would take them off, so we always put them up high.” App. 74.
      “Q. Did you ever see kids pulling them off?
      “A. Yes.
      “Q. You did?
      “A. Uh-huh.
      “Q. Did you see many?
      “A. No, not too many. I did see it in one place over there.
      “Q. Where was that?
      “A. Village West.
      “Q. How many times did you see that happen?
      “A. Well, probably a couple of times.” Id., at 80.
      “Q. . . . Were you aware of there being any problem with children ripping the Writs off?
      “A. Oh, we had plenty of trouble.

        “Q. You had trouble?
      “A. With kids, yeah. Yeah.
      “Q. Did you ever see kids ripping them off?
      “A. Yeah. I have seen them take them off of the door and I would go back and tell them to put it back. They don’t know. They didn’t know. They just—
      “Q. Were there any particular places where you saw kids ripping them off the doors?
      “A. Well most of that was in Village West.” Id., at 82.

         Id., at 76 (deposition of process server).

       The dissent apparently wishes to dispute the District Court’s finding that “notices posted on apartment doors are often removed,” and farther questions our reliance on the observation in Mullane that the mails are a reliable means of communication — in light of its own observation that “unattended mailboxes are subject to plunder.” Post, at 460. The dissent misconstrues the constitutional standard. In light of the findings of the courts below, we hold only that posted notice pursuant to § 454.030 is constitutionally inadequate. It is not our responsibility to prescribe the form of service that the Commonwealth should adopt. But even conceding that process served by mail is far from the ideal means of providing the notice the Due Process Clause of the Fourteenth Amendment requires, we have no hesitation in concluding that posted service accompanied by mail service, is constitutionally preferable to posted service alone.

       “Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” 339 U. S., at 318. See Schroeder v. City of New York, 371 U. S. 208, 213 (1962).

       See Ala. Code §§ 6-6-332, 35-9-82 (1975); Colo. Rev. Stat. § 13-40-112 (1973); Fla. Stat. § 48.183 (1979); Kan. Stat. Ann. § 61-1805 (1976); Ky. Rev. Stat. § 454.030 (1975); La. Code Civ. Proc. Ann., Art. 4703 (West 1961); Miss. Code Ann. § 89-7-33 (1972); Neb. Rev. Stat. § 25-508 (1979); N. H. Rev. Stat. Ann. §§ 510:2, 540:5 (Supp. 1979); N. C. Gen. Stat. § 42-29 (1976); W. Va. Code § 56-2-1 (1966), W. Va. Rule Civ. Proc. 4(d)(1) (1982).

       The Court gives lipservice to the principle that “[i]t is not our responsibility to prescribe the form of service that [Kentucky] should adopt,” ante, at 455, n. 9, but then goes on to do just that, first by explaining to the state legislature that, unlike notice by posting, notice by mail “would surely go a long way toward” satisfying the Court, ante, at 455, and then by remarking that, in the Court’s view, the combination of posted service and mail service would be “constitutionally preferable” to posted service alone, ante, at 455, n. 9.