source: Caselaw Access Project

author: Justice Blackmttn Justice Stevens,

license: Public Domain

text:
    ST. MARTIN EVANGELICAL LUTHERAN CHURCH et al. v. SOUTH DAKOTA
    No. 80-120.
    Argued March 3, 1981
    Decided May 26, 1981

      BlacemuN, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, White, Marshall, Powell, and RehN-quist, JJ., joined. SteveNS, J., filed an opinion concurring in the judgment, post, p. 788.

      Edward Thomas Schilling argued the cause for petitioners. With him on the briefs was Ernst J. von Briesen.

      Mark V. Meier henry, Attorney General of South Dakota, argued the cause for respondent. With him on the brief was Judith A. Atkinson, Assistant Attorney General.

      Allen R. Snyder argued the cause for the State of Alabama et al. as amici curiae urging reversal. With him on the brief were Charles A. Graddick, Attorney General of Alabama, Richard H. Bryan, Attorney General of Nevada, Stuart Philip Ross, Peter W. Tredick, George Cocoris, and John A. Flangas.

      Barry Sullivan argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Wallace, Alan I. Horowitz, Mark C. Rutzick, F. James Foley, Nathaniel Baccus III, Lois G. Williams, and Joseph M. Woodward.

      Briefs of amid curiae urging reversal were filed by George Deukmejian, Attorney General, Arthur C. deGoede, Assistant Attorney General, and Lawrence K. Keethe and Jefferey M. Vesely, Deputy Attorneys General, for the State of California; by Lee Boothby and Robert W. Nixon for Americans United for Separation of Church and State; by WiUiam B. Ball, Philip J. Murren, and Robert L. Toms for the Association of Christian Schools International et al.; by Henry W. Sawyer III for the Germantown Friends School et al.; by David C. Gibbs, Jr., and Charles E. Craze for the Grace Baptist Temple et al.; and by Wilfred R. Caron, Charles M. Whelan, George E. Reed, Gerald C. Tobin, and John A. Liekweg for the United States Catholic Conference.
      Briefs of amici curiae were filed by Nathan Z. Dershowitz for the American Jewish Congress and by Charles Alan Siegel for the Lutheran Church-Missouri Synod.

   Justice Blackmttn

delivered the opinion of the Court.

Petitioners, St. Martin Evangelical Lutheran Church (St. Martin), at Watertown, S. D., and Northwestern Lutheran Academy (Academy), at Mobridge in that State, claim exemption with respect to their school employees from taxes imposed by the Federal Unemployment Tax Act (FUTA), 26 U. S. C. §§ 3301-3311 (1976 ed. and Supp. Ill), and by South Dakota’s statutes complementary thereto, S. D. Codified Laws § 61-1-1 et seq. (1978 and Supp. 1980). The exemption is claimed on both statutory and First Amendment grounds. The provisions primarily at issue are FUTA’s § 3309 (b) and South Dakota’s § 61-1-10.4.

I

A

FUTA appeared originally as Title IX of the Social Security Act of 1935, 49 Stat. 639, and was enacted in response to the widespread unemployment that accompanied the Great Depression. It called for a cooperative federal-state program of benefits to unemployed workers. The Act has undergone a series of amendments that progressively have expanded coverage of the Nation’s work force.

This case concerns one of the more recent of those amendments, namely, that effected by § 115 (b)(1) of the Unemployment Compensation Amendments of 1976, Pub. L. 94-566, 90 Stat. 2670. The Secretary of Labor has determined that this statute rendered nonprofit church-related primary and secondary schools subject to FUTA. The South Dakota authorities went along with that ruling in their interpretation of the State’s amended statute. Petitioners are among those religiously affiliated schools so claimed to be required to pay the FUTA and South Dakota taxes. They contest this construction of the statutes. They argue also, however, that holding them subject to the taxes would violate both the Free Exercise Clause and the Establishment Clause of the First Amendment.

B

Proper understanding of the effect of the 1976 amendment requires a review of FUTA’s development. From 1960 to 1970, FUTA, by §3306 (c)(8), unrestrictedly excluded from the definition of “employment” all “service performed in the employ of a religious, charitable, educational, or other organization described in section 501 (c)(3) which is exempt from income tax under section 501 (a).” Pub. L. 86-778, § 533, 74 Stat. 984. Under this definition, nonprofit church-related schools, of course, were exempt from the tax. A 1970 amendment, however, served to narrow that broad exemption of nonprofit organizations. See Employment Security Amendments of 1970, Pub. L. 91-373, § 104 (b)(1), 84 Stat. 697. The amendment generally required state coverage of employees of nonprofit organizations, state hospitals, and institutions of higher education. Simultaneously, however, Congress enacted a new and narrower exemption of nonprofit organizations and governmental entities. So far as pertinent to this case, that exemption was set forth in a new § 3309 (b), which then provided:

“This section shall not apply to service performed—
“(1) in the employ of (A) a church or convention or association of churches, or (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
“(2) by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order;
“(3) in the employ of a school which is not an institution of higher education . . .

No one, including the Secretary of Labor, disputes that church-run elementary and secondary schools remained exempt under this new § 3309 (b).

In 1976, Congress again amended the Act. Unemployment Compensation Amendments of 1976, Pub. L. 94-566, § 115 (b)(1), 90 Stat. 2670. The effect of the 1976 amendment, so far as pertinent to this case, was to eliminate completely the theretofore existing subsection (b)(3). Subsections (b) (1) and (b)(2), dealing specifically with religious employment, remained unchanged.

In 1978, the Secretary of Labor announced, in a letter made public, that the 1976 repeal of § 3309 (b) (3) of FUTA was

“clearly intended to result in State coverage of church-related schools, whose employees constitute over 80 percent of the employees of all nonprofit schools. In light of the repeal of 3309 (b)(3), we think the only services performed in the schools that may reasonably be considered within the scope of the exclusion permitted by 3309 (b)(1) are those strictly church duties performed by church employees pursuant to their religious responsibilities within the schools.” Letter dated April 18, 1978, of Secretary Marshall to the Most Reverend Thomas C. Kelley, O. P., General Secretary, United States Catholic Conference.

The Secretary also ruled that neither § 3309 (b)(1)(A) nor § 3309 (b)(1)(B) was applicable to church-run schools. He notified the States, and they took steps for the collection of unemployment taxes from church-related schools. See Employment and Training Administration, U. S. Department of Labor, Unemployment Insurance Program Letter No. 39-78 (May 30, 1978), reprinted in [1978 Transfer Binder] CCH Unemp. Ins. Rep. ¶ 21,522.

II

Both St. Martin and the Academy are members of the Wisconsin Evangelical Lutheran Synod and, as such, are organizations exempt from federal income tax under 26 U. S. C. §501 (c)(3). St. Martin operates a state-certified elementary Christian day school at Watertown that offers kindergarten through eighth-grade education. The school, which is not a separate legal entity from the church, is controlled by a Board of Education elected from the local congregation. The congregation entirely finances the school’s operation. The Academy is a state-certified 4-year secondary school at Mobridge and is owned, supported, and controlled by the Synod. It, also, is not separately incorporated. Approximately half of its students go on to become ministers within the Church. According to the record, all courses given at St. Martin and at the Academy are taught from a religious point of view based on the Synod’s scriptural convictions.

When South Dakota proposed to tax them under § 61 — 1— 10.3, petitioners took an administrative appeal. The Appeals Referee of the State’s Department of Labor — Unemployment Insurance Division ruled that service performed by employees of each petitioner was “employment” within the meaning of the statute. Although finding that the Synod “believes a theological basis exists for their schools” and operates them because it “holds the conviction that training of the youth involves both education and religion and that the two are so closely interwoven they cannot be separated,” App. to Pet. for Cert. A-36, the Referee declined to rule that petitioners were exempt under § 61-1-10.4, the state analogue to 26 U. S. C. § 3309 (b). See nn. 1 and 2, supra. He ruled that petitioners were not eligible for exemption under § 61-1-10.4 (1) (a) because, in his view, the term “church,” as used in that section, referred only to the “individual 'house of worship’ maintained by a particular congregation.” App. to Pet. for Cert. A-43. He also ruled, ibid., that they were ineligible for exemption under § 61-1-10.4 (1) (b) because “the primary purpose of the schools is education.”

On appeal, the Hughes County Circuit Court reversed, finding the Referee’s decision clearly erroneous. App. to Pet. for Cert. A-25. The court ruled that both St. Martin and the Academy were exempt under § 61-1-10.4 (1) (b); that the term “church” referred to “an organization of worship-pers,” rather than to a “house of worship”; and that the primary purpose of the schools was the propagation of the Synod’s faith, a religious concern. App. to Pet. for Cert. A-30 to A-33. The South Dakota Supreme Court, by a divided vote, in turn reversed the judgment of the Circuit Court, and held petitioners subject to the unemployment compensation taxes. In re Northwestern Lutheran Academy, 290 N. W. 2d 845 (1980). Noting the growing number of conflicting federal and state decisions on this issue, we granted certiorari. 449 U. S. 950 (1980).

Ill

A statute, of course, is to be construed, if such a construction is fairly possible, to avoid raising doubts of its constitutionality. Crowell v. Benson, 285 U. S. 22, 62 (1932); Machinists v. Street, 367 U. S. 740, 749-750 (1961); United States v. Clark, 445 U. S. 23, 27 (1980). Accordingly, we turn first to the federal statute itself. From our reading of the legislation and of its history, we conclude that the only reasonable construction of 26 U. S. C. §3309 (b)(1) is one that exempts petitioners’ church-run schools, and others similarly operated, from mandatory state coverage.

A

Section 3309 was added to TUTA in 1970. Although the legislative history directly discussing the intended coverage of its subsection (b)(1) is limited, the House Report had the following explanation:

“This paragraph excludes services of persons where the employer is a church or convention or association of churches, but does not exclude certain services performed for an organization which may be religious in orientation unless it is operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by a church (or convention or association of churches). Thus, the services of the janitor of a church would be excluded, but services of a janitor for a separately incorporated college, although it may be church related, would be covered. A college devoted primarily to preparing students for the ministry would be exempt, as would a novitiate or a house of study training candidates to become members of religious orders. On the other hand, a church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under this paragraph to be operated primarily for religious purposes.” H. R. Rep. No. 91-612, p. 44 (1969).

The Senate Report contained identical language. See S. Rep. No. 91-752, pp. 48-49 (1970).

Respondent would read this discussion, as the South Dakota Supreme Court majority did, to mean that Congress in 1970 intended to bring within mandatory state coverage all institutions of higher education, including those with no separate legal existence from the church or churches that operate them, except for the narrow category of seminaries and novitiates. From this, respondent extrapolates that Congress intended §3309 (b)(1) to be read very narrowly, and that the later 94th Congress, in 1976, similarly intended to include within mandatory state coverage all primary and secondary educational institutions, including those entirely within the internal structure of churches.

The above quotation from the 1969 House Report, and its Senate counterpart, however, are susceptible of a simpler and more reasonable explanation that corresponds directly with the language of the subsection. Congress drew a distinction between employees “of a church or convention or association of churches,” §3309 (b)(1)(A), on the one hand, and employees of “separately incorporated” organizations, on the other. See H. R. Rep. No. 91-612, at 44. The former uniformly would be excluded from coverage by §3309 (b)(1) (A), while the latter would be eligible for exclusion under § 3309 (b) (1) (B) only when the organization is “operated, supervised, controlled, or principally supported by a church or convention or association of churches.” To hold, as respondent would have us do, that “organization” in subsection (b)(1)(B) also includes a church school that is not separately incorporated would make (b)(1)(A) and (b)(1)(B) redundant.

The distinction between church schools integrated into a church’s structure, and those separately incorporated, is given further credence by the statute’s use of specific words. The Department of Labor would interpret the term “church” in § 3309 (b)(1) as limited to the actual house of worship used by a congregation. See Brief for United States as Amicus Curiae 14-15. This reading, however, appears to us to deny several of FUTA’s phrases their intended meaning. Section 3309 (b), exempting “service performed — (1) in the employ of (A) a church . . . ,” is phrased entirely in terms of the nature of the employer, and not in terms of the work performed or the place at which the employee works. Congress further defined “employer” in § 3306 (a) as “any person who — . . . paid wages . . . or . . . employed at least one individual” (emphasis added). It defined “employee” as “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee.” §§ 3306 (i) and 3121(d)(2). Thus, to hold “church” synonymous solely with a physical building that is a house of worship contradicts the phrasing of the statute. The word “church” in § 3309 (b) must be construed, instead, to refer to the congregation or the hierarchy itself, that is, the church authorities who conduct the business of hiring, discharging, and directing church employees.

We conclude that, at the time of its enactment in 1970, §3309 (b)(1)(A) was meant to apply to schools, like petitioners’, that have no separate legal existence from a church, or, as in the Academy’s case, from a “convention or association of churches.” As the Referee found, St. Martin directly finances, supervises, and controls its school’s operations. The Synod similarly supports and controls the Academy. Only teachers trained and certified by the Synod may teach at either school, and, again as the Referee found, these teachers, both male and female, “receive a divine, life-long call” to the church. App. to Pet. for Cert. A-38. Male teachers (“teaching ministers”) have equal status in the church and an equal vote on Synod matters, including matters of doctrine, with preaching ministers. Id., at A-37. Neither school has a separate legal existence. Thus, the employees working within these schools plainly are “in the employ . . . of a church or convention or association of churches . . . §3309 (b)(1)(A).

B

The 1976 Amendments did not alter the scope of § 3309 (b) (1), either directly or by implication. Congress, in eliminating the old § 3309 (b)(3), made no change in § 3309 (b) (1). It did not discuss churches or church schools, and it intimated that §3309 (b)(1) remained unchanged. See, e. g., H. R. Rep. No. 94-755, pp. 23, 41, 55-56 (1975) (explaining the then-current coverage of § 3309 (b) and the anticipated effect of the repeal, and containing no indication that the proposed amendments would alter §3309 (b)(1)).

Respondent places particular emphasis on legislative statements expressing an intention, for example, to extend coverage “on the basis of services performed for all educational institutions,” H. R. Rep. No. 94-755, at 56, and to “employees of non-profit elementary and secondary schools,” id., at 2. See also id., at 41 (“This section requires States, as a condition for tax offset credit to their employers, to extend coverage to employees of non-profit primary and secondary institutions of education, thus broadening present required coverage limited to non-profit institutions of higher education”); S. Rep. No. 94H265, pp. 2, 9-10 (1976).

These references are simply too general and too ambiguous to bear the weight respondent would assign to them. There is no indication that Congress, in these references, had in mind the scope of § 3309 (b)(1) and religious organizations. Rather, all the evidence demonstrates that it was concerned solely with the then-existing § 3309 (b)(3) and secular educational institutions, particularly the public schools. Furthermore, the reported comments implying total coverage of all educational institutions, as a result of the repeal of the former §3309 (b)(3), could not be taken as literally true because the 1970 Report expressly had noted that a college “devoted primarily to preparing students for the ministry,” H. R. Rep. No. 91-612, at 44, would be exempt. All institutions of higher education had not been covered by the 1970 Amendments.

Respondent also relies on a single statistic estimating the number of employees newly to be covered as a result of the repeal of the then § 3309 (b)(3). See S. Rep. No. 94H265, at 8 (table). This statistical reference, to the effect that 242,000 employees of nonprofit organizations would be covered by the 1976 repeal of subsection (b)(3), is much too meager to sustain respondent’s position. The Committee Report’s table containing this figure is devoid of any explanation, source, or supporting data. The South Dakota Supreme Court relied on the figure, however, reasoning that because it “approximates the total number of teachers in all nonprofit elementary and secondary schools” in 1975, 290 N. W. 2d, at 849, and n. 5, Congress must have included within that number religious-school teachers, who constitute more than half the staff of all private elementary and secondary schools in the United States. Yet, in repealing § 3309 (b)(3), Congress intended to include not just full-time teachers, but all employees of the newly covered nonprofit private elementary and secondary schools (custodians, cafeteria workers, nurses, part-time help, counselors, etc.). Thus, the inclusion of all employees in nonprofit private lower schools within the number of persons brought within FUTA by the repeal would far exceed the 242,000 contained in the Report’s table, rendering it, in our view, of dubious significance for the present issue.

This legislative history does not reveal any clear intent to repeal § 3309 (b)(1) or to alter its meaning. The Court has had frequent occasion to note that such indefinite congressional expressions cannot negate plain statutory language and cannot work a repeal or amendment by implication. “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Morton v. Mancari, 417 U. S. 535, 550 (1974); see also Watt v. Alaska, ante, p. 259; TV A v. Hill, 437 U. S. 153, 189-190 (1978); FTC v. A. P. W. Paper Co., 328 U. S. 193, 202-203 (1946); Posadas v. National City Bank, 296 U. S. 497, 503-505 (1936); United States v. Noce, 268 U. S. 613, 618-619 (1925); United States v. Greathouse, 166 U. S. 601, 605 (1897). This long-established canon of construction carries special weight when an implied repeal or amendment might raise constitutional questions. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979). We therefore hold that the repeal of § 3309 (b) (3) did not alter the meaning of § 3309 (b)(1). Petitioners are eligible for exemption under subsection (b)(1)(A) by virtue of the nature of their relationship to the church bodies that employ them.

This makes it unnecessary for us to consider the Pirst Amendment issues raised by petitioners.

The judgment of the Supreme Court of South Dakota is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

concurring in the judgment.

The legislative history of the Unemployment Compensation Amendments of 1976, 90 Stat. 2667, persuades me that Congress did intend the repeal of 26 U. S. C. § 3309 (b)(3) to remove the exemption from coverage under the Federal Unemployment Tax Act (FUTA) for all employees of private, nonprofit elementary and secondary schools. Not only do the Senate and House Committee Beports expressly so state, but also the estimate contained in the Senate Report of the number of additional employees that would be covered by the FUTA as a result of the repeal of § 3309 (b) (3) confirms the contemporaneous understanding of the draftsmen of the 1976 Amendments. Nothing in the 1976 Amendments or the corresponding legislative history suggests that Congress believed the extension of FUTA coverage to nonprofit, private schools applied only to nonprofit, private, nonparochial schools.

Despite this legislative history, I agree with the Court’s conclusion that FUTA coverage does not extend to persons employed in petitioners’ schools. Although Congress’ intention to cover such employees was, in my judgment, clear, the 1976 Amendments simply failed to give effect to that intention. By repealing §3309 (b)(3), Congress removed only one of the two statutory exemptions that, by their terms, applied to employees of parochial elementary and secondary schools. Congress left in place and did not qualify the scope of the separate exemption granted by §3309 (b)(1). The clear expressions of congressional intent that appear in the legislative history of the Act that repealed § 3309 (b) (3) cannot alter the clear statutory language of § 3309 (b)(1). I agree with the Court that these church employees are exempt under the plain language of that provision. See also Alabama v. Marshall, 626 F. 2d 366 (CA5 1980), cert. pending, No. 80-922.

When the Court is confronted with the task of construing legislation of this character, there is special force to the rule that the plain statutory language should control and that resort to legislative history is appropriate only when the statute itself is ambiguous. Congress has a special duty to choose its words carefully when it is drafting technical and complex laws; we facilitate our work as well as that of Congress when we adhere closely to the statutory text in cases like this. Failure to follow that approach led this Court into what I regard as manifest error in its recent summary, per curiam affirmance in HCSC-Laundry v. United States, 450 U. S. 1, a case in which the taxpayer’s claim for exemption had equally strong support in the statutory text and, in my opinion, greater support in the legislative history than is true here. See id., at 19-23 (Stevens, J., dissenting). Today, although 1 agree that the Court reaches the result required by the text of the FUTA, I write this separate statement to emphasize that this result is not supported by the legislative history of the 1976 Amendments, nor is it consistent with the Court’s contrary resolution of the parallel tax exemption issue in HCSC-Laundry.

Accordingly, I concur in the Court’s judgment.

       Title 26 U. S. C. §3309 (b) reads in pertinent part:
      “This section shall not apply to service performed—
      “(1) in the employ of (A) a church or convention or association of churches, or (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;
      “(2) by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order. . .

       This South Dakota statute provides:
      “For the purposes of §§ 61 — 1—10.2 and 61-1-10.3 the term 'employment’ does not apply to service performed:
      “(1) In the employ of
      “(a) a church or convention or association of churches, or
      “(b) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or
      “ (2) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; or
      “(3) In the employ of a school which is not an institution of higher education prior to January 1, 1978 . . . .”

       FUTA imposes an excise tax on “wages” paid by an “employer” in covered “employment,” 26 U. S. C. § 3301, as these terms are statutorily defined. §3306 (1976 ed. and Supp. III). An employer, however, is allowed a credit of up to 90% of the federal tax for “contributions” paid to a state fund established under a federally approved state unemployment compensation law. §3302 (1976 ed. and Supp. III). The requirements for federal approval are contained in §§ 3304 and 3309 (1976 ed. and Supp. Ill), and the Secretary of Labor must annually review and certify the state plan. §§ 3304 (a) and (c) (1976 ed. and Supp. III). All 50 States have employment security laws implementing the federal mandatory minimum standards of coverage. A State, of course, is free to expand its coverage beyond the federal minimum without jeopardizing its federal certification.

       In response to each federal amendment, the States correspondingly have amended their statutes to retain their federal certifications.

       From and after the effective date of the Internal Revenue Code of 1954 and until 1960, § 3306 (e) (8) related the exclusion to “service performed in the employ of a corporation, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation.” 68A Stat. 450.

       Inasmuch as the definition of “employment” in § 3306 (c) (8) continued to exclude service performed in the employ of an organization exempt from federal income tax under § 501 (c)(3), the 1970 amendment did not itself serve to impose a federal excise tax on nonprofit organizations. The amendment, however, as a condition for federal certification, required state statutes to cover employees of certain organizations of that type. § 3309 (a) (1) (A). Any covered nonprofit organization must be given the option of either making regular payments to the state unemployment fund or reimbursing the fund for benefits paid out to the organization’s employees. § 3309 (a) (2). South Dakota amended its unemployment statutes accordingly. See 1971 S. D. Laws, ch. 276 (now codified, as further amended, as S. D. Codified Laws §61-1-1 et seq. (1978 and Supp. 1980)).

       In place of subsection (b)(3), Congress substituted a new and unrelated subsection (b) (3) that concerns the exemption of certain service in the employ of governmental entities. We continue herein to refer to the repealed subsection as “§3309 (b)(3)” or “(b)(3).”

       Following the 1976 amendment, South Dakota effected corresponding amendments of its unemployment compensation statutes. See 1977 S. D. Laws, ch. 420, §§ 9, 10, and 11 (codified as S. D. Codified Laws §§ 61 — 1— 10.3 and 61-1-10.4 (1978)). Petitioners were ruled to be liable for state taxes under these provisions.

       The South Dakota Supreme Court’s analysis depended entirely on its understanding of the meaning of FUTA and the First Amendment, and did not rest on any independent and adequate state ground. We therefore are at liberty to review this judgment, although, literally, it concerns the construction of a state statute. While the South Dakota courts remain free to construe the Staté’s own law differently, they deserve to be made aware of the proper and, here, significant interpretation of the intertwined federal law. See, e. g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 566-568 (1977); United Air Lines, Inc. v. Mahin, 410 U. S. 623, 630-631 (1973); State Tax Comm’n v. Van Cott, 306 U. S. 511, 514-515 (1939).

       Most other courts that have addressed this general issue have ruled in favor of church-related schools. See, e. g., Alabama v. Marshall, 626 F. 2d 366 (CA5 1980), cert. pending No. 80-922; Lutheran Church-Missouri Synod v. Bowling, 89 Ill. App. 3d 100, 411 N. E. 2d 526 (1980) ; Roman Catholic Church of the Archdiocese of New Orleans v. State, 387 So. 2d 1248 (La. App. 1980); Sant Bani Ashram, Inc. v. New Hampshire Department of Employment Security, 121 N. H. 74, 426 A. 2d 34 (1981); Begley v. Employment Security Comm’n, 50 N. C. App. 432, 274 S. E. 2d 370 (1981); Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N. W. 2d 767 (N. D. 1980); Employment Division v. Archdiocese of Portland, 42 Ore. App. 421, 600 P. 2d 926 (1979); Christian School Assn. v. Commonwealth, 55 Pa. Commw. 555, 423 A. 2d 1340 (1980). But see Ascension Lutheran Church v. Employment Security Comm’n, 501 F. Supp. 843 (WDNC 1980).

       On the Senate floor, Senator Long, introducing the bill that became the 1970 Amendments, merely explained:
      “The bill does not require extension of coverage to all jobs in nonprofit organizations. . . . [C] overage would not have to be extended to the employees of a church or religious organization, to clergymen or members of religious orders, [or] to elementary and secondary schools . . . 116
      Cong. Rec. 10575 (1970).
      Subsection (b) (1) was not specifically mentioned in the debates.

       The importance of this distinction, and of giving meaning to both (A) and (B), is heightened by the great diversity in church structure and organization among religious groups in this country. See 1 A. Stokes, Church and State in the United States 720-883 (1950); Whelan, “Church” in the Internal Revenue Code: the Definitional Problems, 45 Ford. L. Rev. 885 (1977). This diversity makes it impossible, as Congress perceived, to lay down a single rule to govern all church-related organizations. Our holding today concerns only schools that have no legal identity separate from a church. To establish exemption from FUTA, a separately incorporated church school (or other organization) must satisfy the requirements of § 3309 (b)(1)(B): (1) that the organization “is operated primarily for religious purposes,” and (2) that it is “operated, supervised, controlled, or principally supported by a church or convention or association of churches.”
      Because we hold petitioners exempt under §3309 (b)(1)(A), we leave the issue of coverage under § 3309 (b) (1) (B) for the future.

       The United States strongly urges this construction, noting that the Department of Labor consistently has advanced this meaning of “church” since the 1970 enactment. See U. S. Department of Labor, Draft Legislation to Implement the Employment Security Amendments of 1970, pp. 27-28. The amount of deference due an administrative agency’s interpretation of a statute, however, “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). Carefully considering the merits of the Secretary’s interpretation, we believe it does not warrant deference.

       Congress knew how to limit expressly an exemption to the place of employment or the type of work performed. See § 3309 (b) (3) (“if such service is performed by an individual in the exercise of his duties”); § 3309 (b) (4) (service performed “in a facility”); § 3309 (b) (5) (service performed “as part of an unemployment work-relief or work-training program”).

       Although we hold today that the word “church” in § 3309 (b) must be considered as the “employer,” and not as a building that is a house of worship, we disavow any intimations in this case defining or limiting what constitutes a church under FUTA or under any other provision of the Internal Revenue Code. Cf. Riker v. Commissioner, 244 F. 2d 220 (CA9), cert. denied, 355 U. S. 839 (1957); Chapman v. Commissioner, 48 T. C. 358 (1967); American Guidance Foundation, Inc. v. United States, 490 F. Supp. 304 (DC 1980); De La Salle Institute v. United States, 195 F. Supp. 891 (ND Cal. 1961).

       That church schools like those of the petitioners were eligible in 1970 for multiple exemptions under overlapping and equally precise parts of § 3309 is not remarkable. This was true, for example, for most clergy. See §§3309 (b)(1) and 3309 (b)(2). Clergy who teach in church-run primary or secondary schools continue to be exempt under two provisions. The deletion of only one of these clear, specific, and contemporaneous exemptions cannot, without evidence of legislative intent, effect repeal of the other or alter its plain meaning. Cf. HCSC-Laundry v. United States, 450 U. S. 1 (1981) (newly enacted, more precise exemption held to prevail over earlier, more general exemption on the basis of detailed evidence of legislative intent).

       The United States argues that Congress must have intended, by the 1976 Amendments, to include church-related school employees within mandatory state coverage because the 1976 Amendments were passed, in part, to replace the temporary Special Unemployment Assistance program (established under the Emergency Jobs and Unemployment Assistance Act of 1974, 88 Stat. 1845), which provided benefits to practically all workers not then covered under the permanent FUTA provisions, including employees of church schools. Brief for United States as Amicus Curiae 8-10. That special program, however, was funded entirely with federal money, without any employer contribution, and the 1976 Amendments did not attempt entirely to duplicate its coverage; indeed, those Amendments established new, precise exemptions for a narrow group. See 26 U. S. C. § 3309 (b) (3) (the new provision exempting certain government employees); 122 Cong. Rec. 33274r-33276 (1976) (remarks of Sen. Nelson); id., at 33277-33278 (remarks of Sen. Williams).

       This comment reads in full:
      “Section 115 (b) also has the effect of requiring the State to pay unemployment compensation on the basis of services performed for all educational institutions. Under existing law, the State is only required to provide coverage of services performed for institutions of higher education.”

       The United States also relies on Congress’ expressed intention to cover “substantially all of the nation’s wage and salary earners,” H. R. Rep. No. 94-755, at 1, and “to provide equal treatment of all the nation’s wage and salary workers under the permanent unemployment compensation law.” Id., at 2. Such general statements of overall purpose contained in legislative reports cannot defeat the specific and clear wording of a statute. Helvering v. City Bank Co., 296 U. S. 85, 89 (1935); Caminetti v. United States, 242 U. S. 470, 490 (1917). Cf. Gooch v. United States, 297 U. S. 124, 128 (1936).

       The court noted that census figures for 1975 showed 261,000 full-time teachers in nonprofit elementary and secondary schools, of which 150,000 were in Roman Catholic schools. Cf. Bureau of the Census, Statistical Abstract of the United States 155 (1980) (reporting that in 1976 there were 268,908 teachers in such schools and that, of these, 206,577 were in schools with a “church affiliation”).

       The House Report states:
      “Section 115 (b) also has the effect of requiring the State to pay unemployment compensation on the basis of services performed for all educational institutions. Under existing law, the State is only required to provide coverage of services performed for institutions of higher education.” H. R. Rep. No. 94-755, p. 56 (1975).
      See also id., at 2, 6, 41. Similarly, the Senate Report provides:
      “The bill would require the States to extend the coverage of their unemployment compensation programs to employees of nonprofit elementary and secondary schools (present law requires coverage for employees of institutions of higher education).” S. Rep. No. 94-1265, p. 2 (1976).
      See also id., at 7, 9-11.
      In addition, the legislative history contains several references to the general congressional intention to extend the coverage of the FUTA to substantially all of the Nation’s wage earners. See, e. g., H. R. Rep. No. 94-755, supra, at 1-2; 122 Cong. Ree. 22518-22519 (1976); id., at 22899-22900. While such general statements of legislative purpose cannot override plain statutory language, see ante, at 786, n. 19, they are nonetheless consistent with the more specific statements of purpose quoted above.

       The Senate Report estimated that 242,000 additional employees of nonprofit organizations would be covered under the FUTA as a result of the repeal of §3309 (b)(3). See S. Rep. No. 94A1265, supra, at 8. This figure approximated the number of full-time teachers in all private, nonprofit elementary and secondary schools in 1975. See ante, at 787, n. 20. Because well over one-half of these teachers were employed in parochial schools, respondent argues that this statistic, although perhaps slightly inaccurate, indicates that Congress intended to extend coverage to employees of parochial elementary and secondary schools. As the Court notes, the South Dakota Supreme Court accepted this argument. See ante, at 787; 290 N. W. 2d 845, 849, and n. 5 (1980).
      The Court finds that respondent’s reliance upon this statistic is misplaced because, “in repealing §3309 (b)(3), Congress intended to include not just full-time teachers, but all employees of the newly covered nonprofit private elementary and secondary schools.” Ante, at 787 (emphasis in original). The Court’s observation, however, indicates only that the statistic was factually inaccurate; it does not undercut respondent’s reliance upon that statistic as a guide to congressional intent. Whether Congress believed that the figure 242,000 was an estimate of the number of additional teachers that would be covered 'by the Act as a result of the repeal of §3309 (b)(3), or an estimate of the number of additional employees that would be so covered, the estimate would have had meaning only if at least some parochial school employees were represented among the 242,000 newly covered individuals.
      It also should be noted that the Secretary of Labor, in his order declining to certify the unemployment compensation programs of the States of Alabama and Nevada under the FUTA, stated that the statistic had been supplied to Congress by the Department of Labor as the then-available best estimate of the total number of employees in all nonprofit, private elementary and secondary schools. See 44 Fed. Reg. 64378, 64380-64382, and n. 16 (1979). The Secretary also expressly stated that the estimate included employees of church-related elementary and secondary schools. See ibid.

       In light of the fact that approximately 86% of the students, see Rice, Conscientious Objection to Public Education: The Grievance and the Remedies, 1978 B. Y. U. L. Rev. 847, and over 50% of the teachers in private, nonprofit elementary and secondary schools are in parochial schools, Congress’ failure to mention any exception for such schools is surely significant.

       The Court of Appeals in Alabama v. Marshall accurately characterized the judicial function in eases such as this:
      “If Congress desires to change the established exemption of unemployment compensation coverage for elementary and secondary parochial school employees, it is well within its ability to amend the law to reflect that desire by drafting a clear statement to that effect. But, it is not the responsibility or function of this court to perform linguistic gymnastics in order to upset the plain language of Congress as it exists today.” 626 F. 2d, at 369.


text:
    April 20, 1981
    No. 80-851.
    Pringle v. Texas.
   Appeal from County Court of Hale County, Tex., dismissed for want of substantial federal question.


text:
    No. 80-927.
    Thomas v. Crouch, Judge.
   Appeal from Sup. Ct. Mo. dismissed for want of substantial federal question.


text:
    No. 80-1303.
    Potomac Edison Co. v. Pennsylvania.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 80-1441.
    Kodger v. Singh.
   Appeal from Ct. App. Ohio, Cuyahoga County, dismissed for want of substantial federal question.


text:
    No. 80-1360.
    General Atomic Co. v. United Nuclear Corp. et al.
   Appeal from Sup. Ct. N. M. Motion of appellant to defer consideration of the appeal denied. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, cer-tiorari denied.

Justice Stewart took no part in the consideration or decision of this motion and this case.


text:
    No. 80-5972.
    Ruhl v. Alabama State Bar.
   Appeal from

Sup. Ct. Ala. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-6169.
    Streater v. United States.
   Appeal from Ct. App. D. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-6273.
    Prenzler v. Kamrath et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-1420.
    Uncle Ben’s, Inc. v. Johnson.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981).


text:
    No. 80-1463.
    Marshall, Correctional Superintendent v. Lonberger.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Sumner v. Mata, 449 U. S. 539 (1981).


text:
    No. A-825.
    Missouri et al. v. Liddell et al.
   C. A. 8th Cir. Application for stay, presented to Justice Blackmun, and by him referred to the Court, denied.


text:
    No. A-848.
    DeWeese v. United States.
   C. A. 5th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-858.
    Deerfield Medical Center et al. v. City of Deerfield Beach et al.
   D. C. S. D. Pla. Application for stay and injunction, addressed to Justice Brennan and referred to the Court, denied.

Justice Brennan would grant the application.


text:
    No. D-193.
    In re Disbarment of Leach.
    [For earlier order herein, see 446 U. S. 963.]
   Disbarment entered.


text:
    No. D-196.
    In re Disbarment of Broadwell.
    [For earlier order herein, see 449 U. S. 978.]
   Disbarment entered.


text:
    No. D-215.
    In re Disbarment of Long.
   George Wayne Long, of Bayside, Tex., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on January 19, 1981 [449 U. S. 1107], is hereby discharged.


text:
    No. D-216.
    In re Disbarment of Mehta.
   Mahendra R. Mehta, of Chicago, Ill., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on January 19, 1981 [449 U. S. 1107], is hereby discharged.


text:
    No. D-231.
    In re Disbarment of Kelley.
   It is ordered that Joseph P. Kelley, of Columbus, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-233.
    In re Disbarment of Barbara.
   It is ordered that Peter R. Barbara, of Detroit, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 80-544.
    First National Maintenance Corp. v. National Labor Relations Board.
   C. A. 2d Cir. [Certiorari granted, 449 U. S. 1076.] Motion of American Federation of Labor and Congress of Industrial Organizations et al. for leave to file a brief as amici curiae granted.


text:
    No. 80-289.
    No. 80-692.
    United Mine Workers of America, Local No. 1854, et al. v. National Labor Relations Board et al.; and National Labor Relations Board v. Amax Coal Co., a division of Amax, Inc., et al.
   C. A. 3d Cir. [Certiorari granted, 449 U. S. 1110.] Motion of the Solicitor General for divided argument granted.


text:
    No. 80-756.
    Schweiker, Secretary of Health and Human Services, et al. v. Gray Panthers.
   C. A. D. C. Cir. [Certiorari granted sub nom. Harris v. Gray Panthers, 449 U. S. 1123.] Motion of the Solicitor General to permit George W. Jones, Esquire, to present oral argument pro hac vice granted.


text:
    No. 80-757.
    No. 80-895.
    No. 80-936.
    New York Mercantile Exchange et al. v. Leist et al.; Clayton Brokerage Co. of St. Louis, Inc. v. Leist et al.; and Heinold Commodities, Inc., et al. v. Leist et al.
   C. A. 2d Cir. [Certiorari granted, 450 U. S. 910.] Motions of Futures Industry Association, Inc., New York Stock Exchange, Inc., and Board of Trade of the City of Chicago et al. for leave- to file briefs as amici curiae granted.


text:
    No. 80-795.
    Heffron, Secretary and Manager of the Minnesota State Agricultural Society Board of Managers, et al. v. International Society for Krishna Consciousness, Inc., et al.
   Sup. Ct. Minn. [Certiorari granted, 449 U. S. 1109.] Motion of New York for leave to file a brief as amicus curiae granted.


text:
    No. 80-846.
    Rose, Warden v. Lundy.
   C. A. 6th Cir. [Certiorari granted, 450 U. S. 910.] Motion for appointment of counsel granted, and it is ordered that D. Shannon Smith, Esquire, of Cincinnati, Ohio, be appointed to serve as counsel for respondent in this case.


text:
    No. 80-1070.
    Ridgway et al. v. Ridgway et al.
   Sup. Jud. Ct. Me. [Certiorari granted, 450 U. S. 079.] Motion of respondents for appointment of counsel granted, and it is ordered that Curtis Webber, Esquire, of Auburn, Me., be appointed to serve as counsel for respondents in this case.


text:
    No. 80-1082.
    Smith, Correctional Superintendent v. Phillips.
   C. A. 2d Cir. [Certiorari granted, 450 U. S. 909.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    No. 80-1146.
    Zobel et ux. v. Williams, Commissioner of Revenue of Alaska, et al.
   Sup. Ct. Alaska. [Probable jurisdiction noted, 450 U. S. 908.] Motion of appellants to dispense with printing the joint appendix granted.


text:
    No. 80-1251.
    United States v. Vogel Fertilizer Co.
   Ct. Cl. [Certiorari granted, 450 U. S. 994.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 80-6390.
    In re Welch.
   Petition for writ of habeas corpus denied.


text:
    No. 80-6268.
    No. 80-6352.
    In re Cross; and In re Piatt.
   Petitions for writs of mandamus denied.


text:
    No. 80-1414.
    In re International Longshoremen’s Assn., AFL-CIO, et al.
   Petition for writ of mandamus and prohibition denied.


text:
    No. 80-644.
    G. D. Searle & Co. v. Cohn et al.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 80-988.
    Havens Realty Corp. et al. v. Coleman et al.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 80-203.
    Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran et al.
   C. A. 6th Cir. Certiorari granted limited to Question 1 presented by the petition and case set for oral argument in tandem with No. 80-757, New York-Mercantile Exchange v. Leist; No. 80-895, Clayton Brokerage Co. of St. Louis, Inc. v. Leist; and No. 80-936, Heinold Commodities, Inc. v. Leist [certiorari granted, 450 U. S. 910].


text:
    No. 80-1417.
    Okin et al. v. Rogers et al.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 80-1190.
    No. 80-1193.
    Pullman-Standard, a division of Pullman, Inc. v. Swint et al.; and United Steelworkers of America, AFL-CIO, et al. v. Swint et al.
   C. A. 5th Cir. Certiorari granted limited to Question 1 presented by each petition, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 624 F. 2d 525.


text:
    No. 80-1430.
    Engle, Correctional Superintendent v. Isaac; Perini, Correctional Superintendent v. Bell; and Engle, Correctional Superintendent v. Hughes.
   C. A. 6th Cir. Motions of respondents Lincoln Isaac and Kenneth L. Bell for leave to proceed in forma pauperis and cer-tiorari granted. Reported below: 646 F. 2d 1129 (first case) ; 635 F. 2d 575 (second case); 642 F. 2d 451 (third case).


text:
    No. 80-660.
    No. 80-1083.
    Silver Spur Casino et al. v. National Labor Relations Board et al.; and Barney's Club, Inc., et al. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied. Reported below: 623 F. 2d 571.


text:
    No. 80-904.
    California v. Hall.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 80-1057.
    400 Condominium Assn. et al. v. Tully, Cook County Assessor, et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-1060.
    Taylor v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-1164.
    McVicker v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-1200.
    Roza v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1201.
    Holley v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1213.
    Johnson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1217.
    City of Gallup v. Federal Energy Regulatory Commission et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1227.
    Tanner et al. v. McCall.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1228.
    Bullard v. Webster, Director, Federal Bureau of Investigation.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1236.
    Motor Vehicle Manufacturers Association of the United States, Inc., et al. v. Costle, Administrator, United States Environmental Protection Agency.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1249.
    Defourneaux, Administratrix v. Sturm, Ruger & Co., Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1260.
    Leonhard et al. v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1270.
    Mitchell v. Amalgamated Council of Greyhound Divisions et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1276.
    Patricelli v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1282.
    Podesta v. Securities and Exchange Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-1301.
    Russ et al. v. Wilkins et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1314.
    Nader v. McBride et al.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-1325.
    Dahl v. Akin et ux.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 80-1330.
    Schanbarger v. Wright, Police Chief of the Village of Massena, New York.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 80-1334.
    French Line et al. v. Barulic.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 80-1354.
    International Federation of Professional & Technical Engineers, Local 241, AFL-CIO v. Association of Scientists & Professional Engineering Personnel et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1358.
    Thompson et al. v. Peoples Liberty Bank.
   Ct. App. Ky. Certiorari denied.


text:
    No. 80-1359.
    Flagg v. United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-1364.
    Iske v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-1382.
    Marx et al. v. Computer Sciences Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1388.
    Dowe v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-1392.
    Johnson v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-1395.
    Bradley et al. v. J. F. Batte & Sons of Richmond, Inc., et al.; and Lafayette, Inc., et al. v. J. F. Batte & Sons of Richmond, Inc., et al.
   Sup. Ct. Va. Certiorari denied. Reported below: 221 Va. lxviii (first case); 221 Va. cxii (second case).


text:
    No. 80-1399.
    Berndt v. Prudential Insurance Company of America.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1401.
    Malanche v. American Motors Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1404.
    Ehlers v. Bogue et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1405.
    Shapiro et al. v. General Motors Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1406.
    Gartenberg v. Pollack, U. S. District Judge (Merrill Lynch Asset Management, Inc., et al., Real Parties in Interest).
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1410.
    E-Systems, Inc. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1413.
    Marion County School District et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1415.
    Murphy v. Eagen, Justice, Pennsylvania Supreme Court, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1426.
    Zeigler Coal Co. v. Dethloff et ux.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 80-1433.
    Evans v. Arkansas Racing Commission et al.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 80-1438.
    Tennessee River Pulp & Paper Co. et al. v. Seger.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 80-1443.
    Sapag, S. A. v. Standard Fittings Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1444.
    Klumpp v. Colonial Pipeline Co. et al.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 80-1447.
    Allen v. Snow et al.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 80-1456.
    No. 80-1466.
    Catalano et al. v. Pechous et al.; and Pechous v. Catalano et al.
   Sup. Ct. Ill. 2d 350.

Certiorari denied. Reported below: 83 Ill. 2d 146, 419 N. E.


text:
    No. 80-1458.
    Edward J. Sweeney & Sons, Inc., et al. v. Texaco, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1473.
    Stevenson v. Stevenson.
   Ct. App. Ky. Certiorari denied.


text:
    No. 80-1476.
    Tanklining Corp. v. Galveston Shipbuilding Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1482.
    Simpson v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 80-1483.
    Milledgeville Farmer’s Elevator Co. v. Wagner et al.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 80-1484.
    U. S. Steel Credit Corp. v. American Fletcher Mortgage Co., Inc., et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 80-1497.
    AB Turn-O-Matic v. Tveter, dba SGT Enterprises.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1508.
    Gila River Indian Community v. Henningson, Durham & Richardson et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1510.
    Kurtz v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 80-1513.
    Herman Blum Consulting Engineers, Inc. v. Hadra.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1531.
    Twin Falls Canal Co. et al. v. Canyon View Irrigation Co.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 80-1539.
    Jackson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1554.
    Dawe v. Robinson, United States Marshal.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1555.
    Linton et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1557.
    Buchanan v. United States.
   C.. A. 5th

Cir. Certiorari denied.


text:
    No. 80-1560.
    No. 80-6291.
    Calder v. United States; and Calder v. United States.
   C. A. 2d Cir.

Certiorari denied. Reported below: 641 F. 2d 76.


text:
    No. 80-1585.
    Sindona v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1598.
    Bowman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5790.
    Weaver v. Phillips et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5813.
    Resendez v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 80-5836.
    Wilson v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5900.
    Simms v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-5910.
    Delgado v. Israel, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5925.
    Kantorski v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5951.
    Black v. Marshall, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5977.
    Mayola v. Alabama.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 80-5996.
    Reed v. Jago, Correctional Superintendent, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5998.
    Girardi v. Virginia.
   Sup. Ct. Va. Certio-rari denied.


text:
    No. 80-6012.
    Grant v. Florida.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 80-6029.
    Dallas v. McClay, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6051.
    Lee v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 80-6064.
    Furey v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6068.
    Combs v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6075.
    Pappas v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-6076.
    Mack v. United States.
   Ct. Cl. Certio-rari denied.


text:
    No. 80-6154.
    Patterson v. General Motors Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6198.
    Green v. Warden, Federal Correctional Institution, Texarkana, Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6199.
    Manning v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 80-6200.
    Fullerton v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 80-6209.
    Brownfield v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6211.
    Makara v. British Petroleum Corp.
   App. Term, Sup. Ct. N. Y., 9th & 10th Jud. Dists. Certiorari denied.


text:
    No. 80-6212.
    Arce v. Henderson, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6213.
    Ross v. Ohio et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 80-6216.
    Hutchinson v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 80-6219.
    Covington et al. v. Allsbrook.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6223.
    Mathiesen v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 80-6224.
    Thompson v. Hargett, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6225.
    Reed v. Oklahoma.
   Ct. Crim. App. Okla.

Certiorari denied.


text:
    No. 80-6226.
    Disney et al. v. California.
   Ct. App.

Cal., 3d App. Dist. Certiorari denied.


text:
    No. 80-6228.
    Widemon v. Campbell et al.
   C. A. 3d Cir.

Certiorari denied.


text:
    No. 80-6229.
    Worthington v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 80-6233.
    Swofford v. City of Jasper et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 80-6234.
    Dudar v. Georgia Military College et al.
   Ct. App. Ga. Certiorari denied.


text:
    No. 80-6235.
    Williams v. Jerry’s Ford Sales, Inc., et al.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 80-6237.
    Mohn v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6241.
    Lombardi v. New York.
   App. Term, Sup. Ct. N. Y., 9th & 10th Jud. Dists. Certiorari denied.


text:
    No. 80-6244.
    Johnson v. Marshall, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6245.
    Atencio v. New Mexico Board of Bar Examiners.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 80-6247.
    Feltus v. Dees, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6249.
    Jaynes v. Florida et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6252.
    Jones v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6257.
    Jackson v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6259.
    Jaffer v. City of Miami, Florida, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6260.
    Workman v. Bracken et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6262.
    Wright et al. v. Nigh, Governor of Oklahoma, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6263.
    Lane v. Jeep Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6267.
    Campbell v. Maine.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 80-6271.
    Stevens v. Seymour et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6276.
    Harris v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6278.
    Cash v. Jago, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6285.
    Whitelaw v. MWP Limited Partnership.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-6292.
    In re Currier.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-6294.
    Mines v. Florida.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 80-6318.
    In re Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6321.
    Young v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6323.
    Coffman et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6329.
    Alexander v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-6334.
    Beckett v. Cuyler, Correctional Superintendent, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6346.
    Davis v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6348.
    Nelson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6356.
    Roche v. Fenton, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6372.
    Stewart v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6377.
    Clay v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6380.
    Kajevic v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6382.
    Ford v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1147.
    Local 1576, International Longshoremen’s Assn., AFL-CIO v. Equal Employment Opportunity Commission et al.
   C. A. 5th Cir. Motion of Southern Stevedoring Co. for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 80-1173.
    J. F. Hoff Electric Co. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Motion of Chamber of Commerce of the United States for leave to file a brief as amicus curiae granted. Certiorari denied.


author: Justice Rehnquist,

text:
    No. 80-1203.
    New Jersey v. Reading Co. et al.
   C. A. 3d Cir. Certiorari denied.

Justice Rehnquist,

dissenting.

Bankruptcy cases seldom receive much notice outside of those who are familiar with this branch of the law, and it is therefore understandable that there is a dearth of recent bankruptcy precedents decided on the merits in this Court as compared with constitutional cases, labor cases, and other more alluring subjects. Nonetheless, because it seems to me that the Court of Appeals has failed to heed the meaning of a statute which was enacted by Congress — a meaning plain on its face-r-I would grant certiorari in order to consider the claims of the State of New Jersey here.

Title 28 U. S. C. § 960 provides:

“Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.”

Section 77 (e)(3) of the Bankruptcy Act, 11 U. S. C. § 205 (e)(3), as in effect prior to the 1978 revision of the Act, requires a reorganization coúrt to approve a plan of reorganization only if it is satisfied that

“the plan provides for the payment of all costs of administration and all other allowances made or to be made by the judge, except that allowances provided for in subsection (c), paragraph (12) of this section, may be paid in securities provided for in the plan if those entitled thereto will accept such payment, and the judge is hereby given power to approve the same.”

The District Court here recognized that a trustee, while conducting the business of a debtor railroad, must pay state and local taxes as they accrue. It stated: “It is without question, as the State argues, that a railroad is under a duty to pay state and local taxes as they accrue during a reorganization. 28 U. S. C. § 960.” In re Reading Co., 439 F. Supp. 389, 391 (ED Pa. 1977). Yet notwithstanding its acknowledgment of this fact, the District Court on May 21, 1980, approved the trustees’ plan which did not provide for the payment of state taxes as they accrue and the United States Court of Appeals for the Third Circuit subsequently affirmed.

The District Court rejected the State’s contentions because it “found the necessity for the continued operation of the railroad sufficient justification to defer tax payments . . . .” - F. Supp. -, - (1980). The District Court placed reliance on what is perceived to be the public interest in the maintenance of a railroad system. Although one can readily understand and sympathize with such a “public interest,” when opposed to Acts of Congress it can turn out to be just as “unruly” a horse as “public policy” has been described in decisions in other fields of the law.

The State of New Jersey now has tax claims against the trustees for the years 1972-1977 in the amount of $250,000. The State has not consented to be paid in securities for its current tax obligations, as would be permitted under § 77 (e)(3) of the Bankruptcy Act. The paramount federal interest to which the District Court and all other courts must defer in this case is the one enacted into law by Congress through the specific legislation previously quoted. Until a contrary intent is manifested through subsequent legislation, it is my opinion that the District Court must follow this express mandate. Because the courts below failed to adhere to it, I would grant the petition for a writ of certiorari.


text:
    No. 80-1294.
    Honeywell, Inc. v. Tennessee Valley Authority.
   C. A. 6th Cir. Certiorari denied.

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


text:
    No. 80-1343.
    No. 80-1408.
    Aeronautical Radio, Inc., et al. v. Federal Communications Commission et al.; and United States v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.

Justice Stewart took no part in the consideration or decision of these petitions.

Reported below: 206 ,U. S. App. D. C. 253, 642 F. 2d 1221.


text:
    No. 80-1380.
    Gonsalves v. Caterpillar Tractor Co., Inc.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 80-1400.
    Cities Service Oil Co. v. Tire Sales Corp. et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 80-6274.
    Williams v. Arkansas Public Service Commission.
   Cir. C't., Pulaski County, Ark. Certiorari denied.

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


text:
    No. 80-1442.
    Romilly et al. v. Amoco Trinidad Oil Co. et al.
   C. A. 9th Cir. Motion of petitioners for leave to proceed as seamen under 28 U. S. C. § 1916 granted. Certio-rari denied.

Justice Stewart took no part in the consideration or decision of this motion and this petition.


text:
    No. 80-1462.
    Maiter et al. v. Chicago Board of Education et al.
   Sup. Ct. Ill. Motion of respondent Raquel Guerrero for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Marshall,

text:
    No. 80-5757.
    No. 80-5775.
    No. 80-5850.
    Davis v. Georgia; Spraggins v. Georgia; and Brooks v. Georgia.
   Sup. Ct. Ga. Certio-rari denied. Reported below: Nos. 80-5757 and 80-5775, 246 Ga. 432, 271 S. E. 2d 828; No. 80-5850, 246 Ga. 262, 271 S. E. 2d 172.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

These cases were all remanded to the Supreme Court of Georgia for reconsideration in light of our opinion in Godfrey v. Georgia, 446 U. S. 420 (1980). On remand, that court reaffirmed petitioners’ death sentences. Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth Amendment, I would grant the petitions for certiorari in these cases and vacate the judgments below insofar as they leave undisturbed the death sentences. I add a few extra lines, however, to point out that even accepting, arguendo, the prevailing view that there are circumstances in which the death sentence may constitutionally be imposed, the state court in these cases has ignored the mandates of this Court.

Under Georgia law, the jury is responsible for sentencing in death penalty cases. Petitioners in all three of these cases were sentenced to death after the jury found, pursuant to Ga. Code § 27-2534.1 (b)(7) (1978), that they had committed murders that were “outrageously or wantonly vile, horrible or inhuman in that [they] involved torture, depravity of mind, or an aggravated battery to the victim.” This statutory language is so broad that it openly invites the jury to impose the death penalty in every murder case. It was the recognition that this invitation was being accepted that led to our decision last Term in Godfrey. There, four Justices of this Court agreed that “[a] person of ordinary sensibility could fairly characterize almost every murder” as falling within the language of § 27-2534.1 (b)(7). 446 U. S., at 428-429. The plurality explained that in order to be constitutionally valid, a State’s capital punishment scheme “must channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Id., at 428 (footnotes omitted). See id., at 436-437 (Marshall, J., concurring in judgment). Because the Georgia courts had failed to provide such guidance to sentencing juries, the plurality reasoned that the death sentence imposed in that case had to be vacated.

Following our decision in Godfrey, we vacated the judgments in these and several other cases insofar as they left undisturbed the sentences of death. On remand, the Georgia Supreme Court has treated every case in exactly the same way: it has reviewed the record to discern whether the jury, if properly instructed, could still have found the existence of this aggravating circumstance beyond a reasonable doubt. On the basis of this review, that court affirmed the death sentences imposed without a proper jury instruction. I would have thought that Godfrey made clear that this sort of appellate speculation is impermissible. What I took to be the rule of Godfrey is that it is the discretion of the sentencer that must be properly narrowed. See also Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Westbrook v. Balkcom, 449 U. S. 999, 1001 (1980) (Stewart, J., dissenting from denial of certiorari). In murder cases in the State of Georgia, only the trier of fact may impose a sentence of death. Consequently, it is the discretion of the trier of fact — in these cases, the jury — that must be narrowed. And no matter what facts the jury might find, it always retains under Georgia law the ultimate discretion to refuse to impose the penalty at all. An appellate court can do no more than guess at what a jury might have done. Thus only a new sentencing hearing before a properly instructed jury can accomplish the purpose of our remands for reconsideration in light of Godfrey. The decision of the Georgia Supreme Court in these cases to substitute its own judgment for that of the sentencer is, in my view, contrary to the mandates of this Court. I would therefore grant the petitions for certiorari in these cases and vacate the judgments below on this additional ground as well.


text:
    No. 80-5933.
    Hill v. Georgia.
   Sup. Ct. Ga. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that capital punishment is under all circumstances cruel and unusual punishment forbidden by the Eighth Amendment, I would vacate the judgment of the Supreme Court of Georgia, insofar as it left undisturbed the death penalty in this case. Moreover, even assuming, argu-endo, the death penalty may under certain conditions be imposed constitutionally, those conditions are absent here.

Petitioner was convicted of first-degree murder and forcible rape. The jury imposed the death sentence on the basis of two statutory aggravating circumstances. The first aggravating circumstance was 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). We considered this provision of Georgia law in Godfrey v. Georgia, 446 U. S. 420 (1980). There, a plurality of this Court held that the discretion of the trier of fact must be narrowed when it considers the possibility of aggravation under § 27-2534.1 (b) (7). Our decision in Godfrey which was decided after the trial in this case, was available to the Georgia Supreme Court when it reviewed petitioner’s appeal. That reviewing court assumed it could determine for itself the presence of the aggravating circumstance in light of Godfrey. The proper course instead would have been to remand for reconsideration by the State’s sole sentencing authority, the trial court. See Westbrook v. Balkcom, 449 U. S. 999, 1001 (1980) (Stewart, J., dissenting from denial of certiorari) (citing Ga. Code §§ 27-2503 (b), 27-2534.1 (b) (1978)).

The error of the State Supreme Court in this regard is not remedied by the jury’s assessment of another statutory aggravating circumstance in this case. Neither this Court nor the State Supreme Court has the ability to forecast the decision of the properly instructed sentencing authority. Davis v. Georgia, ante, p. 921 (Marshall, J., dissenting from denial of certiorari). The State.Supreme Court’s failure to follow the proper course is particularly troubling in cases, such as this, where the remaining ground for imposing the death sentence is itself vulnerable to constitutional attack. The second aggravating circumstance here involved is that the offense of murder was committed while the offender was engaged in the commission of another capital felony, Ga. Code § 27-2534.1 (b)(2) (1978). The aggravating felony found here was forcible rape. Yet the jury may well have declined to find this aggravating circumstance had the trial judge granted petitioner’s request for an instruction on statutory rape. It is uncontested that the victim here was 12 years old, and that Georgia defines statutory rape as sexual intercourse with a female under the age of 14. Ga. Code § 26-2018 (1978). It is also undisputed that statutory rape would not constitute an aggravating circumstance permitting imposition of the death sentence.

The Georgia Supreme Court reasoned that no instruction on this offense was necessary because statutory rape is not a lesser included offense of forcible rape. This conclusion accurately reflects the legislature’s assignment of different elements to each of the two offenses. For statutory rape, the fact of sexual intercourse must be supplemented by proof of the victim’s age. For forcible rape, the fact of intercourse must be supplemented by proof it occurred forcibly and against the victim’s will. Ga. Code § 26-2001 (1978). Yet in light of the proof necessary to the two offenses, where a minor is the victim, these differences dissolve. The Georgia Supreme Court recently has reaffirmed its longstanding view that “[a] female under 14 years of age is legally incapable of giving consent,” so the element of rape against the victim’s will is “automatically shown by her age.” Drake v. State, 239 Ga. 232, 233, 236 S. E. 2d 748, 750 (1977). As a result, the only remaining difference between statutory rape and forcible rape is the element of force. And the Georgia Supreme Court has held that the youth of the victim may support a finding of force based on the victim’s “state of mind” and “subjective apprehension of danger.” Id., at 236, 236 S. E. 2d, at 751. Where a defendant’s life depends on whether the evidence beyond a reasonable doubt establishes forcible rape rather than statutory rape, minimal fairness calls for letting the jury consider the possibility of a statutory rape conviction.

Indeed, this was the essential thrust of our reasoning in Beck v. Alabama, 447 U. S. 625 (1980). There we concluded that “when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the Third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of' an unwarranted conviction.” Id., at 637. We concluded that this risk introduces “a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.” Id., at 643. This reasoning casts serious doubt on the trial court’s refusal to instruct the jury on statutory rape in this capital case. Petitioner’s death sentence thus rests on an exercise of sentencing discretion unbounded as required by Godfrey and unaided by an instruction on a lesser offense. If a death sentence may ever be properly imposed, it must be the result of correct procedures, carefully applied. Because I believe this requirement was lacking here, I dissent.


text:
    No. 80-6026.
    Montano v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Justice Brennan and Justice Blackmun would grant certiorari.


text:
    No. 80-6030.
    Willis v. Balkcom, Warden.
   Super. Ct. Ga., Tattnall County. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner was convicted of murder and the jury returned a sentence of death. On direct appeal, the Georgia Supreme Court affirmed the conviction and death sentence. Adhering to my view that the death penalty is under' all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would grant the petition for a writ of certiorari and vacate the judgment below insofar as it left the death sentence undisturbed. But even assuming, arguendo, that there are circumstances in which the death penalty may constitutionally be imposed, I believe those circumstances are not present in this case.

Undér Georgia law, the jury is responsible for sentencing in death penalty cases. In imposing the death sentence in this case, the jury found three statutory aggravating circumstances: (1) 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”; (2) the “offense of murder was committed against any peace officer . . . while engaged in the performance of his official duties”; and (3) the “murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.” In seeking review of the death sentence imposed in this case, petitioner does not challenge the validity of the findings concerning the latter two aggravating circumstances. He does argue, however, that the trial court’s charge to the jury on the first aggravating circumstance was constitutionally defective.

This provision, Ga. Code §27-2534.1 (b)(7) (1978) (hereafter § (b)(7)), was the same one involved in this Court’s decision last Term in Godfrey v. Georgia, 446 U. S. 420 (1980). In that case, the trial judge instructed the jury about this aggravating circumstance simply by reading the text of the statute. A plurality of this Court found that practice unconstitutional. It reasoned that the language of § (b)(7) does not impose “any inherent restraint on the arbitrary and capricious infliction of the death sentence” since “[a] person of ordinary sensibility could fairly characterize almost every murder” as falling within the language of § (b)(7). Id., at 428-429. The plurality explained that to be constitutionally valid, a State’s capital punishment scheme “must channel the sentencer’s discretion by 'clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Id., at 428 (footnote omitted) (quoting Gregg v. Georgia, 428 U. S. 153, 198 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U. S. 242, 253 (1976) (opinion of Stewart, Powell, and Stevens; JJ.); Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). Because the trial court had failed to provide adequate guidance to the jury, the death sentence imposed in that case was vacated.

In the instant case, as in Godfrey, the trial court’s instruction to the jury on § (b)(7) consisted of simply reciting the statutory language. Although both the trial and direct appeal in this case predated Godfrey, petitioner challenged the adequacy of the charge in a state habeas corpus proceeding. The Georgia habeas court held, however, that “Godfrey is not germane to or controlling of Petitioner’s case,” because petitioner’s death sentence was based not only on § (b)(7) but also on the other two aggravating circumstances. App. to Pet. for Cert. B-5. Thus, the court simply assumed that the jury would still have sentenced petitioner to death even if it had found only the two unchallenged aggravating circumstances. But under Georgia law, the finding of one or more aggravating circumstances permits, but does not require a sentence of death. See Bowen v. State, 241 Ga. 492, 246 S. E. 2d 322 (1978). Moreover, the jury verdict to impose the death penalty must be unanimous. See Miller v. State, 237 Ga. 557, 229 S. E. 2d 376 (1976). Under this scheme, it is evident that each aggravating circumstance may play an important role in influencing the jury’s verdict. Just what weight each juror attached to a particular aggravating circumstance can never be known by a reviewing court, and if a jury is allowed to base its decision partly upon an improper finding of a § (b)(7) circumstance, it is impossible to determine to what extent the jury’s verdict rested upon this circumstance. This situation, which exists in the instant case, is sufficient to invoke the rule that any doubt as to whether a criminal judgment rests upon a constitutionally unsound basis requires its reversal. See Terminiello v. Chicago, 337 U. S. 1 (1949); Stromberg v. California, 283 U. S. 359 (1931).

This defect is not cured by a reviewing court’s speculation about what a jury faced with a finding of two aggravating circumstances would or might have done. Under Georgia law, only the trier of fact may impose a death sentence. The reviewing court is neither privy to the jury’s deliberations nor endowed with psychic powers. Most important, such speculation is, in my judgmént, inconsistent with the recognition that because “the penalty of death is qualitatively different from a sentence of imprisonment,” there is a heightened “need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, supra, at 305 (opinion of Stewart, Powell, and Stevens, JJ.). See Beck v. Alabama, 447 U. S. 625 (1980). The proper procedure to follow in cases such as this is to vacate the death sentence and remand the case for resentencing by a properly instructed jury. Cf. Westbrook v. Balkcom, 449 U. S. 999, 1001 (1980) (Stewart, J., dissenting from denial of certiorari); Davis v. Georgia, ante, p. 921 (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari).

Because it cannot be said with assurance that an improper finding of a § (b)(7) circumstance played no part in the jury's decision to impose the death penalty in this case, I would grant the petition for a writ of certiorari and vacate the death sentence on this additional ground.

Justice Stewart joins all but the first and last paragraphs of this dissenting opinion. He would grant the petition for certiorari and vacate the judgment imposing the death penalty, so that a properly instructed jury may consider what sentence to impose. See Westbrook v. Balkcom, 449 U. S. 999, 1001 (1980) (dissent from denial of certiorari).

       Ga. Code §27-2534.1 (b)(7) (1978).

       §2534.1 (b) (8).

       § 2534.1 (b) (10).


text:
    No. 80-6039.
    Green v. United States.
   C. A. 4th Cir. Certiorari denied.

Justice Marshall,

dissenting.

In United States v. Dinitz, 424 U. S. 600 (1976), this Court held that when a criminal defendant's successful request for a mistrial is precipitated by “ ‘prosecutorial or judicial overreaching,' ” a subsequent trial on the same charges is barred by the Double Jeopardy Clause of the Fifth Amendment. Id., at 607 (quoting United States v. Jorn, 400 U. S. 470, 485 (1971)). Because the decision of the Court of Appeals in the present case raises substantial questions concerning the scope of the Dinitz rule, I dissent from the denial of certiorari.

Petitioner was tried for conspiracy to distribute heroin. The prosecution’s chief witness was Special Agent Robert Dixon of the Drug Enforcement Administration. During cross-examination, defense counsel succeeded in eliciting several statements that substantially damaged Dixon’s credibility. Annoyed at this turn of events, Dixon made a deliberate, impermissible reference to petitioner’s prior conviction for armed robbery. Defense counsel then moved for a mistrial, which was granted. Petitioner was subsequently re-indicted on the same drug charge. He moved to dismiss this second indictment on the ground that the Double Jeopardy Clause, as interpreted in Dinitz, barred his retrial. The District Judge denied the motion, and a divided Court of Appeals for the Fourth Circuit affirmed. 636 F. 2d 925 (1980). The majority reasoned that Dinitz was inapplicable because the improper statement was made with the general purpose of prejudicing petitioner rather than the specific purpose of provoking a mistrial and because the misconduct was by a Government witness rather than the prosecutor.

The court’s reasoning is questionable on both grounds. The central issue presented by this case — whether prosecu-torial misconduct must have the specific purpose of provoking a defendant’s request for a mistrial in order to raise double jeopardy concerns — has divided the Courts of Appeals. The majority in the court below, as well as the Court of Appeals for the Tenth Circuit in United States v. Nelson, 582 F. 2d 1246 (1978), cert. denied, 439 U. S. 1079 (1979), have limited Dinitz to situations in which the prosecution deliberately attempts to provoke a mistrial. In contrast, the Courts of Appeals for the Fifth and Eighth Circuits have concluded that the “prosecutorial overreaching” referred to in Dinitz is not limited to specific attempts to provoke a mistrial, but may also encompass other forms of serious Government misconduct intended in a more generalized way to prejudice the defendant. United States v. Weaver, 565 F. 2d 129, 133 (CA8 1977), cert. denied, 434 U. S. 1074 (1978); United States v. Kessler, 530 F. 2d 1246 (CA5 1976).

In my view, this latter interpretation of Dinitz is the correct one. The Double Jeopardy Clause protects a criminal defendant’s interest in a single, fair adjudication of his guilt or innocence. United States v. Jenkins, 420 U. S. 358, 370 (1975); United States v. Wilson, 420 U. S. 332, 343 (1975); Downum v. United States, 372 U. S. 734, 736 (1963). This constitutional interest is implicated whenever intentional governmental misconduct results in a mistrial. Regardless of whether the Government’s misbehavior was designed specifically to provoke a mistrial or was simply intended to reduce the chances of an acquittal, the net effect on the defendant is the same: he is faced with the burdens and risks of a second trial solely because the Government has deliberately undermined the integrity of the first proceeding. Indeed, in United States v. Jorn, 400 U. S. 470 (1971), the central decision relied on in Dinitz, this Court concluded that “where a defendant’s mistrial motion is necessitated by . . . prosecutorial impropriety designed to avoid an acquittal, re-prosecution might well be barred.” 400 U. S., at 485, n. 12 (emphasis added). This language strongly suggests that a general governmental intent to affect the trial in a manner that objectively might be viewed as risking a mistrial, rather than a specific, subjective intent on the part of the prosecution to achieve that precise result, is sufficient to invoke the double jeopardy concerns discussed in Dinitz. In any event, because the Courts of Appeals are divided on this important issue, I believe that this Court is obliged to resolve the conflict.

The second ground for the decision of the court below— that Dinitz does not apply to Government witnesses — is equally suspect. Dinitz referred to “ 'prosecutorial . . . overreaching,’ ” 424 U. S., at 607, but nothing in that decision suggests that its holding was limited solely to misconduct by the prosecutor. To be sure, the prosecutor cannot be held responsible for the misconduct of every Government witness. However, in this case, Agent Dixon’s role in the prosecution of petitioner was far more extensive than that of an ordinary Government witness. As Judge Winter observed in dissent:

“Agent Dixon was a four-year veteran of the Drug Enforcement Administration. . . . Since joining DEA he had made over 150 arrests and participated in approximately 35 cases. Manifestly he was the agent in charge of the instant case; he sat at counsel table throughout the entire trial. Significantly, the government had been advised that defendant would not testify because of his record. Undoubtedly, as the agent in charge, Dixon had that knowledge.” 636 F. 2d, at 930.

Given Dixon’s extensive involvement in the prosecution of the Government’s case against petitioner, I question whether the court below correctly found Dinitz to be inapplicable. In any event, the question is sufficiently important to warrant this Court’s review.

Accordingly, I dissent from the denial of certiorari and would instead grant the petition and set the case for argument.

       Under the Government’s theory of the case, petitioner was a distributor for a heroin dealer. Agent Dixon testified that dealers did not distribute heroin through heroin users. The defense then produced evidence that petitioner was receiving large amounts of heroin for his personal use at the relevant time, and that the arrest report on petitioner noted that he was a “heroin user.” The defense then asked Dixon if he was the agent who had arrested petitioner. Agent Dixon stated that he was not. The defense, however, again discredited Dixon by proving that he was indeed the arresting officer.

       As an initial matter, I question the validity of the lower court’s assumption that the Government in such cases tailors its misconduct to achieve one improper result as opposed to another. It is far more likely that in cases such as this, where the prosecution is concerned that the trial may result in an acquittal, that the Government engages in misconduct with the general purpose of prejudicing the defendant. In this case, for example, the Government stood to benefit from Dixon’s misconduct, regardless of whether it resulted in a guilty verdict or a mistrial. Moreover, even if such subtle differences in motivation do exist, I suspect that a defendant seeking to prevent a retrial will seldom be able to prove the Government’s actual motivation.


text:
    No. 79-1266.
    No. 80-532.
    No. 80-694.
    No. 80-843.
    No. 80-876.
    No. 80-1054.
    No. 80-1071.
    No. 80-1309.
    No. 80-5584.
    No. 80-5768.
    No. 80-5859.
    No. 80-5902.
    No. 80-5924.
    No. 80-5944.
    No. 80-5986.
    No. 80-5990.
    No. 80-6000.
    No. 80-6050.
    Steadman v. Securities and Exchange Commission, Florida Department of Health and Rehabilitative Services et al. v. Florida Nursing Home Assn. et al., Wood v. Wood, Caribe Trailer Systems, Inc., et al. v. Puerto Rico Maritime Shipping Authority et al., Scarpelli v. Illinois, Oltersdorf v. Chesapeake & Ohio Railroad Co., Smith v. United States, Lee v. Law Offices of Alioto et al., Outlaw v. Illinois, McDonald v. Tennessee, McDonald v. Draper, Judge, De Priest v. Bible, Commissioner, Tennessee Department of Employment Security, et al., Teng et al. v. United States, Kohls v. United Parcel Service, Inc., et al., Green v. Georgia, Hockenbury v. Sowders, Penitentiary Superintendent, Davis v. Texas, Harris v. Spain, Judge, et al.,
   460 U. S. 91;

450 U. S. 147;

449 U. S. 1081;

450 U. S. 914;

450 U. S. 915;

450 U. S. 920;

450 U. S. 920;

450 U. S. 967;

450 U. S. 983;

450 U. S. 983;

450 U. S. 983;

450 U. S. 903;

450 U. S. 930;

450 U. S. 931;

450 U. S. 936;

450 U. S. 933;

450 U. S. 968; and

450 U. S. 985. Petitions for rehearing denied.


text:
    No. 80-6053.
    No. 80-6091.
    No. 80-6159.
    Mullins v. Ohio, Henderson v. Schweiker, Secretary of Health and Human Services, Wright v. United States,
   450 U. S. 985;

450 U. S. 985; and

450 U. S. 970. Petitions for rehearing denied.


text:
    No. 80-910.
    Calavo Growers of California v. Generali Belgium et al.,
   449 U. S. 1084. Motion for leave to file petition for rehearing denied.


text:
    No. 80-1117.
    Castillo v. Forsht, United States Marshal,
   450 U. S. 922. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.


text:
    April 27, 1981
    No. 80-1453.
    Showcase Cinemas, Inc., et al. v. Georgia.
   Ct. App. Ga. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 80-1183.
    Mississippi v. United States et al.
   Affirmed on appeal from D. C. D. C.

Justice White and Justice Stevens would postpone the question of jurisdiction and set case for oral argument. Justice Rehnquist took no part in the consideration or decision of this case.


text:
    No. 80-1275.
    Gary-Northwest Indiana Women’s Services, Inc., et al. v. Orr, Governor of Indiana, et al.
   Affirmed on appeal from D. C. N. D. Ind.

Justice Brennan, Justice Marshall, and Justice Blackmun would note probable jurisdiction and set case for oral argument.


text:
    No. 80-1486.
    Omni Farms, Inc. v. Arkansas Power & Light Co.
   Appeal from Sup. Ct. Ark. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-461.
    Retail, Wholesale & Department Store Union, AFL-CIO v. G. C. Murphy Co.
   C. A. 3d Cir. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Northwest Airlines, Inc. v. Transport Workers, ante, p. 77.


text:
    No. 80-1284.
    Gray, Treasurer of Harris County, Texas (Kriegel, successor in office) v. Van Ooteghem.
   C. A. 5th Cir. Certiorari dismissed without prejudice.


text:
    No. 80-689.
    Widmar et al. v. Vincent et al.
   C. A. 8th Cir. [Certiorari granted, 450 U. S. 909.] Motions of Anti-Defamation League of B’nai B’rith and American Jewish Congress for leave to file briefs as amici curiae granted.


text:
    No. 80-1010.
    No. 80-1494.
    No. 80-1523.
    Currey et al., dba Currey & Currey v. Corporation Commission of Oklahoma et al. United Air Lines, Inc. v. Division of Industrial Safety of the Department of Industrial Relations of California et al. Fairdale Farms, Inc. v. Yankee Milk, Inc., et al.
   Sup. Ct. Okla.;

C. A. 9th Cir.; and

C. A. 2d Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 80-6406.
    In re Nolan.
   Petition for writ of habeas corpus denied.


text:
    No. 80-1511.
    In re Halvorsen.
   Petition for writ of mandamus and/or other relief denied.


text:
    No. 80-6293.
    In re Jones.
   Petition for writ of mandamus denied.