author: Chief Justice Burger,

text:
    November 9, 1981
    No. 80-1604.
    Brockett, Spokane County Prosecuting Attorney, et al. v. Spokane Arcades, Inc., et al.
   Affirmed on appeal from C. A. 9th Cir.

Chief Justice Burger,

with whom Justice Powell and Justice Rehnquist join,

dissenting.

The Court today affirms a decision of the Court of Appeals holding unconstitutional a Washington statute which has yet either to be enforced in or construed by a Washington state court. I would abstain from decision until the Washington courts are given an opportunity to interpret the law which has been thus invalidated. This Court — and all federal courts — have enough to do without “pre-empting” state courts on matters initially of state concern.

The Washington “moral nuisance” law, Wash. Rev. Code §7.48.050 et seq. (Supp. 1977) — a comprehensive statute directed at prohibiting the public sale and exhibition of obscene materials — was adopted as an initiative by the voters in the November 8, 1977, election. Before the statute was even certified by the Secretary of State, appellees, several corporations engaged in the exhibition, distribution, and sale of movies, books, and magazines, filed this action in the Federal District Court. On February 6, 1978, less than three months after the initiative’s adoption, and apparently before it had ever been applied, the District Court declared the law unconstitutional. 449 F. Supp. 1145.

I have previously outlined the concerns that should lead a federal court to stay its hand in cases such as this, when litigants have deliberately avoided resort to the courts of the state whose statute is being challenged. Vance v. Universal Amusement Co., 445 U. S. 308, 317-320 (1980) (Burger, C. J., dissenting); cf. Moore v. East Cleveland, 431 U. S. 494, 521-531 (1977) (Burger, C. J., dissenting); Wisconsin v. Constantineau, 400 U. S. 433, 439-443 (1971) (Burger, C. J., dissenting). The policies of federalism and comity militate in favor of affording state judges — who are as capable as are federal judges of enforcing the Constitution of the United States, and have taken the same oath to do so — the initial opportunity to consider the scope and validity of state statutes. This is particularly so when the state law under consideration has never been applied, and when its interpretation is uncertain; in such a case the state court’s construction of the statute may obviate the need for adjudication of the federal constitutional issues, or the state court may resolve those issues as we would. Harrison v. NAACP, 360 U. S. 167 (1959); City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639 (1959); Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941).

Here, the Court of Appeals invalidated portions of the nuisance law dealing with the issuance of temporary and permanent injunctions against establishments exhibiting “lewd” or “obscene” matter, on the grounds that, inter alia, (1) “[n]o limits are set forth in the statute to confine the discretion of the court to issue the temporary abatement injunction,” 631 F. 2d 135, 138 (CA9 1980); (2) “there is no assurance that there will occur the required prompt final judicial determination on the merits,” ibid.; and (3) “a defense of nonobscenity presumably is unavailable at a trial for violation of an injunction” (emphasis added), ibid. Even a cursory examination of the lengthy statute — which contains detailed definitions of “lewd” or “obscene” matter incorporating the standards of Miller v. California, 413 U. S. 15 (1973), which provides for consolidation of the trial on the merits with’ the hearing on the temporary injunction and grants scheduling priority to cases brought under the statute, and which does not specify the defenses available in contempt proceedings — discloses that the state courts might well have construed the law so as to avoid each of these perceived deficiencies. It is ironic that, having exhibited no hesitation to construe the many provisions of this complex statute without guidance from the state courts, the Court of Appeals wholly ignored an explicit severability clause and “declined” to preserve those parts of the statute not found unconstitutional, demurring that the reconstruction required to salvage the statute would be better handled by “the legislature of the State of Washington.” 631 F. 2d, at 139.

In sum, both the District Court and the Court of Appeals should have declined to act until the parties had exhausted available state remedies, at least absent a showing that resort to the state courts would have been futile. There was no need whatever for federal courts to render a declaratory judgment as to the validity of a state law on which the state courts have not yet had an opportunity to speak and on behalf of parties against whom the law has not yet been applied. I would reverse and remand with directions to do now what should have been done initially.


source: Caselaw Access Project

license: Public Domain

text:
    No. 81-186.
    McClure, United States Senator v. Reagan, President of the United States, et al.
   Affirmed on appeal from D. C. Idaho. Justice Rehnquist took no part in the consideration or decision of this case.


text:
    No. 81-477.
    Witte v. Bar Committee of the Twenty-first Judicial Circuit.
   Appeal from Sup. Ct. Mo. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 81-5422.
    Crane v. Ross et al.
   Appeal from C. A. 7th 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. 81-478.
    Rabideau v. Attorneys Board of Professional Responsibility of Wisconsin.
   Appeal from Sup. Ct. Wis. dismissed for want of substantial federal question.


text:
    No. 81-524.
    Johnson v. Kerr-McGee Oil Industries, Inc.
   Appeal from Ct. App. Ariz. dismissed for want of substantial federal question.


text:
    No. 81-505.
    Caffiero et ux. v. Board of Education of Piscataway Township et al.
   Appeal from Sup. Ct. N. J. dismissed for want of substantial federal question.

Justice Brennan and Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 81-533.
    Aetna Life & Casualty Co. et al. v. Young et al.
   Appeal from Super. Ct. Conn., Fairfield County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice O’Connor took no part in the consideration or decision of this case.


text:
    No. 81-5433.
    Travis v. Iowa ex rel. Bishop.
   Appeal from Sup. Ct. Iowa dismissed for want of jurisdiction.


text:
    No. 81-384.
    No. 81-555.
    State Fair of Texas v. United States Consumer Product Safety Commission; and Steck & Stapf Attractions, Inc. v. United States Consumer Product Safety Commission.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and cases remanded to the United States District Court for the Northern District of Texas with directions to dismiss as moot. United States v. Munsingwear, 340 U. S. 36 (1950). Reported below: 650 F. 2d 1324.


text:
    No.-.
    Tiffany Construction Co., Inc. v. Bureau of Revenue of New Mexico.
   Motion to direct the Clerk to file the petition for writ of certiorari denied.


text:
    No. D-239.
    In re Disbarment of Fahy.
    [For earlier order herein, see 451 U. S. 1015.]
   Disbarment entered.


text:
    No. D-243.
    In re Disbarment of Witte.
    [For earlier order herein, see 453 U. S. 910.]
   Disbarment entered.


text:
    No. D-252.
    In re Disbarment of Rawlins.
   It is ordered that Earl A. Rawlins, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-253.
    In re Disbarment of Caldwell.
   It is ordered that C. Lee Caldwell, of American Fork, Utah, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


author: Justice Stevens,

text:
    No. 91,
    Orig.
    California v. West Virginia.
   Motion for leave to file bill of complaint denied.

Justice Stevens,

dissenting.

The State of California invokes this Court’s jurisdiction to adjudicate a controversy with the State of West Virginia arising out of an alleged breach of contract covering athletic contests between two state universities. Congress has provided that this Court’s jurisdiction over controversies between two States is exclusive. Although the Court has explained why it will decline to exercise its nonexclusive jurisdiction over cases in which only one of the parties is a State, see Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, that explanation is inapplicable to cases in which our jurisdiction is exclusive. The fact that two sovereign States have been unable to resolve this matter without adding to our burdens does not speak well for the statesmanship of either party but does not, in my opinion, justify our refusal to exercise our exclusive jurisdiction under 28 U. S. C. § 1251(a) (1976 ed., Supp. III). I would grant the motion for leave to file and refer the case to a special master.

      Title 28 U. S. C. § 1251 (1976 ed., Supp. Ill) provides:
      “(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
      “(b) The Supreme Court shall have original but not exclusive jurisdiction of:
      “(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
      “(2) All controversies between the United States and a State;
      “(3) All actions or proceedings by a State against the citizens of another State or against aliens.”


text:
    No. 79-1738.
    No. 80-945.
    Nixon v. Fitzgerald; and Harlow et al. v. Fitzgerald.
   C. A. D. C. Cir. [Certiorari granted, 452 U. S. 959.] Motions of Orrin G. Hatch et al., National Taxpayers Legal Fund, Inc., and Government Accountability Project of the Institute for Policy Studies for leave to file briefs as amici curiae granted.


text:
    No. 80-1608.
    United States v. Johnson.
   C. A. 9th Cir. [Certiorari granted, ante, p. 814.] Motion for appointment of counsel granted, and it is ordered that John F. Walter, Esquire, of Los Angeles, Cal., be appointed to serve as counsel for respondent in this case.


text:
    No. 80-1765.
    American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp.
   C. A. 2d Cir. [Certio-rari granted, 452 U. S. 937.] Motion of Stephen G. Glatzer et al. for leave to file a brief as amici curiae denied. Motion of National Commission for Health Certifying Agencies 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 and for divided argument granted. Motion of National Fire Protection Association for leave to participate in oral argument as amicus curiae and for additional time for oral argument denied. Motion of Adolph J. Ackerman for leave to file a brief as amicus curiae granted.


text:
    No. 80-1199.
    American Tobacco Co. et al. v. Patterson et al.
   C. A. 4th Cir. [Certiorari granted, 452 U. S. 937.] Motion of petitioners for divided argument granted.


text:
    No. 80-1925.
    United Transportation Union v. Long Island Railroad Co. et al.
   C. A. 2d Cir. [Certiorari granted, 452 U. S. 960.] Motion of National Institute of Municipal Law Officers for leave to file a brief as amicus curiae granted.


text:
    No. 81-547.
    Diaz et al. v. Beyer et ux.
   Ct. Civ. App. Tex., 10th Sup. Jud. Dist. Motion of petitioners to strike portions of respondents’ brief in opposition denied.


text:
    No. 81-531.
    In re Phonetele, Inc.
   Petition for writ of mandamus denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 81-150.
    No. 81-546.
    Northern Pipeline Construction Co. v. Marathon Pipe Line Co. et al.; and United States v. Marathon Pipe Line Co. et al.
   Appeals from D. C. Minn. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 12 B. R. 946.


text:
    No. 81-349.
    Chicago Bridge & Iron Co. v. Caterpillar Tractor Co. et al.
   Appeal from Sup. Ct. Ill. Motion of Frank M. Keesling for leave to file a brief as amicus curiae granted. Probable jurisdiction noted and case set for oral argument in tandem with No. 80-1745, F. W. Woolworth Co. v. Taxation and Revenue Department of New Mexico [probable jurisdiction noted, ante, p. 812], and No. 80-2015, ASARCO Inc. v. Idaho State Tax Commission [probable jurisdiction noted, ante, p. 812]. Justice Powell and Justice O’Connor took no part in the consideration or decision of this motion and this case.


text:
    No. 80-2116.
    Williams v. United States.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 81-535.
    United States Department of State et al. v. Washington Post Co.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 81-202.
    National Association for the Advancement of Colored People et al. v. Claiborne Hardware Co. et al.
   Sup. Ct. Miss. Certiorari granted and case set for oral argument in tandem with No. 81-280, General Building Contractors Assn., Inc. v. Pennsylvania et al. [certiorari granted, ante, p. 939], and related cases.

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


text:
    No. 81-300.
    Ford Motor Co. v. Equal Employment Opportunity Commission.
   C. A. 4th Cir. Certiorari granted.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 80-1770.
    No. 80-1791.
    Turlington, Commissioner of Education of Florida, et al. v. S-1, a minor, by P-1, et al.; and Edwards, Superintendent of Schools, Hendry County, Florida, et al. v. S-1, a minor, by P-1, et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 635 F. 2d 342.


text:
    No. 80-1953.
    Doster v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 80-1903.
    Whittaker v. Whittaker Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6787.
    Klobuchir v. Pennsylvania et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6846.
    No. 81-5130.
    Crumb v. United States; and Crumb v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 649 F. 2d 869.


text:
    No. 80-6942.
    Dirr v. Dirr.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 81-130.
    Western Mining Council et al. v. Watt, Secretary of the Interior.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-171.
    Oesterlen Services for Youth, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 81-177.
    American Smelting & Refining Co. et al. v. United Steelworkers of America, AFL-CIO, et al.; and Federated Metals Corp. v. United Steelworkers of America, AFL-CIO, et al.
   C. A. 3d Cir. Certiorari denied. Reported below: 648 F. 2d 863 (first case); 648 F. 2d 856 (second case).


text:
    No. 81-204.
    No. 81-217.
    No. 81-274.
    Roberts v. United States; Morgan v. United States; and Zavala-Pizano v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 647 F. 2d 174.


text:
    No. 81-305.
    Brink v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-322.
    First National Bank of Scotia et al. v. United States Department of the Treasury et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-329.
    Swansboro Country, Inc. v. Lumberman’s Mortgage Co.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-378.
    Warino v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-381.
    Ramoco Inc. et al. v. Watt, Secretary of the Interior, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-464.
    Von Minden v. NUWES, Department of the Navy.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-468.
    Missouri ex rel. Missouri Public Service Co. v. Fraas, Chairman, Public Service Commission of Missouri, et al.
   Ct. App. Mo., Western Dist. Certio-rari denied.


text:
    No. 81-487.
    Thomas v. Schwartz.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-489.
    Russo v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 81-492.
    Payne v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-494.
    Cahalan v. Walker, Personal Representative of Estate of Walker.
   Sup. Ct. Mich. Cer-tiorari denied.


text:
    No. 81-511.
    Bradley v. Brion Corporation of Nashville et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-515.
    City of Eastlake et al. v. Ohio Board of Building Standards et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 81-538.
    Wells v. Brown et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-539.
    California et al. v. Tuttle et al.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 81-544.
    Silverton et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-553.
    Gordon v. Heimann, United States Comptroller of the Currency, et al.; Gordon v. Board of Governors of the Federal Reserve System et al.; and Gordon v. Securities and Exchange Commission et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 645 F. 2d 70.


text:
    No. 81-558.
    Mellon v. John F. Beasley Construction Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-562.
    Soso Liang Lo v. Equal Employment Opportunity Commission et al.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 81-563.
    Holiday Rambler Corp. v. Norcom Division et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-567.
    Commission House Drivers Union Local No. 400 et al. v. Swackard.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-576.
    Jacobs v. College of William and Mary et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-597.
    Poe v. Supreme Court of the United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-632.
    Moretto v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-636.
    Read v. Helms, Administrator, Federal Aviation Administration.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-661.
    Sherer v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-663.
    Dennis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-671.
    Lewis v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-687.
    Swarek v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-690.
    Cerrella v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-698.
    Curcio v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5002.
    Allen v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 81-5287.
    Jackson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-5288.
    Durling et al. v. O’Brien et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-5402.
    Hughes v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-5403.
    Litterell v. Oklahoma et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-5409.
    Barrett v. North Carolina Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5410.
    Behar v. Southeast Bank Trust Co., N. A., Personal Representative of the Estate of Behar.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 81-5411.
    Mitchell v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5412.
    McDonald v. Vanderpool et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-5415.
    Stephens v. Zant, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5416.
    Stribling v. DeRobertis, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-5417.
    Zatko v. United States District Court for the Southern District of New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5418.
    Papp v. Jago.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-5421.
    Wilson v. LeFevre, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5423.
    Beyah, aka Collins v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 81-5424.
    Sweet v. Smith.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 81-5428.
    Zatko v. United States District Court for the District of Massachusetts.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 81-5432.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5436.
    Rogers v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 81-5439.
    Hill v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5443.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5444.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5447.
    Fox v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-5448.
    Jackson v. Garrison, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5451.
    MaGee v. Deukmejian, Attorney General of California, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-5452.
    Tanner v. Warden, Maryland Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5456.
    Herron v. Pendleton, Sabian & Craft et al.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 81-5530.
    Heimerle v. Smith, Attorney General, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5535.
    Smith v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5542.
    Thomas v. Strickland, Superintendent, Lorton Reformatory.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-5543.
    Pyles v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5546.
    Gaddis v. Zant, Superintendent, Georgia Diagnostic and Classification Center.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 81-5548.
    Shanmugadhasan v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-5552.
    Holt v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-5554.
    Hammonds v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5556.
    Burroughs v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5558.
    Doepel v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-5561.
    Legendre v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-5565.
    Lawson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-5580.
    Ribeiro v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5587.
    Greer v. United States.
   C. A. 5th Cir. Certiorari denied.


author: Justice Marshall, Justice Blackmun,

text:
    No. 80-6785.
    Spaziano v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom Justice Brennan, joins,

dissenting.

Because I continue to believe 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, 231 (1976), I would grant certiorari and vacate the death sentence in this case. I would also grant certiorari on an additional ground. This case presents the question whether the death sentence may be imposed after conviction of a capital offense, where the jury was not instructed as to lesser-included noncapital offenses because the statute of limitations had run with respect to the lesser offenses. Petitioner argues that the failure to provide instructions on lesser-included offenses in these circumstances is inconsistent with this Court’s decisions in Keeble v. United States, 412 U. S. 205 (1973), and Beck v. Alabama, 447 U. S. 625 (1980). In my view, there is substantial merit to this claim.

Petitioner was arrested by Florida police and charged with the capital felony of first-degree murder. He was tried by a jury. After the submission of the evidence, the trial judge required petitioner to choose between having the jury instructed only as to first-degree murder, or waiving the Florida statute of limitations with respect to the lesser-included noncapital offenses of second-degree murder, third-degree murder, and manslaughter. The statute had run on each of those offenses. Petitioner refused to waive the statute of limitations. Thus, the jury was not permitted to consider the possibility that petitioner might be guilty of some lesser offense. After several hours of deliberations, the jury found petitioner guilty of first-degree murder. It recommended that he be sentenced to life imprisonment. The trial judge rejected this recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed. It stated that instructions as to lesser-included offenses would have been required in ordinary circumstances. Where the statute had run on those offenses, however, instructions were not necessary. 393 So. 2d 1119 (1981).

I am not persuaded by the Florida Supreme Court’s reasoning. In Keeble and Beck, this Court emphasized the importance of instructions on lesser-included offenses. Keeble held that an Indian prosecuted in a Federal District Court under the Major Crimes Act of 1855 is entitled to a jury instruction on a lesser-included offense, even though the Act did not confer federal jurisdiction over the defendant for the lesser crime. The Court stated:

“[I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble, supra, at 212-213.

The Court did not explicitly hold that there was a due process right to have the jury instructed on a lesser offense. It stated, however, that if the Major Crimes Act were interpreted as precluding such an instruction, “difficult constitutional questions” would be raised. Id., at 213.

In Beck v. Alabama, the Court held that the death sentence may not constitutionally be imposed where the jury was not permitted to consider a verdict of guilt of a lesser-included offense. Providing the jury with the option of convicting on a lesser-included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard. As in Keeble, the Court chose not to decide whether due process requires that instructions on lesser offenses be given in every case. It stated, however, that the risk of an unwarranted conviction cannot be tolerated in a case in which the defendant’s life is at stake.

The principles underlying Keeble and Beck would seem to apply with just as much force where the statute of limitations on the lesser-included offenses has run. Those cases focused on the danger of an unwarranted conviction, where the jury was given a choice only between acquittal and conviction for the offense charged, and was not given the opportunity to consider whether the defendant was guilty of some lesser-included offense. This danger exists even where the statute of limitations has run with respect to the lesser offense. Thus, I think a strong argument can be made that the jury should be instructed as to that offense.

A criminal defendant should not be penalized because the State did not bring him to trial within the time prescribed by the state legislature for lesser-included offenses. After receiving instructions on both the offense charged and the lesser-included offenses, the jury may render a guilty verdict on a lesser offense. Such a verdict would reflect the jury’s conclusion that, although it believed beyond a reasonable doubt that the defendant was guilty of criminal conduct, it had a reasonable doubt as to whether the State had proved each element of the offense charged. At this point, the court must decide as a matter of law whether the statute of limitation prevents it from sentencing the petitioner for the lesser crime. The court should not be permitted to avoid this legal question by refusing to allow the jury to decide whether the defendant is guilty only of a lesser offense.

The issue presented here is very similar to the issue presented in a petition for a writ of certiorari considered by this Court last Term. See Holloway v. Florida, 449 U. S. 905 (1980). In that case also, the petitioner was arrested by Florida police and charged with first-degree murder. The trial court chose not to instruct the jury on lesser-included offenses on the grounds that the Florida statute of limitations had run with respect to those offenses. The jury was instructed solely as to first-degree murder. Petitioner was convicted and sentenced to life imprisonment. The Florida Supreme Court affirmed and this Court denied certiorari.

Justice Blackmun, joined by Justice Brennan and myself, dissented. Justice Blackmun explained as follows:

“The Court’s decisions in both Keeble and Beck imply that affording jurors a less drastic alternative may be constitutionally necessary to enhance or preserve their essential factfinding function. Whether the trial court properly may enter a judgment of guilt should the jury convict for a lesser included offense seems to me a separate, legal matter with which the factfinder need have no concern.” Id., at 908 (footnote omitted).

In at least one respect, this case is more troubling than Holloway. The petitioner here has been sentenced to death. Because the court refused to instruct the jury on the lesser offenses solely because the statute of limitations had run with respect to those offenses, its decision to impose the death penalty was flatly inconsistent with Beck v. Alabama.

Justice Blackmun,

dissenting.

Because of the presence in this case of the issue concerning petitioner’s entitlement to instructions on lesser-included noncapital offenses, I would grant the petition for certiorari and give the case plenary consideration. See Holloway v. Florida, 449 U. S. 905 (1980) (dissenting opinion).


author: Justice Brennan, Justice Marshall,

text:
    No. 80-6819.
    McCray v. Florida.
   Sup. Ct. Fla. Cer-tiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting.

As I have consistently stated, I believe that a decision to impose the death penalty is always cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 231 (1976). Thus, I would grant certiorari in this case and vacate the judgment insofar as it leaves undisturbed the death sentence. I would also grant certiorari on an additional ground. Petitioner argues that the death penalty has been arbitrarily and capriciously imposed in this case, because the trial judge rejected the jury’s recommendation that he be sentenced to life imprisonment. According to petitioner, the jury should not have been overruled, since its recommendation was not unreasonable. In my view, there is substantial merit to this claim.

► — I

The Florida capital punishment statute, Fla. Stat. §921.141 (1979), which this Court approved in Proffitt v. Florida, 428 U. S. 242 (1976), establishes a three-level review system. After a defendant is found guilty of a capital offense, an evidentiary hearing is held before the judge and the jury to determine the sentence. At the conclusion of the hearing, the jury considers whether “sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist,” and based on these considerations, “whether the defendant should be sentenced to life imprisonment or death.” §§921.141(2)(b) and (c).

The jury’s verdict is advisory only; the actual sentence is imposed by the trial judge after he conducts his own review of the aggravating and mitigating circumstances. However, the Florida Supreme Court has stated that the jury recommendation is entitled to substantial weight. “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975). Accord, Thompson v. State, 328 So. 2d 1, 5 (Fla. 1976). See also Proffitt v. Florida, supra. Judges are given the power to override jury verdicts only because of the possibility that in isolated cases juries will unreasonably reject death. See Chambers v. State, 339 So. 2d 204, 208-209 (Fla. 1976).

The statute provides for automatic review by the Florida Supreme Court of all cases in which a death penalty has been imposed. §921.141(4). The statute itself does not require any specific form of review. The court has stated, however, that its function is to ensure that similar results are reached in similar cases. “If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.” State v. Dixon, 283 So. 2d 1, 10 (1973).

If Florida is to use a system of advisory verdicts, it must administer that system with scrupulous fairness. Having stated that it will reject only those recommendations that are unreasonable, it must conscientiously adhere to that standard. The trial judge or the Florida Supreme Court may not allow a reasonable jury recommendation to stand in some cases, and substitute their own judgment in others. Where matters of life and death are concerned, such a lack of predictability cannot be tolerated. This Court has repeatedly emphasized the importance of consistency in capital cases. See, e. g., Gardner v. Florida, 430 U. S. 349, 357-358 (1977); Woodson v. North Carolina, 428 U. S. 280, 302-303 (1976); Jurek v. Texas, 428 U. S. 262, 274 (1976); Proffitt v. Florida, supra, at 259-260; Gregg v. Georgia, supra, at 188-189; Furman v. Georgia, 408 U. S. 238, 309-310 (1972).

II

My review of the record in this case leads me to believe that the trial judge may have improperly substituted his own judgment for that of the jury in deciding to impose the death penalty. Petitioner was tried for the murder of a 67-year-old woman. After the close of the evidence, the jury returned a verdict of guilty, but recommended a life sentence. The trial judge rejected this recommendation and entered a judgment calling for the death sentence. He found three statutory aggravating circumstances. First, because petitioner had recently pleaded guilty to an unrelated assault charge, he was a convicted felon. See Fla. Stat. § 921.141(5) (b) (1979). Second, the murder was “especially heinous, atrocious, or cruel.” §921.141(5)(h). Third, the murder took place during the commission of a rape. § 921.141(5)(d). The trial judge stated that these aggravating circumstances outweighed any mitigating circumstances. He rejected evidence submitted by petitioner to show that at the time of the crime he was “under the influence of extreme mental or emotional disturbance,” a statutory mitigating circumstance. §921.141(6)(b).

The Florida Supreme Court affirmed the trial judge’s decision to override the jury’s advisory verdict. McCrae (sic) v. State, 895 So. 2d 1145 (1980). It agreed that the guilty plea to the unrelated felony charge could be treated as a felony conviction, and thus constituted an aggravating circumstance under the death penalty statute. It also agreed that the crime was especially heinous, atrocious, or cruel, and that it had taken place during the commission of a rape. The Supreme Court reasoned that the jury must have decided to recommend life imprisonment because it believed that petitioner was under the influence of extreme mental or emotional disturbance at the time the crimes were committed. Like the trial judge, however, the State Supreme Court concluded that the evidence submitted by petitioner could not support a conclusion that this mitigating circumstance actually existed.

I am extremely troubled by the trial judge’s decision to override the jury’s advisory verdict, and by the Florida Supreme Court’s affirmance of that decision. A reasonable jury unquestionably could have concluded that the mitigating circumstances outweighed the aggravating circumstances. Petitioner offered substantial evidence in support of his claim that he acted under the influence of extreme mental or emotional disturbance. A psychiatrist, Dr. Clarence Schlit, testified that petitioner was subject to attacks when under emotional stress that prevented him from exercising a normal degree of restraint. He further stated that although petitioner was not insane, he suffered from a chronic schizophrenic illness. Dr. Schlit’s testimony was confirmed by two court-appointed psychiatrists who examined petitioner to determine whether he was competent to stand trial. Dr. Morde-cai Haber observed that petitioner suffered from a disorder that contributed to an explosive personality. He concluded that although petitioner was competent, he was too dangerous to be at liberty. Dr. Thomas Haagland found that although petitioner had control of himself while sober, he released “an underlying epileptic furor” whenever he was intoxicated. 395 So. 2d, at 1147-1148.

Other evidence in the record lends support to petitioner’s claim that he was emotionally disturbed at the time of the murder. Petitioner was confined in a psychiatric ward while in the United States Army. Record 883. Prior to trial he made at least three suicide attempts. Id., at 883, 884, 1005. He frequently hears voices, and regards this as normal. Id., at 1006. He suffers from “organic brain syndrome with epilepsy.” Id., at 1022. These findings were confirmed by an electroencephalogram. Ibid.

The trial judge and the Florida Supreme Court unfairly discounted this evidence. They both emphasized that Dr. Schlit was unwilling to testify that it was a “medical certainty” that petitioner acted under the influence of extreme mental disturbance. See 395 So. 2d, at 1148. This does not mean, however, that it was unreasonable for the jury to conclude, on the basis of all the evidence, that petitioner was emotionally disturbed at the time of the murder.

I also think it quite possible that the jury was not convinced that this was an “especially heinous, atrocious, or cruel” murder within the meaning of the death penalty statute. It is true that there was evidence suggesting that the victim was beaten before she died. However, it was not possible to determine how quickly the victim died, or how much she suffered. A reasonable jury could have found that the murder was not heinous. The Florida Supreme Court has stated that the “heinous, atrocious, or cruel” standard applies only to those murders that are “extremely wicked” and “shockingly evil,” or “designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.” State v. Dixon, 283 So. 2d, at 9.

Since a jury could reasonably have concluded that the mitigating circumstances outweighed the aggravating circumstances, the trial judge improperly rejected its recommendation. He substituted his own judgment concerning the proper sentence, in disregard of the standards set forth by the Florida Supreme Court. Under the circumstances, the imposition of the death sentence was arbitrary and capricious.


text:
    No. 81-14.
    No. 81-416.
    Peraino et al. v. United States; and Battista et al. v. United States.
   C. A. 6th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petitions and reverse the convictions.

Reported below: 646 F. 2d 237.


text:
    No. 81-97.
    No. 81-323.
    A. O. Smith Corp. v. Nottelson et al.; and Smith Steel Workers D.A.L.U. 19806, AFL-CIO v. Nottelson et al.
   C. A. 7th Cir. Certiorari

denied.

Justice Brennan and Justice Marshall would grant certiorari.

Reported below: 643 F. 2d 445.


text:
    No. 81-501.
    Bontrager, Judge, Elkhart Superior Court No. 2 v. Supreme Court of Indiana et al.
   Sup. Ct. Ind. Motion of California Attorneys for Criminal Justice et al. for leave to file a brief as amici curiae granted. Cer-tiorari denied.


text:
    No. 81-336.
    Consolidated Rail Corp. et al. v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 81-559.
    Bluemle v. N. K. Parrish, Inc.
   C. A. 5th Cir. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


author: Justice Brennan,

text:
    No. 81-5035.
    Truitt v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Several uniformed police officers approached petitioner after he was observed selling drugs on the street. Petitioner fled, discarding a paper bag he had been carrying. After a brief chase, petitioner was apprehended and the paper bag was retrieved. The bag contained Talwin, a controlled substance under Ohio law, and the drug which had been the subject of the earlier exchange. Petitioner was charged with possession of a controlled substance, a misdemeanor; drug trafficking (sale of a controlled substance), a felony; and a misdemeanor assault on the arresting officer.

Petitioner was tried and convicted on the misdemeanor charges, and sentenced to 60 days for the possession offense, and 10 days for the assault. Petitioner was then indicted on the charge of drug trafficking. Before trial he moved to dismiss, claiming former jeopardy by virtue of his prior conviction for possession. The trial court granted the motion and dismissed the indictment. The State appealed and the Court of Appeals for the First Appellate District of Ohio reversed. Noting that “the drugs possessed by the defendant were not the drugs that he sold,” and that the state legislature “has not chosen to make a crime of dealing in (pushing) drugs as a con-timing course of conduct, but to proscribe a series of acts committed while dealing in drugs with a separate punishment for each,” 1 Ohio App. 3d 65, 66-67, 439 N. E. 2d 452, 454 (1981), the court perceived no double jeopardy barrier to the second prosecution. The Ohio Supreme Court denied petitioner leave to appeal.

I would grant the petition for certiorari and reverse the judgment of the Court of Appeals. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires that, except in extremely limited circumstances, not present here, “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction” be prosecuted in a single proceeding. Ashe v. Swenson, 397 U. S. 436, 453-454, and n. 7 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting), and cases collected therein. Although the legislature may be free to divide a continuing course of conduct into a number of discrete crimes, each distinctly punishable, in my view the State was not free to subject petitioner to successive trials on charges growing out of this one criminal transaction.


text:
    No. 81-5425.
    Pierce v. Volkswagen of America, Inc.
   Sup. Ct. Ind. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 80-6757.
    McColpin v. Atkins,
   ante, p. 911. Petition for rehearing denied.


text:
    No. 80-2166.
    No. 80-6544.
    No. 80-6826.
    No. 80-6862.
    Taberoff v. Farmers Group, Inc., et al., Johnson v. Louisiana, In re McKnight, Royse v. Washington et al.,
   ante, p. 836;

ante, p. 840;

ante, p. 811; and

ante, p. 853. Petitions for rehearing denied.

Justice O’Connor took no part in the consideration or decision of these petitions.


text:
    No. 80-6901.
    No. 81-5033.
    No. 81-5078.
    No. 81-5163.
    No. 81-5289.
    Woods v. Neal et al., McMillion v. Maryland, Burnside v. Wyrick, Warden, Mercer v. Washington et al., Noe v. United States,
   ante, p. 855;

ante, p. 869;

ante, P 870;

ante, P 873; and

ante, p. 876. Petitions for rehearing denied.

Justice O’Connor took no part in the consideration or decision of these petitions.


text:
    November 12, 1981
    No. 81-463.
    Brown, Warden v. Vargas.
   C. A. 1st Cir. . Certiorari dismissed under this Court’s Rule 53.


text:
    November 16, 1981
    No. 81-68.
    Foret v. United Gas Pipeline Co., Inc.
   Appeal from C. A. 5th 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. 81-561.
    Gay et al. v. Eighth Judicial District Court of Nevada et al.
   Appeal from Sup. Ct. Nev. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 81-5164.
    Strickland v. Baltimore City Department of Social Services.
   Appeal from Ct. Sp. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 81-616.
    Gedeon v. Gedeon, aka Rose.
   Appeal from Sup. Ct. Colo, dismissed for want of substantial federal question.


text:
    No. 81-134.
    Powell v. Powell.
   Ct. App. Cal., 3d App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of McCarty v. McCarty, 453 U. S. 210 (1981).


text:
    No. A-362.
    Kentucky Association for Retarded Citizens, Inc., et al. v. Conn, Secretary, Kentucky Department for Human Resources, et al.
   Application for stay of the order of the United States Court of Appeals for the Sixth Circuit, case No. 80-3560, entered October 8, 1981, presented to Justice O’Connor, and by her referred to the Court, denied.


text:
    No. A-392.
    Cantrell et al. v. Florida.
   Sup. Ct. Fla. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-414.
    Coleman v. Montana.
   Application for stay of execution and enforcement of the sentence of death, addressed to Justice Marshall and referred to the Court, denied.

Justice Brennan, Justice Marshall, and Justice Stevens would grant the application. Justice Powell took no part in the consideration or decision of this application.


text:
    No. 80-1640.
    No. 80-1656.
    United States Nuclear Regulatory Commission et al. v. Sholly et al.; and Metropolitan Edison Co. et al. v. People Against Nuclear Energy et al.
   C. A. D. C. Cir. [Certiorari granted, 451 U. S. 1016.] Motion of petitioners to defer oral argument granted.


text:
    No. 80-1436.
    No. 80-1781.
    Baldrige, Secretary of Commerce, et al. v. Shapiro, Essex County Executive. McNichols, Mayor of Denver, et al. v. Baldrige, Secretary of Commerce, et al.
   C. A. 3d Cir. [Certiorari granted, 451 U. S. 936]; and

C. A. 10th Cir. [Certiorari granted, 452 U. S. 937.] Motion of petitioners in No. 80-1781 to divide oral argument with respondent in No. 80-1436 granted.


text:
    No. 80-1924.
    Weinberger, Secretary of Defense, et al. v. Rossi et al.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 813.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 80-2209.
    United States v. Ross.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 891.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 81-213.
    Schweiker, Secretary of Health and Human Services v. Hogan et al.
   D. C. Mass. [Probable jurisdiction noted, ante, p. 891.] Motion for appointment of counsel granted, and it is ordered that William H. Simon, Esquire, of Stanford, Cal., be appointed to serve as counsel for appellees in this case.


text:
    No. 81-5613.
    In re Boyden.
   C. A. 9th Cir. Petition for common-law writ of certiorari denied.


text:
    No. 81-595.
    No. 81-5458.
    In re Baskett et al.; and In re Rucker.


text:
    No. 81-611.
    Globe Newspaper Co. v. Superior Court for the County of Norfolk.
   Appeal from Sup. Jud. Ct. Mass. Probable jurisdiction noted.


text:
    No. 81-614.
    Griffin v. Oceanic Contractors, Inc.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 81-622.
    Southern Pacific Transportation Co. v. Commercial Metals Co.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 81-55.
    New York v. Ferber.
   Ct. App. N. Y. Motion of Covenant House for leave to file a brief as amicus curiae granted. Certiorari granted.


text:
    No. 81-389.
    No. 81-390.
    Union Labor Life Insurance Co. v. Pireno; and New York State Chiropractic Assn. v. Pireno.
   C. A. 2d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 650 F. 2d 387.

Certiorari Denied. (See also Nos. 81-68, 81-561, 81-5164, and 81-5613, supra.)


text:
    No. 80-6825.
    Wright v. Auston et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-43.
    Odom v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 81-72.
    Cannon v. Louisiana.
   Sup. Ct. La. Cer-tiorari denied.


text:
    No. 81-142.
    Stankowski v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 81-238.
    Tong Wook Moon v. Ohio.
   Ct. App. Ohio, Lorain County. Certiorari denied.


text:
    No. 81-235.
    Puget Sound Power & Light Co. v. Federal Energy Regulatory Commission et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-289.
    Crown Simpson Pulp Co. et al. v. Gorsuch, Administrator, Environmental Protection Agency.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-359.
    Yuen v. Internal Revenue Service et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-405.
    Wolfe, Executrix, et al. v. Continental Casualty Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-435.
    Holiday Inn v. Holiday Inns, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-458.
    National Bank of Commerce of San Antonio v. Secretary of Labor et al.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 81-508.
    Goldberg v. Medtronic, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-519.
    Keeter et al. v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 81-526.
    Jones v. Prudential Insurance Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-529.
    Angel et al. v. Superior Court of San Diego County et al. (Renn et al., Real Parties in Interest).
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 81-550.
    Buttress v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 81-552.
    Tiru-Chelvam v. Veterans’ Administration Hospital et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-560.
    Dornier, A. G., et al. v. Sweaney, Personal Representative of the Estate of Roberts, et al.
   Super. Ct. Alaska, 4th Jud. Dist. Certiorari denied.


text:
    No. 81-571.
    Clark v. Payne.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 81-577.
    Citizens Committee to Save Historic Rhodes Tavern v. District of Columbia Department of Housing and Community Development et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-578.
    Ogle v. Oregon.
   Ct. App. Ore. Certio-rari denied.


text:
    No. 81-579.
    Concord Instruments Corp. v. Pension Benefit Guaranty Corporation et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-580.
    Colgate-Palmolive Co. v. United Roasters, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-581.
    Beatty v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-582.
    Circle A & W Products Co. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-588.
    Kinkead v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 81-592.
    Mueller et al. v. Ruddy et al.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 81-602.
    Molins Machine Co., Inc. v. Rengo Co. Ltd. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-606.
    Davis & Cox et al. v. Eighth Judicial District Court of Nevada et al.
   Sup. Ct. Nev. Cer-tiorari denied.


text:
    No. 81-612.
    Masino et al. v. Outboard Marine Corp. et al.; and Bubello, Administratrix v. Taylor et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-627.
    Ashland-Warren, Inc. v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 81-628.
    Olpin, a minor, by her Guardian Ad Litem, Louden v. Olpin.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-643.
    Thordarson et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-684.
    Au v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-695.
    Bland v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-706.
    Perez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-709.
    Picketts v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-725.
    Johnson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-727.
    Johnston v. United States et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-732.
    Walton v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-737.
    McFillin v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5032.
    Barksdale v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5050.
    Antonelli v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 81-5068.
    Henson v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5075.
    Urdy v. Texas et al.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 81-5080.
    Robinson v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 81-5125.
    Jeter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-5140.
    Maxie et al. v. Hey, Judge.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 81-5175.
    Cuthbertson et al. v. CBS, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-5174.
    Rooks v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-5251.
    Minor v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-5254.
    Jackson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5309.
    Edwards v. Garrison.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-5310.
    Jackson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-5442.
    Veteto v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5453.
    Buchanan v. Sowders, Superintendent, Kentucky State Penitentiary.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 81-5457.
    Padilla v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 81-5459.
    Wilder v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 81-5463.
    Perea v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-5464.
    LePage v. Idaho.
   Sup. Ct. Idaho. Cer-tiorari denied.


text:
    No. 81-5465.
    Lee v. Utah.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 81-5469.
    Zatko v. United States District Court for the Southern District of New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5466.
    Bozeman v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 81-5470.
    Woods v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 81-5471.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5472.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5476.
    Owens v. Thornburgh.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-5479.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5480.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5481.
    Outlaw v. Lane.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 81-5482.
    White v. Wyrick et al.
   C. A. 8th Cir. Certiorari denied,


text:
    No. 81-5484.
    Aldridge v. Engle.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 81-5490.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5491.
    Zatko v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 81-5492.
    Sweeney v. Stryjak et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-5493.
    Naum v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 81-5494.
    Pincheff v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 81-5495.
    Valdes v. National Labor Relations Board.
   C. A. 2d Cir: Certiorari denied.


text:
    No. 81-5497.
    Jackson v. Cousins, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-5500.
    Christensen v. Commissioner of Internal Revenue et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-5501.
    Breest et al. v. Perrin, Warden, New Hampshire State Prison, et al.
   C. A. 1st Cir. Certio-rari denied.


text:
    No. 81-5515.
    Coleman v. Marzulli et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 81-5559.
    Laws v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 81-5577.
    Hall v. New York.
   Ct. Cl. N. Y. Cer-tiorari denied.


text:
    No. 81-5581.
    Maggard v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 81-5584.
    Brown v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-5588.
    Dias v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-5589.
    Turner v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 81-5601.
    Poland v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-5602.
    Rosas-Montes et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-5606.
    Brown, aka Dennis v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-5610.
    Green v. Beaver et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-2005.
    Walsh v. Ford Motor Co. et al.
   Ct. App. Ohio, Lorain County. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 81-452.
    Holton, Chief Investigator, Select Committee on Aging, U. S. House of Representatives, et al. v. Benford.
   C. A. 4th Cir. Motion of Thomas P. O’Neill, Jr., et al. for leave to file a brief as amici curiae granted. Certiorari denied.


author: Justice White,

text:
    No. 81-480.
    Kamberos v. GTE Automatic Electric, Inc.
   C. A. 7th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

In this Title VII case, the Court of Appeals for the Seventh Circuit substantially reduced an award of backpay because the petitioner did not seek a right-to-sue letter from the Equal Employment Opportunity Commission while the Commission was attempting to resolve the grievance through conciliation. The decision conflicts directly with the position of the Fifth Circuit, indirectly with that of the Ninth Circuit, possibly misreads this Court’s decisions, and definitely leaves Title VII plaintiffs confused as to their responsibilities under the Civil Rights Act of 1964. I would grant certiorari to resolve the conflict and, it is hoped, to clarify the situation.

Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. §2000e et seq., establishes procedures by which aggrieved parties may seek relief from unlawful discrimination. The Act provides that charges first be brought to the Equal Employment Opportunity Commission within 180 days of the alleged violation. §2000e-5(e). If the Commission dismisses the charge or issues a right-to-sue letter, the party may bring an action in federal court within 90 days. §2000e-5(f)(l)(A). Regulations under the Act provide that after 180 days from the filing of a complaint with the Commission, a person can request a right-to-sue notice^ which “the Commission shall promptly issue.” 29 CFR § 1601.28(a) (1980). Nothing in the Act or its accompanying regulations requires that such a request be made within a certain time, or, for that matter, that it be made at all.

The petitioner, a lawyer, was refused employment by respondent because, as she was told in just so many words, the company was looking for a man. That same day petitioner filed her complaint with the Commission. Although petitioner could have requested a right-to-sue letter 180 days later, she waited for over four years while the Commission pursued the grievance through conciliation. That process apparently was unsuccessful and, on January 3, 1974, a right-to-sue letter was issued. Fifteen days later, petitioner filed suit in Federal District Court, which upheld her claim and awarded various prospective relief as well as backpay of over $100,000 dating from the filing of charges in 1969. The Court of Appeals for the Seventh Circuit agreed that the respondent was liable for sex discrimination, but objected to the backpay award because the petitioner allowed her complaint to “lie dormant” with the Commission for over four years when she could have obtained a right-to-sue letter upon request. The District Court was directed, on remand, to reduce the backpay award for the time during which petitioner could have requested a right-to-sue letter from the Commission. 603 F. 2d 598, 603.

The Fifth Circuit has expressly declined to rule that Title VII plaintiffs must make a timely request for a right-to-sue letter or lose the right to substantial backpay relief. In two recent cases, one involving a 9-year delay between the filing of charges and the issuance of a right-to-sue letter, Bernard, v. Gulf Oil Co., 596 F. 2d 1249 (1979), aff’d and modified on other grounds, 619 F. 2d 459 (1980) (en banc), aff’d, 452 U. S. 89 (1981), and the other involving a claim pending before the Commission for five years, Fowler v. Blue Bell, Inc., 596 F. 2d 1276 (1979), the court reasoned that the plaintiff was entitled to await completion of conciliation efforts before filing suit. “A plaintiff cannot be penalized for choosing . . . the legislatively and judicially favored method of relying on the administrative processes of the EEOC.” 596 F. 2d, at 1257. The Fifth Circuit refused to find cause to invoke laches in the plaintiffs’ failure to request a right-to-sue letter from the Commission.

In this case, the court did not refer to the Fifth Circuit cases, or any cases within its own Circuit, but looked instead to dictum in a Ninth Circuit decision that the “complainant should not be permitted to prejudice the employer by taking advantage of the Commission’s slowness in processing claims or by procrastinating while being aware that the Commission intends to take no further action.” Lynn v. Western Gillette, Inc., 564 F. 2d 1282, 1287 (1977) (footnote omitted). Nothwithstanding this language, the decision in Lynn was that the statutory 90-day period within which an aggrieved party must file a Title VII action does not begin to run until receipt of a right-to-sue letter and notification that the Commission’s conciliation efforts have failed.

This Court has said that a trial court may restrict or even deny backpay when “a Title VII defendant is . . . prejudiced by a private plaintiff’s unexcused conduct of a particular case.” Occidental Life Insurance Co. v. EEOC, 432 U. S. 355, 373 (1977); Albermarle Paper Co. v. Moody, 422 U. S. 405, 424-425 (1975). Here, it is at least arguable that petitioner’s patience in awaiting completion of conciliation efforts is not to be considered “unexcused conduct” in light of the “federal policy requiring employment discrimination claims to be ... , whenever possible, administratively resolved before suit is brought in a federal court.” 432 U. S., at 368. In authorizing the Commission to initiate its own suits, Congress hoped that “recourse to the private lawsuit will be the exception and not the rule, and that the vast majority of complaints will be handled through the offices of the [Commission].” 118 Cong. Rec. 7168 (1972). “It is assumed that individual complainants . . . would not cut short the administrative process merely to encounter the same kind of delays in a court proceeding.” H. R. Rep. No. 92-238, p. 13 (1971).

The conflict between the Circuits is plain. It is also apparent that if a Title VII plaintiff should pay a price for awaiting the outcome of conciliation efforts, that result should be made unmistakably clear. I would grant certiorari.

       The respondent suggests a meaningful distinction exists between the Fifth Circuit’s refusal to invoke laches and the Seventh Circuit’s reduction of backpay. The distinction is not persuasive, as the Seventh Circuit seems to recognize. See EEOC v. Massey-Ferguson, Inc., 622 F. 2d 271, 275 (1980). Both doctrines are governed by the same equitable considerations. It would be little comfort to a Title VII plaintiff to know that a court will not bar a claim but only substantially limit the amount of recovery. The use of either would leave aggrieved parties confused as to whether they can await the Commission’s action or must press for permission to file suit. The cases cannot be reconciled on this basis.


text:
    No. 81-618.
    Blinzinger, Administrator, Department of Public Welfare of Indiana v. Bond et al.
   C. A. 7th Cir. Motion of respondents Louise Bond et al. for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 81-573.
    Johnson et al. v. Airline Pilots in the service of Northwest Airlines, Inc., et al.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 81-517.
    Switlik et al. v. Hardwicke Co., Inc., et al.
   C. A. 3d Cir. Certiorari denied.

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


author: Justice Stevens Justice White,

text:
    No. 81-646.
    Novack Investment Co., dba Budig Western Trucking, et al. v. Setser.
   C. A. 8th Cir. Certiorari denied.

Opinion of

Justice Stevens

respecting the denial of the petition for writ of certiorari.

In suggesting that the Court is derelict in its duty to resolve the apparent conflict between the decision of the Court of Appeals in this case and the decision of the Sixth Circuit in Moore v. Sun Oil Co. of Pennsylvania, 636 F. 2d 154 (1980), the dissenting opinion fails to mention the fact that both courts held that the issue of liability should be decided by a jury. The question whether the arithmetical calculation of backpay should be made by a judge or by a jury under instructions from the judge is not nearly as significant as the question whether the determination of liability should be made by a judge or a jury. Moreover, since the employer in this case no longer offered employment of the type sought by petitioner, the backpay issue arose in a somewhat unusual context. I do not believe the Court has abused its discretion in declining to review this case.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

It may be unfortunate in light of the expanding size of our docket, but it remains the case that this Court is the only body capable of resolving conflicts between the various lower courts, both federal and state. Our obligation to resolve these conflicts is just as pressing as is the need for a uniform rule of law. In my view this is a very pressing need, and is particularly so when the conflict involves those elements that define the character of the judicial process itself. In this respect, the right to a jury trial is fundamental. It is not a tolerable rule of law that one’s right to a jury trial depends upon the geographical location of the federal district court within which one flies a complaint. This is precisely what is involved in this case.

Respondent unsuccessfully sought employment as a truck-driver with petitioners’ trucking company. Alleging that this refusal to hire was based on racial considerations, respondent brought this suit claiming a violation of 42 U. S. C. § 1981. He filed his complaint in the United States District Court for the Eastern District of Missouri. Respondent sought monetary damages for backpay, lost insurance benefits, expenses incurred in seeking alternative employment, pain and suffering, interest, attorney’s fees, and costs. He moved for a jury trial. That motion was opposed by petitioners with respect to the claims for lost wages, interest, attorney’s fees, and costs. The District Court, acting sua sponte, entered an order denying a jury trial on all issues, holding that a jury trial is not available in a § 1981 case.

The Court of Appeals for the Eighth Circuit reversed. 638 F. 2d 1137 (1981). Relying on Johnson v. Railway Express Agency, Inc., 421 U. S. 454 (1975), in which this Court held that both legal and equitable relief is available in actions brought under § 1981, and Curtis v. Loether, 415 U. S. 189, 194 (1974), in which this Court held that “[t]he Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies enforceable in an action for damages in the ordinary courts of law,” the Court of Appeals concluded that respondent was entitled to a jury trial on all of his legal claims. It then held that “backpay or lost wage determinations are inherently in the nature of legal damages,” 638 P. 2d, at 1142, and, therefore, present an issue for the jury. The court recognized that other courts had come to a different conclusion, but distinguished this case on one factual ground — respondent did not seek reinstatement — and rejected the argument that backpay is a form of “restitution.” See Lynch v. Pan American World Airways, 475 F. 2d 764 (CA5 1973); Robinson v. Lorillard Corp., 444 F. 2d 791 (CA4 1971); EEOC v. Detroit Edison Co., 515 F. 2d 301 (CA6 1975), vacated on other grounds, 431 U. S. 951 (1977); Harkless v. Sweeney Independent School District, 427 F. 2d 319 (CA5 1970).

Even accepting the relevance of the factual distinction drawn by the Court of Appeals, respondent would not have received a jury trial had he filed his complaint in the Sixth Circuit. In Moore v. Sun Oil Co. of Pennsylvania, 636 F. 2d 154 (1980), the Court of Appeals for the Sixth Circuit confronted exactly the same factual situation as presented by this case. It reached a conclusion that directly conflicts with that reached by the Eighth Circuit:

“In the instant case, Moore is seeking ‘back pay’ although he is not seeking the equitable relief of reinstatement by means of an injunction. However, ‘back pay,’ under the law of this circuit, is equitable relief, and therefore the parties are not entitled to a jury trial with respect to such issue even though reinstatement is not sought.” Id., at 156.

Mr. Moore and Mr. Setser sought relief under the same federal statute and were entitled to the same judicial procedure for resolution of their claims. There should be no such a thing as “the law of this circuit” with respect to an issue as fundamental as the right to a jury trial. I would grant the petition and set the case for plenary consideration.

      ln Moore the Court held:
      “Since Moore’s claim for legal relief and equitable relief are both based on alleged racial discrimination and since Moore was entitled to a jury trial with respect to his legal claims, he was entitled to have a jury determine liability (i.e. whether he had been a victim of racial discrimination). 9 Wright & Miller, Fed. Prac. & Proc. § 2306. If the jury so determined that here was liability, it would be for the court to determine whether Moore was entitled to back pay.” 636 F. 2d, at 157.

       Respondent also alleged that he was refused employment by petitioners in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission. Petitioners seek review of the Court of Appeals holding that § 1981 affords a cause of action for a claim based on alleged retaliation for such a filing. I do not believe that this issue merits consideration by the Court at this time.

       The Court of Appeals granted rehearing en banc, limited to the question of the permissibility under § 1981 of race-conscious affirmative-action plans designed to remedy racial imbalance in a private employer’s work force. The conclusions of the court on this issue are not relevant to the issues presented in the petition for certiorari.


author: Justice Marshall,

text:
    No. 81-5324.
    United States ex rel. Riley v. Franzen, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.

Justice Marshall,

dissenting.

Petitioner Thomas Riley was arrested in connection with three homicides. At the time of his arrest, he was 16 years old. Petitioner was held for several hours in a police car and subsequently in a jail cell. In the police station, after being advised of his constitutional rights to remain silent and consult with an attorney, petitioner asked to speak to his father, who had come to the station when he learned of his son’s arrest. This request was ignored by the police. Petitioner then confessed to the crimes. After a jury trial in the Circuit Court of Cook County, Ill., he was convicted of two counts of murder and one count of involuntary manslaughter. Prior to trial, Riley unsuccessfully moved to suppress his confession, claiming, inter alia, that the request of a juvenile defendant to see a parent is the functional equivalent of an adult’s request for an attorney and should terminate police interrogation.

On direct appeal, the Illinois Appellate Court rejected petitioner’s challenge to the admissibility of his confession. People v. Riley, 49 Ill. App. 3d 304, 364 N. E. 2d 306 (1977). The Illinois Supreme Court denied leave to appeal. This Court denied a petition for a writ of certiorari. 435 U. S. 1000 (1978). I dissented, noting that there was a conflict of authority on the question whether an accused child’s request to see a parent must be honored by the police before they continue interrogation.

Having exhausted his available state remedies, Riley filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. That court ultimately rejected his claim that the confession should have been suppressed. The United States Court of Appeals for the Seventh Circuit affirmed. 653 F. 2d 1153 (1981). The Court of Appeals relied heavily on this Court’s recent decision in Fare v. Michael C., 442 U. S. 707 (1979), which held that a juvenile’s request for his probation officer did not necessarily constitute an invocation of his Fifth Amendment privilege. Petitioner again filed a petition for a writ of cer-tiorari in this Court. The petition is now denied. Because I continue to believe that the issue presented here is substantial, and because the decision of the court below further contributes to the conflict among authorities, I dissent. The Court’s decision in Fare v. Michael C. does not determine the result in this case. Fare v. Michael C. emphasized that a probation officer has a statutory duty to report wrongdoing by the juvenile and serve the ends of the juvenile court system. Thus, he would be particularly hampered in his efforts to protect the juvenile’s legal rights. Obviously, a parent is in a very different position.


author: Justice Brennan and Justice Marshall,

text:
    No. 81-5407.
    No. 81-5483.
    Mulligan v. Zant, Superintendent, Georgia Diagnostic and Classification Center. Woodard v. Arkansas.
   Super. Ct. Ga., Butts County; and

Sup. Ct. Ark. Certiorari denied. Reported below: No. 81-5483, 273 Ark. 235, 617 S. W. 2d 861.

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. 80-2033.
    No. 81-164.
    No. 81-5318.
    Romero-Barcelo et al. v. Weinberger, Secretary of Defense, et al., City of Painesville, Ohio v. United States, Parrish v. City of Virginia Beach et al.,
   ante, p. 816;

ante, p. 894; and

ante, p. 903. Petitions for rehearing denied.


text:
    No. 80-1644. No. 80-1986. No. 80-2090. No. 80-6578. No. 80-6722. No. 80-6737. No. 80-6801. No. 80-6830. No. 80-6861. No. 80-6906. No. 80-6937. No. 81-104. No. 81-5003. No. 81-5197. No. 81-5269.
    Florida v. Brown, Distler v. United States, Prichard et al. v. United States, Johnson v. Louisiana, Mason v. County of Worcester et al., Alers et ux. v. City Government of San Juan, Crenshaw v. United States et al., Cole v. Vincent et al., Smith v. Keet, Judge, Miller v. Weinberger, Secretary of Defense, et al., Hilliard v. Wilkinson et al., Blanton et ux. v. General Electric Credit Corporation of Georgia, Broughton v. Broughton, Lee v. United States Department of Labor et al., Kavaja v. United States,
   ante, p. 819;

ante, p. 827;

ante, p. 832;

ante, p. 841;

ante, p. 845;

ante, p. 846;

ante, p. 850;

ante, p. 851;

ante, p. 853;

ante, p. 855;

ante, p. 857;

ante, p. 862;

ante, p. 867;

ante, p. 874; and

ante, p. 876. Petitions for rehearing denied.

Justice O’Connor took no part in the consideration or decision of these petitions.


text:
    No. 80-6905.
    In re Parez,
   ante, p. 810. Petition for rehearing and other relief denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    November 17, 1981
    No. 81-543.
    Effron et al. v. Bank of America National Trust & Savings Assn., Executor, et al.
   Appeal from Ct. App. Cal., 4th App. Dist., dismissed under this Court’s Rule 53.


text:
    November 18, 1981
    No. 81-335.
    Sea Ranch Assn. et al. v. California Coastal Commission et al.
   Appeal from D. C. N. D. Cal. Judgment vacated and case remanded to the District Court in order that it may consider whether the case is moot in light of the enactment of Cal. Pub. Res. Code Ann. § 30610.6 (West Supp. 1981).


text:
    November 27, 1981
    No. 81-801.
    Johnson v. Kerr-McGee Oil Industries, Inc.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. A-439 (81-451).
    Hathorn et al. v. Lovorn et al.
   Application to stay the election scheduled for December 5, 1981, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan, Justice Marshall, Justice Blackmun, and Justice Stevens would grant the application.


text:
    November 30, 1981
    No. 81-589.
    McCluney v. Jos. Schlitz Brewing Co.
   Affirmed on appeal from C. A. 8th Cir.

Justice Stevens,

dissenting.

Appellant Forrest McCluney brought this action to recover damages under the Missouri “service letter statute,” Mo. Rev. Stat. §290.140 (1978). McCluney entered into an employment contract with appellee Jos. Schlitz Brewing Co. in Missouri in 1956. In 1970, Schlitz offered McCluney the position of plant manager at its facility in North Carolina. Appellant accepted the position and moved to North Carolina. In 1975, Schlitz offered McCluney a position as vice president of plant operations at Schlitz’ corporate headquarters in Wisconsin. McCluney again accepted. Thereafter, McCluney was fired and sought a “service letter” pursuant to the Missouri service letter statute.

In Horstman v. General Electric Co., 438 S. W. 2d 18 (Mo. App. 1969), a Missouri state court held, as a matter of state law, that a Missouri resident employed under a Kansas employment contract was not entitled to a service letter under the Missouri service letter statute. The court stated:

“Considering the legislative intent and construction of the statute by the courts of Missouri, it is clear that appellant is not entitled to a service letter under the Missouri service letter statute because appellant was not hired in Missouri, did not work in Missouri, was not discharged in Missouri, did not request a service letter from an office of respondent in Missouri, received no letters from respondent’s office in the State of Missouri, and because there were no contacts between appellant and the State of Missouri insofar as his employment or discharge by respondent was concerned. Appellant’s employment contract was a Kansas contract, since that is where he was hired and where he worked.” Id., at 21.

In the instant case, the Court of Appeals expressly held that the employment contract entered by appellant in Missouri in 1956 was discharged in 1970 when appellant accepted a promotion to a position as a plant manager in North Carolina; the court unequivocally stated that “[t]his suit is not upon a Missouri contract.” 649 F. 2d 578, 583. The Court of Appeals recognized that in Bliven v. Brunswick Corp., 575 S. W. 2d 788 (Mo. App. 1978), the court held that a “service letter” was required in a case in which an employee had been hired in Missouri and then transferred to four different States over a 2-year period. The Court of Appeals specifically distinguished Bliven, however, in concluding that the instant suit was not based upon a Missouri employment contract. In light of Horstman, this conclusion of the Court of Appeals strongly suggests that, as a matter of state law, the Missouri service letter statute does not apply in this case. Without expressly deciding that state law question, however, the Court of Appeals appears to have concluded that an application of the statute to this employment relationship would be unconstitutional.

It is not our business to decide the proper interpretation of Missouri law; indeed, we are precluded from considering state law questions in an appeal from a decision of a federal appellate court. 28 U. S. C. §1254(2). What is critical, however, is that if the Missouri statute was not applicable as a matter of state law, as the Court of Appeals suggests by distinguishing Bliven and by ruling that this case was not based on a Missouri contract, then the Court of Appeals should not have considered whether an application of the Missouri statute would violate due process. Certainly, this Court should not affirm what may be nothing more than an advisory opinion that an unintended application of state law would violate the Federal Constitution. Since the Court of Appeals appears to have expressed an opinion on a federal constitutional question without first ruling on a necessary question of state law, I would remand this case to the Court of Appeals for a determination in the first instance of whether, as a matter of state law, the Missouri statute is applicable on the facts of this case.

       The statute provides that, whenever any employee of a corporation doing business in the State is discharged or voluntarily quits the service of such corporation, the manager of the corporation must issue a letter to the employee setting forth the nature and character of the service rendered by the employee and the reason, if any, for the termination of service.

       As stated by the Court of Appeals:
      “Although it is not entirely clear from the court’s opinion, it would appear that the plaintiff in Bliven performed essentially the same employment function in each facility, and the court characterized the involuntary transfers as part and parcel of the original contract. Moreover, the short duration of employment in each facility highlights the transient nature of Bliven’s employment for the fifteen months he worked outside Missouri. By contrast, we hold that McCluney’s 1956 contract was discharged in 1970 when he accepted Schlitz’s offer of a promotion to plant manager of the Winston-Salem Plant. That 1970 contract was, likewise, discharged when McCluney accepted Schlitz’s offer of a promotion to vice president of plant operations in Wisconsin in 1975. The 1975 contract is twice removed from the original 1956 Missouri contract. . . . The simple fact that McCluney was originally hired in Missouri, in the light of his subsequent employment history with Schlitz, is not controlling. This suit is not upon a Missouri contract.” 649 P. 2d, at 583.

       The actual holding of the Court of Appeals is not without ambiguity. In the text of its opinion, the court simply rules that the contacts between Missouri and the transaction at issue are not sufficient to permit an application of Missouri law. This proposition is not inconsistent with a ruling that, as a matter of state law, the statute is inapplicable in this case. See Bliven v. Brunswick Corp., 575 S. W. 2d 788 (Mo. App. 1978). However, in a footnote early in its opinion, the Court of Appeals stated that “we determine that the extraterritorial application of the Missouri service letter statute to the facts of this case violates due process. ...” 649 F. 2d, at 580, n. 2.

       The question whether the State of Missouri would have the power to require all corporations licensed to do business in the State to give a “service letter” upon request to any person originally hired in the State, even with respect to subsequent employment contracts made in other States, is not as easy as the Court’s summary affirmance implies.


text:
    No. 80-6692.
    Busbee v. Texas.
   Appeal from Ct. Crim. App. Tex. dismissed for want of jurisdiction.


text:
    No. 81-404.
    Court House Plaza Co. v. City of Palo Alto et al.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 81-467.
    Ford Motor Credit Co. et al. v. Zapata.
   Appeal from Sup. Ct. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Justice O’Connor took no part in the consideration or decision of this case.


text:
    No. 81-488.
    Ford Motor Credit Co. et al. v. Caskey et al.
   Appeal from Sup. Ct. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice O’Connor took no part in the consideration or decision of this case.


text:
    No. 81-669.
    Shepherd Construction Co., Inc., et al. v. Georgia.
   Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question.


text:
    No. 80-2086.
    East Baton Rouge Parish School Board et al. v. Knights of the Ku Klux Klan, Realm of Louisiana, et al.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the Equal Access to Justice Act, Pub. L. 96-481, §§ 201-208.


text:
    No.-.
    Forty-eight Insulations, Inc. v. Liberty Mutual Insurance Co. et al.
   Motion to direct the Clerk to file the cross-petition for writ of certiorari denied.


text:
    No.-.
    Grand Traverse Area Sport Fishing Assn. v. United States et al.
   Motion to direct the Clerk to file the petition for writ of certiorari denied.


text:
    No. A-309.
    Wade v. Texas.
   Application for bail, addressed to The Chief Justice and referred to the Court, denied.


text:
    No. A-393.
    Romano et al. v. United States.
   Application for bail, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. D-93.
    In re Disbarment of Hendler.
   Disbarment entered. [For earlier order herein, see 429 U. S. 956.]


text:
    No. D-254.
    In re Disbarment of Wencke.
   It is ordered that Walter Carl Wencke, of Del Mar, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 27,
    No. 81,
    Orig.
    Orig.
    Ohio v. Kentucky; and Kentucky v. Indiana et al.
   Motion of Dorothy Cole et al. for leave to intervene referred to the Special Master. [For earlier orders herein, see, e. g., 445 U. S. 939 and 941.]


text:
    No. 65,
    Orig.
    Texas v. New Mexico.
   It is ordered that the order heretofore entered on November 11, 1975, which appeared in 423 U. S. 942, is amended to read as follows: It is ordered that the Honorable Jean Sala Breitenstein, Senior Judge for the United States Court of Appeals for the Tenth Circuit, be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

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

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court.

The motion of the United States for leave to intervene is referred to the Special Master. [For earlier decision herein, see, e. g., 446 U. S. 540.]


text:
    No. 80-702.
    United States v. New Mexico et al.
   C. A. 10th Cir. [Certiorari granted, 450 U. S. 909.] Motion of the Solicitor General to permit George W. Jones, Esquire, to present oral argument pro hac vice granted.


text:
    No. 89,
    Orig.
    California ex rel. State Lands Commission v. United States.
   Motion of the United States for judgment on the pleadings is set for oral argument in due course. The defendant shall have 45 days within which to file the opening brief. The brief of the plaintiff shall be filed 30 days after receipt of the opening brief. [For earlier order herein, see ante, p. 809.]


text:
    No. 80-1538.
    Plyler, Superintendent, Tyler Independent School District, et al. v. Doe, Guardian, et al.
   C. A. 5th Cir. [Probable jurisdiction noted, 451 U. S. 968]; and


text:
    No. 80-1934.
    Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al.
   C. A. 5th Cir. [Probable jurisdiction noted, 452 U. S. 937.] Motion of appellants for divided argument granted.


text:
    No. 80-1765.
    American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp.
   C. A. 2d Cir. [Certiorari granted, 452 U. S. 937.] Motion of ECOS Electronics Corp. for leave to file a brief as amicus curiae granted.


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

C. A. 9th Cir. [Certiorari granted, ante, p. 812]; and

C. A. 9th Cir. [Certiorari granted, ante, p. 812.] Motion of the Solicitor General for divided argument and for additional time for oral argument granted, and an additional 30 minutes allotted for oral argument.


text:
    No. 80-2177.
    Lehman on behalf of her children, Lehman et al. v. Lycoming County Children’s Services Agency.
   C. A. 3d Cir. [Certiorari granted, ante, p. 813.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    No. 81-440.
    Insurance Corporation of Ireland, Ltd., et al. v. Compagnie des Bauxites de Guinee.
   C. A. 3d Cir. [Certiorari granted, ante, p. 963.] Motion of respondent Compagnie des Bauxites de Guiñee to recall the writ of certiorari denied.


text:
    No. 81-523.
    Container Corporation of America v. Franchise Tax Board.
   Ct. App. Cal., 1st App. Dist. Motion of appellant to note probable jurisdiction and to hear case in tandem with No. 81-349, Chicago Bridge & Iron Co. v. Caterpillar Tractor Co. [probable jurisdiction noted, ante, p. 1029]; No. 80-2015, ASARCO Inc. v. Idaho State Tax Commission [probable jurisdiction noted, ante, p. 812]; and No. 80-1745, F. W. Woolworth Co. v. Taxation and Revenue Department of New Mexico [probable jurisdiction noted, ante, p. 812], denied.

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


text:
    No. 81-5114.
    Tibbs v. Florida.
   Sup. Ct. Fla. [Certio-rari granted, ante, p. 963.] Motion for appointment of counsel granted, and it is ordered that Louis R. Beller, Esquire, of Miami Beach, Fla., be appointed to serve as counsel for petitioner in this case.


text:
    No. 81-5534.
    Rennie et al. v. Klein, Commissioner, Department of Human Services, et al.
   C. A. 3d Cir. Motion of petitioners for expedited consideration and to set case in tandem with No. 80-1417, Mills v. Rogers [certiorari granted sub nom. Okin v. Rogers, 451 U. S. 906], denied.


text:
    No. 81-5393.
    In re Bradsby.
   Petition for writ of ha-beas corpus denied.


text:
    No. 81-5520.
    In re Griffith.
   Petition for writ of mandamus denied.


text:
    No. 81-5600.
    In re Paul.
   Petition for writ of mandamus and/or prohibition denied.


text:
    No. 81-613.
    Sporhase et al. v. Nebraska ex rel. Douglas, Attorney General.
   Appeal from Sup. Ct. Neb. Probable jurisdiction noted.


text:
    No. 80-2162.
    Ramah Navajo School Board, Inc., et al. v. Bureau of Revenue of New Mexico.
   Appeal from Ct. App. N. M. Motion of Navajo Tribe of Indians for leave to file a brief as amicus curiae granted. Probable jurisdiction noted.

Certiorari Granted


text:
    No. 80-1305.
    Alfred L. Snapp & Son, Inc., et al. v. Puerto Rico ex rel. Quiros, Secretary of Labor and Human Resources.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 80-2146.
    Florida v. Royer.
   Dist. Ct. App. Fla., 3d Dist. Certiorari granted.


text:
    No. 81-497.
    Summit Valley Industries, Inc. v. Local 112, United Brotherhood of Carpenters & Joiners of America.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 80-2195.
    United States v. Goodwin.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 81-411.
    Jackson Transit Authority et al. v. Local Division 1285, Amalgamated Transit Union, AFL-CIO-CLC.
   C. A. 6th Cir. Motions of American Public Transit Association and National Institute of Municipal Law Officers for leave to file briefs as amici curiae granted. Certiorari granted.


text:
    No. 80-1012.
    No. 80-1030.
    No. 80-1052.
    Rice, Director, Department of Alcoholic Beverage Control of California v. Norman Williams Co. et al.; Bohemian Distributing Co. v. Norman Williams Co. et al.; and Wine & Spirits Wholesalers of California v. Norman Williams Co. et al.
   Ct. App. Cal., 3d App. Dist. Motions of United States Brewers Association and Lloyd H. Robertson, Superintendent, Arizona Department of Liquor Licenses and Control, et al. for leave to file briefs as amici curiae in No. 80-1012 granted. Motion of Wine & Spirits Wholesalers of America, Inc., et al. for leave to file a brief as amici curiae granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 108 Cal. App. 3d 348, 166 Cal. Rptr. 563.


text:
    No. 80-1923.
    No. 80-2135.
    Fulks v. Avondale Shipyards, Inc., et al.; and Avondale Shipyards, Inc. v. Fulks et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 637 F. 2d 1008.


text:
    No. 80-2027.
    Boyd v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-2203.
    Pierce v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6693.
    Herron v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 80-6774.
    Stech v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6925.
    Christian v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 81-16.
    Caldwell et al. v. Missouri et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-71.
    Union v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-85.
    Darcly, Inc. v. County of Los Angeles et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 81-125.
    Cardinal Federal Savings & Loan Assn. v. Davis, Administratrix.
   Sup. Ct. Ohio. Certio-rari denied.


text:
    No. 81-215.
    Avery v. Maryland et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 81-222.
    Valero Energy Corp. v. Sohyde Drilling & Workover, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-311.
    City of Palm Beach Gardens et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-312.
    Crow Tribe of Indians, Montana, et al. v. Environmental Protection Agency et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-352.
    Lewis v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 81-356.
    Anderson et al. v. City of Northlake.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-371.
    Carney v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-396.
    Lee Stoller Enterprises, Inc., et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 81-398.
    Riegle, United States Senator v. Federal Open Market Committee et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 81-400.
    No. 81-609.
    Juanes et al. v. Southwestern Public Service Co. et al.; and New York Underwriters Insurance Co. v. Juanes et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 645 F. 2d 67.


text:
    No. 81-402.
    Soltero v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-425.
    Francis et al. v. United States.
   C. A. 6th Cir. Certiorari denied.