text:
    No. 80-5235.
    No. 80-5252.
    No. 80-5268.
    Finney v. Balkcom, Warden. Steelman v. Arizona. Antone v. Florida.
   Super. Ct. Ga., Tattnall County;

Sup. Ct. Ariz.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 80-5252, 120 Ariz. 301, 585 P. 2d 1213; No. 80-5268, 382 So. 2d 1205.

Justice Brennan and Justice Marshall,

dissenting.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 79-1694.
    Hamilton v. General Motors Corp.,
   447 U. S. 907. Petition for rehearing denied.


text:
    October 20, 1980
    No. 80-215.
    Edwards et al. v. Service Machine & Shipbuilding Corp., Inc., et al.
   Affirmed on appeal from C. A. 5th Cir.


text:
    No. 80-116.
    Darrigo v. State Commission on Judicial Conduct et al.
   Appeal from App. Div., Sup. Ct. N. Y., 1st Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice White and Justice Stevens would dismiss for want of substantial federal question.


text:
    No. 80-235.
    Crenshaw v. Blanton, Governor of Tennessee, et al.
   Appeal from Ct. App. Tenn. dismissed for want of properly presented federal question.


text:
    No. 80-5173.
    Clay, Administrator v. Hall et al.
   Appeal from Ct. App. Tenn. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-5272.
    Brown v. Kansas Workmen’s Compensation Fund.
   Appeal from Sup. Ct. Kan. dismissed for want of substantial federal question.

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


text:
    No. 79-1970.
    Ciccone v. Textron, Inc.
   C. A. 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Mohasco Corp. v. Silver, 447 U. S. 807 (1980).


text:
    No. 79-1998.
    California v. Teresinski.
   Sup. Ct. Cal. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Crews, 445 U. S. 463 (1980).


text:
    No. 80-208.
    Ewald v. Great Atlantic & Pacific Tea Co., Inc.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Mohasco Corp. v. Silver, 447 U. S. 807 (1980).


text:
    No. 80-5275.
    Bracewell v. Alabama.
   Ct. Crim. App. Ala. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Beck v. Alabama, 447 U. S. 625 (1980).


text:
    No. 79-972.
    Westvaco Corp. et al. v. Adams Extract Co. et al.
   C. A. 5th Cir. [Certiorari granted, 447 U. S. 919.] Motion of respondents Owens-Illinois, Inc., et al. to dismiss the writ of certiorari granted. Motion of Westvaco Corp. to dismiss the writ of certiorari pursuant to Rule 53 granted. Motion of Mead Corp. for leave to intervene as a party petitioner denied. Certiorari dismissed.

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


text:
    No. 79-1356.
    Johnson et al. v. Board of Education of the City of Chicago et al.
   C. A. 7th Cir. [Certiorari granted, 448 U. S. 910.] Judgment vacated and case remanded for further consideration in light of the subsequent development described in the suggestion of mootness filed by respondents on October 2, 1980; the response of petitioners filed on October 10, 1980; the response of the United States as amicus curiae filed on October 10, 1980; and the reply filed on October 15, 1980.


text:
    No. A-146 (80-5216).
    Scott v. Florida.
   Application for stay of proceedings in the Supreme Court of Florida, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-253 (80-552).
    No. A-254 (80-560).
    California Manufacturers Assn. et al. v. Industrial Welfare Commission of California et al.; and San Joaquin Nisei Farmers League et al. v. Industrial Welfare Commission of California et al.
   Sup. Ct. Cal. The order entered by Justice Rehnquist on September 26, 1980, staying the issuance of a peremptory writ of mandate is vacated, and applications are denied.


text:
    No. A-322.
    Skeen et al. v. Hooper, Secretary of State of New Mexico.
   Application for injunction, presented to Justice White, and by him referred to the Court, denied.


text:
    No. A-333.
    Whig Party of Alabama et al. v. Siegelman, Secretary of State of Alabama, et al.
   C. A. 5th Cir. Application for injunction and other relief, presented to Justice Brennan, and by him referred to the Court, denied.


text:
    No. D-186.
    In re Disbarment of Cooper.
    [For earlier order herein, see 446 U. S. 915.]
   Disbarment entered.


text:
    No. D-190.
    In re Disbarment of Fusciello.
    [For earlier order herein, see 446 U. S. 915.]
   Disbarment entered.


text:
    No. D-191.
    In re Disbarment of Schilpp.
    [For earlier order herein, see 446 U. S. 933.]
   Disbarment entered.


text:
    No. D-194.
    In re Disbarment of Amos.
    [For earlier order herein, see 447 U. S. 902.]
   Disbarment entered.


text:
    No. 79-1388.
    Kirchberg v. Feenstra et al.
   C. A. 5th Cir. [Probable jurisdiction noted, 446 U. S. 917.] Suggestion of mootness filed by appellees Edwards and Louisiana rejected.


text:
    No. 80-83.
    Muskie, Secretary of State v. Agee.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 818.] Motion of respondent to expedite denied.


text:
    No. 80-255.
    Georgia Power Co. v. 138.30 Acres of Land et al.
   C. A. 5th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 80-293.
    Unitex Ltd. et al. v. Dan River, Inc.
   C. A. 4th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

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


text:
    No. 80-5422.
    No. 80-5447.
    In re MaGee; and In re Moore.
   Petitions for writs of habeas corpus denied.


text:
    No. 80-5.
    McCarty v. McCarty.
   Appeal from Ct. App. Cal., 1st App. Dist. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 79-1734.
    Parratt et al. v. Taylor.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 79-1711.
    No. 79-1754.
    No. 79-1760.
    No. 80-12.
    Middlesex County Sewerage Authority et al. v. National Sea Clammers Assn. et al.; Joint Meeting of Essex and Union Counties v. National Sea Clammers Assn. et al.; City of New York et al. v. National Sea Clammers Assn. et al.; and Environmental Protection Agency et al. v. National Sea Clammers Assn. et al.
   C. A. 3d Cir. Certiorari granted limited to the following questions:

1. Whether the Federal Water Pollution Control Act, 33 U. S. C. § 1251 et seq. (1976 ed. and Supp. III), and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U. S. C. § 1401 et seq. (1976 ed. and Supp. III), imply a private right of action independent of the rights explicitly created by the citizens suit provisions of those Acts, 33 U. S. C. § 1415 (g).

2. Whether a private citizen has standing to maintain a federal common law nuisance action for alleged damages sustained resulting from ocean pollution as a general federal question under 28 U. S. C. § 1331.

3. Whether any federal common law nuisance action for alleged damages sustained resulting from ocean pollution, if available to a private citizen, is not preempted by the present regulatory scheme governing ocean pollution established by the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act.

Cases consolidated and a total of one hour allotted for oral argument. Reported below: 616 F. 2d 1222.


text:
    No. 79-1637.
    J. P. Stevens & Co., Inc. v. National Labor Relations Board et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-1913.
    Aaacon Auto Transport, Inc. v. Miller.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-6724.
    Shaw v. Texas.
   Ct. Crim. App. Tex, Certiorari denied.


text:
    No. 79-6751.
    Jacobs v. Rowe, Corrections Director, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 79-6833.
    Kramarczyk v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-37.
    Lester v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 80-95.
    Environmental Defense Fund, Inc., et al. v. Alexander, Secretary of the Army, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-106.
    SAICI v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-118.
    Day et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-128.
    Investors Research Corp. et al. v. Securities and Exchange Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-132.
    Berg v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-145.
    Underwood et al. v. Secretary of the Interior.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-154.
    Moles v. Morton F. Plant Hospital, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-199.
    Berkley Machine Works & Foundry Co. v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-218.
    Sherwood v. Brown, Secretary of Defense, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-219.
    Big Bear Supermarkets No. 3 v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-228.
    Suburban Realty Co. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-240.
    Jones et al. v. Kneller et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-244.
    Aldridge v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 80-247.
    Tama Meat Packing Corp. v. National Labor Relations Board.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-248.
    Rudolf Wolff & Co., Ltd. v. Neiman, dba London Group (1974).
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-249.
    Schara et al. v. Anaconda Co.
   Sup. Ct. Mont. Certiorari denied.


text:
    No. 80-253.
    Yanowitz v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-260.
    Milestone v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-261.
    LaRochelle et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-267.
    Manning v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 80-269.
    Connecticut v. Gold.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 80-272.
    T. F. H. Publications, Inc. v. Commissioner of Internal Revenue.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-279.
    Riegel Textile Corp. v. Gryc, by Gryc, et al.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 80-282.
    Yow v. American Home Assurance Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-285.
    Chvosta v. Pierre et al.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-287.
    Shemitz v. Deere & Co., Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-288.
    Shuffman, Executrix v. Hartford Textile Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-303.
    Renfro v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-312.
    Bono v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-570.
    Stroom v. Civiletti, Attorney General.
   C. A. D. C. Cir. Certiorari before judgment denied.


text:
    No. 80-5037.
    Greer v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-5050.
    Johns v. Nanawale Community Assn. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5069.
    Mata v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 80-5096.
    Raub v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5117.
    Ellis v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-5186.
    Patterson v. Garrington, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5203.
    Phillips v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 80-5207.
    Davis v. Stephenson, Correctional Superintendent, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5244.
    Quigg v. Crist, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5264.
    Montgomery v. National Multiple Sclerosis Society.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-5267.
    Norris v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-5271.
    Roach v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-5292.
    Clark v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-5293.
    Boyd v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5333.
    Mayes v. Sowders, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5340.
    Meier v. Hughes Tool Co.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5342.
    Ford v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5348.
    Barrett v. U. S. Customs Service et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5362.
    Kline v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5365.
    DeMarco v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5367.
    Sacco v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5374.
    Garcia v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5383.
    Price v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5386.
    Yates v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5389.
    Brown, aka Dennis v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5390.
    Wade v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5391.
    Lagattuta v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5395.
    Devlin v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5409.
    Benton v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5413.
    Mize v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5418.
    Forrest v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5438.
    Wargo v. United States.
   C. A. 9th Cir. Certiorari denied.


author: Justice Blackmun,

text:
    No. 79-1545.
    Amstar Corp. v. Southern Pacific Transport Company of Texas and Louisiana.
   C. A. 5th Cir. Certiorari denied.

Justice Blackmun,

dissenting.

It seems to me that the Court’s denial of certiorari in this case utterly ignores the parties’ intent in executing a consent to a judgment and in their subsequent actions pursuant thereto.

Petitioner is a sugar refiner. It filed suit under § 20 (11) of the Interstate Commerce Act, 24 Stat. 386, as amended, 49 U. S. C. § 20 (11), against respondent, a common carrier by motor, for damage to a cargo of sugar respondent undertook to transport. Although respondent by its formal answer denied liability, the real issue in the litigation proved to be the amount for which respondent was liable. Petitioner-shipper took the position that, under Gore Products, Inc. v. Texas N. O. R. Co., 34 So. 2d 418 (La. App. 1948), the proper measure of damages was the profit lost by petitioner on the completed sale, or $7,529.28. Respondent-carrier, on the other hand, contended that the proper measure was the cost of reprocessing the sugar for resale to another customer, or $488.65. Respondent moved for partial summary judgment only on the issue of the quantum of damages. Over petitioner’s objection, the United States District Court for the Eastern District of Louisiana granted that motion, leaving open, so far as that court was concerned, the issue of liability. The partial summary judgment, being interlocutory, of course was not then appealable. See 28 U. S. C. §§ 1291 and 1292.

After a pretrial conference, the parties by their counsel entered into a stipulation of facts, App. to Pet. for Cert. 29a, and submitted to the court a “Joint Motion for Approval of Consent Judgment.” Id., at 32a. The District Court then entered its “Consent Judgment upon Joint Stipulation of Facts,” id., at 26a, the final paragraph of which recited:

“This judgment is rendered in recognition of the reservation by the plaintiff of its right to prosecute an appeal in this action in connection with this judgment and in connection with the partial summary judgment rendered on March 14,1979.” Id., at 27a.

The smaller of the two sums was then paid to petitioner. It thereupon executed a satisfaction of judgment, id., at 34a, still reciting its reservation.

Petitioner in due course appealed to the United States Court of Appeals for the Fifth Circuit. Both sides devoted their briefs in that court exclusively to the liability issue. The Court of Appeals, however, with a short per curiam opinion, held that, on the authority of another per curiam opinion, White & Yarborough v. Dailey, 228 F. 2d 836 (CA5 1955), (the governing authority of which I seriously question), “the fact that both parties freely consented to the entry of a final judgment precludes an appeal from it.” 607 F. 2d 1100 (1979).

It seems to me to be clear that any consent on the part of petitioner did not reach the disputed difference between $7,529.28 and $488.65. To the extent that the Court of Appeals’ holding rests on the suggestion in White Yarborough v. Dailey, 228 F. 2d, at 837, that an appeal will not lie when payment of the judgment has been accepted, that holding is inconsistent with United States v. Hougham, 364 U. S. 310 (1960), where this Court said:

“It is a generally accepted rule of law that where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the unsatisfactory judgment does not, standing alone, amount to an accord and satisfaction of the entire claim.” Id., at 312.

Nor does, the mere fact that the parties entered into a consent judgment preclude appeal. In Swift & Co. v. United States, 276 U. S. 311 (1928), it was observed:

“The decree sought to be vacated was entered with the defendants’ consent. Under the English practice a consent decree could not be set aside by appeal or bill of review, except in case of clerical error. ... In this Court a somewhat more liberal rule has prevailed. Decrees entered by consent have been reviewed upon appeal or bill of review where there was a claim of lack of actual consent to the decree as entered . . . .” Id., at 323-324.

Here there is “a claim of lack of actual consent.” See also Nashville, C. & St. L. R. Co. v. United States, 113 U. S. 261 (1885); Pacific R. Co. v. Ketchum, 101 U. S. 289 (1880).

The Court of Appeals’ opinion also seems to me to be in some tension, if not outright conflict, on the point at issue, with diLeo v. Greenfield, 541 F. 2d 949, 952 (CA2 1976); United States ex rel. H & S Industries, Inc. v. F. D. Rich Co., 525 F. 2d 760, 764-765 (CA7 1975); and Gadsden v. Fripp, 330 F. 2d 545, 548 (CA4 1964).

It may well be that upon review of the merits of the District Court’s judgment, respondent will prevail. It seems to me, however, that petitioner is entitled to a ruling on the merits of its appeal to the Court of Appeals, and is not to be foreclosed by a strict concept of consent and acceptance in the face of facts that the asserted consent was specifically limited and that petitioner consistently and persistently disclaimed full settlement of the lawsuit. Indeed, until the case arrived here, respondent does not appear to have claimed otherwise.

The amount in contest is not large, but that fact in itself is no reason for this Court’s lack of interest in a case where the principle is important. I would give serious consideration to a summary reversal of the judgment of the Court of Appeals. At the least, I would grant certiorari and set the case for argument.

       Section 20 (11) was repealed in 1978 by Pub. L. 95-473, §4 (b), 92 Stat. 1466, but the Interstate Commerce Act was reenacted as positive law by the same statute. 92 Stat. 1337.

       The smaller amount is not in dispute. Respondent has not agreed that the larger amount is correct, but it states that it “has always assumed” that the profit lost on the completed sale of the sugar was in excess of the smaller amount. Brief in Opposition 2.

       This Joint Motion recited:
      “Amstar Corporation joins in this motion with full reservation of its right to prosecute an appeal in this action, both with respect to the attached consent judgment and with respect to the partial summary judgment granted in this action on March 14, 1979.” App. to Pet. for Cert. 33a.

       The satisfaction provided:
      “This Satisfaction of Judgment has been executed by Amstar Corporation with full reservation of its right to prosecute an appeal in this action in connection with the judgment entered on May 3,1979, and in connection with the partial summary judgment rendered on March 14, 1979.” Id., at 34a.


author: Justice Brennan,

text:
    No. 79-1735.
    Jarrett v. Jarrett.
   Sup. Ct. Ill. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

This petition raises the significant question whether the State may deprive a divorced mother of the custody of her children through operation of a conclusive presumption that her cohabitation with an unmarried adult male constitutes custody not in the best interests of the children, however strong the contrary evidence. Because the decision below conflicts with the import of relevant precedent of this Court, I dissent from the denial of a writ of certiorari.

In December 1976, petitioner Jacqueline Jarrett was divorced from respondent Walter Jarrett. Jacqueline was given custody of their three daughters, then aged 12, 10, and 7. Jacqueline was also awarded use of the family home and child support; Walter had visitation rights, and the children regularly spent their weekends with him. In April 1977, Jacqueline told Walter that her friend, Wayne Hammon, was going to move into the family home. Walter objected and one week later filed a custody modification petition, seeking custody of his children on the grounds that he objected to his ex-wife’s nonmarital relationship and did not wish his daughters to be raised in what he regarded to be an immoral atmosphere.

Following a hearing at which Jacqueline, Walter, and Hammon testified, the Circuit Court modified its original decree and granted custody of the children to Walter, finding the custody change necessary for the “moral and spiritual well-being and development” of the children. 78 Ill. 2d 337, 342, 400 N. E. 2d 421, 422 (1979). The Appellate Court reversed, reasoning that the Circuit Court made no finding and identified no evidence that Jacqueline was unfit to retain custody and, further, that there was no evidence that the change in custody was necessary to serve the best interests of the children.

A divided Illinois Supreme Court reversed the Appellate Court and reinstated the Circuit Court’s modified custody decree. Applying the Illinois rule that a change in custody will be ordered only if necessary to serve the best interests of the child, the State Supreme Court found that Jacqueline’s ostensible violation of the Illinois fornication statute evinced a “disregard for existing standards of conduct [that] instructs her children, by example, that they, too, may ignore them, and could well encourage the children to engage in similar activity in the future.” Id., at 346-347, 400 N. E. 2d, at 424 (citations omitted). The court, therefore, concluded that retention of custody by Jacqueline adversely affected the best interests of the children since there was a possibility of harm to them, even though it might become manifest only in the future, there being no showing of current actual harm. Stanley v. Illinois, 405 U. S. 645 (1972), was distinguished on the ground that Stanley invalidated a conclusive presumption that an unwed father is unfit to exercise custody over his children, whereas the conclusion in the instant case rested not on a conclusive presumption, but on a finding reached after Jacqueline was afforded a full hearing on the question whether she was an inadequate parent.

The decision of the Illinois Supreme Court that, in effect, a divorced woman’s ostensible violation of the Illinois fornication statute presumptively harmed the best interests of the children and that this was conclusive for purposes of custody presents a serious question under the Fourteenth Amendment. Giving conclusive effect to such a violation would appear to contravene the teaching of Stanley v. Illinois:

“It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children. . . . Given the opportunity to make his case, Stanley may have been seen to be deserving of custody of his offspring.” Id., at 654-655 (footnotes omitted).

I had supposed that Stanley established the proposition that “the interest of a parent in the companionship, care, custody, and management of his or her children,” id., at 651, cannot be determined by the evidentiary shortcut of a conclusive presumption. Thus, for purposes of this case, Stanley would seem to foreclose custody modification on the basis of a similar conclusive presumption of serious adverse effect on the children’s best interests despite whatever contrary evidence may have been or might be adduced. This is particularly true since there is no rational basis for the conclusive presumption actually utilized, whether Jacqueline is viewed as having violated the fornication statute only or as being a lawbreaker generally.

Nothing in the record or in logic supports a conclusion that divorced parents who fornicate, for that reason alone, are unfit or adversely affect the well-being and development of their children in any degree over and above whatever adverse effect separation and divorce may already have had on the children. Illinois seldom, if ever, enforces its fornication statute and therefore can hardly contend that there is a rational correlation between divorced parents who fornicate and divorced parents who impair the healthy development of their children.

Nor can Jacqueline be presumed to have an adverse effect on her children’s well-being because she is a lawbreaker, for surely such a presumption would be irrationally overbroad. It would make no sense to treat murder, fornication, and traffic violations similarly for purposes of custody modification. If Illinois’ enforcement record is an indication of how important it views violations of various laws, it appears that Illinois attempts to enforce its traffic laws more frequently than its “seldom-enforced fornication statute.” 78 Ill. 2d, at 352, 400 N. E. 2d, at 427 (Moran, J., dissenting). If Jacqueline had violated Illinois’ traffic laws, she might have lost her driver’s license, but surely not custody of her children.

Moreover, not only is there no basis for conclusively presuming that Jacqueline’s cohabitation would adversely affect her children sufficiently to justify modification, but also any such conclusion is unequivocally rejected by the record which affirmatively shows that the “children were healthy, well adjusted, and well cared for.” Id., at 351, 400 N. E. 2d, at 426 (Goldenhersh, C. J., dissenting). There was no evidence of actual harm; nor was there evidence, statistical or otherwise, to suggest that the children’s current exposure to their mother’s cohabitation might result in harm to them that might become manifest only in the future. Surely, in any event, it is no more likely that divorced mothers who fornicate are unfit than are unwed fathers. Thus, this case squarely presents the question whether the Due Process Clause entitles Jacqueline to a meaningful hearing at which the trial judge determines, without use of a conclusive presumption, whether violation of the fornication statute adversely affects the well-being of the children.

Further, we should grant the petition and address the constitutional question it so clearly presents because the answer to that question has important implications for many households. The 1978 Census Bureau Statistics cited by the Illinois Supreme Court reveal that there are 1.1 million households composed of an unmarried man and woman and that upwards of 25% of those households also include at least one child. Id., at 345, 400 N. E. 2d, at 424. While the statistics do not reveal how many of these households were formed after a divorce, and with respect to which the noncustodial divorced parent may be able to seek custody, the crude figures alone suggest that the custodial pattern is a pervasive one.

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

Mr. Justice Blackmun also dissents from the denial of certiorari and would set the case for argument.

       78 Ill. 2d 337, 400 N. E. 2d 421 (1979).

       Section 11-8 of the Criminal Code of 1961 provides that “[a]ny person who cohabits or has sexual intercourse with another not his spouse commits fornication if the behavior is open and notorious.” Ill. Rev. Stat., eh. 38, § 11-8 (1977).

       The best interests of the child may be sufficiently adversely affected to justify custody modification under Illinois law where, inter alia, “the child’s present environment endangers seriously his physical, mental, moral or emotional health. . . .” Ill. Rev. Stat., ch. 40, §610 (b)(3) (1977).

       Illinois did not enforce its fornication statute in this case.


text:
    No. 79-1909.
    California v. Musante.
   Ct. App. Cal., 4th App. Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 79-1964.
    Andrus, Secretary of the Interior v. Baker.
   C. A. 9th Cir. Certiorari denied.

Justice Blackmun,

with whom Justice Marshall and Justice Powell join,

dissenting.

The issue in this case is whether the Secretary of the interior has applied an improper standard for determining that a mineral discovery is “valuable” under 30 U. S. C. § 22. Because I believe that issue to be an important one deserving review here, and because the decision and judgment of the Court of Appeals may well thwart a proper attempt on the part of the Secretary to reject excessive mining claims while preserving the public’s right to enjoy its lands, I dissent from the denial of certiorari.

In 1952, respondent began to mine cinders from a cone located within a volcanic field on public land near Flagstaff, Arizona. In 1965, he applied to the Bureau of Land Management of the Department of the Interior for a patent covering five 20-acre placer mining claims for cinders on land on which he claimed to have discovered “valuable mineral deposits.” Respondent’s claims covered an estimated 15 million tons of cinders. At the request of the Forest Service of the Department of Agriculture, the Bureau issued an administrative contest complaint seeking cancellation of those claims. Over the period from 1953 to 1976, respondent extracted and marketed less than one million tons; of this amount, a substantial portion was sold for purposes not cognizable under the mining laws. The Secretary considered these factors, along with the marginal profitability of the local cinders market, in concluding that respondent’s total reserves far exceeded reasonable market demand for the foreseeable future. While validating two of respondent’s claims, the Interior Board of Land Appeals nullified two others, reasoning that development of all four claims would be imprudent. 23 I. B. L. A. 319 (1976). Respondents sought judicial review in the United States District Court for the District of Arizona. On cross-motions for summary judgment, that court affirmed the agency’s decision. The Court of Appeals, however, vacated and remanded, holding that the Secretary had exceeded his statutory powers in relying on an “excess reserves” analysis to limit the patentability of a mineral claim. 613 F. 2d 224 (CA9 1980).

Two complementary methods for determining whether a mineral deposit is of value have been developed over time. For many years, the “prudent person” test called for validation of mineral claims whenever extraction of the discovered deposits offered a “reasonable prospect of success” to a “person of ordinary prudence.” Castle v. Womble, 19 L. D. 455, 457 (1894). This Court approved that test on numerous occasions, most recently in Andrus v. Charlestone Stone Products Co., 436 U. S. 604 (1978). As a refinement on what at times perhaps appeared to be an imprecise standard, the Secretary came to require an applicant to show that his claimed deposit could be extracted and marketed at a profit. In United States v. Coleman, 390 U. S. 599, 603 (1968), this Court reversed a Court of Appeals’ conclusion to the effect that the marketability standard was “different and more onerous” than the prudent person test. The Court viewed the modification as “an admirable effort to identify with greater precision and objectivity the factors relevant to a determination that a mineral deposit is 'valuable’.” Id., at 602.

I believe that, as in Coleman, the Court of Appeals may have unduly restrained the Secretary’s authority to evaluate claims of mineral discoveries on public lands; its ruling appears to be based on the perception, possibly a misperception, that the Secretary’s “excess reserves” analysis does violence to the statute. In light of that ruling, one now may expect the assertion of additional claims involving “valuable” mineral deposits not marketable in the foreseeable future. This can, and probably will, result in the withdrawal of vast acreage from the public domain for purposes unrelated to mining. Even if Congress later acts to implement the “excess reserves” concept, a prospect at best uncertain, such prospective legislation might not return to the public trust those claims already perfected pursuant to the Court of Appeals’ ruling. See Best v. Humboldt Placer Mining Co., 371 U. S. 334, 335-336 (1963).

The case thus raises a substantial question regarding administration of public lands, and surely is arguably in conflict with the rationale of United States v. Coleman. I therefore would grant certiorari and have the issue resolved only after plenary consideration.

         Section 22 reads:
      “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”

       The Bureau later dismissed its complaint as to one of the claims.


author: Justice White,

text:
    No. 79-1995.
    City of Los Angeles v. Lyons.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice White,

with whom Justice Powell and Justice Rehnquist join,

dissenting.

Respondent in this case seeks injunctive and declaratory relief under 42 U. S. C. § 1983 to restrain an alleged practice of the Los Angeles Police Department. Because I believe that respondent’s standing to seek this relief is open to serious question in the light of O’Shea v. Littleton, 414 U. S. 488 (1974), and Rizzo v. Goode, 423 U. S. 362 (1976), I dissent from the denial of certiorari.

In February 1977, respondent filed a seven-count complaint against the city of Los Angeles and four of its police officers. Respondent alleged that the four officers stopped his car for a minor traffic violation and that, without any provocation or reason to fear for their safety, they applied strangleholds around his neck, rendering him unconscious. He further alleged that the use of strangleholds in such non-life-threatening situations was a policy of the police department. Respondent sought damages, and injunctive and declaratory relief, claiming that the use of strangleholds in non-life-threatening situations violates the First, Fourth, Eighth, and Fourteenth Amendments.

The only issue before this Court is whether in seeking injunctive and declaratory relief respondent has stated a ease or controversy within the jurisdiction of the federal courts. The Court of Appeals, reversing the District Court, held that respondent did have standing. The Court of Appeals distinguished this case from O’Shea v. Littleton, supra, and Rizzo v. Goode, supra, on two grounds: First, there was a greater likelihood in this case that respondent would be subjected at some future date to the alleged illegal conduct; second, respondent did not seek “structural relief” requiring the federal courts to supervise the conduct of state officials, but only an injunction against the use of an established police practice.

O’Shea and Rizzo made clear that the federal courts are not the forum in which dissatisfied citizens may air their disagreements with government policy. The jurisdiction of the federal courts is limited by the case-or-controversy requirement of Art. III. Unless a party demonstrates a “personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), the disagreement may not be settled by the federal courts. For purposes of equitable relief, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy ... if unaccompanied by any continuing, present adverse effects” and if there is no “real and immediate threat of repeated injury” to the plaintiff. O’Shea v. Littleton, supra, at 495-496. Here, the prospect of future injury rests on the likelihood that respondent will again be stopped or arrested and have the allegedly unconstitutional procedures applied to him. In O’Shea, we held that this kind of possibility does not satisfy the case-or-controversy requirement.

There is no question that there is a case or controversy with respect to respondent’s right to damages for an alleged past violation of his constitutional rights. However, with respect to a threat of future injury, respondent’s position cannot be distinguished from that of any other person who may at some future date have a confrontation with the Los Angeles police. This is the kind of injury we have previously characterized as “abstract” and, therefore, insufficient to create the personal stake required by Art. III. 414 U. S., at 494.

We could not conclude that respondent has standing to press his claims for equitable relief without re-examining our holdings in O’Shea and Rizzo on the limits of the case-or-controversy requirement of Art. III. Of course, we cannot give plenary consideration to every misapplication of constitutional requirements, but the decision of the Court of Appeals appears so at odds with our precedents that I dissent from denial of certiorari.

       Tbe Court of Appeals also suggests that since respondent would have had standing to challenge the practice in the short period of time between his being stopped by the police and their use of a stranglehold upon him, the standing problem here can be analyzed in terms of mootness doctrine. The court believed that although respondent no longer has a live controversy, he falls within two exceptions to the mootness doctrine. First, a voluntary cessation of challenged conduct does not moot a claim if there is a strong possibility of its recurrence. Second, respondent’s claim is one that is “capable of repetition, yet evading review.” The first ground, however, merely restates the problem: it is precisely because petitioner does not threaten harm to respondent except in the abstract manner in which everyone in Los Angeles is threatened that respondent’s standing is questionable. The second ground is not applicable because the constitutional issue would be addressed in a damages action brought under § 1983.

       If this controversy constitutes a § 1983 cause of action, the constitutional issue would be fully litigated in the damages suit.


text:
    No. 79-2068.
    Thompson v. Medical Licensing Board of Indiana et al.
   Ct. App. Ind. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 80-147.
    International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 627 v. George E. Hoffman & Sons, Inc.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 80-259.
    Rutherford et al. v. United States et al.
   C. A. 10th Cir. Motion of American Cancer Society, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 80-266.
    Howell v. City of Birmingham.
   Ct. Crim. App. Ala. Certiorari denied.

Justice Brennan, Justice Stewart, and Justice Marshall would grant certiorari and reverse the conviction.


text:
    No. 80-275.
    Davis et al. v. Williams et al.
   C. A. 5th Cir. Certiorari denied.

Justice Stewart would grant certiorari.


text:
    No. 80-290.
    Fiore v. Massachusetts.
   Ct. App. Mass. Certiorari denied.

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


text:
    No. 80-5127.
    Pineiro v. United States.
   C. A. 5th Cir. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 80-5158.
    Alfrey et al. v. United States.
   C. A. 5th Cir. Certiorari denied.

Justice Brennan would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 80-5204.
    No. 80-5215.
    No. 80-5228.
    Hulsey v. Arkansas. Dampier v. Georgia. Mata v. Arizona.
   Sup. Ct. Ark.;

Sup. Ct. Ga.; and

Sup. Ct. Ariz. Certiorari denied. Reported below: No. 80-5204, 268 Ark. 312, 595 S. W. 2d 934; No. 80-5215, 245 Ga. 426, 265 S. E. 2d 565, and 245 Ga. 882, 268 S. E. 2d 349; No. 80-5228, 125 Ariz. 233, 609 P. 2d 48.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 80-5284.
    Sarto v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    October 21, 1980
    No. A-332.
    National Republican Senatorial Committee v. Democratic Senatorial Campaign Committee et al.
   Motion to vacate the temporary stay, heretofore entered by the The Chief Justice on October 17, 1980, denied.


text:
    October 27, 1980
    No. 80-5055.
    Kennedy v. Fairman, Warden.


text:
    November 3, 1980
    No. 79-6743.
    Allison v. Fulton-De Kalb Hospital Authority.
   Appeal from Sup. Ct. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The issue on this appeal is whether the Georgia Supreme Court’s reliance upon a newly announced state procedural rule requiring litigants to raise federal constitutional claims earlier than other claims constituted reliance upon an independent and adequate state ground barring this Court’s jurisdiction.

Appellee Fulton-De Kalb Hospital Authority filed a complaint on February 5, 1975, against appellant Allison for hospital expenses incurred by his 16-year-old daughter when she gave birth to an illegitimate child.. There was no contract between Allison and the hospital. Instead, the suit was brought under a now repealed Georgia paternal child-support statute making it the duty of the father to provide for the “maintenance, protection, and education of his child” until majority. Ga. Code § 74-105 (1978).

Allison’s answer to the complaint denied owing any money; however, his answer failed to raise any constitutional challenge to the statute. In April 1976, the hospital answered interrogatories revealing, inter alia, that Allison was billed because of his status as father of the minor patient. Almost three years later, but still before the start of trial, Orr v. Orr, 440 U. S. 268 (1979), was decided by this Court, and Allison amended his answer to include an equal protection challenge to the statute. His case was tried several days later, and resulted in entry of judgment for the hospital. Observing that the debt was incurred more than four years before Orr was decided, the trial court, without analysis, concluded, inter alia, that the constitutional defense established by Orr should not be given retroactive effect.

On appeal, the Georgia Supreme Court affirmed the judgment, refusing to reach the constitutional question on the ground that it had not been, timely raised. The court noted that under state case law, constitutional challenges must be raised “at the first opportunity,” which the court interpreted as occurring when “the law which is subject to constitutional objection comes to the attention of the challenger’s attorney,” 245 Ga. 445, 446, 265 S. E. 2d 575, 576 (1980). In this case, the court interpreted the rule to require constitutional challenge at least at the time the hospital answered Allison’s interrogatories.

Because I entertain serious doubt whether our decided cases permit the Georgia Supreme Court to avoid decision of Allison’s federal constitutional claim by charging him with the duty to anticipate application of the new procedural rule announced in his case, NAACP v. Alabama, 357 U. S. 449, 457-458 (1958), and because I doubt in any event that the rule serves a legitimate state interest, Henry v. Mississippi, 379 U. S. 443, 447-448 (1965); Ward v. Board of County Comm’rs, 253 U. S. 17, 22-23 (1920), I think that the case presents a substantial federal question: whether the new rule constitutes an independent and adequate state ground precluding our consideration of Allison’s federal constitutional claim.

The Georgia Supreme Court’s interpretation of “at the first opportunity” is not supported by prior precedent in the Georgia case law. But more important, Georgia’s civil practice statute directly conflicts with the Georgia Supreme Court’s interpretation. That statute states that a “party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pre-trial order.” Ga. Code § 81A-115 (a) (1978). Appellant asserts, without contradiction from appellee, that there was no pretrial order entered prior to appellant’s amendment of his answer. Therefore, it would appear that Allison was entitled to amend his pleading (as he did) under § 81A-115 (a) “as a matter of course and without leave of court.” The Georgia Supreme Court, inexplicably, does not refer to this statute. Certainly appellant cannot be charged with anticipating- the Georgia Supreme Court’s interposition of this new procedural rule. This is yet another case, therefore, where novelty in procedural requirements cannot defeat review by this Court when a party justifiably acted in reliance on prior state law. Blair v. Kentucky, No. 79-1795, and Carpenter v. Kentucky, No. 79-1798, post, p. 962 (Brennan, J., joined by Marshall, J., dissenting); NAACP v. Alabama, supra, at 457-458.

In any event, it is highly doubtful that this rule serves a legitimate state interest. The rule discriminates against federal constitutional claims by placing additional burdens on them that are not placed on state-law claims: the federal constitutional challenge can only be considered if raised as soon as the challenging party becomes aware of the allegedly unconstitutional law; the state-law challenge can be considered if it is raised at any time prior to entry of a pretrial order. Such a distinction between federal constitutional and state-law claims belies any genuine state interest in the rule. At least as long as the constitutional claim is made at a time when the court may consider and decide it without disruption of the proceeding, the state interest in judicial efficiency is served. The Georgia Supreme Court asserts that a defendant must not be allowed to delay the raising of “defenses indefinitely in hopes that a decision will be rendered which provides him with an arguable constitutional defense," 245 Ga., at 446-447, 265 S. E. 2d, at 576-577, but surely this rationale is equally applicable to changes in state law. Similarly, the rationale that requiring early presentation of claims might serve state interests in promoting settlement before trial and apprising parties of the opposing side’s case is equally applicable to state-law as well as constitutional claims. In short, the Georgia Supreme Court’s procedural rule effects an unnecessary and irrational discrimination against federal' constitutional claims.

I would therefore at least postpone the question of jurisdiction and set the case for oral argument.

       The new Georgia statute, enacted soon after this Court’s decision in Orr v. Orr, 440 U. S. 268 (1979), states:
      “Until majority, it is the joint and several duty of each parent to provide for the maintenance, protection, and education of the child, except to the extent that the duty of one parent is otherwise or further defined by court order.” Ga. Code Ann. §74-105 (1979).

       The Georgia Supreme Court cited only Brackett v. State, 227 Ga. 493, 181 S. E. 2d 380 (1971), and 5 Encyclopedia of Georgia Law § 182 (1977), to support its holding. But Brackett states without further explanation the general proposition that constitutional claims must be raised “at the first opportunity.” 227 Ga., at 495, 181 S. E. 2d, at 382. The claim in Brackett was not raised before the start of trial, as here, but after the guilty verdict was returned. It was this timing the court considered to be too late. The Encyclopedia states that constitutional claims generally may not be raised after trial, and also comments that, if the constitutional “point is apparent at the outset, it may be raised by demurrer or other pleading.” § 182, p. 530. Certainly appellant might properly believe that amending his answer before trial would suffice under this view of the law.
      Other Georgia eases dealing with the definition of “at the first opportunity” similarly fail to support the Georgia Supreme Court’s interpretation here. See, e. g., Woods v. State, 222 Ga. 321, 322, 149 S. E. 2d 674, 677 (1966); Loomis v. State, 203 Ga. 394, 404-405, 47 S. E. 2d 58, 64 (1948); Boyers v. State, 198 Ga. 838, 841-843, 33 S. E. 2d 251, 254-255 (1945).

       Even if a pretrial order had been entered, the result here would be the same. The statute further states that a “party may [thereafter] amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Ga. Code § 81A-115 (a) (1978). The statute nowhere suggests that constitutional claims will be treated specially. The Georgia Supreme Court’s new rule vitiates the discretion given by the statutory language to the trial judge to grant leave to amend “when justice so requires.”

       The trial court itself thought appellant’s constitutional claim timely, and gave it full consideration.

       Unlike petitioners in Blair and Carpenter, however, since this is a civil case, appellant will have no other federal-court remedy if we refuse to consider his appeal.

       Appellant did move for four continuances before the trial began, but there is no evidence of bad-faith dilatory tactics.

       Appellee does not appear to contest Allison’s claim that the challenged statute is unconstitutional. Indeed, § 1 of the Family and Domestic Relations Law Amended Act (1979) states:
      “It is the intent of this Act to revise and modernize certain laws of this State which relate to intrafamilial duties, rights, and obligations, including laws relating to . . . support of minors ... so as to comply with those standards of equal protection under the law announced in the United States Supreme Court decision in the case of Orr v. Orr." 1979 Ga. Laws 469.
      The remaining question, therefore, is whether Orr should be given retroactive effect in this case. See Chevron Oil Co. v. Huson, 404 U. S. 97, 105-109 (1971).


text:
    No. 80-189.
    Grant-Billingsley Wholesale Liquor Co., Inc. v. Lennen, Secretary of Revenue of Kansas, et al.
   Appeal from Sup. Ct. Kan. dismissed for want of substantial federal question.

Justice White would note probable jurisdiction and set case for oral argument. Justice Brennan took no part in the consideration or decision of this case.


text:
    No. 80-301.
    Wayne Haven Nursing Home et al. v. Finley, State Commissioner of Health, et al.
   Appeal from Sup. Ct. N. J. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-313.
    Sutton v. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts.
   Appeal from App. Div., Sup. Ct. N. Y., 2d Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-5061.
    O’Connor et ux. v. Palludan Corp.
   Appeal from Sup. Ct. Nev. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-5308.
    Becker v. Evans.
   Appeal from C. A. 3d 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. 80-322.
    Korn v. Ohio.
   Appeal from Ct. App. Ohio, Marion County, dismissed for want of substantial federal question.


text:
    No. 80-377.
    Vogel v. Robinson et al.
   Appeal from App. Ct. Ill., 3d Dist., dismissed for want of substantial federal question.


text:
    No. 80-5361.
    Goudie v. Hackman et al.
   Appeal from Sup. Ct. Va. dismissed for want of substantial federal question.


text:
    No. 79-1886.
    California v. Level.
   Ct. App. Cal., 2d App. Dist. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the Court of Appeal to consider whether its judgment is based upon federal or state constitutional grounds, or both. See California v. Krivda, 409 U. S. 33 (1972).


text:
    No. 80-74.
    Tapia-Acuna v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the position presently asserted by the Solicitor General in his brief filed October 3, 1980.

The Chief Justice, Justice White, and Justice Rehnquist dissent and would deny the petition for writ of certiorari.


text:
    No. 80-274.
    California v. Superior Court of California, County of Santa Clara (Engert et al., Real Parties in Interest).
   Ct. App. Cal., 1st App. Dist. Motion of respondents Engert and Gamble for leavé to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the Court of Appeal to consider whether its judgment is based upon federal or state constitutional grounds, or both. See California v. Krivda, 409 U. S. 33 (1972).

Justice Brennan, Justice Stewart, and Justice Stevens dissent.


text:
    No. 80-5132.
    C. P. v. District of Columbia.
   Ct. App. D. C. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Rhode Island v. Innis, 446 U. S. 291 (1980).


text:
    No. A-357.
    No. A-361.
    Marquez et al. v. Carter, President of the United States, et al.; and Puerto Rico v. Muskie, Secretary of State, et al.
   C. A. 1st Cir. The order entered by Justice Brennan on October 24, 1980, is vacated, and the applications for stay are denied.


text:
    No. 79-395.
    United States v. Morrison.
   C. A. 3d Cir. [Certiorari granted, 448 U. S. 906.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 79-678.
    San Diego Gas & Electric Co. v. City of San Diego et al.
   Ct. App. Cal., 4th App. Dist. [Probable jurisdiction postponed, 447 U. S. 919.] Motion of the Solicitor General for divided argument denied. Motion of San Diego Urban League for divided argument denied.


text:
    No. 79-814.
    Delta Air Lines, Inc. v. August.
   C. A. 7th Cir. [Certiorari granted, 446 U. S. 907.] Motion of the Solicitor General for divided argument granted.


text:
    No. 79-824.
    No. 79-825.
    No. 79-826.
    No. 79-827.
    Federal Communications Commission et al. v. WNCN Listeners Guild et al.; Insilco Broadcasting Corp. et al. v. WNCN Listeners Guild et al.; American Broadcasting Cos., Inc., et al. v. WNCN Listeners Guild et al.; and National Association of Broadcasters et al. v. WNCN Listeners Guild et al.
   C. A. D. C. Cir. [Certiorari granted, 445 U. S. 914.] Motion of respondents for divided argument granted.


text:
    No. 79-983.
    No. 79-1689.
    United States v. Will et al. United States v. Will et al.
   D. C. N. D. Ill. [Probable jurisdiction postponed, 444 U. S. 1068]; and

D. C. N. D. Ill. [Probable jurisdiction postponed, 447 U. S. 919.] Motion of Washington State Bar Association for leave to file an untimely brief as amicus curiae denied.


text:
    No. 79-1056.
    Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, et al.
   C. A. D. C. Cir. [Certiorari granted, 447 U. S. 920.] Motion of Trans World Airlines, Inc., for leave to file a brief as amicus curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae denied.

Justice Blackmun took no part in the consideration or decision of these motions.


text:
    No. 79-1176.
    City of Memphis et al. v. Greene et al.
   C. A. 6th Cir. [Certiorari granted, 446 U. S. 934.] Motion of Hein Park Civic Association for leave to file a brief as amicus curiae granted. Motion of respondents for divided argument denied.


text:
    No. 79-1213.
    Minnick et al. v. California Department of Corrections et al.
   Ct. App. Cal., 1st App. Dist. [Certiorari granted, 448 U. S. 910.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae denied.


text:
    No. 79-1236.
    Carson et al. v. American Brands, Inc., t/a American Tobacco Co., et al.
   C. A. 4th Cir. [Certiorari granted, 447 U. S. 920.] Motion of respondent Unions for divided argument granted. Motion of the Solicitor General for divided argument granted.


text:
    No. 79-1260.
    Chandler et al. v. Florida.
   Sup. Ct. Fla. [Probable jurisdiction noted, 446 U. S. 907.] Motion of appellee for divided argument granted.


text:
    No. 79-6624.
    Rosales-Lopez v. United States.
   C. A. 9th Cir. [Certiorari granted, ante, p. 819.] Motion for appointment of counsel granted, and it is ordered that John J. Cleary, Esquire, of San Diego, Cal., be appointed to serve as counsel for petitioner in this case.


text:
    No. 79-1404.
    No. 79-1408.
    No. 79-1414.
    No. 79-1415.
    No. 79-1489.
    Pennhurst State School and Hospital et al. v. Halderman et al.; Mayor of Philadelphia et al. v. Halderman et al.; Pennsylvania Association for Retarded Citizens et al. v. Pennhurst State School and Hospital et al.; Commissioners and Mental Health/Mental Retardation Administrator for Bucks County et al. v. Halderman et al.; and Pennhurst Parents-Staff Assn. v. Halderman et al.
   C. A. 3d Cir. [Certiorari granted, 447 U. S. 904.] Motion of Congress of Advocates for the Retarded, Inc., et al. for leave to file a brief as amici curiae granted. Motion of respondents for divided argument granted. Motion of Illinois et al. for leave to participate in oral argument as amici curiae denied. Motion of petitioners for divided argument granted. Motion of American Psychiatric Association for leave to participate in oral argument as amicus curiae denied.


text:
    No. 79-5962.
    Vincent v. Texas.
   Ct. Crim. App. Tex. [Probable jurisdiction postponed, 445 U. S. 960.] Motion of appellee to dismiss the appeal denied.


text:
    No. 79-6777.
    Steagald v. United States.
   C. A. 5th Cir. [Certiorari granted, ante, p. 819.] Motion for appointment of counsel granted, and it is ordered that John Richard Young, Esquire, of Atlanta, Ga., be appointed to serve as counsel for petitioner in this case.


text:
    No. 79-6779.
    Little v. Streater.
   App. Sess., Super. Ct. Conn., New Haven Jud. Dist. [Probable jurisdiction noted, ante, p. 817.] Motion for appointment of counsel granted, and it is ordered that Jon C. Blue, Esquire, of Hartford, Conn., be appointed to serve as counsel for appellant in this case.


text:
    No. 80-299.
    John Nuveen & Co., Inc., et al. v. Sanders et al.
   C. A. 7th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

Justice Stevens took no part in the consideration or decision of this order.


text:
    No. 80-323.
    Columbia Broadcasting System, Inc. v. American Society of Composers, Authors, and Publishers et al.
   C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

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


text:
    No. 80-461.
    Retail, Wholesale & Department Store Union, AFL-CIO v. G. C. Murphy Co.
   C. A. 3d Cir. Motion of petitioners to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 80-5202.
    In re MaGee.
   Petition for writ of mandamus denied.


text:
    No. 80-5341.
    In re Jackson.
   Petition for writ of mandamus and/or prohibition denied.


text:
    No. 79-1943.
    Alessi et al. v. Raybestos-Manhattan, Inc., et al.
   Appeal from C. A. 3d Cir. Probable jurisdiction noted, case consolidated with No. 80-193 [Buczynski et al. v. General Motors Corp. et al.], infra, and a total of one hour allotted for oral argument.


text:
    No. 79-1144.
    Texas Industries, Inc. v. Radcliff Materials, Inc., et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 80-298.
    Monroe v. Standard Oil Co.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 80-317.
    University of Texas et al. v. Camenisch.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 80-429.
    County of Washington, Oregon, et al. v. Gunther et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 80-54.
    No. 80-5049.
    ITT Gilfillan v. Clayton; and Clayton v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, et al.
   C. A. 9th Cir. Motion of petitioners in No. 80-5049 for leave to proceed in forma pauperis granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 623 F. 2d 563.


text:
    No. 80-193.
    Buczynski et al. v. General Motors Corp. et al.
   C. A. 3d Cir. Certiorari granted, case consolidated with No. 79-1943 [Alessi et al. v. Raybestos-Manhattan, Inc., et al.], supra, and a total of one hour allotted for oral argument.


text:
    No. 80-207.
    No. 80-213.
    No. 80-214.
    CBS, Inc. v. Federal Communications Commission et al.; American Broadcasting Cos., Inc. v. Federal Communications Commission et al.; and National Broadcasting Co., Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 202 U. S. App. D. C. 369, 629 F. 2d 1.


text:
    No. 80-120.
    St. Martin Evangelical Lutheran Church et al. v. South Dakota.
   Sup. Ct. S. D. Motion of Alabama et al. for leave to file a brief as amici curiae granted. Certiorari granted.


text:
    No. 80-332.
    Rhodes, Governor of Ohio, et al. v. Chapman et al.
   C. A. 6th Cir. Motion of respondent Chapman for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 80-5303.
    Beltran v. Myers, Director, California State Department of Health, et al.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted limited to Question 1 presented by the petition.


text:
    No. 79-2051.
    City of Apopka, Florida, et al. v. Dowdell et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-2054.
    Lewis et al. v. McGraw et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 79-2062.
    Choate v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 79-6761.
    Johnson v. Estelle, Corrections Director.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 79-6829.
    Henderson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 79-6834.
    Evans v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 79-6854.
    Keagbine v. Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 79-6870.
    Byrne v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 79-6888.
    Theriault v. Charles Colson Prison Fellowship et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-20.
    Squires v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-57.
    Double “Q”, Inc. v. Andrus, Secretary of the Interior.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-76.
    Valdes v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-135.
    Stevens v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-159.
    Green v. Amerada Hess Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-161.
    Freedlander v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-192.
    Martorano v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-241.
    Kable Printing Co. v. National Labor Relations Board et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-246.
    Community Grain, Inc. v. Cook Industries, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-280.
    Consolidated Oil & Gas, Inc., et al. v. King Resources Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-281.
    OKC Corp. v. Williams et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-284.
    Sequoyah et al. v. Tennessee Valley Authority.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-296.
    Empresas Electronicas Walser, Inc., et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 80-300.
    Vielehr v. California.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 80-306.
    Colebank et ux. v. Commissioner of Internal Revenue.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-307.
    Stephens Institute, dba Academy of Art College v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-314.
    Factors Etc., Inc. v. Memphis Development Foundation.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-316.
    Alexander v. Gino’s Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-319.
    Menchaca et ux. v. Chrysler Credit Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-324.
    Coniglio v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 80-325.
    Radomski, aka Knight v. Knight et al.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 80-326.
    Johnson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-334.
    Silverman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-335.
    Williams v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-339.
    Security Management Co., Inc., et al. v. Rothenberg et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-344.
    Quinault Pacific Corp. et al. v. Aetna Business Credit, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-345.
    Quinault Pacific Corp. et al. v. Aetna Business Credit, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-349.
    National Chamber Alliance for Politics et al. v. Federal Election Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-350.
    Sea-Land Service, Inc., et al. v. Milos.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-353.
    Santora v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-355.
    Reynolds v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-357.
    McMahon et al. v. City of Virginia Beach.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 80-360.
    Midessa Television Co., Inc., et al. v. Midland Telecasting Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-361.
    Malmed et al. v. Thornburgh, Governor of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-363.
    Lewis v. Lewis et al.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 80-364.
    Ateser et ux. v. Public Hospital District Number One, dba Valley General Hospital, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-367.
    Presbyterian Church of Harrisburg v. Liberty Mutual Insurance Co.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 80-370.
    Farkas v. United States et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-373.
    Drizin et al. v. Securities and Exchange Commission.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-385.
    Shaw v. Hospital Authority of Cobb County et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-408.
    Baker et ux. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-413.
    Kansas City Southern Railway Co. v. Great Lakes Carbon Corp.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-414.
    Collins et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-417.
    Anderson v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 80-430.
    Grassi v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-433.
    Cole v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-448.
    Tucker v. Hartford National Bank & Trust Co.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 80-462.
    Trimarche v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-475.
    Springpark Associates v. Crown Life Insurance Co.
   C. A. 9th Cir: Certiorari denied.


text:
    No. 80-479.
    French v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-492.
    Anderson v. Bolger, Postmaster General, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-513.
    Lane v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-527.
    Myers v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-538.
    Ciampaglia v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-539.
    Talbert v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5019.
    Borrelli v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5030.
    Sinclair v. Brown, District Attorney, Parish of East Baton Rouge.
   Sup. Ct. La. Certiorari denied.


text:
    No. 80-5032.
    Thompson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5072.
    Watson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5083.
    Gay v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5089.
    McDonald v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 80-5101.
    Johnson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5106.
    Cross v. Mitchell, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5112.
    Perry v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 80-5115.
    Watts v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-5137.
    Green v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 80-5151.
    Baun v. Civiletti, Attorney General, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-5167.
    Bilbrey v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 80-5170.
    Albright v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 80-5175.
    Bullock v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5184.
    Edwards v. Andrews, Assistant Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5191.
    Harris v. Adams.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5193.
    Wright v. LeFevre, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5209.
    Bryant v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 80-5217.
    Brown v. Jernigan, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5222.
    Holt v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5229.
    McKinney v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 80-5238.
    Burleson v. Turner et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5240.
    Riddle v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5242.
    Spradley v. Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5243.
    Harnest v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-5246.
    Brackett v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 80-5254.
    Kinnell v. Atkins et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5255.
    Kinnell v. Meara, Burbon County Attorney, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5256.
    Sanders et al. v. Hankins.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 80-5265.
    Baggett v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5273.
    Ghione v. United States Postal Service et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5274.
    Twyman v. Hess, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5276.
    Landi v. California.
   Super. Ct. Cal., County of Solano. Certiorari denied.


text:
    No. 80-5278.
    Martinez v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 80-5280.
    Chicco v. Jones et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-5285.
    Ingram v. Pruitt et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5287.
    Green v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 80-5288.
    Phillips v. Nigh, Governor of Oklahoma, et al.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 80-5291.
    Smith v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-5296.
    Tyson v. United States Postal Service et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5298.
    Gerhardt et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5300.
    Leonard v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 80-5309.
    Dickinson v. Seigler et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5315.
    Maggard v. Florida Parole Commission.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5319.
    Johnson v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-5322.
    Camp v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 80-5323.
    Floyd v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 80-5330.
    Harris v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5336.
    Moser v. Wilson et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5343.
    Dowling v. Government of the Virgin Islands et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5358.
    Dantzler v. Department of Health and Rehabilitative Services of Florida ex rel. Morris.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 80-5363.
    Busic et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5368.
    No. 80-5393.
    Salinas v. United States; and Maldonado v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 618 F. 2d 1092.


text:
    No. 80-5370.
    Young v. Duckworth, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5373.
    Cochran v. Manos.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5376.
    McClure v. National Labor Relations Board.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5397.
    McDonald v. Smith, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5404.
    Pana v. Cuyler et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-5419.
    Harris v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-5421.
    Stephens v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-5431.
    Moore v. Moore.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5434.
    Robertson v. Warden, Maryland Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5437.
    Armstrong v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5453.
    Tecumseh v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-5469.
    Wright v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5483.
    Eubanks v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5486.
    Paul v. United States Bureau of Prisons.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-5489.
    Clayton v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-1795.
    No. 79-1798.
    Blair v. Kentucky; and Carpenter et al. v. Kentucky.
   Sup. Ct. Ky. Certiorari denied. Reported below: 592 S. W. 2d 132.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

These petitions present the question whether the decision of the Supreme Court of Kentucky rests upon an independent and adequate state procedural ground that bars this Court’s review of petitioners’ constitutional claim, inter alia, that their convictions were based on a record lacking sufficient evidence. Because the question of when and how failure to comply with state procedural rules precludes our consideration of a federal constitutional claim is itself a federal question, Henry v. Mississippi, 379 U. S. 443, 447-448 (1965), and because I have serious doubts whether the Kentucky Supreme Court could properly insist on compliance with the procedural rule it invoked, I dissent from the denial of certiorari.

Petitioners Carpenter, Borders, and Blair were convicted in a Kentucky trial court of wanton endangerment in the first degree and criminal mischief in the third degree. The charges stemmed from the allegation that they fired a shotgun at businesses and automobiles injuring one person and damaging property. All three petitioners moved for directed verdict of acquittal at the close of the Commonwealth’s case, and also moved for new trial after the jury verdict. Both motions were grounded on claims that the evidence was insufficient to sustain guilty verdicts. However, no petitioner moved for a directed verdict on that ground at the close of all the evidence.

The Kentucky intermediate appellate court entertained petitioners' appeals from their convictions, and set them aside after finding that the evidence was insufficient to sustain the convictions. The Supreme Court of Kentucky affirmed as to Carpenter and Borders, but reversed as to Blair. The court rejected the Commonwealth’s argument that under state procedural law, Kimbrough v. Commonwealth, 550 S. W. 2d 525, 529 (Ky. 1977), petitioners Carpenter and Borders’ failure at the close of all the evidence to move for a directed verdict for insufficiency of the evidence forfeited their right of review on that ground. Citing Vachon v. New Hampshire, 414 U. S. 478, 480 (1974), the Kentucky Supreme Court not only held that “the evidence was insufficient” but also concluded that “the record before us contains no relevant evidence linking Carpenter and Borders to the charged offenses.” (Emphasis added.) Blair’s case differed, the court held, because there was “relevant evidence” as to him. See Thompson v. Louisville, 362 U. S. 199, 206 (1960). The court therefore applied the Kimbrough rule and held that Blair had waived his right to raise the insufficiency-of-the-evidence issue on appeal.

The Commonwealth filed a petition for rehearing. This time, the Kentucky Supreme Court reversed itself and reinstated the convictions of Carpenter and Borders. The court held that, “as clarified in Kimbrough, ... in order for the issue of the sufficiency of the evidence to be preserved for appellate review, the party wishing to use the insufficiency as a basis for his appeal must have moved for a directed verdict at the close of all the evidence, not just at the close of the Commonwealth’s case in chief.” 592 S. W. 2d 132, 133 (1979).

But Kimbrough was decided eight months after petitioners’ trial and announced new Kentucky law. Prevailing Kentucky law at the time of the trial embodied the procedural rule that the issue of insufficiency of the evidence was preserved for appellate review when the motion for a directed verdict was made either at the close of the Commonwealth’s case or at the close of all the evidence. Crain v. Commonwealth, 484 S. W. 2d 839, 842 (1972). Plainly petitioners could not fairly be charged with anticipating the new rule first announced eight months after their trial. This is thus clearly' a case where “[n]ovelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.” NAACP v. Alabama, 357 U. S. 449, 457-458 (1958). See Henry v. Mississippi, 379 U. S., at 448, n. 3.

These cases are particularly compelling given the two explicit findings by the Supreme Court and Court of Appeals of Kentucky to the effect that the evidence was not only insufficient but also irrelevant to support the guilty verdicts of Carpenter and Borders. Although petitioners may now obtain federal habeas corpus relief, it is wasteful of sparse judicial resources to require resort to that remedy since the issues presented are only questions of law and no hearing is required to develop a record upon which to decide the cases.

Because I am unable to reconcile the Kentucky Supreme Court’s procedural holding in the present cases with its unambiguous procedural rule applicable at the time of petitioners’ trial, I would grant the petitions for certiorari.

       The Court of Appeals initially remanded for a new trial but six months later withdrew that original opinion and substituted a new one reversing the convictions outright.

       The Commonwealth’s argument that Kentucky Criminal Rule 9.54 (2), applicable at the time of petitioners’ trial, effectively embodied the Kimbrough rule, is unavailing. The Kentucky Supreme Court relied solely on Kimbrough and later cases in reversing itself and did not so much as mention Rule 9.54 (2). In any event, the Rule, which deals with motions for jury instructions “fairly and adequately presented,” on its face does not support the Kimbrough rule, and interpretative case law is similarly unsupportive.

       Every other case cited by the Kentucky Supreme Court in support of the Kimbrough procedural rule was decided after Kimbrough. The Commonwealth’s brief cites two cases, Delong v. Commonwealth, 225 Ky. 461, 9 S. W. 2d 136, 137 (1928), and Harvey v. Commonwealth, 423 S. W. 2d 535, 537 (Ky. 1967), both decided before petitioners’ trial, for the view that Kimbrough merely reiterated prior state law. If anything, however, these two cases lend support for the opposite proposition that, prior to Kimbrough, the court would review a claim that the trial court erred in denying a motion for a directed verdict made at the close of the prosecutor’s case. In Delong, the defendants claimed that the trial court’s failure to direct a verdict on their motion at the close of the Commonwealth’s case was reversible error. The appellate court noted that, instead of resting their case after their motion, defendants proceeded to “take the stand and . . . furnis[h] enough evidence themselves to sustain the conviction.” 225 Ky., at 463, 9 S. W. 2d, at 137. The court therefore declined to reverse the trial court, not because defendants failed to renew their motions for directed verdicts, but precisely because the court, after reviewing the full evidentiary record, found sufficient evidence to support their convictions.
      In Harvey, the court similarly concluded after a review of all the evidence that “any deficiency which may have existed in the Commonwealth’s evidence” was rectified after defendant presented his evidence. 423 S. W. 2d, at 537. For this reason, the court found no reversible error in the trial court’s failure to direct the verdict at the conclusion of the Commonwealth’s evidence. This appellate posture also has been regularly followed by the Kentucky courts in the civil context in reviewing a motion for a directed verdict at the close of the plaintiff’s case. E. g., Lyon v. Prater, 351 S. W. 2d 173, 175 (Ky. 1961).

       Because the convictions of Carpenter and Borders were struck down under the “no evidence” test, Thompson v. Louisville, 362 U. S. 199, 206 (1960), it follows a fortiori that the convictions were faulty under the now controlling insufficiency-of-the-evidence constitutional standard, Jackson v. Virginia, 443 U. S. 307, 318-319 (1979). Moreover, although the Supreme Court found “relevant evidence” linking Blair to the crime, this would not end the inquiry as to him under the Jackson test.

       This is certainly true at least as to Carpenter and Borders.


text:
    No. 80-64.
    Egbert v. Kansas.
   Sup. Ct. Kan. Certiorari denied.

Justice Brennan and Justice White would grant certiorari.


text:
    No. 80-100.
    Lorain Journal Co. et al. v. Milkovich.
   Ct. App. Ohio, Lake County. Motions of Beacon Journal Publishing Co. et al. and Ohio Newspapers Association for leave to file briefs as amici curiae granted. Certiorari denied.

Justice Stewart would deny this petition for want of a final judgment.

Justice Brennan,

dissenting.

This petition for certiorari raises an important question concerning limitations on the authority of trial courts to grant dismissals, summary judgments, or judgments notwithstanding the verdict in favor of media defendants in libel actions, based on the qualified privilege outlined in New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

On January 8, 1975, the News-Herald of Willoughby, Ohio, published a column by sportswriter Ted Diadiun criticizing respondent Michael Milkovich, a wrestling coach at Maple Heights High School, who is treated as a “public figure” for purposes of this case. Headlined “Maple beat the law with the ‘big lie/ the column accused Milkovich of lying about a fracas that occurred during one of his team’s wrestling matches.

On February 9, 1974, the Maple High wrestling team, coached by Milkovich, faced a team from Mentor High School. A brawl involving both wrestlers and spectators erupted after a controversial ruling by a referee. Several wrestlers were injured. The Ohio High School Athletic Association (OHSAA) subsequently conducted a hearing into the occurrence, censured Milkovich for his conduct at the match, placed his team on probation for the school year, and declared the team ineligible to compete in the state wrestling tournament. Diadiun attended and reported on both the match and the hearing, at which Milkovich had defended his behavior. Thereafter, a group of parents and high school wrestlers filed suit in Franklin County Common Pleas Court, claiming that the OHSAA had denied the team due process. Milkovich, not a party to that lawsuit, appeared as a witness for the plaintiffs. On January 7, 1975, the court held that due process had been denied, and enjoined the team’s suspension. Barrett v. Ohio High School Athletic Assn., No. 74CV-09-3390.

Diadiun did not attend the court hearing, review the transcript, or read the court’s opinion, but he wrote a column about the decision based on his own recollection of the wrestling match and ensuing OHSAA hearing and on a description of the court proceeding given him by an OHSAA Commissioner. In the column, Diadiun stated that Milkovich and others had “misrepresented” the occurrences at the OHSAA hearing, and that Milkovich’s testimony “had enough contradictions and obvious untruths so that the six board members were able to see through it.” Diadiun went on to say, however, that at the later court hearing Milkovich and a fellow witness “apparently had their version of the incident polished and reconstructed, and the judge apparently believed them.” Diadiun concluded that anyone who had attended the match “knows in his heart that Milkovich . . . lied at the hearing after. . . having given his solemn oath to tell the truth. But [he] got away with it.”

Milkovich filed a libel action in state court against petitioners Diadiun, the News-Herald, and the latter’s parent corporation. Petitioners moved for summary- judgment. The court held that Milkovich is a public figure for purposes of the New York Times test, but denied summary judgment. The action was then tried to a jury. After five days of trial, at the close of Milkovich’s evidence, petitioners moved for a directed verdict. They argued that Milkovich had failed to proffer sufficient evidence from which the jury could conclude that Diadiun’s column had been published with actual malice under the New York Times test. The court granted the motion for directed verdict, stating that the evidence, considered most strongly in favor of Milkovich, “fails to establish by clear and convincing proof that the article . . . was published with knowledge of its falsity or in reckless disregard of the truth.”

Milkovich appealed to the State Court of Appeals, which reversed and remanded for trial. The court stated that Diadiun’s column conflicted with the factual determination reached in the earlier Common Pleas Court injunctive action, and held that this conflict alone constituted sufficient evidence of actual malice to withstand petitioner’s motion for directed verdict. Petitioners appealed to the Ohio Supreme Court, and also sought review in the nature of certiorari. The Ohio Supreme Court dismissed the appeal as raising “no substantial constitutional question” and otherwise denied review. The court also denied petitioners’ motion for rehearing.

The import of the Ohio appellate court’s holding is plainly that, even in the absence of proof of knowing falsehood or reckless disregard for the truth, a newspaper forfeits its right to a directed verdict, summary judgment, or judgment notwithstanding the verdict on the issue of actual malice if it has published a statement that conflicts, however tangentially, with a decision by a court. This holding is clearly contrary to the First Amendment and to the relevant precedents of this Court. I had supposed it was settled that newspapers are privileged to publish their views of the facts, so long as those views are not recklessly or knowingly false. It matters not that such views may conflict with those of a court, for the press is free to differ with judicial determinations. In the libel area, neither a court nor any other institution is the “recognized arbiter of the truth,” as the court below asserted. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 339-340 (1974).

One part of the “strategic protection” that decisions of this Court have extended to the press in the libel area is the insistence that a public figure can prevail “only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.” Gertz v. Robert Welch, Inc., supra, at 342; New York Times Co. v. Sullivan, 376 U. S., at 285-286. The court in a libel action has a responsibility to ensure that sufficient evidence of actual malice has been introduced to permit a jury finding under this exacting standard. This protection must not be withdrawn merely because the press account may have differed with the conclusions of a court, lest the “uninhibited, robust, and wide-open,” New York Times v. Sullivan, supra, at 270, discussion of judicial proceedings be deterred. See Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980).

The consequence of the erroneous ruling in this case is particularly apparent on the facts: petitioners were denied a directed verdict on the strength of a prior court opinion that did not even discuss, let alone decide, what had happened at the disrupted wrestling match or whether Milkovich had testified truthfully. The court had merely ruled that the Maple High School wrestling team was denied certain procedural safeguards required under due process. Thus, it is abundantly apparent that the state court’s conclusion that Diadiun wrote this column “knowing that it conflicts with a judicial determination of the truth” is unpersuasive even on its own terms.

Because in my view the decision of the Ohio appellate court in this case seriously contravenes the principles of the First Amendment as interpreted by this Court, and threatens to chill the freedom of newspapers in Ohio to publish their view of the facts where they differ with the view of the courts, I dissent and would grant certiorari to review this important question of constitutional law.

       Although the decision below concerned directed verdicts, its holding would affect the courts’ treatment of summary judgments and judgments notwithstanding the verdict as well. In each of these situations, the court is called upon to answer the same question: whether there is sufficient evidence for the jury to find actual malice under the applicable “clear and convincing evidence” burden of proof.

       The court ruled that the wrestling team was denied its right to cross-examine witnesses and to call witnesses on its behalf. The court did not make any factual findings concerning the underlying occurrences, nor did it comment on those occurrences.

       The ruling that Milkovich is a public figure is unchallenged.

         The court stated:
      “In the instant case, a court of law, based on the evidence before it, and having the right to determine where the truth lay, even though on a due process question, determined the truth in favor of the plaintiff and the wrestling team he coached. Thus, he had his day in court and was, at that time at least, exonerated by the only recognized arbiter of the truth in our American judicial system, but thereafter was still called a liar for the testimony he allegedly gave during that trial. ... It would appear that, though the press might be at liberty to criticize the judicial process .and the results of a given case, unless and until the judgment of the court is overturned on appeal, the determination of what constitutes the truth has been made. Thus, any news article written either as fact as a news item, or as opinion, that is published knowing that it conflicts with a judicial determination of the truth, may, in our opinion, be regarded as a reckless disregard of the truth so as to constitute ‘actual malice’ so as to be actionable libel of a public person. Whether, in a given case, it constitutes a reckless disregard of the truth, is not, in our opinion, a question of law, but a question of fact based on the evidence before the court.” 65 Ohio App. 2d 143, 146, 416 N. E. 2d 662, 666 (1979).

       Although the appellate court below remanded the case for retrial, including a jury determination on the actual-malice issue, the decision was nonetheless a final judgment for purposes of 28 U. S. C. § 1257. A decision in favor of petitioners would terminate the litigation, while a failure to decide the question now would leave the press in Ohio “operating in the shadow of ... a rule of law . . . the constitutionality of which is in serious doubt.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 486 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 246-247 (1974).

       Indeed, at common law, a factual finding embodied in the judgment in another cause could not even be used as evidence of that fact in court. 5 J. Wigmore, Evidence § 1671a, pp. 806-807 (Chadbourn rev. 1974).