author: Justice Brennan,

text:
    No. 84-1731.
    Lorain Journal Co. et al. v. Milkovich.
   Sup. Ct. Ohio. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Error and misstatement are inevitable in any scheme of truly free expression and debate. Because punishment of error may induce a cautious and restrained exercise of the freedoms of speech and press, the fruitful exercise of these essential freedoms requires a degree of “breathing space.” NAACP v. Button, 371 U. S. 415, 433 (1963). Accordingly, “we protect some falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 341 (1974); see also St. Amant v. Thompson, 390 U. S. 727, 732 (1968). The New York Times actual malice standard defines the level of constitutional protection appropriate in the context of defamation of a public official. It rests on our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), the New York Times standard was extended to statements criticizing “public figures” because we recognized that “ ‘public figures,’ like ‘public officials,’ often play an influential role in ordering society” and that therefore “[o]ur citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’” 388 U. S., at 164 (Warren, C. J., concurring in result). In Gertz v. Robert Welch, Inc., supra, we limited the applicability of the New York Times standard by holding that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” 418 U. S., at 347 (footnote omitted).

In this case, the Ohio Supreme Court found Gertz rather than New York Times applicable to respondent Milkovich’s libel suit against petitioners. Ostensibly, then, the issue presented in this petition is simply the narrow one whether petitioners will be required to pay damages upon a showing of negligence or actual malice. However, by allowing damages to be awarded upon a showing of negligence, thereby diminishing the “breathing space” allowed for free expression in the New York Times case, the decision in Gertz exacerbated the likelihood of self-censorship with respect to reports concerning “private individuals.” See 418 U. S., at 365-368 (Brennan, J., dissenting). Consequently, the rules we adopt to determine an individual’s status as “public” or “private” powerfully affect the manner in which the press decides what to publish and, more importantly, what not to publish. In finding New York Times inapplicable, the Ohio Supreme Court read the “public official” and “public figure” doctrines in an exceptionally narrow way that is sure to restrict expression by the press in Ohio. Its decision is especially unfortunate in that it most affects reporting by local papers about the local controversies that constitute their primary content. Moreover, it is these local papers that are most coerced by the threat of libel damages since they can least afford the expense of damages awards. I therefore dissent and would grant certiorari in order to review this important constitutional question.

I

On February 9, 1974, a melee occurred at a high school wrestling match between Maple Heights and Mentor High Schools; several wrestlers were injured, four of them requiring treatment at a hospital. The Ohio High School Athletic Association (OHSAA) conducted a hearing into the occurrence and censured Michael Milkovich, the Maple Heights coach and a teacher at the high school, for his conduct in encouraging the brawl. In addition, the OHSAA placed the Maple Heights team on probation for the school year and declared it ineligible to compete in the state wrestling tournament. Ted Diadiun, a sports columnist for the News-Herald of Willoughby, Ohio, attended and reported on both the match and the hearing.

A group of parents and wrestlers subsequently filed suit in Franklin County Common Pleas Court, alleging that the OHSAA had denied the team due process and seeking to reverse the declaration of ineligibility. Milkovich, though not a party to this lawsuit, appeared as a witness for the plaintiffs. On January 7, 1975, the court held that the wrestling team had been denied due process and enjoined the team’s suspension.

The next day, Diadiun wrote another column entitled “Maple beat the law with the ‘big lie.’” Diadiun, who had not attended the court hearing, based the story on a description of the judicial proceedings given him by an OHSAA Commissioner and on his own recollection of the wrestling match and ensuing OHSAA hearing. After reporting the result of the lawsuit, the column stated “[b]ut there is something much more important involved here than whether Maple was denied due process by the OHSAA”:

“When a person takes on a job in a school, whether it be as a teacher, coach, administrator or even maintenance worker, it is well to remember that his primary job is that of educator.
“There is scarcely a person concerned with school who doesn’t leave his mark in some way on the young people who pass his way — many are the lessons taken away from school by students which weren’t learned from a lesson plan or out of a book. They come from personal experiences with and observations of their superiors and peers, from watching actions and reactions.
“Such a lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8.
“A lesson which, sadly, in view of the events of the past year, is well they learned early.
“It is simply this: If you get in a jam, lie your way out.”

Diadiun stated that Milkovich and others had “misrepresented” the occurrences at the OHSAA hearing but that Milkovich’s testimony “had enough contradictions and obvious untruths so that the six [OHSAA] board members were able to see through it.” Diadiun then asserted that by the time the court hearing was held, Milkovich and a fellow witness “apparently had their version of the incident polished and reconstructed, and the judge apparently believed them.” Diadiun opined that anyone who had attended the match “knows in his heart that Milkovich . . . lied at the hearing after . . . having given his solemn oath to tell the truth. But [he] got away with it.” The column concluded:

“Is that the kind of lesson we want our young people learning from their high school administrators and coaches?
“I think not.”

Milkovich filed a libel action in state court against Diadiun, the News-Herald, and the latter’s parent, the Lorain Journal Company (petitioners). The court denied petitioners’ motion for summary judgment, but held that Milkovich was a public figure and, as such, was required to meet the standards established in New York Times. After five days of trial, at the close of Milkovich’s case, petitioners moved for a directed verdict. The court granted this motion, finding that Milkovich’s evidence failed to establish actual malice as a matter of law. The Ohio Court of Appeals reversed and remanded. Milkovich v. Lorain Journal Co., 65 Ohio App. 2d 143, 416 N. E. 2d 662 (1979). It noted that the Common Pleas Court had accepted Milkovich’s testimony, and ruled that this alone constituted sufficient evidence of actual malice to survive a motion for a directed verdict. The Ohio Supreme Court dismissed the appeal as raising no substantial constitutional question. This Court denied certiorari; I dissented. Lorain Journal Co. v. Milkovich, 449 U. S. 966 (1980).

On remand and before a new judge in the Common Pleas Court, petitioners filed a second motion for summary judgment. The court reaffirmed the earlier holding that Milkovich was a public figure for purposes of the New York Times test and granted the motion. The court held that Milkovich had failed to proffer sufficient evidence for a jury to conclude that Diadiun’s column was published with actual malice. Alternatively, the court found that the column constituted a privileged expression of opinion. This time the Ohio Court of Appeals affirmed, holding that the law of the case did not bar a second motion for summary judgment and agreeing with both of the trial court’s particular holdings.

The Ohio Supreme Court reversed. Milkovich v. News-Herald, 15 Ohio St. 3d 292, 473 N. E. 2d 1191 (1984). Concluding “upon a careful review of the record” that Milkovich had not waived the right to challenge the earlier determination of his status as a public figure, the court held that Milkovich was neither a “public official” nor a “public figure,” and that the contents of the challenged article were facts which, if false, are not protected by the First Amendment. Id., at 294-297, 473 N. E. 2d, at 1193-1196. This petition followed.

II

A

In New York Times, we had no occasion “to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend . . . .” 376 U. S., at 283, n. 23. That question was addressed two Terms later in Rosen-blatt v. Ba,er, 383 U. S. 75 (1966). Consistent with the premise of New York Times that “[c]riticism of those responsible for government operations must be free, lest criticism of government itself be penalized,” the Court in Rosenblatt held that “[i]t is clear . . . that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs.” 383 U. S., at 85. We recognized there, however, that First Amendment protection cannot turn on formalistic tests of how “high” up the ladder a particular government employee stands. Rather, we determined, the focus must be on the nature of the public employee’s function and the public’s particular concern with his work. Accordingly, we held:

“Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, . . . the New York Times malice standards apply.” Id., at 86 (emphasis added).

In Rosenblatt itself, we found this standard satisfied with respect to Baer, a supervisor of a county ski resort employed by and responsible to county commissioners.

The Ohio court' apparently read the language in Rosenblatt referring to government employees having “substantial responsibility for or control over the conduct of government affairs” as restricting the public official designation to officials who set governmental policy. This interpretation led it to conclude that finding a public employee like Milkovich to be a “public official” for purposes of defamation law “would unduly exaggerate the ‘public official’ designation beyond its original intendment.” 15 Ohio St. 3d, at 297, 473 N. E. 2d, at 1195-1196.

The Ohio court has seriously misapprehended our decision in Rosenblatt. Indeed, the status of a public school teacher as a “public official” for purposes of applying the New York Times rule follows a fortiori from the reasoning of the Court in Rosenblatt. As this Court noted in holding that the Equal Protection Clause does not bar a State from excluding aliens from teaching positions in the public schools, “public school teachers may be regarded as performing a task ‘that go[es] to the heart of representative government.’” Ambach v. Norwick, 441 U. S. 68, 75-76 (1979) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973)). We have repeatedly recognized public schools as the Nation’s most important institution “in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests.” 441 U. S., at 76-77. See also San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 29-30 (1973); Wisconsin v. Yoder, 406 U. S. 205, 213 (1972); Brown v. Board of Education, 347 U. S. 483, 493 (1954). The public school teacher is unquestionably the central figure in this institution:

“Within the public school system, teachers play a critical part in developing students’ attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students’ experience to achieve educational goals, teachers by necessity have wide discretion over the way course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal -qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities. This influence is crucial to the continued good health of a democracy.” Arnbach, supra, at 78-79 (footnotes omitted).

“[TJeaehers . . . possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation,” Bernal v. Fainter, 467 U. S. 216, 220 (1984), and it is self-evident that “the public has an independent interest in the qualifications and performance” of those who teach in the public high schools that goes “beyond the general public interest in the qualifications and performance of all government employees,” Rosen-blatt, supra, at 86. Public school teachers thus fall squarely within the rationale of New York Times and Rosenblatt. Moreover, Diadiun’s column challenged Milkovich’s qualifications to teach young students in light of his conduct in connection with the Maple Heights/Mentor High School incident. It is precisely this type of discussion that New York Times and its progeny seek to protect.

B

The Ohio Supreme Court also held that Milkovich was not a “public figure” within the meaning of our decisions. It concluded that this Court has “retreated” from prior holdings and “redefined” public figure status to include only two narrowly defined classes of individuals. 15 Ohio St. 3d, at 294-297, 473 N. E. 2d, at 1193-1195. Milkovich was found to fit in neither of these categories. Ibid. Here too, the state court misreads our decisions.

Our first encounter with the application of the New York Times test to nongovernment officials came in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). Butts actually decided two separate cases that were consolidated for review. In the first case, Butts, the athletic director at the University of Georgia and “a well-known and respected figure in coaching ranks,” id., at 136, filed a libel action after the Saturday Evening Post published an article accusing Butts of having conspired to fix a football game with the University of Alabama. In the second case, Walker, a retired career Army officer who was prominent in the local community, sued the Associated Press after it filed a news dispatch giving an eyewitness account of a riot that erupted at the University of Mississippi when federal officers tried to enforce a court decree ordering the enrollment of James Meredith, a black, as a student at the University. The report stated that Walker had taken command of the violent crowd and personally had led a charge against federal marshals. Although the Court in Butts failed to reach a consensus on the standard of liability in suits brought by “public figures,” seven Members of the Court agreed that both Butts and Walker occupied this status. Justice Harlan explained in his plurality opinion:

“[B]oth Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled ‘public figures’ under ordinary tort rules. . . . Butts may have attained that status by position alone and Walker by his purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able ‘to expose through discussion the falsehood and fallacies’ of the defamatory statements.” Id., at 154-155.

As Justice Harlan’s opinion indicates, the two cases considered in Butts exemplify alternative ways in which an individual may become a “public figure.” Our subsequent cases have elaborated on this framework; we have held that “[i]n some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts,” while, “[m]ore commonly, an individual voluntarily injects himself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues.” Gertz, 418 U. S., at 351; see also, Time, Inc. v. Firestone, 424 U. S. 448, 453 (1976); Hutchinson v. Proxmire, 443 U. S. 111, 134 (1979); Wolston v. Reader’s Digest Assn., Inc., 443 U. S. 157, 164 (1979). However, the ultimate touchstone is always whether an individual has “assumed [a] rol[e] of especial prominence in the affairs of society [that] invite[s] attention and comment.” Gertz, supra, at 345. These categories are merely descriptive; they are not, as the Ohio Supreme Court assumed, rigid, technical standards.

Petitioners spend most of their efforts attempting to analogize their case to that of Butts, and, indeed, the analogy is a strong one. A better argument can be made, however, that Milkovich is a “public figure,” like Walker, for purposes of this particular public controversy. Under this prong of “public figure” analysis, an individual who “voluntarily injects himself or is drawn into a particular public controversy” becomes a public figure with respect to public discussion of that controversy. Gertz, supra, at 351. Walker, for example, was deemed to have “thrus[t] his personality into the ‘vortex’ of an important public controversy” by allegedly encouraging a riot. Milkovich’s conduct was remarkably similar to Walker’s — the allegedly libelous publication was inspired by a brawl that resulted in injuries to a number of students; Milkovich was alleged to have incited the fracas by egging on the crowd. While this fight did not compare in size or ferocity to the riots in which Walker participated at the University of Mississippi, it was a public controversy of concern to residents of the local community, as important to them as larger events are to the Nation. Significantly, it was only in this community that the challenged article was circulated. See Rosenblatt v. Baer, 383 U. S., at 83 (“The subject matter may have been only of local interest, but at least here, where publication was addressed primarily to the interested community, that fact is constitutionally irrelevant”). The conclusion that Milkovich was a limited purpose public figure therefore seems quite straightforward.

The Ohio Supreme Court nevertheless concluded that Milkovich could not be classed a “public figure” because he “never thrust himself to the forefront of [the] controversy in order to influence its decision.” 15 Ohio St. 3d, at 297, 473 N. E. 2d, at 1195. However, the New York Times standard is not limited to discussion of individuals who deliberately seek to involve themselves in public issues to influence their outcome. Our decisions in this area rest at bottom on the need to protect public discussion about matters of legitimate public concern. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 755-761 (1985) (opinion of Powell, J., joined by Rehnquist and O’Connor, JJ.); id., at 763-764 (opinion of Burger, C. J.); id., at 777-789 (opinion of Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ.). Although not every person connected to a public controversy is a “public figure,” Gertz, supra, the New York Times protections do, and necessarily must, encompass the major figures around which a controversy rages. See Wolston v. Reader’s Digest Assn., supra, at 167; see also Gertz, supra, at 351 (public figure is one who “voluntarily injects himself or is drawn into a particular public controversy” (emphasis added)).

We only recently acknowledged the “compelling” nature of the local interest in preventing violence and preserving discipline in the Nation’s high schools. New Jersey v. T. L. O., 469 U. S. 325, 350 (1985). A large fight between the students of two rival schools quite legitimately raises serious concerns for the entire community, particularly when, as here, it results in injury to students. The present controversy centered primarily around the conduct of one man — Milkovich—in encouraging the fight; that conduct allegedly resulted in an OHSAA hearing, his censure by that association, and the disqualification of his team from eligibility in the state wrestling tournament. To say that Milkovich nevertheless was not a public figure for purposes of discussion about the controversy is simply nonsense.

Ill

The “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times, 376 U. S., at 270, applies as much to debate in the local media about local issues as it does to debate in the national media over national issues. This Court’s obligation to preserve the precious freedoms established in the First Amendment is every bit as strong in the context of a local paper’s report of an incident at a local high school as it is in the context of an advertisment in one of the Nation’s largest newspapers supporting the struggle for racial freedom in the South. Because the decision below will stifle public debate about important local issues, I respectfully dissent.

       Justice Blackmun’s dissent in Ambach, which I joined, expressed identical sentiments. See 441 U. S., at 88 (“One may speak proudly of the role model of the teacher, of his ability to mold young minds, of his inculcating force as to national ideals, and of his profound influence in the impartation of our society’s values”).

       See also Board of Education v. Pico, 457 U. S. 853, 864 (1982) (plurality opinion); Cabell v. Chavez-Salido, 454 U. S. 432, 457, n. 8 (1982); Zykan v. Warsaw Community School Corporation, 631 F. 2d 1300, 1307 (CA7 1980).

       This perfectly obvious conclusion has led at least one other court to reach a conclusion directly contrary to that of the Ohio Supreme Court. See Johnston v. Corinthian Television Corp., 583 P. 2d 1101 (Okla. 1978) (grade school wrestling coach is “public official”). On the other hand, the state courts are in general disarray over the application of the New York Times standard to various other types of public employees. See Annot., Libel and Slander: Who is a Public Official or Otherwise Within the Federal Constitutional Rule Requiring Public Officials to Show Actual Malice, 19 A. L. R. 3d 1361 (1968 and 1985 Supp.). I would also grant certiorari to clarify the law in this regard.

       Although the University of Georgia was a state university, Butts was employed by the Georgia Athletic Association, a private corporation, rather than by the State itself. His case thus did not raise the issue whether he was a “public official” for purposes of the New York Times test. See Butts, 388 U. S., at 135, and n. 2.

       Justices Black and Douglas found it unnecessary to reach the issue consistent with their views that the First Amendment completely prohibits damages for libel. Id,., at 170 (Black, J., joined by Douglas, J., concurring in result in Walker’s case and dissenting in Butts’ ease); see also New York Times, 376 U. S., at 293 (Black, J., concurring).

       Like Butts and Walker, Milkovich would be labeled a “public figure” under ordinary tort rules. See W. Prosser, Law of Torts § 118, pp. 823-824 (4th ed. 1971); cf. Stryker v. Republic Pictures Corp., 108 Cal. App. 2d 191, 238 P. 2d 670 (1951); Molony v. Boy Comics Publishers, 277 App. Div. 166, 98 N. Y. S. 2d 119 (1950); Wilson v. Brown, 189 Misc. 79, 73 N. Y. S. 2d 687 (1947). Indeed, since in my opinion the scope of the constitutional privilege exceeds that of the privilege recognized at common law for reports about public figures, this fact alone should be sufficient to conclude that Milkovich is a “public figure.” However, our subsequent decisions have treated the constitutional privilege without reference to the common-law privilege, e. g., Time, Inc. v. Firestone, 424 U. S. 448, 453 (1976); Wolston v. Reader’s Digest Assn., Inc., 443 U. S. 157, 165-169 (1979), and I therefore discuss Milkovich’s status under our decisions without reference to the common law.

       Like Butts, Milkovich is “a well-known and respected figure in coaching ranks.” Indeed, he is unquestionably one of America’s outstanding coaches. No other wrestling coach in America has achieved a record even close to his, a fact that has been recognized by numerous organizations. He has received the National Coach of the Year Award, the National Council of High School Coaches Award, the Scholastic Wrestling News National Achievement Award, a United States Wrestling Federation Award, and numerous other gifts, proclamations, and awards. He was inducted into the National Helms Hall of Fame and the Ohio Coaches Hall of Fame and received the Kent State University Hall of Fame Award. He has been cited in the Congressional Record and in the records of both the Ohio Senate and House of Representatives. He was similarly honored by the city of Cleveland and by his own city of Maple Heights, which celebrated “Mike Milkovich Day.” He is a much sought after speaker by coaches’ associations throughout the United States and conducts wrestling clinics across the country under the aegis of various state and coaches’ organizations. See Milkovich v. News-Herald, 15 Ohio St. 3d 292, 296, and n. 1, 473 N. E. 2d 1191, 1194, and n. 1 (1984). Nor will it do simply to dismiss Milkovich’s achievements as merely those of a high school coach. To be sure, as a general matter collegiate athletics obtains wider exposure than high school athletics. But with the exception of a few rather flamboyant figures who gain national exposure, most coaches — like Butts — are unknown outside sports’ circles and the local community. Milkovich is probably as well known both locally and in the wrestling community as was Butts in his respective circles.

       In Wolston, we held that although an individual’s failure to appear before a grand jury investigating Soviet espionage was newsworthy, “[a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.” 443 U. S., at 167. Rather, we emphasized, “a court must focus on the ‘nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.’” Ibid, (quoting Gertz, 418 U. S., at 352). Because it was “clear that [Wolston] played only a minor role in whatever public controversy there may have been concerning the investigation of Soviet espió-nage,” he was held not to be a public figure. 443 U. S., at 167. Milkovich, on the other hand, was clearly the major player in this public controversy.

       At one point in its opinion, the Ohio Supreme Court cited our holding in Time, Inc. v. Firestone, 424 U. S. 448 (1976), that Mrs. Firestone’s divorce was “not the sort of ‘public controversy’ envisioned in Gertz.” 15 Ohio St. 3d, at 296, 473 N. E. 2d, at 1194. The nature of the controversy here is completely different. This was not a private matter of public concern merely to gossips. Rather, the controversy in which Milkovich was involved was of immediate importance to parents and others in the community.

       These facts distinguish this case from Hutchinson v. Proxmire, 443 U. S. 111 (1979). In Hutchinson, a hitherto unknown research scientist was allegedly libeled when Senator Proxmire awarded his Government sponsor a “Golden Fleece of the Month Award” to publicize what the Senator perceived to be the most egregious examples of wasteful Government spending. Prox-mire argued that Hutchinson became a limited purpose public figure as a result of the publicity surrounding his being awarded a “Golden Fleece.” We rejected this argument on the ground that “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” Id., at 135. The controversy surrounding the fight at the high school, on the other hand, was not created by Diadiun’s column. The event itself created a stir, leading to a hearing, censure of Milkovich, and disqualification of his team. Diadiun’s column merely reported his view, as an observer of the initial fight, that such a man ought not be allowed to teach young students.


source: Caselaw Access Project

author: Chief Justice Burger,

license: Public Domain

text:
    No. 84-1955.
    Pernsley et al. v. Harris et al.
   C. A. 3d Cir. Motion of respondents for leave to proceed in forma pau-peris granted. Certiorari denied.

Justice Rehnquist and Justice O’Connor would grant certiorari.

Chief Justice Burger,

dissenting.

For the past nine years, the prison system in Philadelphia has been operating under the supervision of the Court of Common Pleas of Philadelphia County, following that court’s finding in 1972 that prison conditions violated both the Pennsylvania Constitution and the Eighth Amendment of the United States Constitution. Since 1976, a full-time, court-appointed Special Master has been in place and numerous remedial orders have been issued, including orders requiring the building of new prison facilities and contempt orders imposing over $500,000 in fines for failure to comply with prior orders. In addition, the parties have entered into consent decrees aimed at controlling the population in the prison system. Beginning in 1984, the Pennsylvania Supreme Court assumed plenary jurisdiction over the entire state proceeding.

The state suit commenced by the filing of a class action in 1971 on behalf of all inmates in the Philadelphia prisons, seeking equitable relief from alleged unconstitutional prison conditions; defendants are officials of Philadelphia. In the case now before us, respondent Harris, an inmate who admits he is a member of the same class represented in the state action, brought a separate class action in the Eastern District of Pennsylvania on behalf of all persons confined in the Philadelphia prisons; defendants include city and state officials. The federal complaint similarly makes claims like those in the state suit, and asserts that the Philadelphia prisons are overcrowded, thereby violating the Eighth Amendment of the United States Constitution; it seeks extensive injunctive relief and monetary damages under 42 U. S. C. § 1983.

The District Court dismissed the equitable relief claims sought in this second class action on the alternative grounds of res judicata, or abstention under the doctrine of Colorado River Water Conservation District v. United States, 424 U. S. 800 (1976); it dismissed the damages claim on grounds of sovereign and qualified official immunity. A divided Court of Appeals for the Third Circuit reversed, rejecting each of the District Court’s holdings. 755 F. 2d 338 (1985). In his dissenting opinion, Judge Garth agreed that while Colorado River did not support abstention, Younger v. Harris, 401 U. S. 37 (1971), mandated it:

“I do not believe that Supreme Court teachings, comity, or reason support a federal court’s intrusion into a state’s administration of its prison system when the state courts have been, and presently are, exercising supervision over these institutions and are doing so in accordance with both state and federal constitutional requirements.” 755 F. 2d, at 347.

Rehearing was denied over two dissents. 758 F. 2d 83 (1985).

Respondents essentially ask the federal courts to duplicate the ongoing state-court regulation of the Philadelphia prison system. The District Court recognized that the substantial and ongoing state-court proceedings involve an important state interest, namely, the administration of a prison system. The Court of Appeals nevertheless found Younger abstention restricted to pending state criminal or quasi-criminal proceedings initiated by the State. Our cases, however, recognize that “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423, 432 (1982). See also Moore v. Sims, 442 U. S. 415, 423 (1979) (the Younger doctrine is “fully applicable to civil proceedings in which important state interests are involved”).

The Younger doctrine is rooted in the concept of comity, because

“interference with a state judicial proceeding prevents the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies.” Huffman v. Pursue, Ltd., 420 U. S. 592, 604 (1975).

There is no question that the State is a party to the ongoing state proceedings and that important state policies are implicated in the management of the county prison system. The state courts continue to exercise comprehensive jurisdiction over the prison system’s administration through use of a Special Master, by holding hearings, and by issuing remedial orders and ordering fines. Should the District Court exercise its equitable powers as sought in this second suit, the Philadelphia prisons may thus become subject to potentially conflicting and contrary determinations as to the appropriate remedy for the alleged unconstitutional conditions. Although plaintiffs here additionally seek damages, there is no bar to the assertion of that claim in the state proceedings. So long as plaintiffs have an opportunity to raise their federal claims in the state action, “[n]o more is required to invoke Younger abstention.” Juidice v. Vail, 430 U. S. 327, 337 (1977).

I would grant the writ of certiorari and reverse the Court of Appeals judgment.


text:
    No. 84-1990.
    Johnson v. Rex.
   C. A. 10th Cir. Certiorari denied.

Chief Justice Burger,

with whom Justice Rehnquist and Justice O’Connor join,

dissenting.

In this case the United States Court of Appeals for the Tenth Circuit held that a prosecutor is not entitled to absolute immunity from liability in a civil rights suit brought under 42 U. S. C. § 1983 based upon the prosecutor’s presence during questioning of the plaintiff. Absolute immunity was denied even though the prosecutor was present not as an investigator but as a counsel to advise on compliance with Miranda v. Arizona, 384 U. S. 436 (1966).

In Imbler v. Pachtman, 424 U. S. 409 (1976), this Court established an absolute immunity for prosecutors engaged in activities associated with the criminal process. This Court left open the extent to which investigative activities by prosecutors would also come within the umbrella of absolute immunity. But the principle of absolute immunity established in Imbler was based on the need to ensure sound decisionmaking by the prosecutor by protecting from fear of retaliatory suits for vigorous law enforcement. Here the prosecutor was acting as an officer of the court in ensuring compliance with the Miranda requirements, and I would grant the petition for certiorari in order to define the applicability of absolute immunity in this context; surely the prosecutor’s action was well within his function as a prosecutor and officer of the court.


text:
    No. 85-3.
    Atlanta Gas Light Co. v. Equal Employment Opportunity Commission.
   C. A. 11th Cir. Motion of Georgia-Pacific Corp. for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-78.
    Alaska v. United States et al.
   C. A. 9th Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


author: Chief Justice Burger.

text:
    No. 85-84.
    Hagerty v. Keller, Executor of the Succession of Clement, et al.
   C. A. 5th Cir. Certiorari denied.

Chief Justice Burger.

I agree that we should deny the petition for certiorari, but I would award respondents costs and fees under Rule 49.2. The time has come — indeed it is long past — when the Court should enforce Rule 49.2 or strike it. This petition, like much which preceded it, is utterly frivolous. On this record I can only conclude that petitioner and his counsel have filed actions designed to delay the orderly settlement of the estate of respondent Keller’s decedent. This misuse of judicial processes should subject the attorney who filed the petition here to the sanction of Rule 49.2.

On July 14, 1978, petitioner brought suit in Louisiana state court to contest the probate of the will of his aunt, Laura Clement. Petitioner requested and received no fewer than three continuances. The trial was finally set for May 12, 1980. Three days before trial, petitioner requested and was denied a fourth continuance.

On the day of trial, petitioner appeared before Judge Melvin Duran, objected to the proceedings, offered no evidence, and stood mute. Judge Duran accordingly dismissed the suit with prejudice. The intermediate state appellate court unanimously affirmed. Succession of Clement, 402 So. 2d 702 (La. App. 1981). That court noted that petitioner had “succeeded in delaying implementation of Mrs. Clement’s bequests for three years, possibly longer if this matter goes to a higher court.” Id., at 703. The court concluded that Judge Duran had not abused his discretion, after granting three continuances, in refusing to grant a fourth. The Louisiana Supreme Court unanimously declined to review the case. 407 So. 2d 733 (1981).

Petitioner then brought a 42 U. S. C. § 1983 action in the United States District Court for the Eastern District of Louisiana. Petitioner contended that the state trial court, by refusing his request for a fourth continuance, had deprived him of due process of law. He named as defendants the Clerk of the Orleans Parish Civil District Court, Dan Foley; the Succession of Laura Clement; the executor of the will, Thomas Keller; and Judge Duran. The defendants, respondents in this Court, moved for dismissal of the action. The District Court correctly granted the motion, concluding that the complaint should be dismissed for lack of subject-matter jurisdiction and for failure to state a claim. Petitioner then took an appeal to the United States Court of Appeals for the Fifth Circuit.

That court unanimously affirmed, holding that the District Court had properly dismissed the action on jurisdictional grounds. 749 F. 2d 217 (1984). Petitioner’s suit was brought in the face of the “well-settled rule” that a plaintiff may not seek reversal of a state-court judgment simply by casting his complaint in the form of a civil rights action; Supreme Court and Fifth Circuit precedent “clearly prohibited]” the effort made by petitioner. The Court of Appeals also held that the District Court had properly dismissed petitioner’s suit for failure to state a claim. The court explained that ordinarily it would not be inclined to give this issue any attention since the District Court’s judgment in its entirety could be affirmed for lack of subject-matter jurisdiction. However, “to further demonstrate the frivolousness of the appeal,” the court addressed this point as well, concluding that the trial court had properly dismissed the claims against all defendants on this basis.

The court assessed double costs and fees against both petitioner and his attorney under Federal Rule of Appellate Procedure 88 and under 28 U. S. C. §§ 1912 and 1927; it held that petitioner had imposed an unnecessary burden on it and had infringed upon the right of respondents to have a prompt adjudication of this dispute. The court noted, however, that awarding costs against petitioner alone would not deter his attorney from bringing similar frivolous appeals in the future. The court therefore remanded to the District Court for an apportionment of the amount of damages between petitioner and his attorney.

Petitioner continued to protract these proceedings by seeking a writ of certiorari in this Court. In his filing to this Court, however, petitioner did not attempt to refute the careful analysis of the Court of Appeals. Although petitioner was clearly confronted with numerous adverse precedents from this Court and from other courts, he advanced no “good faith argument for an extension, modification, or reversal of existing law.” ABA Code of Professional Responsibility DR 7-102(A)(2) (1980).

It is evident, therefore, that petitioner and his counsel have filed in this Court a completely frivolous petition as the most recent in a series of patently unfounded suits, whose effect has been to keep issues involving decedent’s will in state and federal courts for more than seven years. Since this appears to be a case where “unmeritorious litigation has been prolonged merely for the purposes of delay, with no legitimate prospect of success,” Talamini v. Allstate Insurance Co., 470 U. S. 1067, 1071 (1985) (Stevens, J., concurring), I would award respondents $1,000 against Jesse S. Guillot, Esq., petitioner’s attorney.

       Rule 49.2 provides: “When an appeal or petition for writ of certiorari is frivolous, the Court may award the appellee or the respondent appropriate damages.”

       Petitioner had named as a defendant Dan Foley, the Clerk of the Orleans Parish Civil District Court. But Foley was without any power or authority under state law to grant or deny continuances. Moreover, there was no allegation that Foley was involved in any sort of a conspiracy to deprive petitioner of his constitutional rights. Indeed, the complaint did not even allege any act or omission on Foley’s part that caused injury. Petitioner had also named the succession of Laura Clement and Thomas Keller, the executor of the estate, as defendants. But, the Fifth Circuit noted, in order to sustain an action under § 1983, the plaintiff must prove that the defendant, acting under color of state law, deprived him of a right secured by the Constitution and laws of the United States. Petitioner had not alleged that either the succession or Keller had conspired with the state trial court. In fact, petitioner’s complaint contained no allegation or facts concerning either of these defendants, only the conclusion that petitioner was entitled to damages from them. Finally, the Fifth Circuit considered the claims against state trial judge Melvin Duran. Judges are clearly entitled to absolute immunity from § 1983 suits involving actions taken in their judicial capacity. Petitioner had sued Judge Duran only because he exercised his judicial discretion in a case properly before his court.


text:
    No. 85-257.
    Graczyk et al. v. United Steelworkers of America.
   C. A. 7th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-356.
    Oman et al. v. H. K. Porter Co. et al.
   C. A. 4th Cir. Motions of Blatt & Fales, Henderson & Goldberg, P. C., Association of Trial Lawyers of America, and Asbestos Victims of America for leave to file briefs as amici curiae granted. Certio-rari denied.


text:
    No. 85-364.
    Department of Social Services of Rusk County et al. v. J. C.
   Ct. App. Wis. Motion of National Association of Counsel for Children for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-366.
    King v. Love.
   C. A. 6th Cir. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 85-388.
    Dillon v. Potomac Hospital Corp.
   Sup. Ct. Va. Motion of Virginia Brown et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 85-463.
    Meyers Industries, Inc. v. Prill et al.
   C. A. D. C. Cir. Motion of petitioner for leave to intervene denied. Certiorari denied.


text:
    No. 85-482.
    Firestone Tire & Rubber Co. v. Cousineau, Personal Representative of the Estate of Cousineau, et al.
   Ct. App. Mich. Motion of National Association of Manufacturers for leave to file a brief as amicus curiae granted. Cer-tiorari denied.


text:
    No. 85-607.
    Burche v. Caterpillar Tractor Co.
   C. A. 7th Cir. Motion of respondent to strike purported revision of the petition denied. Certiorari denied.


author: Justice White,

text:
    No. 85-5046.
    Adams v. United States.
   C. A. 3d Cir. Cer-tiorari denied.

Justice White,

with whom The Chief Justice joins,

dissenting.

This case presents the issue of the agreement necessary to support a conviction for so-called RICO conspiracy. For his part in a large-scale narcotics distribution scheme, petitioner Adams was convicted of both the substantive RICO offense defined by 18 U. S. C. § 1962(c) and conspiracy to commit this offense. Petitioner requested a jury instruction that he could not be found guilty on the conspiracy count unless the evidence showed that he had personally agreed to commit two acts of racketeering activity. The District Judge refused this instruction. In affirming petitioner’s RICO conspiracy conviction, the United States Court of Appeals for the Third Circuit held that, to be convicted of conspiracy to violate § 1962(c), a defendant need only agree to the commission of two predicate acts of racketeering activity, and need not agree to personally commit those acts. 759 F. 2d 1099, 1116 (1985).

The Courts of Appeals disagree as to the proper interpretation of 18 U. S. C. § 1962(d), the RICO conspiracy statute. Some require, as the predicate for conviction under § 1962(d) of conspiracy to violate § 1962(c), an agreement to personally commit two acts of racketeering activity. See, e. g., United States v. Ruggiero, 726 F. 2d 913, 921 (CA2), cert. denied sub nom. Rabito v. United States, 469 U. S. 831 (1984); United States v. Winter, 663 F. 2d 1120, 1136 (CA1 1981), cert. denied, 460 U. S. 1011 (1983). Other Courts of Appeals agree with the Third Circuit that § 1962(d) also makes unlawful an agreement that another violate § 1962(c) by committing two acts of racketeering activity. See, e. g., United States v. Carter, 721 F. 2d 1514, 1529-1531 (CA11), cert. denied sub nom. Morris v. United States, 469 U. S. 819 (1984).

Surprisingly, even the Government’s interpretation of the RICO conspiracy statute has not been wholly consistent. In Winter, supra, the Government conceded that a count under § 1962(d) of conspiracy to violate § 1962(c) requires proof that the defendant “agreed to commit personally two or more predicate crimes constituting a pattern of racketeering activity.” 663 F. 2d, at 1136. In other cases, including this one, the Government has argued for the interpretation of § 1962(d) adopted by the Third Circuit.

“The legislative history [of the RICO statute] clearly demonstrates that [it] was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.” Russello v. United States, 464 U. S. 16, 26 (1983). If the Third Circuit’s interpretation of § 1962(d) is correct, Congress’ intent is being frustrated in those circuits which adhere to the narrower view of RICO conspiracy. If the Third Circuit’s interpretation is incorrect, defendants are being exposed to conviction for behavior Congress did not intend to reach under § 1962(d). I would grant certiorari to resolve the conflict among the Courts of Appeals.

      In writing the Racketeer Influenced and Corrupt Organizations Act, 18 U. S. C. §1961 et seq., Congress defined three new substantive offenses, 18 U. S. C. §§ 1962(a), (b), (c), and also made it unlawful to conspire to commit these substantive offenses, 18 U. S. C. § 1962(d). Title 18 U. S. C. § 1962(c), the relevant substantive offense in this ease, provides:
      “It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”
      Title 18 U. S. C. § 1961(5) provides that the term “pattern of racketeering activity” requires at least two acts of racketeering activity, a term which in turn is defined at 18 U. S. C. § 1961(1).


text:
    No. 85-5141.
    DeGarmo v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

In Gregg v. Georgia, 428 U. S. 153 (1976), six Justices concluded that a capital sentencing scheme that directs and limits the jury’s discretion minimizes the risk of arbitrary and freakish imposition of the death penalty and thereby cures the defects that led the Court in Furman v. Georgia, 408 U. S. 238 (1972), to invalidate capital punishment as unconstitutionally cruel and unusual. I dissented in Gregg because I do not believe that the unconstitutionality of capital punishment depends upon the procedures under which the penalty is inflicted. In my view, the constitutional infirmity in the punishment of death is that “it treats ‘members of the human race as nonhumans, as objects to be toyed with and discarded’” and is thus “‘inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity.’” Gregg, supra, at 230 (Brennan, J., dissenting) (quoting Furman v. Georgia, supra, at 273).

I have adhered to this view that capital punishment is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. I do so again today. But even if I agreed that capital punishment is constitutional if imposed in a rational and nondiscriminatory manner, I remain convinced that the Court deludes itself when it insists that the infliction of the death penalty, as currently administered, is not arbitrary or capricious under any meaningful definition of those terms. See Pulley v. Harris, 465 U. S. 37, 59 (1984) (Brennan, J., dissenting). This case demonstrates just one way in which capital sentencing schemes have failed to eliminate arbitrariness in the choice of who is put to death.

With the aid of Helen Mejia, Roger DeGarmo kidnaped and murdered a young woman. DeGarmo was subsequently convicted of capital murder and condemned to die by lethal injection. As part of a plea bargain, Mejia — whose participation made her equally subject to prosecution under the capital murder statute— received a sentence of only 10 years’ deferred probation. In other words, while the State sought and may soon succeed in putting DeGarmo to death, it did not care to see his accomplice serve even a day in jail for participating in the same offense. This gross disparity in treatment is solely a product of the prosecutor’s unfettered discretion to choose who will be put in jeopardy of life and who will not.

I believe that such a disparity in treatment is alone sufficient grounds to set aside DeGarmo’s death sentence as disproportionate under the circumstances. Cf. Pulley v. Harris, supra, at 43; Solem v. Helm, 463 U. S. 277 (1983). More importantly, however, this disparity in treatment highlights the utter failure of the elaborate sentencing schemes approved by the Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States. When Gregg was decided several Members of the Court expressed the belief that channeling juror discretion would minimize the risk that the death penalty “would be imposed on a capriciously selected group of offenders,” thereby making it unnecessary to channel discretion at earlier stages in the criminal justice system. See Gregg, supra, at 199 (opinion of Stewart, Powell, and Stevens, JJ.). But discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury. The selection process for the imposition of the death penalty does not begin at trial; it begins in the prosecutor’s office. ■ His decision whether or not to seek capital punishment is no less important than the jury’s. Just like the jury, then, where death is the consequence, the prosecutor’s “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” 428 U. S., at 189.

Instead, the decisions whether to prosecute, what offense to prosecute, whether to plea bargain or not to negotiate at all are made at the unbridled discretion of individual prosecutors. The prosecutor’s choices are subject to no standards, no supervision, no controls whatever. There are, of course, benefits associated with granting prosecutors so much discretion, but there are also costs. Some of these costs are simply accepted as part of our criminal justice system. But if the price of prosecutorial independence is the freedom to impose death in an arbitrary, freakish, or discriminatory manner, it is a price the Eighth Amendment will not tolerate. I dissent and would grant the petition in order to vacate the sentence below.

       Although Mejia testified for the State at trial, the prosecutor’s decision to let her go free was not needed to obtain DeGarmo’s conviction. Mejia’s plea and sentence were not entered until over 18 months after DeGarmo’s trial. On appeal, DeGarmo alleged that the State had offered this remarkably lenient deal to Mejia before his trial to persuade her to testify. DeGarmo argued that the prosecutor’s failure to disclose this promise violated his right to have the agreement disclosed to the jury. See Giglio v. United States, 405 U. S. 150 (1972). The State responded that the agreement to let Mejia off on probation was made after DeGarmo’s trial and that, at the time of the trial, Mejia was promised only that she would not be prosecuted for capital murder. Without a hearing and based solely on the record on appeal, the Texas Court of Criminal Appeals accepted the State’s version of the facts. Of course, DeGarmo may raise this claim again in federal habeas proceedings, and, if the district judge so orders, may obtain a hearing to show that such was not the case. See 28 U. S. C. § 2254(d). However, in the absence of contrary findings, I accept the conclusions of the state court. Based on these facts, the decision not to seek at least imprisonment for Mejia while seeking the death penalty for DeGarmo is puzzling.


author: Justice Brennan and Justice Marshall,

text:
    No. 85-5417.
    No. 85-5478.
    No. 85-5486.
    No. 85-5548.
    Edmonds v. Virginia. Martinez-Villareal v. Arizona. Booker v. Wainwright, Secretary, Florida Department of Corrections. Kennedy v. Alabama.
   Sup. Ct. Va.;

Sup. Ct. Ariz.;

C. A. 11th Cir.; and

Sup. Ct. Ala. Certiorari denied. Reported below: No. 85-5417, 229 Va. 303, 329 S. E. 2d 807; No. 85-5478, 145 Ariz. 441, 702 P. 2d 670; No. 85-5486, 764 F. 2d 1371; No. 85-5548, 472 So. 2d 1106.

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:
    November 6, 1985
    No. 85-635.
    Libbey-Owens-Ford Co. et al. v. Shatterproof Glass Corp.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    November 8, 1985
    No. A-362.
    Ukrainian-American Bar Assn., Inc., et al. v. Shultz, Secretary of State, et al.
   Application for injunc-tive relief, or in the alternative to treat the application as a petition for writ of habeas corpus, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    November 12, 1985
    No. 85-485.
    Gibson v. Board of Attorneys Professional Responsibility of Wisconsin.
   Appeal from Sup. Ct. Wis. dismissed for want of substantial federal question.


text:
    No. 85-497.
    In re Matter of N. P.
   Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question.


text:
    No. 85-5271.
    Felder v. Alabama.
   Sup. Ct. Ala. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Ake v. Oklahoma, 470 U. S. 68 (1985).


text:
    No.-.
    Barker et al. v. E. I. du Pont de Nemours & Co., Inc., et al.
   Motion to direct the Clerk to file the petition for writ of certiorari out of time denied.

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


text:
    No. A-301.
    Mainsah v. Immigration and Naturalization Service.
   Application for stay of deportation, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-345.
    In re Alexander.
   Ct. App. D. C. Application for recall and stay of mandate, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. D-506.
    In re Disbarment of Daniels.
    [For earlier order herein, see 472 U. S. 1024.]
   Disbarment entered.


text:
    No. D-509.
    In re Disbarment of Alexander.
   It is ordered that Harry Toussaint Alexander, of Washington, D. C., 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-510.
    In re Disbarment of Cody.
    [For earlier order herein, see 473 U. S. 930.]
   Disbarment entered.


text:
    No. D-514.
    In re Disbarment of Lebovitz.
    [For earlier order herein, see 473 U. S. 931.]
   Disbarment entered.


text:
    No. D-517.
    In re Disbarment of Sabiston.
   It having been reported to the Court that William Devine Sabiston, Jr., has died, the rule to show cause, heretofore issued on September 18, 1985 [473 U. S. 931], is hereby discharged.


text:
    No. 84-1279.
    Delaware v. Van Arsdall.
   Sup. Ct. Del. [Certiorari granted, 473 U. S. 923.] Motion of respondent for divided argument denied.


text:
    No. 84-2030.
    Brown-Forman Distillers Corp. v. New York State Liquor Authority.
   Ct. App. N. Y. [Probable jurisdiction noted, ante, p. 814.] Motion of appellant to dispense with printing the joint appendix denied.

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


text:
    No. 84-6270.
    Green et al. v. Mansour, Director, Michigan Department of Social Services.
   C. A. 6th Cir. [Cer-tiorari granted, 471 U. S. 1003.] Motion of petitioners for leave to file a supplemental brief after argument granted.


text:
    No. 85-195.
    Icicle Seafoods, Inc. v. Worthington et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 900.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    No. 85-246.
    United States v. Dion.
   C. A. 8th Cir. [Cer-tiorari granted, ante, p. 900.] Motion for appointment of counsel granted, and it is ordered that Terry L. Pechota, Esquire, of Rapid City, S. D., be appointed to serve as counsel for respondent in this case.


text:
    No. 85-441.
    No. 85-460.
    Roberts, Commissioner of Labor of the State of New York v. Burlington Industries, Inc.; and Gilbert et al. v. Burlington Industries, Inc.
   Appeals from C. A. 2d Cir. The Solicitor General is invited to file a brief in these cases expressing the views of the United States.


text:
    No. 85-5434.
    No. 85-5443.
    In re Smith-Bey; and In re Jackson.
   Petitions for writs of mandamus denied.


text:
    No. 85-488.
    Ohio Civil Rights Commission et al. v. Dayton Christian Schools, Inc., et al.
   Appeal from C. A. 6th Cir. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 85-434.
    United States v. James et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 85-437.
    Arcara, District Attorney of Erie County v. Cloud Books, Inc., dba Village Book & News Store, et al.
   Ct. App. N. Y. Certiorari granted.


text:
    No. 85-519.
    Randall et al. v. Loftsgaarden et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 85-93.
    No. 85-428.
    Bazemore et al. v. Friday et al.; and United States et al. v. Friday et al.
   C. A. 4th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 751 F. 2d 662.


text:
    No. 85-390.
    City of Los Angeles et al. v. Preferred Communications, Inc.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari granted.


text:
    No. 85-5404.
    Allen v. Illinois.
   Sup. Ct. Ill. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-1992.
    Green v. Mississippi.
   Sup. Ct. Miss. Certio-rari denied.


text:
    No. 84-6701.
    McGaharan v. Jago, Superintendent, London Correctional Institution.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6736.
    Goudlock v. Morris, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 84-6881.
    Beans v. Black, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6905.
    Shabazz v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6914.
    Simons v. Montgomery County Department of Parole and Probations.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6940.
    Moore v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6959.
    Montgomery v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6986.
    Ochoa v. Lennon, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-144.
    Moss et ux. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-300.
    Evans v. United States Department of the Army.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-318.
    El Shahawy v. Elliott.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 85-358.
    Kenner v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-423.
    Thomas v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-425.
    Reynolds v. Florida.
   Cir. Ct. Fla., Escambia County. Certiorari denied.


text:
    No. 85-442.
    Eckels, County Commissioner, Harris County, Texas v. Greater Houston Chapter of the American Civil Liberties Union et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-447.
    Max Daetwyler Corp. v. Meyer.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-462.
    Mullen v. Skinner et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-467.
    Illinois Pro-Life Coalition, Inc., III v. Keith et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-468.
    Boardman et al. v. United Services Automobile Assn.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-470.
    Cortez et ux., Individually and dba Cortez Agency v. Unauthorized Practice Committee, State Bar of Texas.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 85-475.
    Mintz v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied.


text:
    No. 85-476.
    Blankfield v. Texas State Board of Dental Examiners.
   Ct. App. Tex., 1st Sup. Jud. Dist. Certiorari denied.


text:
    No. 85-477.
    Philadelphia Electric Co. v. Hercules Inc. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-478.
    Par Pharmaceutical, Inc. v. Merck & Co., Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-481.
    Stanley v. Aubert et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 85-510.
    Simmons et al. v. Camden County Board of Education et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-536.
    Mir v. Fosburg et al.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 85-557.
    Sierra v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-563.
    Sheffield v. North Carolina State Bar.
   Ct. App. N. C. Certiorari denied.


text:
    No. 85-577.
    Haas v. Weiner et al.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 85-595.
    Della Porta v. Department of Transportation, Federal Aviation Administration.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-597.
    Typhoon Car Wash, Inc. v. Mobil Oil Corp.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 85-605.
    Villano v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-620.
    Helminski, et al., as Next Friends of Helminski v. Ayerst Laboratories.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 85-643.
    Muhammad, aka Jones v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5086.
    Powell v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5105.
    Hudson v. Moran, Sheriff, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5117.
    Brown v. Newsome, Superintendent, Georgia State Prison, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5131.
    Pressley v. Florida.
   Dist. Ct. App. Fla., 5th Dist. Certiorari denied.


text:
    No. 85-5133.
    Sailor v. New York.
   Ct. App. N. Y. Certio-rari denied.


text:
    No. 85-5140.
    Pitts v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5167.
    Hemphill v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5185.
    Taylor v. Best et al.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 85-5230.
    Heller v. Boyd et al.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 85-5237.
    Cornett v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5408.
    Dise v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 85-5421.
    Lowe v. Cox Communications, Inc.
   Ct. App. Ga. Certiorari denied.


text:
    No. 85-5425.
    Pittman v. Black, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5428.
    Preston v. Texas.
   Ct. App. Tex., 5th Sup. Jud. Dist. Certiorari denied.


text:
    No. 85-5433.
    Sanchez v. Roth et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-5436.
    In re Sturm.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 85-5444.
    Lewingdon et al. v. Ohio et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-5457.
    Forsyth v. Larsen, Acting Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5461.
    Bray v. Dodge County, Georgia, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5463.
    Weser v. Saffels, Judge, United States District Court, District of Kansas.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 85-5469.
    Moore v. Rice, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5480.
    Wold v. Lerner.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5492.
    Gay v. Henry, Prothonotary, Superior Court of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5499.
    Brown v. Belz.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5501.
    Darud v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5526.
    White v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5558.
    Goodpaster v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5559.
    Calhoun v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-5574.
    Wickham v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5575.
    Vigne v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-5579.
    Mitchell v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5580.
    Pelletier v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5586.
    Allen v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5621.
    DiMaggio v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5622.
    Hutchings von Ludwitz v. United States Parole Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6838.
    Barrett v. United States Customs Service et al.
   C. A. 5th Cir. Motion of petitioner for reconsideration of order denying leave to proceed informa pauperis granted, and order entered October 7, 1985 [ante, p. 812], denying leave to proceed in forma pauperis vacated. Certiorari denied.


text:
    No. 85-8.
    McCommon v. Mississippi.
   Sup. Ct. Miss. Cer-tiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

It is well recognized that the Fourth Amendment “imposes substantive standards for searches and seizures; but with them one of the important safeguards it establishes is a procedure; and [that] central to this procedure is an independent control over the actions of officers effecting searches of private premises.” Abel v. United States, 362 U. S. 217, 251-252 (1960) (Brennan, J., dissenting). Thus this Court has long insisted that the determination whether probable cause exists to support a search warrant be made by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948) (emphasis added). See also United States v. Leon, 468 U. S. 897, 913-914 (1984); Illinois v. Gates, 462 U. S. 213, 240 (1983); Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326-327 (1979); United States v. Chadwick, 433 U. S. 1, 9 (1977); Shadwick v. City of Tampa, 407 U. S. 345, 350 (1972); Coolidge v. New Hampshire, 403 U. S. 443, 450 (1971); Aguilar v. Texas, 378 U. S. 108, 111 (1964); Giordenello v. United States, 357 U. S. 480, 486 (1958); United States v. Lefkowitz, 285 U. S. 452, 464 (1932). Just two Terms ago in United States v. Leon, supra, the Court vigorously reaffirmed that the probable-cause decision must be made by a neutral and detached magistrate, stating that “the courts must . . . insist that the magistrate purport to ‘perform his “neutral and detached” function and not serve merely as a rubber stamp for the police.’” Id., at 914 (quoting Aguilar v. Texas, supra, at 111). And, as we explained in Shadwick v. City of Tampa, supra, at 350, “[w]hatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement.” Today the Court refuses to act on its convictions, denying certiorari in a case in which the judge who issued the search warrant indisputably “rubber-stamped” the police request.

In this case, a large quantity of marijuana was discovered in the trunk of petitioner’s automobile when it was searched pursuant to a warrant. Petitioner challenged the validity of the warrant at a pretrial suppression hearing, arguing that it was not supported by probable cause. The judge who granted the warrant testified at the hearing. With remarkable candor, he explained that he had relied principally on the fact that police officers had asked for the warrant, rather than on the underlying facts and circumstances set forth in the affidavit. The pertinent portion of the judge’s testimony on cross-examination follows:

“Q. You would have issued [the search warrant even if a certain statement in the affidavit either had not been included or the judge had known it not to be true]?
“A. Certainly, because the officer — you’ve got to have enough faith and confidence in the officer that’s asking for the search warrant to warrant it for him and then if it proves it’s invalid, well, or whatever, there’s nothing there what they’re hunting — that’s not the first time I ever made a Search Warrant.
“Q. So, you were relying on the fact that these officers were of the law—
“A. Of the law sworn—
“Q. —and they were in there — they were sworn officers —
“A. That’s right.
“Q. —they were in there telling you that this fellow was a drug dealer and they wanted to search his car—
“A. That’s exactly right.
“Q. —and you relied on that rather than any particulars of this thing?
“A. That’s right.
“Q. So, you really issued the Search Warrant because you were asked for it by two sworn officers of law rather than any particular thing they told you?
“A. Well, I based my decision not primarily on that, but because — if Sheriff Jones walked in there and said, ‘Judge, I need a Search Warrant to search John Doe for Marijuana,’ drugs or whatever — liquor or whatever it might be, I’m going to go on his word because he’s — I take him to be an honest law enforcement officer and he needs help to get in to search these places and it’s my duty to help him to fulfill that.
“Q. Okay. And it’s really based on the request other than any particular thing he might tell you?
“A. That’s right. That’s right.
“Q. And that’s what the situation was here?
“A. Well, if I didn’t feel like it was warranted, now, then, naturally, I wouldn’t issue it.
“Q. Okay, but . . . the swaying fact was that this was two sworn officers of the law rather than anything they told you in these Underlying Facts and Circumstances?
“A. That’s right. They were officers of the Narcotics.”

The trial court rejected petitioner’s arguments and admitted the evidence. The Mississippi Supreme Court affirmed petitioner’s conviction, holding both that the warrant was supported by probable cause and that the conduct of the judge who signed the warrant, although not a model of judicial deportment, had satisfied the constitutional requirements of detachment and neutrality. 467 So. 2d 940 (1985).

Respondent argues before this Court that even if the judge failed to evaluate the request for the warrant in a neutral and detached fashion, the warrant was nonetheless valid because it was, in fact, supported by probable cause. This attempt to evade review of the judge’s lack of independence should not succeed. In Coolidge v. New Hampshire, 403 U. S., at 450-451, we firmly rejected the argument that “the existence of probable cause renders noncompliance with the warrant procedure an irrelevance.” Indeed, in Coolidge the Court declared that because the warrant was not issued by “the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all.” Id., at 453.

As the transcript of the suppression hearing clearly demonstrates, the judge who issued the warrant to search petitioner’s automobile, although formally separate from law enforcement officials, viewed himself as a facilitator of police investigations and simply acquiesced in police requests,' without giving serious and independent consideration to the facts set forth in supporting affidavits. The Court’s failure to grant certiorari in this case suggests that our admonitions that probable cause must be determined by a neutral and detached magistrate are hollow pronouncements.

I find the Court’s refusal to take this case particularly disturbing in light of the good-faith exception to the Fourth Amendment exclusionary rule created by United States v. Leon, 468 U. S. 897 (1984). In Leon, the Court held that physical evidence seized by police officers reasonably relying upon a warrant issued by a detached and neutral magistrate is admissible in the prosecution’s case in chief, even though a reviewing court has subsequently determined that the warrant was defective or that the officers failed to demonstrate when applying for the warrant that there was probable cause to conduct the search. The Court justified its holding to a large extent on the special protective role that a neutral and detached magistrate plays in safeguarding the Fourth Amendment right against unreasonable searches and seizures, id., at 913-917. In fact, the Court indicated that suppression of evidence is appropriate where “the magistrate [has] abandoned his detached and neutral role,” id., at 926. In my dissent, I warned that creation of a good-faith exception implicitly tells magistrates that they need not take much care in reviewing warrant applications, since their mistakes will have virtually no consequence, id., at 956. Today the Court tacitly informs magistrates that not only need they not worry about mistakes, they also need no longer be neutral and detached in their review of supporting affidavits. The combined message of Leon and the Court’s refusal to grant certiorari in this case is that the police may rely on the magistrates and the magistrates may rely on the police. On whom may citizens rely to protect their Fourth Amendment rights?

I would grant certiorari and summarily reverse, or at least set the case for oral argument.

      Relying on Carroll v. United States, 267 U. S. 132 (1926), Chambers v. Maroney, 399 U. S. 42 (1970), and Texas v. White, 423 U. S. 67 (1976), respondent also argues that the instant case involves an automobile search that is supported by probable cause and thus no search warrant was required. Apart from my view that automobile searches presenting no exigent circumstances should be fully subject to the Fourth Amendment’s warrant requirement, see, e. g., United States v. Johns, 469 U. S. 478, 488-489 (1985) (Brennan, J., joined by Marshall, J., dissenting); United States v. Ross, 456 U. S. 798, 836-837 (1982) (Marshall, J., joined by Brennan, J., dissenting); South Dakota v. Opperman, 428 U. S. 364, 384 (1976) (Marshall, J., joined by Brennan and Stewart, JJ., dissenting), respondent may not be heard to make this argument since it appears that it was not advanced below, see, e. g., Illinois v. Gates, 462 U. S. 213, 221-224 (1983).


text:
    No. 85-35.
    Greber v. United States.
   C. A. 3d Cir. Cer-tiorari denied.

Justice White,

dissenting.

Petitioner Greber was convicted in United States District Court on several counts of making false statements “in any matter within the jurisdiction of any department or agency of the United States.” See 18 U. S. C. § 1001. In connection with these convictions, the District Court refused to submit the question of the materiality of Greber’s statements to the jury, holding that materiality was a question of law to be decided by the court. The United States Court of Appeals for the Third Circuit affirmed the convictions and upheld the District Court’s determination that materiality was a question of law. See 760 F. 2d 68, 72-73 (1985). Other Circuits have also concluded that materiality is a question of law. See, e. g., Nilson Van & Storage Co. v. Marsh, 755 F. 2d 362, 367 (CA4), cert. denied, ante, p. 818; United States v. Abadi, 706 F. 2d 178, 180 (CA6), cert. denied, 464 U. S. 821 (1983). Two Circuits, however, have held that materiality under §1001 is a question of fact and should thus be submitted to the jury. See United States v. Irwin, 654 F. 2d 671, 677, n. 8 (CA10 1981); United States v. Valdez, 594 F. 2d 725, 729 (CA9 1979). I would grant certiorari to resolve this conflict.


text:
    No. 85-46.
    Roeder v. Texas.
   Ct. Crim. App. Tex. Certio-rari denied.

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 judgment below so that the court below can determine the sentence, other than death, that may be appropriate.


text:
    No. 85-58.
    Moran, as Father to his Minor Son, Moran, et al. v. Pima County et al.
   Ct. App. Ariz. Certiorari denied.

Justice White,

dissenting.

Petitioner Moran filed this suit in Pima County Superior Court against respondents Pima County, Arizona, and various of its law enforcement officials. In his complaint, Moran alleged unlawful arrest, detention, and excessive use of force and sought relief under 42 U. S. C. §1981 and §1983. The case was tried to a jury, and the jury awarded Moran $500 in damages. The Superior Court summarily denied Moran’s motion for attorney’s fees under 42 U. S. C. § 1988. The Arizona Court of Appeals affirmed this denial, concluding in part that the “moral victory” that the verdict represented was not sufficient to warrant an award of attorney’s fees under §1988. See 145 Ariz. 183, 184, 700 P. 2d 881, 882 (1985). The Supreme Court of Arizona denied review.

The Arizona Court of Appeals’ decision in this case is in accord with Circuit decisions that have held that a plaintiff receiving only nominal damages is not truly prevailing and is therefore not entitled to attorney’s fees. See, e. g., Fast v. School Dist. of City of Ladue, 712 F. 2d 379, 380 (CA8 1983); Huntley v. Community School Board of Brooklyn, 579 F. 2d 738, 742 (CA2 1978). This conclusion, however, has been rejected by other Circuits. See Skoda v. Fontani, 646 F. 2d 1193, 1194 (CA7 1981) (per curiam); Burt v. Abel, 585 F. 2d 613, 617-618 (CA4 1978). I would grant certiorari to resolve this conflict.


text:
    No. 85-100.
    Michigan v. Blackburn.
   Ct. App. Mich. Cer-tiorari denied.

The Chief Justice and Justice White would grant certiorari.


text:
    No. 85-5448.
    Whitley v. Bair, Warden.
   Sup. Ct. Va. Certiorari denied.

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 sentence in this case.


text:
    No. 84-6799.
    No. 84-6806.
    No. 84-6824.
    No. 84-6889.
    No. 84-6954.
    No. 84-7007.
    No. 85-5003.
    No. 85-5144.
    No. 85-5202.
    No. 85-5211.
    No. 85-5220.
    No. 85-5245.
    No. 85-5268.
    Carrigan v. Lashley, Gormong v. Local 613, International Brotherhood of Electrical Workers, et al., Span v. DeLaine, Owens v. Freeman, Superintendent, Pennsylvania Correctional Institution at Camp Hill, et al., Campbell v. Ohio Department of Justice et al., Brown v. United States, In re Whaley, Owens v. United States, Brown v. Zant, Kelley v. United States, Pinkerton v. McCotter, Director, Texas Department of Corrections, Foster v. Smith et al., DiSilvestro v. United States,
   ante, p. 834;

ante, p. 834;

ante, p. 835;

ante, p. 838;

ante, p. 840;

ante, p. 842;

ante, p. 814;

ante, p. 857;

ante, p. 860;

ante, p. 860;

ante, p. 865;

ante, p. 861; and

ante, p. 862. Petitions for rehearing denied.


text:
    November 18, 1985
    No. 85-216.
    Roa et al., Individually and as Guardians ad Litem for Roa v. Lodi Medical Group, Inc., et al.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.

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


text:
    No. 85-342.
    Painter v. Alaska.
   Appeal from Ct. App. Alaska dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-5529.
    Prenzler v. Dean Forwarding Co., Inc.
   Appeal from Ct. App. Cal., 4th App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-5531.
    Meyer v. Oregon.
   Appeal from Ct. App. Ore. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-522.
    Allied Bond & Collection Agency v. Massachusetts.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of substantial federal question.

Justice Powell and Justice O’CONNOR would note probable jurisdiction and set case for oral argument.


text:
    No. 85-5113.
    Minor v. United States.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Dowling v. United States, 473 U. S. 207 (1985).


text:
    No. A-323 (84-1244).
    Davis et al. v. Bandemer et al.
   D. C. S. D. Ind. [Probable jurisdiction noted, 470 U. S. 1083.] Appellants having reapplied for a stay in this case pending its final resolution in this Court and it appearing that all of the requirements for the issuance of a stay are satisfied, the application is granted and it is ordered that the judgment of the District Court for the Southern District of Indiana is stayed until further order of the Court.


text:
    No. A-355.
    Cheeseman et al. v. United States.
   Application to vacate a stay entered by the United States Court of Appeals for the Second Circuit, presented to Justice Marshall, and by him referred to the Court, denied.


text:
    No. D-504.
    In re Disbarment of Howard.
    [For earlier order herein, see 472 U. S. 1024.]
   Disbarment entered.


text:
    No. D-515.
    In re Disbarment of Kanter.
    [For earlier order herein, see 473 U. S. 931.]
   Disbarment entered.


text:
    No. D-516.
    In re Disbarment of McKaba.
    [For earlier order herein, see 473 U. S. 931.]
   Disbarment entered.


text:
    No. D-531.
    In re Disbarment of Camacho.
   It is ordered that Francisco M. Camacho, of Mukwonago, Wis., 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-532.
    In re Disbarment of Hefner.
   It is ordered that Stephen Frank Hefner, of Sherman, Tex., 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. 84-1744.
    Henderson et al. v. United States.
   C. A. 9th Cir. [Certiorari granted, ante, p. 900.] Motion of petitioner Ruth Freedman for leave to proceed further herein informa pau-peris granted. Motion for appointment of counsel granted, and it is ordered that Alex Reisman, Esquire, of San Francisco, Cal., be appointed to serve as counsel for petitioner Ruth Freedman in this case.


text:
    No. 84-1922.
    United States v. Koecher.
   C. A. 2d Cir. [Certiorari granted, ante, p. 815.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 85-54.
    Library of Congress et al. v. Shaw.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 815.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 85-289.
    United States Department of Transportation et al. v. Paralyzed Veterans of America et al.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 918.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 84-1993.
    Hyde v. Van Wormer et al.,
   ante, p. 827. Motion of federal respondents for award of damages granted, and damages awarded to federal respondents only in the amount of $500 pursuant to this Court’s Rule 49.2. Motion of respondents Inland Steel Co. et al. for award of damages granted, and damages in the amount of $500 awarded pursuant to this Court’s Rule 49.2. Request of Inland Steel Co. et al. for award of double costs pursuant to Rule 50.7 denied. Motion of petitioner for award of costs and fees denied.

Justice Blackmun dissents from the awards of damages.

Justice Brennan,

with whom Justice Marshall and Justice Stevens join,

dissenting from award of damages.

This Court’s Rule 49.2 states that “[w]hen an appeal or petition for writ of certiorari is frivolous, the Court may award the ap-pellee or the respondent appropriate damages.” The Rule sets no standards for determining when a petition for certiorari is “frivolous,” or the amount of damages which may be “appropriate.” Absent such criteria, I believe that any award of damages imposed by the Court can only be arbitrary. In this case, the Court has decided to award respondents $500 apiece in damages. It makes no effort to justify this award, or to explain how it arrived at the $500 figure. For these reasons, I dissent from the award of damages.


text:
    No. 85-552.
    No. 85-616.
    Sakamoto et al. v. Duty Free Shoppers, Ltd., et al. Sharon Steel Corp. v. City of Fairmont, West Virginia, et al.
   C. A. 9th Cir.; and

Appeal from Sup. Ct. App. W. Va. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 85-556.
    Kemp, Warden v. Drake.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 85-5487.
    Smith v. Sielaff, Director, Virginia Department of Corrections.
   C. A. 4th Cir. [Certiorari granted, ante, p. 918.] Motion for appointment of counsel granted, and it is ordered that J. Lloyd Snook III, Esquire, of Charlottesville, Va., be appointed to serve as counsel for petitioner in this case.


text:
    No. 85-5563.
    Fondel v. Ford Motor Co. et al.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until December 9, 1985, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 85-525.
    No. 85-5504.
    In re Fryar; and In re Schmid.
   Petitions for writs of mandamus denied.


text:
    No. 85-250.
    Block, Secretary of Agriculture v. Castillo et al.
   Appeal from D. C. S. D. Tex. Probable jurisdiction noted.


text:
    No. 85-546.
    United States v. Mottaz.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 84-1894.
    Sade v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-6721.
    Johnson et al. v. McCotter, Director, Texas Department of Corrections, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6817.
    Lehman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6919.
    Miller v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-34.
    Cauble v. United States.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 85-51.
    Randles v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-69.
    No. 85-5232.
    Milburn et al. v. United States; and Milburn v. United States.
   C. A. 8th Cir. Certiorari denied. Reported below: 759 F. 2d 1316.


text:
    No. 85-136.
    Mulvey v. Pennsylvania.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 85-157.
    Jackson, aka Roe v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-164.
    Washington et al. v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-206.
    Pascarella v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 85-316.
    Owen v. Judge of the County Court, Schenectady County, et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 85-361.
    Bykofsky v. Hess et al.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 85-507.
    County Sanitation District No. 2 of Los Angeles County v. Los Angeles County Employees Assn., Local 660, et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 85-517.
    Miller et al. v. City of Los Angeles.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-523.
    Arango et al. v. Compania Dominicana de Aviacion.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-524.
    Tudor v. Glaesman et ux.
   Ct. App. Kan. Certiorari denied.


text:
    No. 85-533.
    Silent Hoist & Crane Co., Inc. v. Director, Division of Taxation.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 85-540.
    Cole et al. v. McEvers, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-544.
    Suburban Ford, Inc., et al. v. Ford Motor Credit Co.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 85-545.
    Wyrick, Warden, et al. v. Parton.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-548.
    Aho v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 85-566.
    Andersen et al. v. Ciba-Geigy Corp. et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-575.
    Bara et al. v. Aurora Civil Service Commission of the City of Aurora et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-578.
    Royce International Broadcasting Co. v. Federal Communications Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-651.
    Lepman v. New Jersey Racing Commission.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 85-676.
    Bock v. New York et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 85-679.
    Wendolkowski v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-5048.
    Childress v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5091.
    Masiello v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5115.
    Jordan v. United States Department of State.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-5154.
    Goodlataw, Personal Representative for the Estate of Goodlataw v. Alaska et al.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 85-5216.
    Smith v. Maschner, Director, Kansas State Penitentiary.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 85-5286.
    Daniels v. Papasan et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5288.
    Quan Young et al. v. Immigration and Naturalization Service.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5299.
    Crooks v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-5418.
    Elmore v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5471.
    Howell v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 85-5489.
    Searcy v. Greer, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5494.
    Thorne v. West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 85-5495.
    McGlory v. Yoka.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 85-5497.
    Abbitt v. Saied, Judge, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5498.
    Hunter v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 85-5508.
    Haddix v. Ohio Liquor Control Commission.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-5510.
    Burton v. Wilson et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5511.
    Burton v. Smith.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5514.
    Cunningham v. Shafer et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5518.
    Fleming v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5519.
    Glick v. Lockhart, Director, Arkansas Department of Corrections, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5521.
    Jefferson v. Muncy, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5528.
    Zimmerman v. Fulcomer, Superintendent, State Correctional Institution at Huntingdon, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5556.
    In re Burnley.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5569.
    Tubbs v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5577.
    Rothschild v. United States Supreme Court et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5578.
    Marsh v. Oregon.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5581.
    Kolman v. Heckler, Secretary of Health and Human Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5587.
    Jemmott v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5588.
    Mays v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5596.
    Anderson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5598.
    Hakim v. Wolverine Packing Co. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5604.
    Clark v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 85-5631.
    Davis v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 85-5632.
    Carter v. Spaniol, Clerk of the United States Supreme Court.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-5639.
    Grant v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5644.
    Poli v. Mazurkiewicz, Superintendent, State Correctional Institution at Rockview.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6843.
    Spaulding v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 85-56.
    Connor v. United States Department of Labor, Bureau of Labor Statistics.
   C. A. Fed. Cir. Motion of petitioner to strike brief in opposition denied. Certiorari denied.'