author: Justice White

text:
    DENNIS v. SPARKS et al., dba SIDNEY A. SPARKS, TRUSTEE
    No. 79-1186.
    Argued October 8, 1980
    Decided November 17, 1980

      White, J., delivered the opinion for a unanimous Court.

      Finley L. Edmonds argued the cause and filed a brief for petitioner.

      Garland F. Smith argued the cause and filed a brief for respondents

      Briefs of amid curiae urging reversal were filed by Jim Smith, Attorney General, and Gerald B. Curington, Assistant Attorney General, for the State of Florida; and by Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Ted L. Hartley, Executive Assistant Attorney General, and Laura S. Martin and Lonny F. Zwiener, Assistant Attorneys General, for the State of Texas.

        Suzanne M. Lynn filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.

   Justice White

delivered the opinion of the Court.

In January 1973, a judge of the 229th District Court of Duval County, Tex., enjoined the production of minerals from certain oil leases owned by respondents. In June 1975, the injunction was dissolved by an appellate court as having been illegally issued. Respondents then filed a complaint in the United States District Court purporting to state a cause of action for damages under 42 U. S. C. § 1983. Defendants were the Duval County Ranch Co., Inc., which had obtained the injunction, the sole owner of the corporation, the judge who entered the injunction, and the two individual sureties on the injunction bond, one of whom is now petitioner in this Court. Essentially, the claim was that the injunction had been corruptly issued as the result of a conspiracy between the judge and the other defendants, thus causing a deprivation of property, i. e., two years of oil production, without due process of law.

All defendants moved to dismiss, the judge asserting judicial immunity and the other defendants urging dismissal for failure to allege action “under color” of state law, a necessary component of a § 1983 cause of action. The District Court concluded that because the injunction was a judicial act within the jurisdiction of the state court, the judge was immune from liability in a § 1983 suit, whether or not the injunction had issued as the result of a corrupt conspiracy. Relying on Haldane v. Chagnon, 345 F. 2d 601 (CA9 1965), the District Court also ruled that with the dismissal of the judge the remaining defendants could not be said to have conspired under color of state law within the meaning of § 1983. The action against them was accordingly dismissed “for failure to state a claim upon which relief can be granted.”

In a per curiam opinion, a panel of the Court of Appeals for the Fifth Circuit affirmed, agreeing that the judge was immune from suit and that because “the remaining defendants, who are all private citizens, did not conspire with any person against whom a valid § 1983 suit can be stated,” Sparks v. Duval County Ranch Co., 588 F. 2d 124, 126 (1979), existing authorities in the Circuit required dismissal of the claims against these defendants as well. The case was reconsidered en banc, prior Circuit authority was overruled and the District Court judgment was reversed insofar as it had dismissed claims against the defendants other than the judge. Sparks v. Duval County Ranch Co., 604 F. 2d 976 (1979). The court ruled that there was no good reason in law, logic, or policy for conferring immunity on private persons who persuaded the immune judge to exercise his jurisdiction corruptly. Because the judgment below was inconsistent with the rulings of other Courts of Appeals and involves an important issue, we granted the petition for certiorari. 445 U. S. 942. We now affirm.

Based on the doctrine expressed in Bradley v. Fisher, 13 Wall. 335 (1872), this Court has consistently adhered to the rule that “judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities. Pierson v. Ray, 386 U. S. 547 (1967); Stump v. Sparkman, 435 U. S. 349 (1978).” Supreme Court of Virginia v. Consumers Union, 446 U. S. 719, 734-735 (1980). The courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on immunity grounds. It does not follow, however, that the action against the private parties accused of conspiring with the judge must also be dismissed.

As the Court of Appeals correctly understood our cases to hold, to act “under color of” state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting “under color” of law for purposes of § 1983 actions. Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970); United States v. Price, 383 U. S. 787, 794 (1966). Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge. But here the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the, judge’s action or that of his co-conspirators. Indeed, his immunity is dependent on the challenged conduct being an official judicial act within his statutory jurisdiction, broadly construed. Stump v. Sparkman, 435 U. S. 349, 356 (1978); Bradley v. Fisher, supra, at 352, 357. Private parties who corruptly conspire with a judge in connection with such conduct are thus acting under color of state law within the meaning of § 1983 as it has been construed in our prior cases. The complaint in this case was not defective for failure to allege that the private defendants were acting under color of state law, and the Court of Appeals was correct in rejecting its prior case authority to the contrary.

Petitioner nevertheless insists that unless he is held to have an immunity derived from that of the judge, the latter’s official immunity will be seriously eroded. We are unpersuaded. The immunities of state officials that we have recognized for purposes of § 1983 are the equivalents of those that were recognized at common law, Owen v. City of Independence, 445 U. S. 622, 637-638 (1980); Imbler v. Pachtman, 424 U. S. 409, 417 (1976); Pierson v. Ray, 386 U. S. 547, 554 (1967), and the burden is on the official claiming immunity to demonstrate his entitlement. Cf. Buts v. Economou, 438 U. S. 478, 506 (1978). Thus, in Owen v. City of Independence, supra, a municipality’s claim that it could assert the immunity of its officers and agents in a § 1983 damages action was rejected since there was no basis for such a right at common law. Here, petitioner has pointed to nothing indicating that, historically, judicial immunity insulated from damages liability those private persons who corruptly conspire with the judge.

In Gravel v. United States, 408 U. S. 606 (1972), we recognized that the Speech or Debate Clause conferred immunity upon a Senator’s aide as well as the Senator, but only in those situations where the conduct of the aide would be a protected legislative act if performed by the Senator himself. Id., at 618. Here, there could be no claim that petitioner or any of the other private parties was actually performing a judicial act or was in any sense an official aide of the judge. Not surprisingly, petitioner does not argue that judges must conspire with private parties in order that judicial duties may be properly accomplished.

It is urged that if petitioner and other private co-conspirators of the judge are to be subject to § 1983 damages actions and if a case such as this is to go to trial, the charge of conspiracy and judicial corruption will necessarily be aired and decided, the consequence being that the judge, though not a party and immune from liability, will be heavily involved, very likely as a witness forced to testify about and defend his judicial conduct. It is true that, based on the Speech or Debate Clause, we have held that Members of Congress need not respond to questions about their legislative acts, Gravel v. United States, supra, at 616-617; and, in general, the scope of state legislative immunity for purposes of § 1983 has been patterned after immunity under the Speech or Debate Clause. Supreme Court of Virginia v. Consumers Union, 446 U. S., at 732-734. But there is no similar constitutionally based privilege immunizing judges from being required to testify about their judicial conduct in third-party litigation. Nor has any demonstration been made that historically the doctrine of judicial immunity not only protected the judge from liability but also excused him from responding as a witness when his co-conspirators are sued. Even if the judge were excused from testifying, it would not follow that actions against private parties must be dismissed.

Of course, testifying takes time and energy that otherwise might be devoted to judicial duties; and, if cases such as this survive initial challenge and go to trial, the judge’s integrity and that of the judicial process may be at stake in such cases. But judicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from § 1983 damages actions, but they are subject to criminal prosecutions as are other citizens. O’Shea v. Littleton, 414 U. S. 488, 503 (1974). Neither are we aware of any rule generally exempting a judge from the normal obligation to respond as a witness when he has information material to a criminal or civil proceeding. Cf. United States v. Nixon, 418 U. S. 683, 705-707 (1974).

Judicial immunity arose because it was in the public interest to have judges who were at liberty to exercise their independent judgment about the merits of a case without fear of being mulcted for damages should an unsatisfied litigant be able to convince another tribunal that the judge acted not only mistakenly but with malice and corruption. Pierson v. Ray, supra, at 554; Bradley v. Fisher, 13 Wall., at 349, 350, n. ‡. In terms of undermining a judge’s independence and his judicial performance, the concern that his conduct will be examined in a collateral proceeding against those with whom he allegedly conspired, a proceeding in which he cannot be held liable for damages and which he need not defend, is not of the same order of magnitude as the prospects of being a defendant in a damages action from complaint to verdict with the attendant possibility of being held liable for damages if the factfinder mistakenly upholds the charge of malice or of a corrupt conspiracy with others. These concerns are not insubstantial, either for the judge or for the public, but we agree with the Court of Appeals that the potential harm to the public from denying immunity to private co-conspirators is outweighed by the benefits of providing a remedy against those private persons who participate in subverting the judicial process and in so doing inflict injury on other persons.

The judgment of the Court of Appeals is

Affirmed.

       Title 42 U. S. C. § 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

        Slavin v. Curry, 574 F. 2d 1256 (1978); Perez v. Borchers, 567 F. 2d 285 (1978); Humble v. Foreman, 563 F. 2d 780 (1977); Hill v. McClellan, 490 F. 2d 859 (1974); Guedry v. Ford, 431 F. 2d 660 (1970).

        Kurz v. Michigan, 548 F. 2d 172 (CA6 1977); Hozo v. Geltz, 537 F. 2d 747 (CA3 1976); Hansen v. Ahlgrimm, 520 F. 2d 768 (CA7 1975); Sykes v. California, 497 F. 2d 197 (CA9 1974). See also Haldane v. Chagnon, 345 F. 2d 601, 604-605 (CA9 1965); but see Briley v. California, 564 F. 2d 849, 858, n. 10 (CA9 1977). The Court of Appeals for the First Circuit has for some time held the present views of the Fifth Circuit. Slotnick v. Staviskey, 560 F. 2d 31 (1977); Kermit Construction Cory. v. Banco Credito y Ahorro Ponceno, 547 F. 2d 1 (1976). The Court of Appeals for the Eighth Circuit has recently agreed. White v. Bloom, 621 F. 2d 276 (1980).

       In this respect, our holding in Adickes v. S. H. Kress & Co. was as follows:
      “The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U. S. 167 (1961); see United States v. Classic, 313 U. S. 299, 326 (1941); Screws v. United States, 325 U. S. 91, 107-111 (1945); Williams v. United States, 341 U. S. 97, 99-100 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. ‘Private persons, jointly engaged with state officials in the prohibited action, are acting “under color” of law for purposes of the statute. To act “under color” of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,’ United States v. Price, 383 U. S. 787, 794 (1966).” 398 U. S., at 152. (Footnote omitted.)

       Title 18 U. S. C. § 242, the criminal analog of § 1983, also contains a color-of-state-law requirement ^nd we have interpreted the color-of-state-law requirement in these sections coextensively. Adickes v. S. H. Kress & Co., supra, at 152, n. 7. A state judge can be found criminally liable under § 242 although that judge may be immune from damages under § 1983. See Imbler v. Pachtman, 424 U. S. 409, 429 (1976); O’Shea v. Littleton, 414 U. S. 488, 503 (1974). In either case, the judge has acted under color of state law.

       Insofar as the immunity issue is concerned, it is interesting to note that petitioner observes that he would not be immune in the Texas courts, even if the judge is. Brief for Petitioner 28.

       Whether the federal courts should be especially alert to avoid undue interference with the state judicial system flowing from demands upon state judges to appear as witnesses need not be addressed at this time.


source: Caselaw Access Project

author: Per Curiam. Justice Blackmun,

license: Public Domain

text:
    ALLIED CHEMICAL CORP. et al. v. DAIFLON, INC.
    No. 79-1895.
    Decided November 17, 1980
   Per Curiam.

Respondent, Daiflon, Inc., is a small importer of refrigerant gas that brought an antitrust suit against all domestic manufacturers of the gas. Petitioner E. I. du Pont de Nemours & Co. was accused of monopolizing the industry in violation of § 2 of the Sherman Act, 15 U. S. C. § 2. All petitioners were accused of conspiring to drive respondent out of business in violation of § 1 of the Sherman Act, 15 U. S. C. § 1.

After a 4-week trial, the jury returned a verdict for the respondent and awarded $2.5 million in damages. In a subsequent oral order, the trial court denied petitioners’ motion for a judgment notwithstanding the verdict, but granted a motion for new trial. The trial court acknowledged in its oral order that it had erred during trial in certain of its evi-dentiary rulings and that the evidence did not support the amount of the jury award.

Respondent then filed a petition for a writ of mandamus with the Court of Appeals for the Tenth Circuit requesting that it instruct the trial court to reinstate the jury verdict. The Court of Appeals, without a transcript of the trial proceedings before it, issued a writ of mandamus directing the trial court to restore the jury verdict as to liability but permitting the trial court to proceed with a new trial on damages. Daiflon, Inc. v. Bohanon, 612 F. 2d 1249. Petitioners seek review of this action of the Court of Appeals by their petition for certiorari with this Court.

An order granting a new trial is interlocutory in nature and therefore not immediately appealable. The question presented by this petition is therefore whether a litigant may obtain a review of an order concededly not appealable by way of mandamus. If such review were permissible, then the additional question would be presented as to whether the facts in this particular case warrant the issuance of the writ.

It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Will v. United States, 389 U. S. 90, 95 (1967); Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382-385 (1953); Ex parte Fahey, 332 U. S. 258, 259 (1947). On direct appeal from a final decision, a court of appeals has broad authority to “modify, vacate, set aside or reverse” an order of a district court, and it may direct such further action on remand “as may be just under the circumstances.” 28 U. S. C. § 2106. By contrast, under the All Writs Act, 28 U. S. C. § 1651 (a), courts of appeals may issue a writ of mandamus only when “necessary or appropriate in aid of their respective jurisdictions.” Although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances “would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.” Will v. United States, supra, at 98, n. 6.

This Court has recognized that the writ of mandamus “has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” Will v. United States, supra, at 95, quoting Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy. Will v. United States, supra, at 95.

The reasons for this Court’s chary authorization of mandamus as an extraordinary remedy have often been explained. See Kerr v. United States District Court, 426 U. S. 394, 402-403 (1976). Its use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would “run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.” Id., at 403. In order to insure that the writ will issue only in extraordinary circumstances, this Court has required that a party seeking issuance have no other adequate means to attain the relief he desires, ibid.; Roche v. Evaporated Milk Assn., supra, at 26, and that he satisfy the “burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Cas. Co. v. Holland, supra, at 384, quoting United States v. Duell, 172 U. S. 576, 582 (1899). In short, our cases have answered the question as to the availability of mandamus in situations such as this with the refrain: “What never? Well, hardly ever!”

A trial court’s ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is free to seek review of the propriety of such an order on direct appeal after a final judgment has been entered. Consequently, it cannot be said that the litigant “has no other adequate means to seek the relief he desires.” The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court. Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is “clear and indisputable.” Will v. Calvert Fire Ins. Co., 437 U. S. 655, 666 (1978) (plurality opinion).

To overturn an order granting a new trial by way of mandamus indisputably undermines the policy against piecemeal appellate review. Under the rationale employed by the Court of Appeals, any discretionary order, regardless of its interlocutory nature, may be subject to immediate judicial review. Such a rationale obviously encroaches on the conflicting policy against piecemeal review, and would leave that policy at the mercy of any court of appeals which chose to disregard it.

The petition for a writ of certiorari is therefore granted, and the order of the Court of Appeals granting the writ of mandamus is

Reversed.

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

Justice Blackmun,

with whom Justice White joins,

dissenting.

I have no quarrel with the general principles enunciated by the Court in its per curiam opinion. Of course, only exceptional circumstances justify the extraordinary remedy of mandamus. I sense, however, from the rather voluminous material that is before us (as contrasted with the average petition for certiorari), and from the Court of Appeals’ careful review of the law and the decided cases concerning the use of the mandamus power, that this is an unusual case and that there well may be more here than appears at first glance. I therefore would not decide, peremptorily and summarily, what circumstances, if any, justify a federal appellate court’s issuance of a writ of mandamus to overturn a trial court’s order granting a new trial. Instead, I would grant the petition for certiorari and give the case plenary consideration so that we may examine carefully the factors and considerations that prompted the Court of Appeals to issue the writ. I feel that the case deserves at least that much.

       The Court of Appeals did request that each party prepare a summary of the evidence presented in the trial court. The petitioners objected to this procedure which substituted a summary prepared by each party in lieu of the trial transcript. The court acknowledged in its opinion that the summary eventually filed by the petitioners only summarized the testimony of one witness and that the court was unaware of the identity of, or the testimony given by, the petitioners’ other witness.

       It is worth noting that this case does not present the first instance in which the Court of Appeals felt it appropriate to overturn a new-trial order by the use of a common-law writ. In Kanatser v. Chrysler Corp., 199 F. 2d 610 (CA10 1952), the court reached the same result by granting a writ of certiorari.

       Even if it be appropriate in certain circumstances to use mandamus to review a discretionary order by a trial court, the new-trial order entered in this case would not appear to be a likely candidate. A trial judge is not required to enter supporting findings of facts and conclusions of law when granting a new-trial motion. See Fed. Rule Civ. Proc. 52 (a). It cannot be contended with any certainty that the trial court in this case, when entering its oral order granting a new trial, intended to set forth each and every reason for its order. The trial court did note, however, that it had made errors in the admission of certain documentary evidence and that it felt the petitioners had not received a fair trial. Given that the Court of Appeals did not have a complete transcript of the proceedings before it, see n. 1, supra, and that there could be other unarticulated bases for the new-trial order, it would seem all but impossible for the Court of Appeals to hold as a matter of law that the trial court clearly abused its discretion in entering the new-trial order.

      To the extent that the Court’s decision in this case is based upon the inadequacy of the record before the Court of Appeals, the proper remedy is to remand for further proceedings based upon a complete record.


author: Per Curiam. Justice Rehnquist,

text:
    STONE et al. v. GRAHAM, SUPERINTENDENT OF PUBLIC INSTRUCTION OF KENTUCKY
    No. 80-321.
    Decided November 17, 1980
   Per Curiam.

A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the State. Petitioners, claiming that this statute violates the Establishment and Free Exercise Clauses of the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its “avowed purpose” was “secular and not religious,” and that the statute would “neither advance nor inhibit any religion or religious group” nor involve the State excessively in religious matters. App. to Pet. for Cert. 38-39. The Supreme Court of the Commonwealth of Kentucky affirmed by an equally divided court. 599 S. W. 2d 157 (1980). We reverse.

This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:

“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally the statute must not foster ‘an excessive government entanglement with religion.' " Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971) (citations omitted).

If a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky’s statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional.

The Commonwealth insists that the statute in question serves a secular legislative purpose, observing that the legislature required the following notation in small print at the bottom of each display of the Ten Commandments: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky. Rev. Stat. § 158.178 (1980).

The trial court found the “avowed” purpose of the statute to be secular, even as it labeled the statutory declaration “self-serving.” App. to Pet. for Cert. 37. Under this Court’s rulings, however, such an “avowed” secular purpose is not sufficient to avoid conflict with the First Amendment. In Abington School District v. Schempp, 374 U. S. 203 (1963), this Court held unconstitutional the daily reading of Bible verses and the Lord’s Prayer in the public schools, despite the school district’s assertion of such secular purposes as “the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.” Id., at 223.

The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred‘text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5: 6-15.

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp, supra, at 225. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

It does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the “official support of the State . . . Government” that the Establishment Clause prohibits. 374 U. S., at 222; see Engel v. Vitale, 370 U. S. 421, 431 (1962). Nor is it significant that the Bible verses involved in this case are merely posted on the wall, rather than read aloud as in Schempp and Engel, for “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.” Abington School District v. Schempp, supra, at 225. We conclude that Ky. Rev. Stat. § 158.178 (1980) violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.

The petition for a writ of certiorari is granted, and the judgment below is reversed.

It is so ordered.

The Chief Justice and Justice Blackmun dissent. They would grant certiorari and give this case plenary consideration.

Justice Stewart dissents from this summary reversal of the courts of Kentucky, which, so far as appears, applied wholly correct constitutional .criteria in reaching their decisions.

Justice Rehnquist,

dissenting.

With no support beyond its own ipse dixit, the Court concludes that the Kentucky statute involved in this case “has no secular legislative purpose,” ante, at 41 (emphasis supplied), and that “[t]he pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature,” ibid. This even though, as the trial court found, “[t]he General Assembly thought the statute had a secular legislative purpose and specifically said so.” App. to Pet. for Cert. 37. The Court’s summary rejection of a seem lar purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute’s purpose in Establishment Clause cases and accords such pronouncements the deference they are due. See, e. g., Committee for Public Education v. Nyquist, 413 U. S. 756, 773 (1973) (“we need touch only briefly on the requirement of a 'secular legislative purpose/ As the recitation of legislative purposes appended to New York’s law indicates, each measure is adequately supported by legitimate, nonsectarian state interests”); Lemon v. Kurtzman, 403 U. S. 602, 613 (1971) (“the statutes themselves clearly state they are intended to enhance the quality of the secular education”); Sloan v. Lemon, 413 U. S. 825, 829-830 (1973); Board of Education v. Allen, 392 U. S. 236, 243 (1968). See also Florey v. Sioux Falls School District, 619 F. 2d 1311, 1314 (CA8) (upholding rules permitting public school Christmas observances with religious elements as promoting the articulated secular purpose of “advanc[ing] the student’s knowledge and appreciation of- the role that our religious heritage has played in the social, cultural and historical development of civilization”), cert. denied, post, p. 987. The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U. S. 420, 445 (1961), in upholding the validity of Sunday closing laws, “the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals.”

Abington School District v. Schempp, 374 U. S. 203 (1963), repeatedly cited by the Court, is not to the contrary. No statutory findings of secular purpose supported the challenged enactments in that case. In one of the two cases considered in Abington School District the trial court had determined that the challenged exercises were intended by the State to be religious exercises. Id., at 223. A contrary finding is presented here. In the other case no specific finding had been made, and “the religious character of the exercise was admitted by the State,” id., at 224.

The Court rejects the secular purpose articulated by the State because the Decalogue is “undeniably a sacred text,” ante, at 41. It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World. The trial court concluded that evidence submitted substantiated this determination. App. to Pet. for Cert. 38. See also Anderson v. Salt Lake City Cory., 475 F. 2d 29, 33 (CA10 1973) (upholding construction on public land of monument inscribed with Ten Commandments because they have “substantial secular attributes”). Certainly the State was permitted to conclude that a document with such secular significance should be placed before its students, with an appropriate statement of the document’s secular import. See id., at 34 (“It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era”). See also Opinion of the Justices, 108 N. H. 97, 228 A. 2d 161 (1967) (upholding placement of plaques with the motto “In God We Trust” in public schools).

The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that “religion has been closely identified with our history and government,” Abington School District, supra, at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U. S. 421, 434 (1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The words of Justice Jackson, concurring in McCollum v. Board of Education, 333 U. S. 203, 235-236 (1948), merit quotation at length:

“I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff's completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. ... I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity — both Catholic and Protestant — and other faiths accepted by a large part of the world’s peoples. One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared.”

I therefore dissent from what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.

       The statute provides in its entirety:
      “(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high.
      “(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: ‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’
      “(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act.” 1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky. Rev. Stat. § 168.178 (1980).

       The First Amendment’ provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” This prohibition is applicable to the States through the Fourteenth Amendment. Abington School District v. Schempp, 374 U. S. 203, 215-216 (1963).

       As this Court commented in Abington School District v. Schempp, supra, at 224: “Surely the place of the Bible as an instrument of religion cannot be gainsaid . . . .”

       Moreover, while the actual copies of the Ten Commandments were purchased through private contributions, the State nevertheless expended public money in administering the statute. For example, the statute requires that the state treasurer serve as a collecting agent for the contributions. Ky. Rev. Stat. §158.178 (3) (1980).

       The Supreme Court eases cited by the dissenting opinion as contrary, Committee for Public Education v. Nyquist, 413 U. S. 756 (1973); Sloan v. Lemon, 413 U. S. 825 (1973); Lemon v. Kurtzman, 403 U. S. 602 (1971); Board of Education v. Allen, 392 U. S. 236 (1968), are easily distinguishable: all are cases involving state assistance to private schools. Such assistance has the obvious legitimate secular purpose of promoting educational opportunity. The posting of the Ten Commandments on classroom walls has no such secular purpose.

       The Court noted that even if the State’s purpose were not strictly religious, “it is sought to be accomplished through readings, without comment, from the Bible.” 374 U. S., at 224. Here of course there was no compelled reading, and there was comment accompanying the text of the Commandments, mandated by statute and focusing on their secular significance.

       The Court’s emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly, traceable secular effects.


text:
    WISCONSIN et al. v. ILLINOIS et al.
    No. 1,
    Orig.
    Decree April 21, 1930
    Decree enlarged May 22, 1933
    Decree entered June 12, 1967
    Decree amended December 1, 1980

      Together with No. 2, Orig., Michigan v. Illinois et al., and No. 3, Orig., New York v. Illinois et cd.

   Ordered:

A. Paragraph 3 of the Decree entered by the Court herein on June 12, 1967, is amended to read as follows:

3. For the purpose of determining whether the total amount of water diverted from Lake Michigan by the State of Illinois and its municipalities, political sub-divisions, agencies and instrumentalities is not in excess of the maximum amount permitted by this decree, the amounts of domestic pumpage from the lake by the State and its municipalities, political sub-divisions, agencies and instrumentalities the sewage and sewage effluent derived from which reaches the Illinois waterway, either above or below Lockport, shall be added to the amount of direct diversion into the canal from the lake and storm runoff reaching the canal' from the Lake Michigan watershed computed as provided in Paragraph 2 of this decree. The annual accounting period shall consist of twelve months terminating on the last day of September. A period of forty (40) years, consisting of the current annual accounting period and the previous thirty-nine (39) such periods (all after the effective date of this decree), shall be permitted, when necessary, for achieving an average diversion which is not in excess of the maximum permitted amount; provided, however, that the average diversion in any annual accounting period shall not exceed 3680 cubic feet per second, except that in any two (2) annual accounting periods within a forty (40) year period, the average annual diversion may not exceed 3840 cubic feet per second as a result of extreme hydrologic conditions; and, that for the first thirty-nine (39) years the cumulative algebraic sum of each annual accounting period’s average diversion minus 3200 cubic feet per second shall not exceed 2000 cubic feet per second-years. All measurements and computations required by this decree shall be made by the appropriate officers, agencies or instrumentalities of the State of Illinois, or the Corps of Engineers of the United States Army subject to agreement with and cost-sharing by the State of Illinois for all reasonable costs including equipment, using the best current engineering practice and scientific knowledge. If made by the State of Illinois, the measurements and computations shall be conducted under the continuous supervision and direction of the Corps of Engineers of the United States Army in cooperation and consultation with the United States Geological Survey, including but not limited to periodic field investigation of measuring device calibration and data gathering. All measurements and computations made by the State of Illinois shall be subject to periodic audit by the Corps of Engineers. An annual report on the measurements and computations required by this decree shall be issued by the Corps of Engineers. Best current engineering practice and scientific knowledge shall be determined within six (6) months after implementation of the decree based upon a recommendation from a majority of the members of a three-member committee. The members of this committee shall be appointed by the Chief of Engineers of the United States Army Corps of Engineers. The members shall be selected on the basis of recognized experience and technical expertise in flow measurement or hydrology. None of the committee members shall be employees of the Corps of Engineers or employees or paid consultants of any of the parties to these proceedings other than the United States. The Corps of Engineers shall convene such a committee upon implementation of this decree and at least each five (5) years after implementation of this decree to review and report to the Corps of Engineers and the parties on the method of accounting and the operation of the accounting procedure. Reasonable notice of these meetings must be given to each of the parties. Each party to these proceedings shall have the right to attend committee meetings, inspect any and all measurement facilities and structures, have access to any data and reports and be permitted to take its own measurements.

B. Paragraph 5 of the said Decree entered by the Court herein is amended by adding thereto an additional sentence to read as follows:

The amendment to Paragraph 3 of this decree shall take effect on the first day of October following the passage into law by the General Assembly of the State of Illinois of an amendment to the Level of Lake Michigan Act providing that the amount used for dilution in the Sanitary and Ship Canal for water quality purposes shall not be increased above three hundred twenty (320) cubic feet per second, and that in allocations to new users of Lake Michigan water, allocations for domestic purposes be given priority and to the extent practicable allocations to new users of Lake Michigan water shall be made with the goal of reducing withdrawals from the Cambrian-Ordovician aquifer.

C. A certified copy of the above legislation shall be served upon the parties and filed with the Clerk of the Supreme Court by the State of Illinois. If no party raises an objection to the adequacy of the legislation within 30 days of service, Illinois will have complied with the requirements of the amendment made by this Order to paragraph 5 of the Decree entered by the Court herein on June 12, 1967. Any such objection shall be raised in the manner set forth in Paragraph 7 of said Decree.

It is Further Ordered that:

Each of the parties to this proceeding shall bear its own costs. The expenses of the Special Master shall be borne by the State of Illinois and the Metropolitan Sanitary District of Greater Chicago, three-fifths thereof by the State of Illinois and two-fifths thereof by the Metropolitan Sanitary District of Greater Chicago.

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

STATEMENT OF INTENT AND TECHNICAL BASIS FOR PROPOSED AMENDMENTS TO 1967 DECREE

This statement sets forth the intent of the parties and the technical basis for the revisions to certain of the provisions of paragraphs 3 and 5 of the 1967 Decree.

The proposed change in the 1967 Decree has been designed to alter in part the provisions of the existing Decree that prevent Illinois from effectively utilizing and managing the 3200 cubic feet per second (cfs) of Lake Michigan water which Illinois was allocated.

Under the existing system, increasing amounts of impervious areas and increasing demand by domestic users elevate the risk that the language of the decree will be violated in any one or five year period if additional allocations are made by the State to domestic users for a period of years consistent with good management practice.

The proposed change accomplishes the following:

1. Increases the period for determining compliance with the 3200 cfs limit from a five year running average to a forty year running average;
2. During the first thirty-nine years of the decree, allows Illinois to exceed the 3200 cfs limit by 2000 cfs-years in the aggregate (one cfs-year is the volume of water resulting from an average flow of one cfs for a period of one year);
3. Limits the average diversion in any one accounting period to 115% of 3200 cfs, but in two years of any forty year period permits the average diversion to reach 120% of 3200 cfs, to allow for extreme hydro-logic conditions.

The lengthening of the averaging period from five to forty years reduces the variability of the averaged figure, thus decreasing the amount of water that needs to be held in reserve for storm water runoff and increasing the amount of water that may be allocated for domestic purposes to reduce in part the pumpage from the Cambrian-Ordovician aquifer.

The lengthening of the averaging period also allows an increase in the planning period to a period of time that is more compatible with the life of certain types of water supply facilities, thus permitting more efficient use of the available diversion without increasing the total allowable diversion, and permitting better management of all the water resources of the region.

In establishing the limits of paragraph three of the amended decree, the available data and uncertainties as to the behavior of and interactions between the various elements of the hydrologic regime under current and future conditions were limiting factors.

To estimate maximum hydrologic variations that must be considered in the allocation accounting process, the forty-four year precipitation and runoff data contained in “Water Yield, Urbanization, and the North Branch of the Chicago River/’ a report by the Northeastern Illinois Planning Commission and Hydroeomp, Inc., dated October 14, 1976, were used. These data assumed a 30% imperviousness factor and were used by the parties to approximate the conditions of the entire Lake Michigan diversion watershed at the present time.

These data indicate that the maximum departure above the mean annual stormwater flow is 59%. Assuming, therefore, that the mean annual stormwater flow is 683 cfs, the maximum departure is 405 cfs. This could result in a diversion of 13% above the allowable 3200 cfs maximum. Given the relatively short period of record and the likelihood of increased runoff resulting from urbanization, it was agreed that a 15% exceedance, to a maximum of 3680 cfs, would be allowed in any year to accommodate high stormflows and that in any two years of the 40 year accounting period the diversion may be increased by 20%, to a maximum of 3840 cfs, to accommodate extraordinary hydrologic conditions.

Because of year-to-year variations in storm runoff there will be series of years when the average annual diversion will need to exceed 3200 cfs for best management, and some years when the diversion will be less than the 3200 cfs average. Calculations of the cumulative sum of the annual departures show that the maximum cumulative exceedance of 3200 cfs would be slightly below 1500 cfs-years as indicated by the forty-four years of data that were used. The possibility exists that in the initial forty year period the cumulative exceedance may be greater than 1500 cfs-years. Since the record used is relatively short and urbanization is likely to increase runoff, the maximum cumulative exceedance has been established at 2000 cfs-years.

The goal of this amended Decree is to maintain the long-term average annual diversion of water from Lake Michigan at or below 3200 cfs.


author: Justice Stewart Justice Powell, Justice Blackmun, Justice Brennan",

text:
    COUNTY OF IMPERIAL, CALIFORNIA, et al. v. MUNOZ et al.
    No. 79-1003.
    Argued October 15, 1980
    Decided December 2, 1980

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, post, p. 60. Blackmun, J., filed an opinion concurring in the result, post, p. 61. Brennan, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 62. Marshall, J., filed a dissenting statement, post, p. 63.

      James H. Harmon argued the cause and filed briefs for petitioners.

      William H. Kronberger, Jr., argued the cause for respondents. With him on the briefs was Murry Luftig

        Donald McDougal, Jr., filed a brief for Donald C. McDougal as amicus curiae.

   Justice Stewart

delivered the opinion of the Court.

The Anti-Injunction Act, 28 U. S. C. § 2283, provides:

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

This case presents issues respecting the scope of that Act.

I

In 1972, Donald C. McDougal bought from W. Erie Simpson a tract of land in Imperial County, Cal. Although the tract was in a residential subdivision, the county’s zoning ordinance allowed the tract’s owner to develop its natural resources if he could obtain a conditional-use permit. With the land, McDougal acquired such a permit, which allowed him to sell well water on the condition that it be sold only for use within the county. Simpson had never challenged that condition, nor had he ever sold much water from his well. Like Simpson, McDougal did not challenge the condition, but he did sell a good deal of water, and he sold some of it for use outside the county. McDougal’s neighbors grew irritated by the many trucks carrying water from McDougal’s premises, and they complained to the county. The county sought to vindicate its zoning ordinance and permit by asking a California Superior Court for injunctive and declaratory relief that would prohibit McDougal from selling water for consumption outside the county.

The state trial court enjoined McDougal from “conducting a trucking operation on the premises similar to that which occurred commencing on or about June 30, 1972.” On appeal to the California Supreme Court, McDougal argued that the permit’s geographic restriction was invalid. The state appellate court declined to reach that argument, since “a landowner or his successor in title is barred from challenging a condition imposed upon the granting of a special permit if he has acquiesced therein by either specifically agreeing to the condition or failing to challenge its validity, and accepted the benefits afforded by the permit.” County of Imperial v. McDougal, 19 Cal. 3d 505, 510-511, 564 P. 2d 14, 18. The California Supreme Court thus affirmed the Superior Court’s decision that the sale of water outside the county violated the ordinance, although it reversed the Superior Court’s finding that the frequent truck traffic at McDougal’s premises violated the zoning ordinance. McDougal appealed that judgment to this Court, which dismissed his appeal for want of a substantial federal question. 434 U. S. 944.

The respondents in this case are Mexican merchants: Respondent Munoz has a contract with McDougal to be his broker in arranging sales of water to Mexico; respondents Martinez and De Leon have agreed to purchase McDougal’s water for consumption in Mexico. Although none of the respondents was a named party to the suit against McDougal in the state courts, all of them were interested and — to an undetermined degree — involved in it, and Munoz participated as amicus curiae before the California Supreme Court. Twelve days after that court had denied McDougal’s petition for rehearing, and even before this Court had dismissed his appeal, the respondents initiated the present litigation by filing in the United States District Court for the Southern District of California a complaint seeking declaratory and injunctive relief to prevent the County of Imperial from enforcing the terms of McDougal’s conditional permit. They argued in the District Court that those terms violated the Commerce Clause of the Constitution. Art. I, § 8, cl. 3. The District Court concluded that respondents would suffer irreparable harm were there no injunction, and that they would probably succeed on the merits. Accordingly, the court issued a preliminary injunction restraining the county “from enforcing the restriction in the use permit which prohibits sale of water for use outside Imperial County.”

Some months later, the California Superior Court ordered McDougal to show cause why he should not be held guilty of contempt for violating the court’s injunction by selling water for use outside the county. After proceedings in which the county participated, he was found guilty of contempt and again ordered to cease selling water for use outside of Imperial County. That order was stayed, however, pending the outcome of the county’s appeal of the federal trial court’s order to the United States Court of Appeals for the Ninth Circuit. Subsequently, the Court of Appeals affirmed the District Court’s order of preliminary injunction, 604 F. 2d 1174, and this Court granted the county’s petition for a writ of certiorari. 445 U. S. 903.

II

The county has maintained throughout the present litigation that the Anti-Injunction Act operates to prohibit the District Court from enjoining it from enforcing the terms of McDougal’s permit. In rejecting that argument, the District Court cited Hale v. Bimco Trading, Inc., 306 U. S. 375, and said that “this court may, if otherwise appropriate, restrain the operation of an unconstitutional statute; surely it does not lose the right to do so merely because the statute has been tested in the state courts.” In reaching the same conclusion, the Court of Appeals reasoned that the state trial court proceedings had terminated, and that the injunction, therefore, did not violate the rule that the Act cannot be evaded by addressing a federal injunction to the parties rather than to the state court. It also agreed with the District Court that, under the Hale case, “third parties are not barred under the Anti-Injunction Act from challenging a statute on federal constitutional grounds when the statute is also under litigation in the state courts.” 604 F. 2d, at 1176.

In our view the threshold reasoning of the Court of Appeals disregarded the teaching of this Court’s opinion in Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281. In that case, the railroad had secured a state-court injunction prohibiting the union from picketing a railroad facility. Two years later, the union tried but failed to convince the state court to dissolve the injunction in light of an intervening decision of this Court. The union did not appeal that decision, but instead persuaded a federal court to enjoin the railroad “from giving effect to or availing [itself] of the benefits of” the state-court injunction. Id., at 287. This Court held that “although this federal injunction is in terms directed only at the railroad it is an injunction ‘to stay proceedings in a State court.’ ” Ibid. The view of the Court of Appeals in the present case that after a state court has entered an injunction, its proceedings are concluded for the purposes of the Anti-Injunction Act was thus contrary to the square holding of the Atlantic Coast Line case.

The Court of Appeals’ final reason (and the District Court’s only reason) for finding the Act inapplicable was this Court’s decision in Hale v. Bimco Trading, Inc., supra. There, a cement company had secured from a state court a writ of mandamus ordering the state road department to enforce a statute requiring the inspection of cement imported into the State. Bimco Trading, Inc., subsequently obtained a federal-court injunction restraining the road department from enforcing the statute. This Court held that 28 U. S. C. § 379 (1934 ed.) — the predecessor of the current Anti-Injunction Act — did not bar the federal injunction, since to hold otherwise would have been to

“assert that a successful mandamus proceeding in a state court against state officials to enforce a challenged statute, bars injunctive relief in a United States district court against enforcement of the statute by state officials at the suit of strangers to the state court proceedings. This assumes that the mandamus proceeding bound the independent suitor in the federal court as though he were a party to the litigation in the state court. This, of course, is not so.” 306 U. S., at 377-378.

Neither the District Court nor the Court of Appeals addressed the question whether respondents in this case were “strangers to the state court proceeding” who were not bound “as though [they were parties] to the litigation in the state court.” Unless respondents were such “strangers,” the injunction they sought was barred by the Act.

Accordingly, the judgment is vacated, and the case is remanded to the Court of Appeals.

It is so ordered.

Justice Powell,

concurring.

Although I join the opinion of the Court on the basis of its reading of Hale v. Bimco Trading, Inc., 306 U. S. 375 (1939), I record my willingness to reconsider Hale. It has rarely been cited and — as the Court reads it today — it creates an exception to the coverage of the Anti-Injunction Act that I think is contrary to the policy of that Act.

Justice Blackmun,

concurring in the result.

For me, the Court’s opinion is somewhat opaque. Perhaps it is intentionally so.

I agree with Justice Brennan that respondents were— and were necessarily determined by the Court of Appeals to be — “strangers to the state court proceeding,” post, at 62, who were not bound by the state-court litigation. No principle of res judicata evoked by the California litigation applies to them.

I join the Court in vacating the Court of Appeals’ judgment and remanding the case, however, for I am troubled by that court’s apparent misreading of Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281 (1970), and by its analysis of the effect of the Anti-Injunction Act, 28 U. S. C. § 2283, upon the particular facts of this case.

At the same time, I am disturbed by what seems to me to be the implication of this Court’s opinion, namely, that the Anti-Injunction Act does not apply when the state litigation involves different parties. If I am correct that this is the premise, I believe that the Court is indulging in a new exposition of the meaning of Hale v. Bimco Trading, Inc., 306 U. S. 375 (1939). The Anti-Injunction Act imposes a flat and positive prohibition. It then allows three exceptions. None of those exceptions is applicable to the situation before us, which involves a single-use restriction on a single parcel of land. The precedent of Hill v. Martin, 296 U. S. 393, 403 (1935), Atlantic Coast Line R. Co., supra, and Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623, 630 (1977), supports a conclusion that the Anti-Injunction Act bars the federal court from issuing an injunction against enforcement of this use restriction. Yet, a holding to that effect would not oust the federal court of jurisdiction to order other forms of relief, such as a declaratory judgment. It is worth noting, or so it appears to me, that the state court has made clear, by its stay of the contempt order, that it will abide by the federal resolution of the constitutional issue.

The situation presented by this case is an inevitable result of our having two independent judicial systems. The Anti-Injunction Act cannot eliminate all conflicts, and was not so intended. It precludes federal injunctions that interfere with state proceedings. Heretofore, this Court has applied the Act’s restrictions strictly. I would expect that approach to be continued.

Justice Brennan",

with whom Justice Stevens joins, dissenting.

To vacate and remand to the Court of Appeals to determine whether respondents were “strangers to the state court proceeding” within the meaning of Hale v. Bimco Trading, Inc., 306 U. S. 375, 377-378 (1939), is to require the Court of Appeals to perform a task it undoubtedly has already performed. The Court of Appeals concluded that respondents’ lawsuit did not contravene the Anti-Injunction Act, 28 U. S. C. § 2283, and relied on Hale as a basis for its conclusion. Necessarily implicit in that conclusion was the court’s judgment that the Hale test had in all pertinent respects been satisfied and that, accordingly, respondents were “strangers to the state court proceeding.”

The Court identifies nothing in the record to support a conclusion that respondents were not “strangers to the state court proceeding,” apart, perhaps, from respondent Munoz’ participation as amicus curiae before the California Supreme Court. Even if amicus status were sufficient to require Munoz’ withdrawal as a party, it is undisputed that neither respondent Martinez nor respondent De Leon played any role in the state-court litigation. The Court’s statement that “all of [the respondents] were interested and — to an undetermined degree — involved in it,” ante, at 57, is, therefore, unfounded.

Under these circumstances, to require the Court of Appeals to find — yet again — that respondents were “strangers to the state court proceeding” is an unnecessary waste of judicial resources. Accordingly, I dissent from the remand and would affirm.

Justice Marshall also dissents but would dismiss the writ as improvidently granted.

       The state trial court opinion is unreported.

       The District Court opinion is unreported.

       The dissenting opinion today rests entirely on the supposition that the Court of Appeals has already decided this question. That supposition is demonstrably untenable:
      The Court of Appeals found that the Anti-Injunction Act was inapplicable, and proceeded to consider the merits of the petitioners’ res judicata defense, a defense based upon the judgment in the state litigation. The court held that the doctrine of res judicata did not in any event apply in the circumstances here presented, and accordingly explicitly declined to consider whether the respondents had been “in privity” with McDougal in the state litigation. Since the court did not even decide that the respondents had not been in privity with McDougal in the state litigation, it most assuredly could not have decided and did not decide that the respondents were “strangers to the state court proceeding.”

         The respondents contend that their suit comes within one of the statutory exceptions to the Act. First, they urge that the “in aid of jurisdiction” exception applies. They apparently reason that the District Court was not barred from entering a declaratory judgment, that a declaratory judgment unsupported by an injunction would be a nullity, and that therefore an injunction was necessary “in aid of” the District Court’s subject-matter jurisdiction over Commerce Clause questions. This argument proves too much, since by its reasoning the exception, and not the rule, would always apply. Second, respondents assert that this case falls within the exception to the Act for injunctions “expressly authorized by Act of Congress.” They cite Mitchum v. Foster, 407 U. S. 225, for the undoubted proposition that suits under 42 U. S. C. § 1983 are within that exception. This argument cannot prevail, however, for the simple reason that the respondents’ complaint did not rely on or even so much as mention § 1983.

        Hale v. Bimco Trading, Inc., 306 U. S. 375 (1939), is distinguishable, for that ease involved an attack on a state statute and a complete legislative scheme that was being applied to many parties in many different circumstances. That situation differs significantly from the particularized use restriction with which the present litigation is concerned.

       The District Court similarly concluded that Hale v. Bimco Trading, Inc., did not bar the instant lawsuit and thus necessarily also found that respondents were “strangers to the state court proceeding.”

       The language of Hale quoted by the Court, ante, at 59, suggests that amicus status does not impair one’s standing as a “stranger,” since the Court contrasted an “independent suitor in the federal court” with “a party to the litigation in the state court.” 306 U. S., at 378. Munoz clearly was not such a party.

       The District Court stated:
      “But the plaintiffs herein have no common property interest with McDougal. At issue in the state proceeding was McDougal’s use permit; the use permit is a part of the land and runs with the land, as the California Supreme Court expressly held. The plaintiffs have no property interest in McDougal’s land or in his use permit. Their interest is in the steps taken by the County to enforce what they perceive as an unconstitutional ordinance. Therefore, since the property interest which was litigated in the state courts was exclusively McDougal’s and not the plaintiffs’, it must follow that the plaintiffs were not in privity with McDougal and his state court judgment does not bar them from proceeding with this lawsuit.” App. to Pet. for Cert. B-5.
      While it is true, as the Court notes, ante, at 60, n. 3, that the Court of Appeals, unlike the District Court, “declined to consider whether the respondents had been ‘in privity’ with McDougal in the state litigation,” that refusal has no bearing on the disposition of petitioners’ Anti-Injunction Act claim. With respect to that claim, the court necessarily found that respondents were “strangers to the state court proceeding,” and its disposition of the res judicata claim on a ground other than privity is irrelevant.