text:
    No. 82-5444.
    Harvard v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

The issue presented by this case is whether a violation of Gardner v. Florida, 430 U. S. 349 (1977), can be remedied by a remand to the original sentencing judge for a limited hearing in which the burden is placed upon the defendant to rebut or explain the information which had not been disclosed to him at the initial sentencing proceeding.

I-H

In 1974 petitioner was convicted after a jury trial of the first-degree murder of his ex-wife. In a separate sentencing proceeding a majority of the jury voted to recommend a death sentence. Under the Florida capital sentencing statute the jury’s verdict in the sentencing proceeding is only advisory; the actual sentence is determined by the judge. See Fla. Stat. § 921.141 (1981). In this case the judge found that two statutory aggravating circumstances were applicable. He determined that the defendant had previously been convicted of a felony involving the use of violence to the person, and that the murder was especially heinous, atrocious, or cruel. The judge also found that none of the statutorily enumerated mitigating circumstances were applicable. He concluded that a death sentence should be imposed.

On appeal, the Florida Supreme Court affirmed petitioner’s conviction and sentence in a brief per curiam opinion, with two judges dissenting from the affirmance of the death sentence. 375 So. 2d 833 (1977), cert. denied, 441 U. S. 956 (1979). Petitioner sought rehearing in light of Gardner v. Florida, supra, suggesting that the trial judge, in making his sentencing decision, may have “considered matters not provided to the jury or defense counsel.” The Florida Supreme Court issued an order directing the trial judge to indicate whether he had in fact relied on undisclosed information. In response the judge stated that he had examined a confidential portion of a presentence report as well as information furnished by the United States Marine Corps concerning the defendant’s military record. After receiving this response, the Florida Supreme Court vacated petitioner’s death sentence and remanded to the trial judge for resentencing following a hearing concerning the previously undisclosed information. 375 So. 2d, at 835 (1978).

On remand the trial judge denied petitioner’s motion to substitute another judge. A hearing was held in the trial court on February 9, 1979. The scope of the hearing was narrowly limited. The judge provided petitioner with the previously undisclosed material and invited him to correct or rebut any misstatements. The presentence report discussed a prior assault committed by petitioner against his first wife and her sister. Since one of the aggravating circumstances that the judge had found at the initial sentencing proceeding was that petitioner had previously been convicted of a felony involving violence, petitioner’s counsel attempted to show that the offense in question, for which petitioner had received only a 3-month jail sentence, was not as serious as the pre-sentence report indicated.

Following the hearing the judge took the matter under advisement. More than six months later, on August 22, 1979, he indicated that he would reimpose the death sentence. In March 1980 the judge issued proposed findings of fact and requested comment concerning whether four aggravating circumstances that he proposed to find applicable would “pass appellate review.” Following comment by the parties, the judge limited his order to two aggravating circumstances.

The trial court finally issued its sentencing order in May 1980. The order stated that the evidence offered by petitioner at the 1979 hearing “did not contradict the information provided this Court in the confidential portion of the pre-sentence investigation.” The court refused to consider evidence and argument presented at the hearing unless it rebutted or explained the previously undisclosed information. In addition, the court made clear that even evidence or argument that was relevant to the previously undisclosed information was “beyond the scope of the resentencing Mandate” and would not be considered if it could have been presented in the initial sentencing proceeding to rebut or explain testimony given in that proceeding. Specifically, the court refused to consider efforts by petitioner to impeach testimony at the first proceeding concerning the assault upon his first wife, ruling that “[s]uch impeachment should have been done at trial and it therefore appears that this was a wrongful attempt to belatedly impeach evidence presented by the State to the advisory jury.” The court concluded that “the sentence, as originally imposed, was appropriate.”

On appeal, the Florida Supreme Court affirmed the death sentence. 414 So. 2d 1032 (1982). The court rejected petitioner’s claim that the proceeding on remand had been inadequate to remedy the earlier due process violation. It emphasized that the trial judge’s “conclusion that the death sentence was again appropriate clearly indicates that his finding is based upon the failure of the defense to present sufficient evidence at resentencing to rebut the information contained in the confidential portion of the presentence investigation report or in the military records.” Id., at 1034. Justice Boyd dissented.

II

I continue to adhere to my view that the death penalty is unconstitutional under all circumstances. I would therefore grant certiorari and vacate the death sentence on this basis alone. If the State is to be permitted to impose this uniquely irreversible penalty, however, it should at least be required to do so through procedures that provide some assurance of fairness and reliability in the sentencing determination. In this case petitioner was initially sentenced to death in 1974 after a proceeding in which the trial judge considered highly material information which he had not disclosed to petitioner or his counsel. The Florida Supreme Court has now held that this clear constitutional violation was remedied by a narrowly circumscribed hearing held by the same trial judge five years later — a hearing at which the burden was shifted to petitioner to explain or rebut the previously undisclosed information and thereby persuade the judge not to reimpose the death sentence. Even accepting the prevailing view that the death penalty can constitutionally be imposed under certain conditions, this restricted hearing was plainly inadequate to remedy the blatant violation of due process at the first sentencing proceeding. For the reasons set forth below, I believe the only adequate remedy would have been a new sentencing proceeding before a different judge.

A

In Gardner v. Florida, 430 U. S. 349 (1977), this Court held that it is a denial of due process for the sentencer in a capital ease to consider information that the defendant “had no opportunity to deny or explain.” Id., at 362. As the plurality opinion in Gardner stated, “[o]ur belief that debate between adversaries is often essential to the truth-seeking functions of trials requires us ... to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.” Id., at 360. A litigant simply cannot “present his case effectively” unless he is “cognizant of all the facts before the [deci-sionmaker].” Gonzalez v. United States, 348 U. S. 407, 413 (1955).

It is undisputed that the procedure followed in the first sentencing proceeding denied petitioner the right to confront all the evidence against him. In response to the Florida Supreme Court’s inquiry, the trial judge explicitly stated that some of the information he had considered had not been disclosed to petitioner. This undisclosed information consisted of petitioner’s military record and a portion of a presentence report. At the initial sentencing hearing petitioner had no opportunity whatsoever to rebut or explain this information.

B

The remedy for a Gardner violation must take account of the nature of a capital sentencing proceeding. For constitutional purposes, such a proceeding is analogous to a trial. See Bullington v. Missouri, 451 U. S. 430, 438 (1981) (a capital sentencing proceeding is “in all relevant respects . . . like the immediately preceding trial on the issue of guilt or innocence”). See also Green v. Georgia, 442 U. S. 95, 97 (1979) (defendant is entitled to “a fair trial on the issue of punishment”). The decision whether a defendant shall live or die does not simply depend upon the exercise of discretion based on all the evidence before the sentencer, as does the typical sentencing decision in a noncapital case. It depends instead upon proof of specific facts. Just as the State must prove the elements of the crime to obtain a conviction, it must likewise prove one or more statutory aggravating circumstances to obtain a death sentence. Moreover, the State must convince the sentencer that the statutory aggravating circumstances, if any, outweigh any mitigating circumstances. Only if the State discharges these burdens can it obtain a death sentence.

Because a capital sentencing proceeding has “the hallmarks of [a] trial on guilt or innocence,” Bullington v. Missouri, supra, at 439, a defendant who has been denied a fair sentencing proceeding is entitled to a new sentencing proceeding, just as a defendant who has been denied a fair trial is entitled to a new trial. A Gardner violation is always reversible error, for reliance on information that was not disclosed to the defendant is at odds with the basic premises of the adversary process and thus inevitably denies the defendant a fair sentencing proceeding. See Gardner v. Florida, supra, at 362 (rejecting the suggestion that it would be a sufficient remedy for the Florida Supreme Court to consider the undisclosed information in reviewing the appropriateness of the death sentence); Chapman v. California, 386 U. S. 18, 23 (1967) (“there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error”) (footnote omitted). The remedy for a Gardner violation must therefore be a new sentencing proceeding.

Nothing short of a new sentencing proceeding can afford the defendant the fair sentencing determination to which he is entitled under the Constitution. When a trial court commits reversible constitutional error in the course of a criminal trial, an appellate court does not remand for a hearing in which the correctness of the earlier verdict is presumed and the defendant is saddled with the burden of demonstrating that the verdict should have been different. This Court has never approved such a procedure. To obtain a conviction following reversal on appeal, the State must afford the defendant “a new trial free of constitutional infirmity.” Haynes v. Washington, 373 U. S. 503, 518-519 (1963) (admission of coerced confession). See also, e, g., Sheppard v. Maxwell, 384 U. S. 333, 363 (1966) (prejudicial publicity prior to and during trial); Glasser v. United States, 315 U. S. 60, 76 (1942) (infringement of right to counsel). To sentence petitioner to death, the State must likewise afford him a new sentencing proceeding free of constitutional infirmity.

C

The narrowly circumscribed hearing held on remand in this case was a poor substitute for a new sentencing proceeding. An opportunity for rebuttal, explanation, and persuasion that comes only after the sentencer has come to a decision, and that is limited to the previously undisclosed information, can scarcely replace an opportunity to address all the information to be considered by the sentencer before he makes a decision.

First, an opportunity to address the undisclosed information in isolation from all the other evidence in the case cannot be equated with an opportunity to address the information as part of counsel’s overall presentation. The presentation made by petitioner’s counsel at the initial sentencing proceeding might well have differed in any number of ways had he known that, though his client had received only a 3-month sentence for the prior offense, the judge had in front of him a report that said petitioner “fully intended to kill” his first wife and his sister-in-law. For example, he might have deemed it necessary to subject petitioner’s first wife and sister-in-law to more intensive cross-examination. Similarly, he might have chosen to introduce different or additional evidence in an attempt to demonstrate mitigating circumstances.

Second, the hearing on remand was inadequate because the judge had heard all the other pertinent evidence five years earlier. Even if he went back and read the transcript of the earlier proceedings, a cold record cannot recreate testimony. A witness may be credible on paper but not on the stand. In evaluating petitioner’s new evidence and argument, and in considering it in the context of all the evidence introduced with respect to sentencing, the judge could have taken the credibility of the witnesses into account only in the unlikely event that he somehow remembered his impression of the testimony at the first proceeding.

Third, the judge had already decided once that petitioner deserved a death sentence. When a decisionmaker has made so difficult a choice, the natural human tendency is to rationalize it and suppress doubts that the decisionmaker may have had. However fairminded the judge may have been, “a certain reluctance is to be expected after the [judge], albeit on incomplete presentation, has rejected the [defendant’s] claim” that he should receive a life sentence. Gonzalez v. United States, 348 U. S., at 417. The Court has recognized in other contexts that, notwithstanding the faith typically placed in trial judges to act impartially, fairness may require that resentencing be entrusted to a different judge. In Santobello v. New York, 404 U. S. 257 (1971), where the prosecutor breached a plea bargain by recommending the maximum sentence and the judge imposed such a sentence, the Court held that “the interests of justice” demanded, at a minimum, “resentenc[ing] by a different judge,” id., at 262 and 263, even though the original sentencing judge had stated that the prosecutor’s recommendation did not influence him and the Court stated that it had “no reason to doubt that,” id., at 262. In a capital case such as this, the interests of justice surely require no less.

► — f HH

A defendant is denied due process when he is sentenced to death by a judge who relied on information that the defendant had no opportunity to contest or rebut. That denial of due process can only be remedied by a new sentencing proceeding conducted in conformity with the Constitution. It is not remedied by a remand to the original sentencing judge for a hearing in which the defendant bears the burden of rebutting or explaining the information, and in which the judge will not consider any evidence or argument that is not in the nature of rebuttal or that could have been presented at the initial proceeding. This sort of limited hearing might conceivably be appropriate to correct an evidentiary error in a civil antitrust action, but it is scarcely sufficient to correct a due process violation where a man’s life is at stake. I therefore dissent.

       Since the undisclosed information was not considered by the advisory jury, there is no need to convene a new jury.

       In Gonzalez the Government failed to provide a draft registrant who claimed conscientious objector status with a copy of its recommendation to the Appeal Board. The Court held that the denial of an opportunity to rebut the report was not remedied by a procedure whereby, after the Appeal Board made its decision, the registrant could obtain the report and request a reopening of his classification. 348 U. S., at 417.

       Although in many contexts the law assumes that a judge can fairly reconsider a case even though he has previously reached a decision which for some reason has been set aside on appeal, reliance on information not disclosed to the defendant can be particularly prejudicial where a judge rather than a jury is the decisionmaker. When a jury considers such information, there may at least be an exchange of views among the jurors as to its significance. There is no opportunity for such an exchange if the information is considered only by the judge. Cf. Herring v. New York, 422 U. S. 853, 863-864, n. 15 (1975) (in a bench trial in a criminal case, defense counsel cannot be denied an opportunity to make a closing argument):
      “[T]he ‘collective judgment’ of the jury ‘tends to compensate for individual shortcomings and furnishes some assurance of a reliable decision.’ Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 4 (1966). In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decisionmaking process of a jury.”
      In this case the possibility that a different sentence might have been imposed but for the Gardner violation is underscored by the fact that in the jury phase of the first sentencing proceeding — the only phase in which petitioner was afforded a fair opportunity to meet the evidence against him — 4 of the 12 jurors voted to recommend a life sentence.


source: Caselaw Access Project

author: Justice Blackmun,

license: Public Domain

text:
    No. 82-5448.
    Underwood v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join,

dissenting.

For the reasons set forth in the dissenting opinion in Holloway v. Florida, 449 U. S. 905 (1980), I would grant the petition for certiorari and afford this case plenary consideration. See also Spaziano v. Florida, 454 U. S. 1037, 1041 (1981) (dissenting opinions).


author: Justice Brennan and Justice Marshall,

text:
    No. 82-5648.
    No. 82-5698.
    Bolder v. Missouri. Melson v. Tennessee.
   Sup. Ct. Mo.; and

Sup. Ct. Tenn. Certiorari denied. Reported below: No. 82-5648, 635 S. W. 2d 673; No. 82-5698, 638 S. W. 2d 342.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 81-2129.
    No. 81-2251.
    No. 81-6813.
    No. 81-6820.
    No. 81-6861.
    No. 81-6875.
    No. 81-6953.
    No. 82-145.
    No. 82-179.
    No. 82-371.
    No. 82-442.
    Eisenberg v. Crowley, Williams v. Cook County Civil Service Commission et al., Elledge v. Florida, Borcherding v. United States et al., Whitley v. Virginia, Fasick v. United States, Boyer v. Riley et al., Smith v. Gonzales et al., Sacchinelli v. Georgia, Behar v. Southeast Bank Trust Co., N.A., Personal Representative of the Estate of Behar, Calvo v. Los Angeles Unified School District et al.,
   ante, p. 827;

ante, p. 833;

ante, p. 981;

ante, p. 1014;

ante, p. 882;

ante, p. 1014;

ante, p. 1035;

ante, p. 1005;

ante, p. 1015;

ante, p. 970; and

ante, p. 989. Petitions for rehearing denied.


text:
    No. 82-482.
    No. 82-506.
    No. 82-5177.
    No. 82-5317.
    No. 82-5328.
    No. 82-5329.
    No. 82-5348.
    No. 82-5405.
    No. 82-5471.
    No. 82-5658.
    Hamilton et al. v. Virginia, Safir v. Lewis, Secretary of Transportation, et al., Celestine v. Crown Center Hotel, Berryhill v. Georgia, Thomas v. Zant, Superintendent, Georgia Diagnostic and Classification Center, Miller v. Miller, Riley v. Florida, McPeek et al. v. Young, United States District Judge, et al., Spear v. Roberts, Mulville v. Schweiker, Secretary of Health and Human Services,
   ante, p. 1011;

ante, p. 972;

ante, p. 973;

ante, p. 981;

ante, p. 982;

ante, p. 973;

ante, p. 981;

ante, p. 992;

ante, p. 1020; and

ante, p. 1074. Petitions for rehearing denied.


text:
    No. 81-2361.
    No. 81-6947.
    No. 82-5030.
    No. 82-5218.
    Grossman v. Fidelity Municipal Bond Fund, Inc., et al., Velasquez v. Colorado, Chavis-El v. Greer et al., Collins v. Chicago Board of Education,
   ante, p. 838;

ante, p. 805;

ante, p. 945; and

ante, p. 913. Motions for leave to file petitions for rehearing denied.


text:
    No. 82-362.
    Venture Technology, Inc. v. National Fuel Gas Distribution Corp. et al.,
   ante, p. 1007. Motion of petitioner for joint consideration with other cases denied. Petition for rehearing denied.


text:
    January 17, 1983
    No. 82-639.
    Board of Education, City School District, Rochester, New York, et al. v. Nyquist, Commissioner of Education of New York, et al.; and Board of Education, Levittown Union Free School District, Nassau County, et al. v. Nyquist, Commissioner of Education of New York, et al.
    No. 82-655.
   Appeals from Ct. App. N. Y. dismissed for want of substantial federal question. Reported below: 57 N. Y. 2d 27, 439 N. E. 2d 359.


text:
    No. 82-5714.
    Dyer, a Minor, by Dyer, her Parent and Natural Guardian v. Lower Bucks County Hospital.
   Appeal from Super. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 82-5773.
    Moore v. Guilford County Department of Social Services.
   Appeal from Sup. Ct. N. C. dismissed for want of substantial federal question.


text:
    No. 82-5754.
    Betka v. Oregon et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 81-1284.
    Eicke v. Eicke.
   Ct. App. La., 3d Cir. [Certiorari granted, 456 U. S. 970.] Writ of certiorari dismissed as improvidently granted.


text:
    No. 81-1774.
    Estelle, Director, Texas Department of Corrections v. Bullard.
   C. A. 5th Cir. [Certiorari granted, 457 U. S. 1116.] Judgment vacated and case remanded for consideration of whether the Texas Constitution, as interpreted by the Court of Criminal Appeals of Texas in Ex parte Augusta, 639 S. W. 2d 481 (1982), offers respondent relief on grounds independent of the United States Constitution so as to render inappropriate a decision on federal constitutional grounds. City of Mesquite v. Aladdin’s Cas tie, Inc., 455 U. S. 283 (1982); Mills v. Rogers, 457 U. S. 291 (1982).


text:
    No.-.
    Guaranteed Investors Corp. v. Oklahoma Public Employees Retirement System.
   Motion to direct the Clerk to file the petition for writ of certiorari out of time denied.


text:
    No. A-576.
    Simopoulos v. Baliles, Attorney General of Virginia, et al.
   Application for stay of condition imposed on reinstatement of physician’s medical license, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-281.
    In re Disbarment of Sands.
    [For earlier order herein, see 458 U. S. 1126.]
   Disbarment entered.


text:
    No. D-284.
    In re Disbarment of Fishman.
    [For earlier order herein, see 458 U. S. 1126.]
   Disbarment entered.


text:
    No. D-291.
    In re Disbarment of Sundock.
    [For earlier order herein, see 458 U. S. 1128.]
   Disbarment entered.


text:
    No. D-300.
    In re Disbarment of Grubor.
    [For earlier order herein, see ante, p. 985.]
   Disbarment entered.


text:
    No. D-307.
    In re Disbarment of Gary.
   It is ordered that Benjamin Gary, of Baltimore, Md., 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-308.
    In re Disbarment of Odendahl.
   It is ordered that Frederick Richard Odendahl, of Monmouth, Ill., 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-309.
    In re Disbarment of McClellan.
   It is ordered that Oliver Barr McClellan, of Houston, 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. D-310.
    In re Disbarment of Tilyou.
   It is ordered that Frank Sheridan Tilyou, Jr., of Scottsdale, Ariz., 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-311.
    In re Disbarment of Mason.
   It is ordered that Frank Ebaugh Mason, Jr., of Easton, Md., 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-312.
    In re Disbarment of Ergazos.
   It is ordered that John William Ergazos, of Canton, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-313.
    In re Disbarment of Grimes.
   It is ordered that Robert A. Grimes, of Flint, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-315.
    In re Disbarment of Coburn.
   It is ordered that James L. Coburn, of Freeport, Ill., 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. 67,
    Orig.
    Idaho ex rel. Evans, Governor of Idaho, et al. v. Oregon et al.
   Idaho’s Exceptions to the Final Report of the Special Master are set for oral argument in due course. [For earlier order herein, see, e. g., ante, p. 811.]


text:
    No. 81-1717.
    American Bank & Trust Co. et al. v. Dallas County et al.; Bank of Texas et al. v. Childs et al.; and Wynnewood Bank & Trust et al. v. Childs et al.
   Ct. App. Tex., 5th Sup. Jud. Dist. [Certiorari granted, ante, p. 966.] Motion of the Solicitor General for leave to participate in oral argument as amicus curia,e and for divided argument granted. Motion of respondents for divided argument granted.

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


text:
    No. 81-2101.
    Pennhurst State School and Hospital et al. v. Halderman et al.
   C. A. 3d Cir. [Certiorari granted, 457 U. S. 1131.] Motion of the parties for divided argument granted.


text:
    No. 81-2125.
    Bell, Secretary of Education v. New Jersey et al.
   C. A. 3d Cir. [Certiorari granted, ante, p. 820. ] Motion of respondents for divided argument granted. Request for additional time for oral argument denied.


text:
    No. 81-2245.
    No. 81-2276.
    No. 82-38.
    Nevada v. United States et al.; Truckee-Carson Irrigation District v. United States et al.; and Pyramid Lake Paiute Tribe of Indians v. Truckee-Carson Irrigation District et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 904.] Motion of the Solicitor General for divided argument granted.


text:
    No. 81-2338.
    Regan, Secretary of the Treasury, et al. v. Taxation With Representation of Washington.
   C. A. D. C. Cir. [Probable jurisdiction noted, ante, p. 819.] Motion of Disabled American Veterans et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for argument denied. Motion of American Legion et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for argument denied.


text:
    No. 81-2408.
    United Steelworkers of America, AFL-CIO-CLC, et al. v. Flowers et al.
   C. A. 2d Cir. [Certiorari granted, ante, p. 1034.] Motion for appointment of counsel granted, and it is ordered that Isaac N. Groner, Esquire, of Washington, D. C., be appointed to serve as counsel for respondents in this case.


text:
    No. 82-23.
    Marsh, Nebraska State Treasurer, et al. v. Chambers.
   C. A. 8th Cir. [Certiorari granted, ante, p. 966.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for argument denied. Motion of Jon Garth Murray et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for argument denied.


text:
    No. 82-185.
    No. 82-246.
    No. 82-259.
    Boston Firefighters Union, Local 718 v. Boston Chapter, NAACP, et al.; Boston Police Patrolmen’s Assn., Inc. v. Castro et al.; and Beecher et al. v. Boston Chapter, NAACP, et al.
   C. A. 1st Cir. [Certiorari granted, ante, p. 967.] Motion of Boston Firefighters Union, Local 718, for divided argument denied. Motion of Boston Firefighters Union, Local 718, for additional time for oral argument denied. Motion of Boston Police Patrolmen’s Association, Inc., for divided argument denied. Motion of Boston Police Patrolmen’s Association, Inc., for additional time for oral argument denied. Motion of Nancy B. Beecher et al. for divided argument granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument denied. Justice Marshall took no part in the consideration or decision of these motions.


text:
    No. 82-195.
    Mueller et al. v. Allen et al.
   C. A. 8th Cir. [Certiorari granted, ante, p. 820.] Motion of respondents for divided argument denied. Motion of Mountain States Legal Foundation et al. for leave to file a brief as amici curiae granted.


text:
    No. 82-708.
    Summa Corp. v. California ex rel. State Lands Commission et al.
   Sup. Ct. Cal. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 82-840.
    Wainwright, Secretary, Department of Corrections v. Henry.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted.


text:
    No. 82-1066.
    United States v. Ptasynski et al.
    Justice Blackmun and Justice O’Connor would grant this motion.
   Appeal from D. C. Wyo. Motion of the Solicitor General to expedite consideration of the statement as to jurisdiction denied.


author: Justice Stevens,

text:
    No. 81-2394.
    Westinghouse Electric Corp. v. Tully et al.
   Appeal from Ct. App. N. Y. Probable jurisdiction noted limited to Question 1 presented by the statement as to jurisdiction. With respect to Question 2 presented by the statement as to jurisdiction, the appeal is dismissed for want of substantial federal question.

Justice Stevens,

with whom Justice Marshall joins,

dissenting.

While I agree with the Court’s conclusion that the second question in the jurisdictional statement is insubstantial, I do not believe a court of law has the power simultaneously to dismiss and to accept jurisdiction of a single appeal from a single judgment, I therefore do not join the Court’s order.


text:
    No. 82-647.
    Kirkpatrick v. Christian Homes of Abilene, Inc., et al.
   Ct. App. Tex., 11th Sup. Jud. Dist. Certiorari granted.


text:
    No. 82-799.
    Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 82-827.
    Minnesota v. Murphy.
   Sup. Ct. Minn. Certiorari granted.


text:
    No. 82-818.
    No. 82-852.
    National Labor Relations Board v. Bildisco & Bildisco, Debtor-In-Possession, et al.; and Local 408, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. National Labor Relations Board et al.
   C. A. 3d Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 682 F. 2d 72.


text:
    No. 81-2332.
    Norfolk Redevelopment and Housing Authority v. Chesapeake & Potomac Telephone Company of Virginia et al.
   C. A. 4th Cir. Motion of United States Conference of Mayors for leave to file a brief as ami-cus curiae granted. Certiorari granted.

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


text:
    No. 81-2359.
    American Telephone & Telegraph Co. et al. v. Phonetele, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-198.
    Federal Election Commission v. Hall-Tyner Election Campaign Committee et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-481.
    Cotton Belt Insurance Co., Inc. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-541.
    Sam et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 82-654.
    Atlas Tile & Marble Co. et al. v. Shahady et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-701.
    New Castle Area Transit Authority v. Kramer et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-714.
    Seath v. Regulations and Permits Administration et al.
   Sup. Ct. P. R. Certiorari denied.


text:
    No. 82-734.
    Del Junco et al. v. Conover, Comptroller of the Currency, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-742.
    Foundation for the Handicapped v. Department of Social And Health Services of Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 82-812.
    Stevenson et al. v. General Electric Co. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-813.
    DuBois et al. v. City of College Park et al.
   Ct. App. Md. Certiorari denied.


text:
    No. 82-826.
    Walker v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 82-828.
    Arrington v. New York Times Co. et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 82-831.
    Kock v. Quaker Oats Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-842.
    Ray v. Tennessee Valley Authority et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-851.
    Murray v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-855.
    Jordan v. Bolger, Postmaster General of the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-858.
    Taylor v. Howard et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-866.
    Vaughn v. Hinchy, Witte, Wood, Anderson, Hodges & Bostwick.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-910.
    Lins v. United States.
   Ct. Cl. Certio-rari denied.


text:
    No. 82-942.
    DeCrane et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 82-946.
    Box v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 82-5474.
    Ahrendt et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-5495.
    Stevens v. North Carolina.
   Super. Ct. N. C., Mecklenburg County. Certiorari denied.


text:
    No. 82-5503.
    Apel v. Wainwright.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5515.
    Wentzel v. Montgomery General Hospital, Inc., et al.
   Ct. App. Md. Certiorari denied.


text:
    No. 82-5531.
    Thetford v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5549.
    Reyes-Martinez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5556.
    Smith v. Kaye.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 82-5558.
    Rolfe v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-5564.
    Wilson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5566.
    Jordan v. Veterans Administration et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5587.
    Carter v. Scully, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5641.
    Flores v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5735.
    Bainch v. Raines et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5740.
    Alexander v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 82-5745.
    Thomas v. Greenspan.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-5748.
    Burch v. Hardee et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5750.
    Scott v. Parratt, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5756.
    Sands v. Sands.
   Sup. Ct. Conn. Certio-rari denied.


text:
    No. 82-5757.
    Rogers v. Trigg, Superintendent, Indiana Women’s Prison, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5758.
    Williams v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 82-5759.
    Williams v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 82-5760.
    Thompson v. Lloyd et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5761.
    Taylor v. Indiana.
   Sup. Ct. Ind. Cer-tiorari denied.


text:
    No. 82-5762.
    Hauptmann v. Lacey, Judge, United States District Court for the District of New Jersey.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5770.
    Miner v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5775.
    Filipas et al. v. Lemons.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5776.
    Harden v. Indiana.
   Sup. Ct. Ind. Cer-tiorari denied.


text:
    No. 82-5777.
    Gilbert v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 82-5778.
    Pevlor v. Kentucky.
   Sup. Ct. Ky. Cer-tiorari denied.


text:
    No. 82-5779.
    Hoover v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 82-5780.
    Hohman v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5790.
    Brewer v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 82-5802.
    Kirk v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5805.
    Engelke v. Shering, Judge of Justice Court, Clark County, Nevada.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 82-5813.
    Piskacek v. Odessa College et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5820.
    Calvin v. Ryan et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5829.
    Antonelli v. Illinois Bell Telephone Co.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 82-5848.
    Prunty v. Department of the Navy.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5871.
    Garza v. Miller, Warden.
   C. A. 7th Cir. Certiorari denied.


author: Justice White,

text:
    No. 81-1972.
    Porcher, Claims Adjudicator, South Carolina Employment Security Commission, et al. v. Brown et al.
   C. A. 4th Cir. Certiorari denied.

Justice White,

with whom Justice Powell and Justice Rehnquist join,

dissenting.

Every State in the Union maintains an unemployment compensation system which provides partial wage replacement for the unemployed. The Federal Government credits employer contributions to state unemployment programs meeting certain federal requirements against the amount owing under the Federal Unemployment Tax Act, 26 U. S. C. §3301 et seq. One of the requirements which state plans must meet is that “no person shall be denied [unemployment] compensation under . . . State law solely on the basis of pregnancy or termination of pregnancy.” 26 U. S. C. § 3304(a)(12). The Fourth Circuit, in the opinion below, 660 F. 2d 1001 (1981), held that the South Carolina Unemployment Compensation System did not meet the requirements of § 3304(a)(12), and upheld a District Court order requiring the South Carolina Employment Security Commission (Commission) to make retroactive payments to claimants that had been denied compensation since January 1, 1978. In so doing, the Fourth Circuit decided three issues that merit this Court’s attention.

The most important issue now presented for this Court’s consideration involves the meaning of § 3304(a)(12). South Carolina Code § 41-35-120 (Supp. 1982) provides that a person will not be eligible for unemployment benefits “if the Commission finds that he has left voluntarily, without good cause, his most recent work.” The Commission has determined that resignation due to pregnancy or to an illness unrelated to the claimant’s job makes the claimant ineligible for unemployment benefits. The Fourth Circuit held that §41-35-120, as interpreted, did not satisfy the dictates of § 3304(a)(12). It said: “Regardless of how the Commission treats employees with other disabilities, the mandate of [§ 3304(a)(12)] is clear: the Commission cannot deny compensation ‘solely on the basis of pregnancy or termination of pregnancy.’” 660 F. 2d, at 1004.

It is by no means clear, however, that § 3304(a)(12) does not simply provide that pregnancy must be treated like all other disabilities — that pregnancy simply cannot be singled out for unfavorable treatment. The Department of Labor adheres to such an interpretation, and thus disagrees with the Fourth Circuit’s interpretation of § 3304(a)(12). The Department of Labor is responsible for annually determining whether state unemployment compensation programs meet the requirements set out in federal law. 26 U. S. C. § 3304(c). Moreover, the Department played a role in the development of the 1976 legislation that added § 3304(a)(12) to the Federal Unemployment Tax Act. Unemployment Compensation Amendments of 1976, § 312(a), 90 Stat. 2679. The Department of Labor has repeatedly certified that South Carolina’s program, as well as the programs of eight other jurisdictions with provisions similar to that of South Carolina, meet the requirements of § 3304(a)(12). In addition, the Administrator of the Department’s Unemployment Insurance Service submitted, on the Department’s behalf, a letter to the District Court reiterating the Department’s position with respect to South Carolina’s program. The Administrator explained that the South Carolina program was consistent with § 3304(a)(12) because “ ‘it does not distinguish between pregnant claimants or any other unemployed individuals whose separation is determined to be due to illness.’” Brief for United States as Amicus Curiae 13 (quoting Administrator’s letter).

At the very least then, § 3304(a)(12) is the subject of substantial uncertainty, given the clear and direct conflict between the Fourth Circuit and the Department of Labor — the agency to whom Congress entrusted administration of the statute. The conflict the Court now leaves unresolved makes it difficult for conscientious administrators of unemployment compensation programs to determine what is required of them by the Federal Government. The position of the unemployment insurance administrators in the eight jurisdictions, in addition to South Carolina, that deny benefits both to those who resigned because of pregnancy and to those who resigned because of some non-job-related illness is clearly perplexing. The question presented is of obvious importance to the States; South Carolina is paying additional benefits at a rate of almost $1.5 million per year as a result of the decision below. See Application for Stay of Enforcement of Judgment ¶ 7. The question is also surely important to large numbers of pregnant women for whom unemployment compensation may constitute a substantial portion of their financial resources. Apparently the question is one of “substantial concern” to the Department of Labor as well. Brief for United States as Amicus Curiae 7.

The second issue of significance relates to the Eleventh Amendment. This Court has held that the Eleventh Amendment prevents federal courts from entering judgments that are to be satisfied out of the State’s general revenues, Edelman v. Jordan, 415 U. S. 651 (1974), or out of state segregated tax revenues, Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946), and Great Northern Life Insurance Co. v. Read, 322 U. S. 47 (1944). In the decision below the Fourth Circuit concluded that it could award a judgment against the South Carolina unemployment compensation fund because: (1) the fund is “a special fund administered separate and apart from all public moneys or funds of the State,” (2) the fund consists of employer contributions, federal funding, investment income, and other receipts, and (3) neither the State nor the Commission is liable for any excess in obligations on the fund over its resources. 660 F. 2d, at 1006. Reliance on these distinctions is certainly questionable under this Court’s previous cases. The question of whether there are some state funds that do not enjoy Eleventh Amendment immunity is important, and this case presents the Court with an opportunity to address the issue.

The third issue of significance is whether 42 U. S. C. § 1983 (1976 ed., Supp. IV) provides a cause of action to redress a State’s failure to meet the standard set out in § 3304(a) (12). In Maine v. Thiboutot, 448 U. S. 1 (1980), the Court held that a plaintiff could sue to enforce a federal statute under § 1983. In Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), we held that a plaintiff could not use § 1983 to enforce provisions of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U. S. C. §6001 et seq. (1976 ed. and Supp. IV). We explained that a federal statute may be enforced by a § 1983 suit only if Congress has not foreclosed private enforcement of that statute in the enactment itself and if the statute created enforceable “rights” under §1983. 451 U. S., at 28. In Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981), we reaffirmed our holding in Pennhurst, supra, refusing to allow a § 1983 suit to enforce provisions of the Federal Water Pollution Control Act, 33 U. S. C. § 1251 et seq. (1976 ed. and Supp. V), and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U. S. C. § 1401 et seq. (1976 ed. and Supp. V). Consideration of the difficult and unanswered question of whether the Federal Unemployment Tax Act is enforceable by way of § 1983 would provide guidance to the lower federal courts on the application of Thibotout, Pennhurst, and Middlesex County Sewerage Authority.

I would grant certiorari to consider these issues.

      The District of Columbia, Louisiana, Missouri, Nebraska, New Mexico, Oklahoma, West Virginia, and, to a lesser extent, Vermont. Brief for United States as Amicus Curiae 18, and n. 21.


author: Justice Stevens, Justice Marshall,

text:
    No. 82-490.
    Davis v. Goodson.
   Sup. Ct. Ark. Certio-rari denied.

Justice Stevens,

concurring.

Because the petition for a writ of certiorari does not affirmatively show that a federal question was presented to or decided by the Supreme Court of Arkansas, I believe the Court correctly denies the writ.

Justice Marshall,

dissenting.

Petitioner was summarily held in contempt for advising his client that he had a privilege not to submit to a breath-analysis test. In citing petitioner for contempt, the judge made no finding that the advice was given in bad faith. Given the absence of such a finding, I would grant certiorari to decide whether petitioner’s conviction and sentence for contempt are constitutionally infirm in light of this Court’s decision in Maness v. Meyers, 419 U. S. 449 (1975), where we held that “an advocate is not subject to the penalty of contempt for advising his client, in good faith, to assert the Fifth Amendment privilege against self-incrimination in any proceeding embracing the power to compel testimony.” Id., at 468. See also id., at 472 (Stewart, J., concurring in result); In re Watts, 190 U. S. 1, 29 (1903) (“if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment”).


text:
    No. 82-516.
    South Carolina et al. v. Interstate Commerce Commission et al.
   C. A. 4th Cir. Certiorari denied.

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


text:
    No. 82-788.
    No. 82-5744.
    No. 82-5789.
    Jones v. Oklahoma. Meeks v. Florida. Parks v. Oklahoma.
   Ct. Crim. App. Okla.;

Sup. Ct. Fla.; and

Ct. Crim. App. Okla. Certiorari denied. Reported below: No. 82-788, 648 P. 2d 1251; No. 82-5744, 418 So. 2d 987; No. 82-5789, 651 P. 2d 686.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 82-805.
    Lubbock Independent School District et al. v. Lubbock Civil Liberties Union.
   C. A. 5th Cir. Motions of The Freedom Council, Ad Hoc Group of Students and Parents in Lubbock Independent School District, Texas Association of School Boards, National Association of Evangelicals et al., Mark 0. Hatfield et al., and National Council of Churches of Christ in the United States of America et al. for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 82-822.
    Fort Pierce Utilities Authority et al. v. Federal Energy Regulatory Commission et al.
   C. A. 11th Cir. Motion of Potomac Electric Power Co. for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 82-829.
    Alaska et al. v. Boise Cascade et al.
   C. A. 3d Cir. Certiorari denied.

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


text:
    No. 82-830.
    Menora, on Behalf of Menora, a Minor, et al. v. Illinois High School Assn. et al.
   C. A. 7th Cir. Certiorari denied.

Justice Marshall and Justice Blackmun would grant certiorari.


text:
    No. 82-833.
    Florida v. Simpson.
   Sup. Ct. Fla. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 82-5285.
    Chaparro-Almeida et al. v. United States.
   C. A. 5th Cir. Certiorari denied.

Justice Brennan and Justice White would grant certiorari.


author:
Justice Brennan,
      Justice Marshall,

text:
    No. 82-5528.
    Buttrum v. Georgia.
   Sup. Ct. Ga. Cer-tiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting.

I continue to adhere to my view that the death penalty is unconstitutional in all circumstances, and I would vacate petitioner’s death sentence on that basis alone. However, even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain conditions, I would vacate the death sentence imposed in this case. The trial judge permitted a psychologist who had never examined petitioner to make a prediction as to her future dangerousness that was based in substantial part on hearsay statements that were not in evidence. This was the only testimony presented by the prosecution in the sentencing phase of the trial. It is well recognized that predictions of violent behavior are generally unreliable even under the best of circumstances. In my view, when this general unreliability is compounded by the obvious risks inherent in relying on hearsay statements that were not made under oath and were not subject to cross-examination, and the person making the prediction has never even examined the individual in question, the State has “introduce[d] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.” Beck v. Alabama, 447 U. S. 625, 643 (1980).

       The psychologist relied on medical and psychiatric reports that he had examined and on out-of-court statements made to him by a guard and by one of petitioner’s fellow inmates.
      Petitioner was 17 at the time of the offense.

       See, e. g., Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 Rutgers L. Rev. 1084 (1976) (reviewing the studies on this subject); Report of the Task Force on the Role of Psychology in the Criminal Justice System, 33 Am. Psychologist 1099, 1110 (1978) (“the validity of psychological predictions of violent behavior, at least in the sentencing and release situations ... is extremely poor”).
      In People v. Murtishaw, 29 Cal. 3d 733, 631 P. 2d 446 (1981), cert. denied, 455 U. S. 922 (1982), the California Supreme Court concluded that predictions of violent conduct are too unreliable to be admissible in capital sentencing proceedings absent a showing of exceptional circumstances supporting the prediction. 29 Cal. 3d, at 767-775, 631 P. 2d, at 466-471.


author: Justice Brennan, Justice Marshall,

text:
    No. 82-5590.
    Miller v. Florida.
   Sup. Ct. Fla. Motion of Florida Public Defenders Association, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting.

I continue to adhere to my view that the death penalty is unconstitutional under all circumstances. I would therefore grant certiorari and vacate the death sentence on this basis alone. However, even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain circumstances, I would grant certiorari in this case to consider whether a trial judge may reject a jury’s recommendation of life imprisonment and impose the death sentence based in part on a different jury’s recommendation that the defendant’s accomplice be sentenced to death.

Petitioner Ernest Lee Miller and his stepbrother, William Riley Jent, were indicted for first-degree murder. Following trials before the same judge but before separate juries, both defendants were found guilty. The trials were followed by hearings at which each jury was directed to consider “[wjhether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and . . . [biased on these considerations, whether the defendant should be sentenced to life imprisonment or death.” Fla. Stat. §§ 921.141(2)(b) and (c) (1981). The jury that heard petitioner’s case recommended life imprisonment, but in Jent’s case the jury recommended a death sentence.

Under the Florida capital sentencing procedure, the jury’s sentencing decision is only advisory; the actual sentence is determined by the trial judge. Here the judge who conducted both trials sentenced both petitioner and his accomplice Jent. In the case of Jent, the judge accepted the jury’s recommendation and imposed a death sentence.

In the case of petitioner, the judge was faced with a jury recommendation of life imprisonment. Under Florida law, a sentencing judge can reject such a recommendation only if “ ‘the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.’” Proffitt v. Florida, 428 U. S. 242, 249 (1976), quoting Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). In deciding to impose the death sentence despite the jury’s recommendation, the judge relied heavily on the fact that in Jent’s case the jury recommended a death sentence:

“The United States Supreme Court has determined that if the death penalty is to be imposed by the states, the United States Constitution demands that it be imposed with regularity, rationality and consistency.
“The jury for the defendant Jent has recommended death and this court finds that the weight of the aggravating and mitigating circumstances demand death sentences for both defendants. Therefore, if the recommendation of the jury for the defendant Miller were followed, that would result in two co-perpetrators who participated equally in a crime having disparate sentences. It would cause a hollow ring in the Florida halls of justice if the sentences in these cases were not to be equalized.” Findings in Support of Sentences 6 (citations omitted).
“The goal in the law is regularity or uniformity in the application of those available sentences. Now, the Court, our Supreme Court in Florida has also said that . . . [the fact that] two coperpetrators who participated equally in the crime would have [disparate] sentences if the jury recommendation were to be accepted has to be a strong consideration.” Tr. 16-17.

In sentencing petitioner to death, the judge expressly relied on the recommendation made by a different jury following the separate trial of a different defendant. There is much force to petitioner’s contention that this reliance on the recommendation made by Jent’s jury was inconsistent with the judge’s constitutional duty to decide whether to impose a death sentence on the basis of an “objective consideration of the particularized circumstances of the individual offense and the individual offender.” Jurek v. Texas, 428 U. S. 262, 274 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added). See, e. g., Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 606 (1978) (plurality opinion); Roberts v. Louisiana, 431 U. S. 633, 637 (1977) (per curiam); Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.). Our cases make clear that in capital cases “[t]he fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender.” Woodson v. North Carolina, supra, at 304.

Although it is impossible to determine the precise extent to which the recommendation of the jury in Jent’s case persuaded the judge to minimize or disregard the differences between petitioner and Jent, it is undeniable that the judge allowed that recommendation to influence his choice of petitioner’s sentence. There is, at the very least, a substantial question whether the judge thereby relied on a constitutionally impermissible consideration, for the jury that recommended a death sentence for Jent heard none of the mitigating evidence presented by petitioner, and petitioner had no opportunity to challenge the evidence and arguments presented by the State in Jent’s trial and sentencing proceeding.

In my view, the trial judge in this case confused his inquiry as sentencer with that undertaken by an appellate court in determining whether a sentence of death was warranted. An appellate court, in the performance of the reviewing function which this Court has held indispensable to a constitutionally acceptable capital punishment scheme, must examine the sentences imposed in all capital cases in the jurisdiction in order “to ensure that similar results are reached in similar cases.” Proffitt v. Florida, supra, at 258 (joint opinion of Stewart, Powell, and Stevens, JJ.). See also, e. g., Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (plurality opinion). The sentencer has a different role. The sentencer’s duty is to determine in the first instance whether a death sentence is warranted for a particular defendant. That determination can only be made on the basis of the evidence that the judge has heard with respect to that defendant, and, under the Florida procedure, on the recommendation made by the jury that heard that evidence. A capital sentencing determination cannot properly be made on the basis of evidence presented in another trial or a recommendation made by another jury.

It is no answer to say that a sentencing judge’s failure to consider the recommendations made by juries in other cases will make it difficult or impossible to produce a rational pattern of sentences. If this is true, the fault lies in the capital sentencing scheme itself. The remedy is not to deny a defendant the individualized consideration to which he is entitled, but to review the sentences that are actually imposed and to set aside death sentences in those cases that cannot be distinguished from cases in which life sentences were imposed.

      Petitioner had no history of prior criminal activity. In addition, a clinical psychologist testified that petitioner did not have a violent nature, but had “basically a dependent personality.” The psychologist testified that petitioner had come under the negative influence of Jent but would respond positively to the influence of “a stronger person [who] is a favorable, community oriented individual.” The trial judge gave no weight to this testimony. If the judge who sentenced petitioner had not also sentenced Jent, or if the jury had recommended life imprisonment for Jent, the judge may well have been willing to take this testimony into account.
      The court also declined to admit additional testimony offered by the clinical psychologist regarding petitioner’s capacity for rehabilitation. The court’s exclusion of such mitigating evidence may itself have been a violation of due process. The sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion) (emphasis in original) (footnotes omitted). See Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982).


author: Justice Marshall,

text:
    No. 82-5646.
    No. 82-5763.
    Chasson v. Ponte et al. Rivera v. Coombe, Superintendent, Eastern New York Correctional Facility.
   C. A. 1st Cir.; and

C. A. 2d Cir. Certiorari denied. Reported below: No. 82-5646, 692 F. 2d 745; No. 82-5763, 683 F. 2d 697.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

In Sandstrom v. Montana, 442 U. S. 510 (1979), this Court held that a defendant’s right to due process is violated when the trial judge, charging the jury on the issue of criminal intent, instructs the jury to presume that each person intends the natural consequences of his act. We left open the possibility that the impermissible effects of such a jury instruction might be “removed” by other instructions that are “rhetorically inconsistent with a conclusive or burden-shifting presumption.” Id., at 518-519, n. 7. In each of these cases the trial judge gave an instruction concerning intent that was improperly east in the form of a mandatory presumption. In each case the Court of Appeals held that the improper instruction was cured by other instructions concerning intent, even though the additional instructions were not rhetorically inconsistent with the improper charge. I would grant certiorari in order to address this misinterpretation of this Court’s decision in Sandstrom.

In No. 82-5763, petitioner Edwin Rivera was convicted in state court of first-degree manslaughter and misdemeanor possession of a weapon. The trial judge’s instruction concerning intent began with the following statement: “I shall now define intent for you. A person is presumed to intend the natural consequence of his act.” This statement is substantively identical to the instruction in Sandstrom which we held improper because “a reasonable juror could have given the presumption conclusive or persuasion-shifting effect.” Id., at 519. See id., at 513. Accordingly, on collateral review the District Court granted a writ of habeas corpus. Rivera v. Coombe, 534 F. Supp. 980 (SDNY 1982).

The decision of the Court of Appeals for the Second Circuit reversing the District Court, 683 F. 2d 697 (1982), cannot be squared with our holding in Sandstrom. The Court of Appeals’ conclusion that the charge as a whole was proper rested on the existence of later statements in the charge suggesting that the presumption is permissive, and on boilerplate language concerning the State’s burden of proof and the jury’s duty to consider all relevant evidence. Conspicuously absent from the lower court’s opinion is the conclusion that any of these additional statements were rhetorically inconsistent with the impermissible mandatory-presumption language. The reason is clear: the additional instructions reasonably could have been understood by the jury in a manner entirely consistent with the improper mandatory presumption.

The presence of some arguably permissive-presumption language in the judge’s charge on intent merely created the “possibility that some jurors may have interpreted the challenged instruction as permissive.” Sandstrom, 442 U. S., at 519. As in Sandstrom, this possibility did not entitle the court to “discount the [other] possibility that [Rivera’s] jurors actually did proceed upon” an impermissible, mandatory presumption. Ibid. Nor were the defective instructions cured by the presence of familiar language concerning the burden of proof and the duty to consider all evidence. As we explained in Sandstrom, general instructions such as these are “not rhetorically inconsistent with a conclusive or burden-shifting presumption.” Id., at 518, n. 7. Because there were no rhetorically inconsistent instructions that removed the effects of the impermissible mandatory-presumption instructions, the charge as a whole was defective and Rivera’s conviction cannot stand.

For similar reasons, petitioner Chasson’s conviction in No. 82-5646 must also be vacated. At Chasson’s trial for first-degree murder, the state trial court instructed the jury that “[w]hen one does an unlawful act he is by law presumed to have intended to do it and to have intended its ordinary and natural consequences. ...” This instruction is substantively identical to the instruction found impermissible in Sandstrom. In this case the trial judge also charged with respect to “deliberate premeditation” that the jury must find “the prior formation of a purpose to kill. ” The District Court denied Chasson’s writ of habeas corpus, and the Court of Appeals for the First Circuit affirmed. The Court of Appeals held that Sandstrom was not violated because, in light of the charge on premeditation, the improper “ Instruction by itself [did not] so infec[t] the entire trial that the resulting conviction violates due process,’ Cupp v. Naughten, 414 U. S. 141 (1973); Henderson v. Kibbe, 431 U. S. 145, 154 (1977).”

The Court of Appeals’ interpretation of Sandstrom is clearly improper. The additional instruction in this case was entirely consistent with the impermissible presumption of intent. Indeed, the jury reasonably could have applied the presumption to its finding of premeditation in the belief that when one does the unlawful act of killing he is “presumed” to have formed the prior purpose to kill. 442 U. S., at 525-526. I would grant certiorari to correct the misinterpretation of Sandstrom.

       Indeed, the trial judge’s further instructions reinforced the impermissible presumption:
      “Under our law every person is presumed to intend the natural and inevitable consequences of his own voluntary acts and unless such acts were done under circumstances which would preclude the existence of such intent, the jury has a right to infer from the results produced, the intention to effect such result.”
      The jury reasonably could have interpreted this instruction as a mandatory rebuttable presumption which, like a mandatory conclusive presumption, violates due process. Sandstrom v. Montana, 442 U. S. 510, 519 (1979). Even if the jury interpreted the latter portion of the instruction as describing only a permissive presumption it would not be rhetorically inconsistent with the earlier defective instructions. See Rivera v. Coombe, 534 F. Supp. 980, 991-993 (SDNY 1982). However it was interpreted, this additional instruction clearly did not remove the impermissible effects of the trial judge’s initial instruction concerning intent.

       For example, the instruction that “ ‘intent may be inferred from all the circumstances of the case,”’ 683 F. 2d 697, 701 (CA2 1982), did not preclude the jury from employing a mandatory presumption to find intent; nor is it inconsistent with such a reliance, since it could reasonably have been interpreted as permitting the jury to consider circumstantial (as opposed to direct) evidence as to Rivera’s acts from which intent is automatically presumed. Similarly, the instruction that intent is a “‘question of fact,’” ibid., is entirely consistent with a mandatory presumption of intent based on factual findings as to certain acts.

       The Court of Appeals found it significant that the jury acquitted Rivera of second-degree murder. Id., at 702. However, this in no way precludes the possibility that some jurors may have employed the mandatory presumption to find that Rivera intended to cause serious physical injury, an element of the manslaughter conviction. See id., at 704 (Oakes, J., dissenting). The Court of Appeals also suggested in passing that Sandstrom v. Montana, supra, should be limited to those situations where the only defense is intent. 683 F. 2d, at 700. Nothing in Sandstrom, supports such a narrow reading of that decision.


text:
    No. 82-378.
    No. 82-5475.
    Mandalay Shores Cooperative Housing Assn., Inc. v. Pierce, Secretary of Housing and Urban Development, et al., Cotton v. Federal Land Bank of Columbia et al.,
   ante, p. 1036; and

ante, p. 1041. Petitions for rehearing denied.


text:
    No. 82-5512.
    Chin v. Nadel et al.,
   ante, p. 1043. Petition for rehearing denied.


text:
    No. 82-117.
    Nunziata v. United States,
   ante, p. 907. Motion of petitioner for leave to proceed further herein in forma 'pauperis granted. Petition for rehearing denied.


text:
    January 20, 1983
    No. 82-5631.
    Brown v. Georgia.
   Ct. App. Ga. Cer-tiorari dismissed under this Court’s Rule 53.


text:
    January 24, 1983
    No. 82-857.
    Busbee, Governor of Georgia, et al. v. Smith, Attorney General, et al.
   Affirmed on appeal from D. C. D. C.


text:
    No. 82-646.
    Yateman v. Yateman.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of substantial federal question.


text:
    No. 82-943.
    Rosson et al., t/a Doctor’s Answering Service et al. v. City of Manassas et al.
   Appeal from Sup. Ct. Va. dismissed for want of substantial federal question.


text:
    No. 82-5637.
    Berry v. Pennsylvania.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 82-53.
    McCarthy v. The Bark Peking et al.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Director, OWCP v. Perini North River Associates, ante, p. 297.


text:
    No. 82-333.
    Michigan v. Miller.
   Ct. App. Mich. Motion of respondent for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Ross, 456 U. S. 798 (1982), and New York v. Belton, 453 U. S. 454 (1981).


text:
    No. 82-815.
    Ohio v. Kovacs, dba B & W Enterprises et al.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded to consider the question of mootness.


text:
    No. 82-886.
    United States v. Eagle Elk.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Wyrick v. Fields, ante, p. 42.


text:
    No. A-478.
    Widgery v. United States.
   Application for bond, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-316.
    In re Disbarment of Harris.
   It is ordered that H. Reed Harris, of Chicago, Ill., 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. 65,
    Orig.
    Texas v. New Mexico.
   Exceptions to the Report of the Special Master are set for oral argument in due course. [For earlier order herein, see, e. g., ante, p. 940.]


text:
    No. 82-65.
    Brown et al. v. Thomson, Secretary of State of Wyoming, et al.
   D. C. Wyo. [Probable jurisdiction noted, ante, p. 819.] Motion of Peter J. Mulvaney, Esquire, to permit Randall T. Cox, Esquire, to present oral argument pro hac vice on behalf of appellees granted.


text:
    No. 82-185.
    No. 82-246.
    No. 82-259.
    Boston Firefighters Union, Local 718 v. Boston Chapter, NAACP, et al.; Boston Police Patrolmen’s Assn., Inc. v. Castro et al.; and Beecher et al. v. Boston Chapter, NAACP, et al.
   C. A. 1st Cir. [Certiorari granted, ante, p. 967.] Motion of Thomas R. Kiley, Esquire, to permit Thomas A. Barnico, Esquire, to present oral argument pro hac vice on behalf of petitioners in No. 82-259 granted.

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


text:
    No. 82-905.
    Sooner Federal Savings & Loan Assn. et al. v. Oklahoma Tax Commission et al.
   Appeal from Sup. Ct. Okla. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 82-5279.
    No. 82-5331.
    Dixson v. United States; and Hinton v. United States.
   C. A. 7th Cir. [Certiorari granted, ante, p. 1085.] Motions for appointment of counsel granted, and it is ordered that Donald V. Morano, Esquire, of Chicago, Ill., be appointed to serve as counsel for petitioners in these cases.


text:
    No. 82-15.
    Oliver v. United States.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 82-357.
    Michigan v. Clifford et al.
   Ct. App. Mich. Certiorari granted.


text:
    No. 82-432.
    Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers, et al. v. Crowley et al.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 82-485.
    Keeton v. Hustler Magazine, Inc., et al.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 82-556.
    Press-Enterprise Co. v. Superior Court of California, Riverside County.
   Ct. App. Cal., 4th App. Dist. ’ Certiorari granted.


text:
    No. 82-849.
    United States v. Mendoza.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 82-940.
    Hishon v. King & Spalding.
   C. A. 11th Cir. Motions of Connecticut Women’s Educational and Legal Fund, Inc., et al. and Women’s Bar Association of Illinois for leave to file briefs as amici curiae granted. Certio-rari granted.


text:
    No. 82-6080.
    Barefoot v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death was presented to Justice White and referred to the Court. Treating the application as a petition for writ of certiorari before judgment, certiorari granted. The parties are directed to brief and argue the question presented by the application, namely, the appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner, and also the issues on the appeal before the United States Court of Appeals for the Fifth Circuit. Execution and enforcement of the sentence of death set for Tuesday, January 25, 1983, is stayed pending the sending down of the judgment of this Court.


text:
    No. 81-1039.
    Wiley N. Jackson Co. et al. v. Director, Office of Workers’ Compensation Programs, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-1109.
    Robert W. Kirk & Associates, Inc. v. Holcomb et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 81-2278.
    Union Electric Co. v. City of Kirkwood, Missouri.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-4.
    B. F. Diamond Construction Co. et al. v. Director, Office of Workers’ Compensation Programs, U. S. Department of Labor, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-523.
    Sanger Boats, Inc., et al. v. Schwabenland.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-527.
    Hardline Electric, Inc. v. International Brotherhood of Electrical Workers, Local 1547.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-557.
    Hanahan v. Luther, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-566.
    Zapata-Haynie Corp. et al. v. Ward et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-605.
    A.W.I., Inc. v. American Insurance Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-624.
    Hartley et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-709.
    Scarfo v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-732.
    Sturman et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-745.
    Greyhound Rent-a-Car, Inc. v. City of Pensacola et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-751.
    International Union of the United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada et al. v. National Labor Relations Board.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-773.
    Board of Public Utilities of Springfield, Missouri, dba City Utilities, et al. v. Bill’s Coal Co., Inc., et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-797.
    Bates et al. v. Bruner.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-832.
    Shupper v. Committee on Character and Fitness of the Supreme Court of South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 82-854.
    Pechanga Band of Mission Indians v. Kacor Realty, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-856.
    Scarpelli v. Fiscella, Director of Department of Probation and Court Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-868.
    Record Wide Distributors, Inc. v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 82-871.
    A. H. Robins Co., Inc. v. Abed et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-875.
    Irish People, Inc. v. Smith, Attorney General of the United States.
   C. A. D. C. Cir. Cer-tiorari denied.


text:
    No. 82-885.
    Pantoja et al. v. All-American Transport, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-887.
    Local Union No. 680, Milk Drivers & Dairy Employees v. Novembre et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-895.
    Marshall v. Ohio.
   Ct. App. Ohio, Cuya-hoga County. Certiorari denied.


text:
    No. 82-906.
    Howard v. Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 82-907.
    Proctor v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 82-909.
    International Rectifier Corp. et al. v. Pfizer, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-911.
    Harvey v. Bard; and Harvey v. Bard et al.
   App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 105 Ill. App. 3d 1200, 439 N. E. 2d 1113 (first case); 106 Ill. App. 3d 1150 (second case).


text:
    No. 82-917.
    Cory, Controller of the State of California, et al. v. Olson et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 82-919.
    City of Philadelphia et al. v. Tacynec et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-922.
    Lutz v. Ohio.
   Ct. App. Ohio, Coshocton County. Certiorari denied.


text:
    No. 82-924.
    Rosenfield et al. v. New England Merchants National Bank.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-932.
    Uiterwyk Corp. v. CTI-Container Leasing Corp.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-938.
    Pauer v. Ohio.
   Ct. App. Ohio, Geauga County. Certiorari denied.


text:
    No. 82-950.
    Laborde v. Regents of the University of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-988.
    DuFriend v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-989.
    Manocchio v. Rhode Island.
   Sup. Ct. R. I. Certiorari denied.


text:
    No. 82-995.
    Smith v. Lehman, Secretary of the Navy, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-997.
    Weardon, aka Aquila, dba Herbal Education Center v. United States.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 82-1015.
    Derickson et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-1028.
    Romo v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-1035.
    Burns v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-1055.
    Winslow v. Morgan County Commissioners et al.
   Ct. App. Colo. Certiorari denied.


text:
    No. 82-5332.
    Granger v. Maggio, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5463.
    Fite v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5483.
    Brake v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5501.
    Lopez-Garcia v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5521.
    Guzman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5524.
    Jones v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5559.
    Fayne v. Marshall.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5571.
    LeRoy v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5609.
    Burns v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5620.
    Haberski v. Maine.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 82-5621.
    Torres v. Schweiker, Secretary of Health and Human Services.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5629.
    Rouse et al. v. Lewis, Secretary of Transportation, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5717.
    Graves v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5781.
    Thomas v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5785.
    Woods v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5786.
    Robinson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5787.
    Pollak v. William Marsh Rice University et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5794.
    Anderson v. Spalding, Superintendent, Washington State Penitentiary, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5795.
    Tyree v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 82-5800.
    Jackson v. Oklahoma.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 82-5801.
    Haddix v. Ohio Liquor Control Commission.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 82-5803.
    Fleek v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 82-5804.
    Bennett v. Tull, Director, Camden County Board of Social Services.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 82-5807.
    Largen v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 82-5811.
    Orynicz v. West Virginia State Workmen’s Compensation Commissioner.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 82-5814.
    Townsend v. Hood et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5817.
    Routtenberg v. Alhambra City School District.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 82-5819.
    Cumber v. Cherry et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5825.
    Finney v. Kentucky.
   Ct. App. Ky. Certiorari denied.


text:
    No. 82-5832.
    Brownstein v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 82-5841.
    Reynolds v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 82-5844.
    Jones v. Georgia.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 82-5849.
    McMillan v. Bullard, Superintendent, Wagram Correctional Center.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5851.
    Morrow v. Gem City Savings Assn.
   Ct. App. Ohio, Montgomery County. Certiorari denied.


text:
    No. 82-5856.
    In re Nearis.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 82-5859.
    Martin v. Pennsylvania Unemployment Compensation Board of Review.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 82-5865.
    Newcomb v. New York State Board of Parole.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certio-rari denied.


text:
    No. 82-5866.
    Smith v. Ohio.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 82-5870.
    Jones v. Keohane, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5878.
    DiSilvestro v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5891.
    Beason v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5893.
    Omernick v. Carow et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5901.
    Russell v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5907.
    Pettee v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5908.
    Ray v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5917.
    Baysden v. Department of the Navy et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5927.
    Carr v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 81-2362.
    B. F. Diamond Construction Co., Inc., et al. v. LeMelle et al.
   C. A. 4th Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 82-314.
    White, Superintendent, Missouri Training Center for Men v. Thompson.
   C. A. 8th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 82-603.
    New York v. Sawyer.
   Ct. App. N. Y. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 82-918.
    Pennsylvania v. Lovette et al.
   Sup. Ct. Pa. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Rehnquist,

text:
    No. 82-455.
    John Cuneo, Inc. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.

Justice Rehnquist,

with whom Justice Powell joins,

dissenting.

In affirming the National Labor Relations Board’s decision in this case, the Court of Appeals for the District of Columbia Circuit held, inter alia, that (1) a bargaining order to the employer was an appropriate remedy; (2) the bargaining order could be retroactively applied from the date the employer first denied recognition of the Union; and (3) because of the employer’s actions during the strike, what began as an economic strike was converted into an unfair labor practices strike ab initio, justifying reinstatement of striking employees irrespective of whether the employer had hired replacements for the strikers. Road Sprinkler Fitters Local Union No. 669 v. NLRB, 220 U. S. App. D. C. 283, 681 F. 2d 11 (1982). In my opinion, all three of these holdings raise serious and important questions which recur with frequency before the NLRB. Because the NLRB and Court of Appeals, in resolving these questions, have charted new courses in areas previously mapped out only by this Court, I would grant certiorari to review these determinations.

Petitioner, located in Chattanooga, Tenn., manufactures and sells fire protection sprinkler systems. On September 15, 1977, representatives of the Road Sprinkler Fitters Local Union No. 669 presented to the Company president, Bob Splawn, Union authorization cards signed by 11 of the Company’s 14 fabrication shop employees. Splawn refused to recognize the Union. On September 21 the 11 employees went on strike; the strike continued until November 14, when 7 of the strikers made unconditional offers to return to work.

The NLRB determined that the Company committed several unfair labor practices throughout this period in violation of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. §§ 158(a)(1), (3), and (5). While contested below, these findings of fact are not at issue here. First, on two separate days before the strike, Company officials interrogated a senior employee, Gerald Hall, seeking to ascertain the identities of the employees who signed Union authorization cards; at one point Hall was threatened with discharge if he did not cooperate, but soon thereafter Company officials disclaimed a desire to discharge Hall. Second, the Company created the “impression of surveillance” by two actions: prior to the strike, a Company supervisor was directed to find out who had signed the Union authorization cards; and on two separate days early in the strike, Company officials took photographs of picketing strikers. Third, after the strike was terminated, the Company unnecessarily delayed in reinstating striking employers to available positions. Fourth, when the first two striking employees were reinstated in February 1978, Splawn told them not to talk about the Union on the job. Fifth, in February 1978 the Company promulgated a new rule providing that an employee would be discharged if late for work three times; the new rule was discriminatorily applied against the reinstated strikers.

The Bargaining Order. In NLRB v. Gissel Packing Co., 395 U. S. 575, 614 (1969), this Court held that if “at one point the union had a majority” and the employer has engaged in unfair labor practices “to undermine majority strength and impede the election processes,” then the NLRB can consider issuing a “bargaining order.” Such an order requires the employer to negotiate with the union, forgoing the normal election procedures in which the union must demonstrate its majority status. The Court cautioned, however, that this remedy was to be used sparingly, in situations where the NLRB “finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.” Id., at 614-615. The Court emphasized that there are “less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order.” Id., at 615.

The Court of Appeals’ application of these principles is debatable in two respects. First, the court determined the seriousness of the Company’s unfair labor practices by focusing on the type of practice committed, rather than the extent to which the practices occurred. The Court of Appeals said that “[c]ourt and [b]oard cases often have viewed unfair labor practices similar to the ones in this case — interrogation, threatened discharge, surveillance, discriminatory application of work rules — as conduct which supports the issuance of a bargaining order.” 220 U. S. App. D. C., at 295, 681 F. 2d, at 23. Most any “type” of unfair labor practice would rise to the level of misconduct contemplated by Gissel if committed with sufficient frequency; but Gissel contemplated that the extent of the practices should be given significant weight in determining the seriousness of an unfair labor practice.

Second, the court ruled that “‘Gissel does not require a finding that no other remedy could suffice, only that the bargaining order better protects employees’ expressed union preference.’” 220 U. S. App. D. C., at 296, 681 F. 2d, at 24 (quoting Amalgamated Clothing Workers v. NLRB, 174 U. S. App. D. C. 20, 24, 527 F. 2d 803, 807 (1975), cert. denied sub nom. Jimmy-Richard Co. v. NLRB, 426 U. S. 907 (1976)). The Court spoke plainly in Gissel, however, emphasizing that in addition to finding that the employees’ union preference would be better protected, before a bargaining order is issued it must be determined that “the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight.” 395 U. S., at 614.

The so-called Gissel bargaining order was never intended to be used routinely. It is a remedy designed for cases where traditional remedies are insufficient. Since in this case the bargaining order has been sanctioned without a finding that the special circumstances required by Gissel exist, we should determine whether this newly adopted approach is a proper one.

Retroactivity of the Bargaining Order. The NLRB and the Court of Appeals determined not only that the facts of this case supported the issuance of a bargaining order, but also that the order should be retroactive from the first time the Company refused to recognize the Union. Prior to 1975 the NLRB did not issue retroactive bargaining orders. See Trading Port, Inc., 219 N. L. R. B. 298 (1975). In its decision below, the Court of Appeals did not purport to accept a new policy which uses retroactive orders only. Rather, the court said it will approve “the issuance of retroactive bargaining orders where, as here, the union had majority support within the bargaining unit, the employer refused to bargain with the union, and the employer engaged in serious and pervasive unfair labor practices sufficient to justify a bargaining order under Gissel.” 220 U. S. App. D. C., at 297, 681 F. 2d, at 25.

While stated as a limited principle, however, under the standard set forth by the Court of Appeals the NLRB will be at liberty to make all bargaining orders retroactive. Before any bargaining order can issue, all three of the so-called requirements for retroactivity need to be present under Gissel. The hurdle which a “retroactive” bargaining order must clear is therefore no higher than the hurdle which must be cleared by any bargaining order.

Reinstatement of the Striking Employees. It is undisputed that the Company did not commit an unfair labor practice by refusing to recognize the Union in September 1977. The Company was free to require the Union to show its majority status in the bargaining unit by an election. See Linden Lumber Division v. NLRB, 419 U. S. 301 (1974). In fact, the Court of Appeals affirmed the NLRB’s determination that when the strike began on September 21, 1977, it was not in response to unfair labor practices; the employees were not “striking for any reason other than to gain recognition of the Union as their bargaining representative.” 220 U. S. App. D. C., at 292, 681 F. 2d, at 20. Therefore, at the inception of their protests, the employees were engaged in an “economic strike” and not an “unfair labor practices” strike.

During an “economic strike,” this Court has held that an employer has the right to hire replacements for the striking employees and “he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them.” NLRB v. MacKay Radio & Telegraph Co., 304 U. S. 333, 345-346 (1938). Nevertheless, in this case the Court of Appeals affirmed the NLRB’s order requiring the Company to rehire the strikers as of the date they offered to return to work, irrespective of whether any replacements were filling the strikers’ positions.

To reach this result, the NLRB and the Court of Appeals relied on Drug Package Co., 228 N. L. R. B. 108 (1977). In that case, the NLRB ruled that “when employees strike for recognition which should have been granted at the time they went on strike and where the employer engaged in contemporaneous widespread illegal conduct designed to frustrate the statutory scheme, and bargaining in particular, the striking employees are unfair labor practice strikers.” Id., at 112 (footnote omitted). As applied in this case, the Drug Package rule seems patently contrary to our cases. First, in light of Linden Lumber Division, supra, there is no legal reason why recognition of the Union “should have been granted at the time [the employees] went on strike.” Second, converting an “economic strike” into an “unfair labor practices” strike ab initio because of unfair labor practices committed subsequent to the initiation of the strike diminishes the rights of replacement workers, as well as the rights of employers, which this Court established in MacKay Radio, supra.

All three of these issues present important questions which recur with some frequency in labor disputes. I would grant certiorari to review the Court of Appeals’ decision on each issue.


text:
    No. 82-623.
    Treasure Isle, Inc. v. United States.
   C. A. 11th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 82-702.
    Metropolitan County Board of Education of Nashville and Davidson County, Tennessee, et al. v. Kelley et al.
   C. A. 6th Cir. Certiorari denied.

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


text:
    No. 82-897.
    Doe et al. v. Kelly, Attorney General of Michigan, et al.
   Ct. App. Mich. Certiorari denied.

Justice Brennan would grant certiorari.