text:
    No. 84-5819.
    Boyd v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner was sentenced to death after a hearing in which the judge prevented the jury from considering evidence that it might well have considered highly relevant to petitioner’s motive at the time of his crime and to the relationship of his character and record to the offense he had committed. As a result, the jury was called on to decide whether death was the appropriate punishment but was deprived of the evidence petitioner offered in mitigation of his crime. The death sentence must thus be vacated, for it stands in glaring conflict with one of the most basic requirements of the Eighth Amendment — “ ‘that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’” Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978)).

I

Petitioner Boyd was convicted of murdering his former girlfriend after unsuccessfully attempting a reconciliation. They had lived together for three years but had separated several months prior to the murder. On the day of the murder, Boyd met the victim at a local shopping mall. They sat and talked quietly for some time, sitting in the midst of a church-sponsored event run by the victim’s father, a local pastor. Eventually, the victim’s mother approached her daughter and said it was time to leave, but Boyd asked the daughter to stay and talk to him a little longer. After talking some more, the victim said she would leave. She was also reported to have said that if Boyd was going to kill her “he should hurry up and get it over with.” Boyd took out a knife but also assured her that he would not hurt her. He then began to stab her rapidly and repeatedly until bystanders dragged the two apart. The victim died from the multiple stab wounds.

At his capital sentencing hearing, Boyd offered in mitigation expert testimony by a sociologist, Dr. Humphrey, who had interviewed Boyd and previously had done academic research into the behavioral dynamics of suicide and homicide. Most relevantly, Dr. Humphrey had coauthored a study of people who had murdered their relatives or intimates. The trial judge excluded the entirety of his testimony.

Dr. Humphrey would have testified, based on his study and his personal interview with Boyd, that Boyd’s crime and life history conformed to a common pattern that distinguishes those who kill intimates from those who kill others. According to the sociologist, those in the former group are more likely to have had lives characterized by repeated deep personal losses (such as deaths of loved ones or abandonment by parents) and strong feelings of self-destruction:

‘“The more loss in someone’s life, the more likely they are to become self-destructive. And it seems that killing a family member or killing a close friend is an act of self-destruction. They are after all, killing something that is a part of them, very close to them, very important to their self. They are destroying them. So in the act of killing another person they are in fact destroying part of their self, a self-destructive act.’ ” 311 N. C. 408, 439, 319 S. E. 2d 189, 209 (1984) (Exum, J., dissenting) (quoting voir dire testimony of Dr. Humphrey).

In Dr. Humphrey’s view, Boyd’s life history conformed to the pattern he had found in his research; Boyd’s life had involved repeated and intense personal losses that had generated strong self-destructive feelings in him. Dr. Humphrey thus understood Boyd’s crime “primarily [as] a depression caused self-destructive act, closely related to the impulse that leads to suicide, resulting from a life history of an inordinate number of losses beginning with the abandonment by the defendant’s father and the death of his grandfather and culminating with the threatened loss of [the victim].” Id., at 419, 319 S. E. 2d, at 197.

Boyd’s counsel sought to introduce the expert’s testimony to provide the jury with a perspective on Boyd’s personal history, on his mental and emotional condition, and on how these factors may have led to the crime. In that sense, it was evidence of motive; but more broadly, the proposed testimony was an effort to “link together all of the defendant’s mitigating evidence into a unified whole which explained the apparent contradiction of killing the person the defendant loved the most.” Ibid.

On the prosecutor’s motion, the trial court excluded Dr. Humphrey’s explanation of why Boyd killed his former girlfriend, but the prosecutor nevertheless argued vigorously for an alternative explanation of Boyd’s motive. According to the prosecutor, Boyd was selfish and mean; he killed the victim because if he could not have her he wanted to make sure that no one else could. Id., at 436, 319 S. E. 2d, at 207 (Exum, J. dissenting). In the words of the dissenting opinion below, the State’s theory was “a motive theory that is easy to sell in this kind of case. . . . Defendant’s motive theory was different, less apparent to the average observer, and probably more difficult to sell. It was a theory which does not excuse the crime but which might have mitigated it in the eyes of the jury.” Ibid. The legal question, obviously, is not which of these theories is more worthy of belief, but whether petitioner had a right to offer evidence in support of his theory. Lockett and Eddings leave no doubt as to the correct answer to that question; he had such a right.

With two justices in dissent, the State Supreme Court affirmed the sentence of death. In the court’s view the proffered testimony only “placed [the] various ‘stressful events’ [of Boyd’s life] in a context suggesting that defendant’s act [of murder] was predictable.” 311 N. C., at 423, 319 S. E. 2d, at 199. It had “merely constructed a profile of a murderer into which the defendant fits.” Ibid. The court doubted that this information could have much weight in mitigation, especially because, in the court’s view, some of the traumas in Boyd’s life (e. g., imprisonment) could not “extenuate or reduce the moral culpability of the killing.” Ibid.

II

Lockett and Eddings have at their core an understanding that the factors that can rationally militate against the appropriateness of death are varied, subjective, and not subject to prior itemization. See also McGautha v. California, 402 U. S. 183, 204-208 (1971). Moreover, those cases clearly stand for the proposition that, within a broad range of relevance, the weight of any offered factor of mitigation is for the sentencer to determine. Here the sentencers were the jurors. Although evidence of various events in Boyd’s personal history was admitted, expert evidence that might have been highly useful to the sentencer’s attempt to understand Boyd’s crime and its relation to those events of personal history was excluded. Expert knowledge of human motivation might well have been considered highly relevant in the eyes of the jurors, for it might have offered an alternative explanation for why Boyd killed. Without that evidence, the scattered personal history evidence might have had little apparent significance, but the expert evidence might well have provided a link between the personal history evidence and that “extenuation] or reduction of] the moral culpability of the killing” that might call for a sentence of less than death. The exclusion of the expert evidence thus violated Lockett and Eddings.

Behind the State Supreme Court decision stand certain premises concerning punishment. Most apparently, the court took the view that it would be highly questionable to mitigate punishment based on a criminal’s conformity to a social psychology profile that traces the crime’s origins to the traumas of the criminal’s life and to the self-destructive impulses that those traumas may produce. But under the Constitution, the weight of mitigating factors is a judgment for the capital sentencer, and neither court nor legislature may usurp the sentencer’s role. In a jury’s eyes, the fact that a killer is moved by self-destructive tendencies might make a crime seem more generally tragic and less demanding of retribution, and it might make the criminal seem less clearly evil and more capable of rehabilitation. Moreover, the jury might become less concerned with the prospect of future dangerousness where a defendant’s violence stemmed from intimacy and the likely alternative to death is that he spend his life in prison far from loved ones.

Although these possible uses of the proffered but excluded evidence show that it was of clear relevance within even the most traditional views of mitigation, its possible power with the jury is even clearer when we consider the inherent subjectivity of capital sentencing decisions. Put simply, viewing the defendant’s behavior in terms of a pattern that has governed a far greater number of persons than the defendant alone might lead a jury to step beyond initial revulsion and attempt to understand the crime in more human terms. As one commentator has speculated, in many cases a jury’s ability to take precisely that step might be what determines whether or not a defendant will be sentenced to die:

“[It may be that] many jurors vote to execute when they are repelled by the defendant, because he presents the threatening image of gratuitous, disruptive violence that they cannot assimilate into any social or psychological categories they use in comprehending the world. Jurors can probably give mercy to even the most vicious killers if they can somehow understand what might cause this person to be a killer .... A juror votes to expel the defendant who presents an image of violence he or she cannot assimilate into any stabilizing categories, and who thereby threatens his or her sense of comfortable order in the world.” Weisberg, Deregulating Death, 1983 S. Ct. Rev. 305, 391.

It was our recognition of the importance to a defendant of just this sort of subjective but intensely human analysis of mitigation that stood behind this Court in Lockett and Eddings. Relying on those cases, Boyd sought to place his crime within the jury’s understanding. The state courts denied him the right to make that effort.

Ill

We have broadly declared that the law cannot preclude a capital sentencer’s consideration of “ ‘any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’” Eddings, 455 U. S., at 110 (quoting Lockett, 438 U. S., at 604). Accordingly, a constitutional death sentence cannot result from a process wherein the State may portray a defendant’s acts as so “inhuman,” bizarre, and cruel as to be béyond the reach of human sympathy, but a defendant is legally precluded from offering in mitigation those “ ‘diverse frailties of humankind’ ” an understanding of which might place the barbaric act within the realm of the tragic but nonetheless human. 455 U. S., at 112, n. 7 (quoting Woodson v. North Carolina, 428 U. S. 280, 304 (1976)).

The Lockett-Eddings principle stems from the “‘fundamental respect for humanity underlying the Eighth Amendment,’” Eddings, supra, at 112 (quoting Woodson v. North Carolina, supra, at 304), and rests on the requirement that “[a] jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek v. Texas, 428 U. S. 262, 271 (1976). Without the Lockett-Eddings principle, the uniqueness of a person’s life, including how that life may have led to the crime, may be casually ignored in determining whether that person should live or die. The Constitution cannot tolerate the execution of people “not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.” Woodson v. North Carolina, supra, at 304. This Court should not stand by and allow the Lockett-Eddings principle to erode. I would thus grant review, and I dissent from the denial of certiorari.

       I continue to adhere 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, 231 (1976) (MARSHALL, J., dissenting). But even if I did not take this view, I would grant review in this case because of the important issue raised concerning the proper interpretation of Lockett and Eddings.

      Unfortunately, this case is illustrative of a disturbing trend in a number of state courts to read our holdings in Eddings and Lockett in an unjustifiably narrow manner, and to declare, in spite of these holdings, that an increasing number of proffered bases of mitigation are simply irrelevant. See Eutzy v. Florida, post, p. 1045 (MARSHALL, J., dissenting from denial of certiorari); Patterson v. South Carolina, post, p. 1036 (Marshall, J., dissenting from denial of certiorari).

       Boyd’s lawyers had introduced evidence that Boyd’s father had been an alcoholic who abandoned his family when Boyd was a child, that his grandfather — whom he had come to view as a father — had then died, that he had a history of losing jobs and repeated imprisonment, and that his life since adolescence had been characterized by drug and alcohol abuse. When Dr. Humphrey interviewed Boyd, Boyd said that he had so feared the loss of his girlfriend that he had contemplated suicide shortly before the murder.

       The proffered evidence would of course also have been quite relevant to such issues as future dangerousness and prospects of rehabilitation.

       There is some ambiguity in the State Supreme Court’s opinion as to whether the affirmance rested on a view that the proffered evidence was properly excludable as irrelevant or was simply of so little weight as to not be a basis for vacating the sentence in this case. Either basis would of course be improper. The former would clearly be contrary to the discussions of relevance in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), and the latter would ignore those cases’ determination that the sentencer be the judge of the proper weight to be given to mitigating factors. Whatever might be the circumstances, if any, that might allow a court to speculate as to the possible harmlessness of an improper exclusion of a properly proffered mitigating factor, cf. Eddings, supra, at 119 (O’Connor, J., concurring); see also Songer v. Wainwright, 469 U. S. 1133, 1140, and n. 13 (1985) (Brennan, J., dissenting from denial of certiorari), the standard can certainly be no less than the constitutional harmless-error standard we have otherwise endorsed. The court below did not engage in any determination that there was error that could be found harmless beyond a reasonable doubt. See Chapman v. California, 386 U. S. 18 (1967). Moreover, there is no reason to believe that any such determination could reasonably have been made in a case such as this.


source: Caselaw Access Project

author: Justice Marshall,

license: Public Domain

text:
    No. 84-5843.
    No. 84-5850.
    Patterson v. South Carolina; and Koon v. South Carolina.
   Sup. Ct. S. C. Certiorari denied. Reported below: No. 84-5843, 285 S. C. 5, 327 S. E. 2d 650; No. 84-5850, 285 S. C. 1, 328 S. E. 2d 625.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

In spite of this Court’s repeated declarations that a capital “ ‘sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character . . . that the defendant proffers as a basis for a sentence less than death,”’ Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978)), the South Carolina Supreme Court has determined that evidence of a capital defendant’s likely nondangerousness within a prison environment is legally irrelevant to the capital sentencer’s choice between death or life in prison. In these cases, the petitioners were sentenced to death. They had offered such evidence in mitigation of death but were denied the opportunity of submitting the evidence to their sentencing juries.

The death sentences in these cases were imposed in glaring violation of two lines of this Court’s capital sentencing jurisprudence. First, and most obviously, the sentences are contrary to the Lockett-Eddings line of authority, which makes unmistakably clear that it is for the sentencer to determine the weight to be given to proffered evidence of mitigation. Second, they are equally in conflict with those decisions of this Court that make equally clear that the question of a capital defendant’s future dangerousness is a legitimate penological concern relevant to a capital sentencing hearing. See California v. Ramos, 463 U. S. 992, 1001-1003 (1983); Barefoot v. Estelle, 463 U. S. 880, 896-905 (1983); Jurek v. Texas, 428 U. S. 262, 274-276 (1976).

While this latter group of cases affirmed the penological relevance of future dangerousness in contexts in which the State urged it as a factor in aggravation, the hitherto relevant factor of future dangerousness cannot become suddenly and cruelly “irrelevant” as a matter of law when a defendant wishes to assert its absence as a factor in mitigation. As was declared in a precursor to Lockett and Eddings, “a jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek v. Texas, supra, at 271. Rather than allow Lockett and Eddings to be eroded through such a cruelly inequitable view of relevance, I would grant these petitions.

I

At the time of the sentencing hearings in question the South Carolina Supreme Court’s view of the relevance of predictive evidence as to a defendant’s future nondangerousness in a prison environment was clear:

“The penalty phase of a capital murder case is concerned with the existence or nonexistence of mitigating or aggravating circumstances involved in or arising out of the murder, not the convicted murderer’s adaptability to prison life. The jury is concerned with the circumstances of the crime and the characteristics of the individual defendant as they bear logical relevance to the crime. ... In Lockett v. Ohio, . . . cited as controlling in Eddings v. Oklahoma, . . . the United States Supreme Court retained the court’s traditional authority to exclude irrelevant evidence which did not bear on a defendant’s character, prior record, or the circumstances of his offense. We conclude that the evidence of appellant’s future conformity to prison life was properly excluded as irrelevant.” State v. Koon, 278 S. C. 528, 536, 537, 298 S. E. 2d 769, 773-774 (1982) (hereinafter Koon I).

At Koon’s hearing below, his counsel sought to develop a number of avenues of mitigating evidence. First, he sought to call two prison officials to testify as to petitioner’s excellent record in prison and his demonstrated ability to adapt to prison life. Record in No. 84-5850, pp. 922-927. Second, he sought to call psychiatric experts to testify as to Koon’s mental condition. Those psychiatrists had examined him and were prepared to testify that,he suffered from a severe mental disorder, and that partly as a result of that disorder he was extremely capable of adapting to prison life. They would have testified that, within the highly structured and regulated context of life in prison, Koon would be unlikely to present any problem of future dangerousness, and that, indeed, he might live a more productive life than he was capable of living outside of confinement. Id., at 925-928. See also id., at 1062-1066.

The trial court, relying on Koon I, excluded all of the prison officers’ testimony, and all psychiatric evidence of Koon’s ability to adapt to prison life or of his likely future nondangerousness within the prison environment. Although Koon was allowed to call a psychiatric witness to testify about his general psychiatric makeup, questions concerning adaptability or future nondanger-ousness were prohibited. The witness did briefly refer to petitioner’s successful adaptation to prison life in responding to a question only tangentially related to that issue; petitioner’s counsel was obviously unable to either develop this issue to any extent or to draw the jury’s attention to it in his summation.

In Patterson, the facts are quite similar. Petitioner proffered evidence from prison authorities that he had an exemplary prison record during the period of almost three years since his earlier trial, and proffered evidence from a psychiatrist that individuals exhibiting a personality pattern similar to petitioner’s “usually make a satisfactory adjustment to prison life” so that the likelihood of future violence by such persons “diminishes with the passing of time.” Record in No. 84-5843, p. 1442. The trial court excluded all this evidence as irrelevant under the authority of Koon I. Thus, the sentencing jury was given no opportunity at all to consider either petitioner’s behavior in prison or the issue of petitioner’s likely future nondangerousness within a prison environment.

On appeal, both of these petitioners’ death sentences were affirmed by the State Supreme Court on a slight variation of the Koon I rationale. 285 S. C. 5, 327 S. E. 2d 650 (1984); 285 S. C. 1, 328 S. E. 2d 625 (1984). Following Koon I, the court held that all predictive evidence of Patterson’s future behavior in prison was simply irrelevant. It modified Koon I only to the extent that it held that the bare facts of Patterson’s past prison record would now be considered admissible as general personal history. It read Lockett and Eddings as saying that a defendant’s “character” was relevant mitigating evidence that can be shown through evidence of past behavior. It thus found that it had been error for the trial court to exclude the prison officers’ testimony concerning Patterson’s prior prison behavior. But since such behavior was relevant only to show a generally good character, the court held that it was merely cumulative of other general character evidence submitted by the petitioner.

Similarly, in Koon’s appeal below, the State Supreme Court held that the evidence of future nondangerousness was properly excluded. Prison officials’ testimony as to Koon’s prison record was relevant, but again, was properly excluded as cumulative since the psychiatrist had briefly, in an unresponsive answer, stated that petitioner had been doing quite well in prison.

In both of these cases, the capital defendants were limited to argue the most vague and general theories of mitigation. Their chosen theories were completely excluded from the jury’s consideration. The State Supreme Court declared that it was irrelevant, as a matter of law, to argue that a death sentence might be inappropriate where a defendant could be relied on to lead an unthreatening life, and even a somewhat productive life, if kept in prison.

II

The constitutionality of these sentences rests on the premise that a State can make irrelevant to the capital sentencing process, as a matter of law, the theory of future nondangerousness that was proffered in mitigation by petitioners. The State’s reasoning was that the proffered factor does not “aris[e] out of the murder” nor “bear logical relevance to the crime.” Koon I, 278 S. C., at 536, 298 S. E. 2d, at 774. Put another way, the State viewed the factor as irrelevant because its proof would not reduce the moral culpability of the defendant. But this Court has never limited the circumstances relevant to a capital sentencing determination to those going to moral culpability. Quite the contrary, this Court has repeatedly treated predictive evidence relating to future dangerousness as highly relevant to sentencing concerns.

The most glaring is Jurek v. Texas, 428 U. S. 262 (1976), where this Court upheld a state law requiring capital sentencing juries to consider the issue of future dangerousness. The opinion announcing the judgment there declared:

“It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. . . . And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. . . . The task that a [capital sentencing] jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must (determine.” Id., at 274-276 (emphasis added).

The Court has treated evidence of future dangerousness as relevant even where the evidence at issue seemed of much less predictive value than the evidence at issue here. In both the instant cases, the witnesses who were excluded had all had extensive contact with the defendants and were testifying only to the likely behavior of the defendants within the same environment as that in which they had made their observations. In contrast, in Barefoot v. Estelle, 463 U. S. 880 (1983), this Court approved of the relevance of expert psychiatric predictions of future dangerousness even where the expert witness was testifying based on hypo-theticals without ever having examined the defendant. Id., at 903-906. If that evidence was relevant to capital sentencing, how can the. evidence at issue in the instant cases be deemed irrelevant? See also California v. Ramos, 463 U. S. 992 (1983).

Ill

Of course there are two differences between these earlier cases and the instant cases. First, relevance in the earlier cases was urged on the sentencers by prosecutors, who called for death sentences on the theory that the defendants at issue might be violent in the future. Here, evidence of the absence of future dangerousness is offered as a reason for urging that the defendants not be sent to die. But this difference can hardly be a relevant one. A system of punishment would certainly be fundamentally unfair if it accepted the validity of a call for death where a factor was present, but declared that that factor’s absence could not be offered as a reason for life. Such situation cannot be tolerated by the Eighth Amendment.

The second difference is that discussions of future dangerousness in our prior cases have emphasized the defendant’s dangerousness to the society outside of jail, while here the emphasis was on the likely nondangerousness of the defendants’ future behavior within jail. But although this might be viewed as an important distinction by a sentencer, it cannot be rationally viewed as a distinction that makes nondangerousness in prison irrelevant as a matter of law. If a jury can base a sentencing determination on predictions of the possible dangerousness of a defendant at the point far in the future when, after a long confinement, he might be paroled or pardoned, a jury cannot be precluded from considering the more immediate issue of his future dangerousness during that quite lengthy period when he will remain in jail. Similarly, it would be the ultimate cynicism to adopt a conclusive presumption that a sentencing jury would simply be wholly uninterested in the possible dangers that a killer who continues to be violent might present to other inmates — or conversely — that the jury would be wholly unimpressed by the fact that a different criminal might present no dangers to those inmates.

Ultimately, the evidence offered in mitigation here was premised on the proper notion that a jury might confront in a serious and humane way the question of what is actually to be gained and lost by a verdict of death. While in some cases the cry for moral retribution may sound clear to the jury, in others it may not. In the latter cases, it may be quite effective, as it would always be legitimate, to remind the jury that an execution may generate little social benefit and, indeed, may generate substantial social loss. A jury may come to see that a prisoner’s life in prison has some substantial social worth. He may adapt to his environment, find some degree of community in it, and contribute in some way to that community. He may even come to live a life of greater meaning than that which he knew before his confinement. Should a sentencer believe that there is a chance that these may be the consequences of a rejection of a death sentence, these factors may become powerful factors of mitigation. South Carolina’s determination that they are simply irrelevant cannot stand.

       I continue to adhere 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, 231 (1976) (Marshall, J., dissenting). But even if I did not take this view, I would grant review in these eases because of the important issue raised concerning the proper interpretation of Lockett and Eddings.

      Unfortunately, this case is illustrative of a disturbing trend in a number of state courts to read our holdings in Eddings and Lockett in an unjustifiably narrow manner, and to declare, in spite of these holdings, that an increasing number of proffered bases of mitigation are simply irrelevant. See Boyd v. North Carolina, ante, p. 1030 (Marshall, J., dissenting from denial of certiorari); Eutzy v. Florida, post, p. 1045 (Marshall, J., dissenting from denial of certiorari).

       This ruling by the South Carolina Supreme Court occurred in an appeal of an earlier sentencing of petitioner Koon. In both of these cases the capital defendants had previously been sentenced to death pursuant to proceedings that were later found by the South Carolina Supreme Court to violate state law. State v. Patterson, 278 S. C. 319, 295 S. E. 2d 264 (1982); Koon I. Both had thus been imprisoned for a substantial period at the time of their resentencing hearings.

       At the sentencing hearing at issue in the instant case, Koon made a proffer that his psychiatric expert would testify to substantially the same effect as the expert had done in the hearing that resulted in Koon I, supra. The following testimony by Dr. Pattison, an expert psychiatric witness, was proffered in mitigation at that earlier hearing:
      “Q: You have observed Paul in his prison environment — his jail environment. Do you have an opinion as to his ability to adapt to a long term institutional environment?
      “A: Yes. Both from the records and from observing him in the jail and talking with him it is, I think, quite clear in my professional opinion that he adapts very well to an institutional environment. As a matter of fact, in my professional judgment, in an institutional environment he has performed at probably his highest levels of function during his adult life, in as much as that environment is supportive, protective and has a relatively low level of stress compared to life in the outside world. Therefore, in this case I would be willing to risk a professional prediction in that I would predict that he would make an overall excellent institutional adjustment on a long term basis .... “Q: Do you think Paul would be a violent person in an institutionalized environment?
      “A: Again, in my professional opinion I feel confident in a reasonable frame to conclude that he would not be violent or dangerous within a custodial institution. The basis for my opinion is his past record within the custodial environment, his ability to conform within that environment, not only to maximum seclusion, but also conforming to the rules and regulations when he was under minimal supervision. Furthermore, his past history and his present state suggests that he performs interpersonally much better with men. That his major provocations of explosive and assaultive behavior is with women rather than with men. Therefore, I conclude that he would be a very good risk for good adjustment in an institution and a very low risk for assaultive or violent behavior in an institutional setting.
      “Q: He could be, in your opinion, could he be a contributive [sic] member to a prison institution?
      “A: Again, for the same reasons, I would say yes, in my professional opinion.” Pet. for Cert. in No. 84-5850, pp. 6-7.

       The character evidence that the court found was cumulative to Patterson’s evidence of his prison record was the testimony of a former employer that Patterson was a good and responsible worker and general testimony by Patterson’s relatives to the effect that he had been a good child and was still a “wonderful person” who had been led by bad influences to commit a murder that was out of character for him.

       The fact that in both of these cases the state court held that the proffered evidence of prior prison behavior was “cumulative” cannot save either of these decisions from review. In both cases, the theory of future nondangerousness was deemed irrelevant and the evidence and argument which would have been necessary to its proof were excluded. The determinations of “cumulativeness” whatever their merits, cf. Chapman v. California, 386 U. S. 18 (1967), were determinations that rested on the predicate federal determination that the only basis for the relevance of the evidence was to show general good character.


text:
    No. 84-6123.
    Estes v. United States.
   C. A. 10th Cir. Certiorari denied.

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


text:
    No. 84-6154.
    Albanese v. Illinois.
   Sup. Ct. Ill. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner Charles Albanese was convicted of murder and sentenced to death. On appeal to the Illinois Supreme Court, Albanese argued that the Illinois death penalty statute violated the Eighth and Fourteenth Amendments because of the broad, post-trial discretion granted each of Illinois’ 102 State’s Attorneys on whether to seek the death penalty following a conviction for a capital offense.

Under the Illinois statute, the decision whether to convene a death hearing rests solely in the hands of the individual Illinois State’s Attorney. Ill. Rev. Stat., ch. 38, ¶ 9 — 1(d) (1983). As a result, the statute vests in each State’s Attorney freewheeling discretion to select, among potential capital defendants, those who may be subject to the death penalty. It allows each of the 102 State’s Attorneys to establish his own policy, or no policy at all, by which to exercise this discretion. The scheme thereby introduces into the penalty phase an element of completely unbridled discretion and invites wholly arbitrary decisionmaking. It does so at the phase of the proceeding at which clear statutory guideposts and carefully channeled discretion are absolutely necessary to preserve the constitutionality of a capital sentencing scheme. See Zant v. Stephens, 462 U. S. 862, 876-877 (1983); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion).

Even if I did not continue to believe that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), I would grant certiorari in this case. As I have said before, I believe that this aspect of the Illinois scheme poses a serious constitutional question that is worthy of this Court’s consideration. See Eddmonds v. Illinois, 469 U. S. 894 (1984) (Marshall, J., dissenting from denial of certiorari). I therefore dissent from the Court’s refusal to consider the merits of this case.


text:
    No. 84-6182.
    Eutzy v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Although the State of Florida has adopted a system of capital sentencing that allows a trial judge to overturn a sentencing jury’s finding as to the inappropriateness of death — and although this Court has upheld that system as constitutional, see Spaziano v. Florida, 468 U. S. 447 (1984) — that system nevertheless remains subject to the dictates of Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). In Florida, as in other States, a capital defendant has a right to a sentencer who is free to consider and weigh, within the broadest bounds of relevance, “ ‘any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’” Id., at 110 (quoting Lockett, supra, at 604) (emphasis added).

This principle must govern judges responsible for sentencing, Eddings, supra, just as it must govern juries. In Florida, it must govern both, for the state scheme purports to split sentencing authority between the two. Although the judge has the power to override, that power is limited, for the judge may not exercise plenary discretion as to the issue of mitigation. To the contrary, the State has repeatedly purported to limit the judicial override to those cases where “the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975). Unfortunately, regardless of this supposed limit — a limit that the State cited to this Court when arguing for the constitutionality of its sentencing process, Spaziano, supra, at 465 — the State has-administered capital sentencing in a manner that allows the override to repeatedly denigrate the principle of Lockett and Eddings. See e. g., Heiney v. Florida, 469 U. S. 920 (1984) (Marshall, J., dissenting from denial of certiorari).

In this case, the Florida Supreme Court took another step in the erosion of Lockett and Eddings, affirming a judge’s sentence of death over a jury’s finding for life on the ground that certain mitigating factors that likely stood behind the jury’s finding were simply invalid as a matter of law, and the jury’s verdict was therefore reversible within the Tedder rule. Under Lockett and Eddings that legal determination is simply wrong as a matter of federal law. It embodies a view of mitigation that is violative of the Eighth Amendment. To prevent this denigration of one of the most important aspects of our Eighth Amendment law, I would grant review in this case.

I

The facts of this case are not complicated. Petitioner was found guilty of murdering a taxi driver. There were no witnesses, nor was there evidence of robbery; and petitioner’s sister-in-law, who testified against petitioner at trial, may have played some uncertain role in the crime. The jury returned a verdict of life in prison, and the trial judge, finding that there were three aggravating circumstances but no mitigating circumstances, overrode that verdict and imposed a death sentence. The trial judge did not attempt to analyze the jury’s thought process when he reversed it, nor did he make any Tedder finding. He simply expressed disagreement with the jury determination. His sentence was affirmed by the State Supreme Court. 458 So. 2d 755 (1984).

II

The State Supreme Court’s analysis of the case began with a determination that at least one of the aggravating circumstances found by the trial judge was inapplicable to this case as a matter of law, but it nevertheless affirmed the death sentence because it agreed that there were no valid mitigating circumstances. It held that this situation satisfied the Tedder standard. However, petitioner’s counsel had argued the presence of mitigating factors. Most prominently, counsel argued that petitioner’s likely nondan-gerousness after incarceration should be considered a mitigating factor. Because petitioner was 43 years old at the time of his conviction, under Florida law he could not be paroled from a life sentence until he was at least 68. Petitioner’s counsel argued that there was a very low probability that a 68-year-old, emerging from 25 years in prison, would constitute a substantial and continuing threat to the society.

The State Supreme Court simply ruled that such an argument of future nondangerousness was irrelevant as a matter of law.

“[T]he crucial flaw in appellant’s argument is that he mistakes the nature of mitigation. Mitigating circumstances must, in some way, ameliorate the enormity of a defendant’s guilt. For this reason, age is a mitigating circumstance when it is relevant to the defendant’s mental and emotional maturity and his ability to take responsibility for his own acts and to appreciate the consequences flowing from them. One who has attained an age of responsibility cannot reasonably raise as a shield against the death penalty the fact that, twenty-five years hence, he will no longer be young.” 458 So. 2d, at 759 (citations omitted).

Ill

It may be that the argument proffered by petitioner would prove unpersuasive to a sentencing authority, but it is simply wrong to hold that it is legally irrelevant. In the State’s view, legitimate mitigation is limited to the consideration of factors that would reduce the moral culpability of the defendant and thus the need for moral retribution. But this Court has never limited the circumstances relevant to a capital sentencing determination in such a way.

This Court has, in fact, repeatedly treated predictive evidence relating to future dangerousness as highly relevant to sentencing concerns. See, e. g., California v. Ramos, 463 U. S. 992, 1001-1003 (1983); Barefoot v. Estelle, 463 U. S. 880, 896-905 (1983); Jurek v. Texas, 428 U. S. 262, 274-276 (1976). As the opinion announcing the judgment in Jurek declared:

“[Prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. . . . And any sentencing authority must pre-diet a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose.” Id., at 275.

Of possibly even greater relevance to this case is California v. Ramos, supra, in which this Court held that the mere possibility that a capital defendant might be pardoned by the Governor at some undefined time after receiving a life sentence was a legitimate sentencing concern, because of the issue of future dangerousness. The existence of a provision for pardons is certainly no more relevant to a defendant’s moral culpability than is his age, but that link never has been accepted by this Court as a test for relevance even as to aggravating circumstances. In contrast, the issue of future dangerousness repeatedly has been accepted as relevant to valid penological concerns. See Patterson v. South Carolina, ante, p. 1036 (Marshall, J., dissenting from denial of certiorari).

Given that future dangerousness after a distant parole or pardon has been considered relevant to aggravation, it must certainly be considered relevant to mitigation. As I said in Patterson: “A system of punishment would certainly be fundamentally unfair if it accepted the validity of a call for death where a factor was present, but declared that that factor’s absence could not be offered as a reason for life. Such situation cannot be tolerated by the Eighth Amendment.” Ante, at 1043. Indeed, whether or not a State chooses to allow evidence of future dangerousness in aggravation, Lockett and Eddings make clear that evidence of future nondangerousness simply cannot be prohibited as a consideration in mitigation.

IV

This Court, in Lockett and then more decisively in Eddings, held that any aspect of a case that could rationally support mitigation must be deemed a legally valid basis for mitigation. There is certainly nothing irrational — indeed, there is nothing novel — about the idea of mitigating a death sentence on the basis that a life sentence, even with the possibility of parole, will sufficiently render a defendant nondangerous to the outside society until he is of an age where he likely will no longer present a significant threat of violence. Under federal law, a capital defendant has a right to a sentencer who may consider such a factor for mitigation. But under Florida law, a life sentence based on such a factor shall now be subject to override as irrational. The Florida courts cannot be allowed to use their override system to erode the rights protected by Lockett and Eddings. The fact that they are doing so is reason enough to grant review.

       I continue to adhere 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, 231 (1976) (Marshall, J., dissenting). But even if I did not take this view, I would grant review in this case because of the important issue raised concerning the proper interpretation of Lockett and Eddings

      Unfortunately, this case is illustrative of a disturbing trend in a number of state courts to read our holdings in Eddings and Lockett in an unjustifiably narrow manner, and to declare, in spite of these holdings, that an increasing number of proffered bases of mitigation are simply irrelevant. See, Boyd v. North Carolina, ante, p. 1030 (Marshall, J., dissenting from denial of cer-tiorari); Patterson v. South Carolina, ante, p. 1036 (Marshall, J., dissenting from denial of certiorari).

       Although it might also be argued that looking to a defendant’s advanced age at the time when he might possibly be released from prison would be unreliable evidence of future nondangerousness, this Court has been quite willing to find relevance in evidence of future dangerousness of a much more speculative nature. See, e. g., Barefoot v. Estelle, 463 U. S. 880, 903-906 (1984). Given that speculative evidence of future dangerousness has been so willingly declared relevant for aggravation, it would simply be constitutionally intolerable to declare the evidence of nondangerousness here argued in mitigation to be irrelevant.


text:
    No. 84-6286 (A-667).
    Graves v. Hester et al.
   C. A. 4th Cir. Application for injunction, addressed to Justice Stevens and referred to the Court, denied. Certiorari denied.


text:
    No. 82-1913.
    No. 82-1951.
    No. 83-1416.
    Garcia v. San Antonio Metropolitan Transit Authority et al., Donovan, Secretary of Labor v. San Antonio Metropolitan Transit Authority et al., National Labor Relations Board v. Action Automotive, Inc.,
   469 U. S. 528;

469 U. S. 528; and

469 U. S. 490. Petitions for rehearing denied.


text:
    No. 84-355.
    No. 84-890.
    No. 84-896.
    No. 84-897.
    No. 84-911.
    No. 84-937.
    No. 84-952.
    No. 84-1031.
    No. 84-1034.
    New York v. Smith, Brown v. United States, In re Anderson, Tesch, Sheriff of Cass County, Nebraska, et al. v. McCurry et al., Koker et ux. v. Sage et al., Bell, Individually and dba Wes Outdoor Advertising Co. v. New Jersey et al., Gerzof v. Grievance Committee for the Tenth Judicial District, Communications Satellite Corp. v. Franchise Tax Board, Finch et al. v. Hughes Aircraft Co.,
   469 U. S. 1227;

470 U. S. 1004;

469 U. S. 1206;

469 U. S. 1211;

469 U. S. 1201;

469 U. S. 1201;

469 U. S. 1200;

469 U. S. 1201; and

469 U. S. 1215. Petitions for rehearing denied.

Justice Powell took no part in the consideration or decision of these petitions.


text:
    No. 84-1057.
    No. 84-1074.
    No. 84-1095.
    No. 84-1153.
    No. 84-5821.
    No. 84-5845.
    No. 84-5925.
    No. 84-6020.
    No. 84-6037.
    No. 84-6044.
    No. 84-6107.
    No. 84-6169.
    Hutcherson et al. v. Board of Supervisors of Franklin County, Virginia, et al., Stroom v. Carter, Former President of the United States, et al., FitzPatrick v. DiMartino, Judge, Superior Court, Law Division, Gloucester County, New Jersey, et al., Otto v. United States, Holman v. Illinois, Noland v. North Carolina, Nuey v. Departmental Disciplinary Committee for the First Judicial Department, Montgomery v. National Multiple Sclerosis Society, Faison v. Davis, Judge, et al., Day v. DeAnda, Judge, United States District Court for the Southern District of Texas, et al., Howell v. Maryland, Levine v. United States,
   470 U. S. 1004;

469 U. S. 1216;

470 U. S. 1005;

469 U. S. 1217;

469 U. S. 1220;

469 U. S. 1230;

470 U. S. 1007;

470 U. S. 1007;

470 U. S. 1030;

470 U. S. 1030;

470 U. S. 1056; and

470 U. S. 1031. Petitions for rehearing denied.

Justice Powell took no part in the consideration or decision of these petitions.


text:
    April 22, 1985
    No. 88,
    Orig.
    California v. Texas et al.
    [For earlier order herein, see, e. g., 459 U. S. 1096.]
   Case dismissed under this Court’s Rule 53.


text:
    No. 84-1281.
    Watson Marine Services, Inc. v. Kliebert Educational Trust et al.
   Appeal from Ct. App. La., 5th Cir., dismissed for want of substantial federal question.


text:
    No. 84-1380.
    Allnutt v. Maryland.
   Appeal from Ct. Sp. App. Md. dismissed for want of substantial federal question.


text:
    No. 84-1429.
    Gilbert v. University of Tennessee et al.
   Appeal from Ct. App. Tenn. dismissed for want of substantial federal question.


text:
    No. 82-1928.
    Swyka et al. v. Johnson.
   C. A. 3d 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 Wilson v. Garcia, ante, p. 261.


text:
    No. 84-706.
    Larson, Secretary, Pennsylvania Department of Transportation, et al. v. Fitzgerald.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Wilson v. Garcia, ante, p. 261.


text:
    No. A-753 (84-6506).
    Bewley v. Oklahoma.
   Ct. Crim. App. Okla. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-470.
    In re Disbarment of Hayes.
    [For earlier order herein, see 469 U. S. 1102.]
   Disbarment entered.


text:
    No. 88,
    Orig.
    California v. Texas et al.
   Joint petition for an order with respect to fees and expenses of the Special Master granted, and it is ordered that the Honorable Wade H. McCree, Jr., be awarded the sum of $50,000 as compensation for his services as Special Master and that his disbursements of $2,246.74 be allowed. It is further ordered that the fees and disbursements be paid in equal parts by the State of California, the State of Texas, and William R. Lummis and First Interstate Bank of Nevada.

The order of this Court entered December 13, 1982 [459 U. S. 1083], is vacated.

This case having been dismissed on stipulation pursuant to Rule 53.1 of the Rules of this Court [supra, at 1050], it is further ordered that the Special Master is hereby discharged.


text:
    No. 84-262.
    Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana.
   C. A. 10th Cir. [Certiorari granted, 469 U. S. 879.] Motion of respondent for leave to file a supplemental brief after argument granted.


text:
    No. 84-310.
    In re Snyder.
   C. A. 8th Cir. [Certiorari granted, 469 U. S. 1156.] Motion of petitioner for leave to file a reply brief out of time granted.


text:
    No. 84-801.
    No. 84-805.
    Midlantic National Bank v. New Jersey Department of Environmental Protection; and O’Neill, Trustee in Bankruptcy of Quanta Resources Corp., Debtor v. City of New York et al.; and O’Neill, Trustee in Bankruptcy of Quanta Resources Corp., Debtor v. New Jersey Department of Environmental Protection.
   C. A. 3d Cir. [Certiorari granted, 469 U. S. 1207.] Motion of Thomas H. Jackson for leave to file a brief as amicus curiae granted.


text:
    No. 84-1198.
    Texas v. McCullough.
   Ct. Crim. App. Tex. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 84-1244.
    Davis et al. v. Bandemer et al.
   D. C. S. D. Ind. [Probable jurisdiction noted, 470 U. S. 1083.] Motion of appellants to expedite and schedule oral argument during 1984 Term denied.


text:
    No. 84-6344.
    In re Ely.
   Petition for writ of mandamus denied.


text:
    No. 84-1236.
    Cabana, Superintendent, Mississippi State Penitentiary, et al. v. Bullock.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 84-6263.
    Batson v. Kentucky.
   Sup. Ct. Ky. Motion of petitioner for leave to proceed informa pauperis and certiorari granted.


text:
    No. 83-2131.
    City of Overland Park, Kansas, et al. v. Hamilton.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-2140.
    Murray City et al. v. Mismash.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-6676.
    Garcia v. Ingram.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-7047.
    McClure v. Esparza et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-663.
    Minnis v. United States Department of Agriculture et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-894.
    Illinois v. Fogel.
   App. Ct. Ill., 1st Dist.

Certiorari denied.


text:
    No. 84-1028.
    News Publishing Co., dba Rome News Tribune v. DeBerry.
   Ct. App. Ga. Certiorari denied.


text:
    No. 84-1036.
    Materia v. Securities and Exchange Commission.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1039.
    Olson v. Leeke, Commissioner, South Carolina Department of Corrections, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1063.
    Foster et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1068.
    Stubbs, Administratrix of the Estate of Stubbs v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1083.
    West, as Mother and Administratrix of the Estate of West, et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1112.
    Fleet Finance, fka Southern Discount v. Moyer et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1116.
    Louisiana v. Jackson.
   Sup. Ct. La. Certiorari denied.


text:
    No. 84-1216.
    Adkins et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1317.
    Ackerman, Sheriff of Bonneville County, et al. v. Giles.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1358.
    Greenfield et al. v. Wood, Trustee for Tower 2450, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1359.
    Lerman v. Flynt Distributing Co., Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1364.
    Williamson v. Gillmor.
   Int. Ct. App. Haw. Certiorari denied.


text:
    No. 84-1370.
    Austin, a Minor, et al. v. Brown Local School District et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1375.
    Jett v. Jett.
   Ct. App. La., 1st Cir. Certiorari denied.


text:
    No. 84-1389.
    City of Burbank et al. v. Cinevision Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1390.
    Wilson et al. v. Pogo Producing Co.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1394.
    Matchett v. Chicago Bar Assn. et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-1395.
    Lotz Realty Co., Inc., et al. v. Anti-Defamation League et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1401.
    Carpenter v. City of Pasco, Washington.
   Super. Ct. Wash., Franklin County. Certiorari denied.


text:
    No. 84-1411.
    Arkansas-Best Freight System, Inc. v. Barrentine et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1431.
    Smith et al. v. Sorensen, Commissioner of Labor of Nebraska, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1443.
    Thompson Building Materials Inc. v. Board of Trustees of the Western Conference of Teamsters Pension Trust Fund.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1451.
    Baker v. Seaboard System Railroad, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1460.
    All Alexander L. Kielland Litigants v. Phillips Petroleum Company Norway, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1477.
    Moon v. Secretary of Labor.
   C. A. 11th

Cir. Certiorari denied.


text:
    No. 84-1511.
    Servotech International Establishment v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1512.
    Soteras v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1516.
    Martinez v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5714.
    Ellison v. Landon, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5827.
    Torres v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5905.
    Fitzpatrick v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6018.
    Harrison v. Meachum, Director, Oklahoma Department of Corrections, et al.
   C. A. 10th Cir. Certio-rari denied.


text:
    No. 84-6069.
    Hinkle v. Moss et al.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 84-6086.
    Cobb v. Owens, Superintendent, Indiana State Reformatory, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6298.
    Lockett v. Lockhart, Director, Arkansas Department of Corrections.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6305.
    Quiroz v. Wawrzaszek, Administrator, Arizona State Prison.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6307.
    Perkins v. Hartigan, Attorney General of Illinois.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6309.
    Ali v. Ford Motor Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6312.
    Meldrum v. Campbell.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-6318.
    Lucien v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 84-6320.
    Day v. Cartwright et al.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 84-6321.
    Patterson v. Charter Financial Group, Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6322.
    Patterson, dba Screen Advertising Film Fund v. Buena Vista Distribution Co. et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6327.
    Hyde v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 84-6335.
    Berghahn v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 84-6337.
    Fitzgerald v. Jordan, Superintendent, Cook County Juvenile Detention Center, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6339.
    Alberton v. State Bar of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6340.
    Day v. Amoco Chemicals Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6342.
    Gustafson v. Wisconsin.
   Sup. Ct. Wig. Certiorari denied.


text:
    No. 84-6345.
    Doe v. Board of Bar Overseers of Massachusetts et al.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 84-6365.
    Gochnour v. Marsh, Secretary of the Army.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6374.
    Frazier v. Lopes, Connecticut Commissioner of Correction.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6378.
    Maxwell v. Borden, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6438.
    Valles v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6441.
    Sloan v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 84-6443.
    Pride v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 84-6446.
    Smith v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6456.
    Burns v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6457.
    Lopez v. O’Brien, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6463.
    Winterhalder v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-6361.
    Manzanares v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 84-1009.
    Bailey et al. v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the judgment of the Appellate Court of Illinois, Second District.


author: Justice White,

text:
    No. 84-1062.
    Gee v. Boyd, District Engineer, Norfolk District of the Corps of Engineers of the United States Department of the Army, et al.
   C. A. 4th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

In 1982, the city of Norfolk sought permission from the Army Corps of Engineers to construct a 298-slip marina at the site of an abandoned ferry and near two existing marinas. The Corps issued an “environmental assessment” concerning the project, which concluded that the socioeconomic benefits of the project outweighed its likely adverse impact on the aquatic ecosystem. The Corps further concluded that the project would not “significantly affect. . . the quality of the human environment,” see 42 U. S. C. §4332(2)(C), thereby making unnecessary the preparation of an environmental impact statement (EIS). On the same day, the Corps issued a permit to the city clearing the project.

Petitioner, a partner in a venture that owns property near the site of the proposed marina, subsequently filed suit, challenging, inter alia, the Corps’ failure to prepare an EIS. The District Court granted summary judgment to respondents and denied petitioner’s cross-motion for summary judgment. On appeal, the Court of Appeals for the Fourth Circuit, like the District Court, employed an “arbitrary and capricious” standard in reviewing the agency’s determination that the proposed marina would have no significant effect on the environment. Gee v. Hudson, 746 F. 2d 1471 (1984). See also Webb v. Gorsuch, 699 F. 2d 157, 160 (CA4 1983); Providence Road Community Assn. v. EPA, 683 F. 2d 80, 82 (CA4 1982). The court held that neither this finding, nor the agency’s failure to consider the effect of possible future marinas on the environment, was arbitrary or capricious.

The decision below is the most recent in a long line of cases that have used divergent standards of review to assess an agency’s failure to prepare an EIS. The First, Second, and Seventh Circuits, like the Fourth, will reverse such agency action only if it is arbitrary or capricious. See Grazing Fields Farm v. Goldschmidt, 626 F. 2d 1068, 1072 (CA1 1980); Hanly v. Kleindienst, 471 F. 2d 823, 828-829 (CA2 1972), cert. denied, 412 U. S. 908 (1973); Nucleus of Chicago Homeowners Assn. v. Lynn, 524 F. 2d 225, 229 (CA7 1975), cert. denied sub nom. Nucleus of Chicago Homeowners Assn. v. Hill, 424 U. S. 967 (1976). Four other Circuits have employed a “reasonableness” standard of review. See Save Our Ten Acres v. Kreger, 472 F. 2d 463, 466 (CA5 1973); Winnebago Tribe of Nebraska v. Ray, 621 F. 2d 269, 271 (CA8), cert. denied, 449 U. S. 836 (1980); Foundation for North American Wild Sheep v. United States Dept. of Agriculture, 681 F. 2d 1172, 1177-1178 (CA9 1982); Wyoming Outdoor Coordinating Council v. Butz, 484 F. 2d 1244, 1248-1249 (CA10 1973). The Third Circuit has assumed, without deciding, that a “reasonableness” standard is appropriate, Township of Lower Alloways Creek v. Public Service Electric & Gas Co., 687 F. 2d 732, 741-742 (1982), and the Sixth Circuit has similarly declined to choose between the two standards. Boles v. Onton Dock, Inc., 659 F. 2d 74, 75 (1981). The Court of Appeals for the District of Columbia Circuit has developed a four-part test to determine whether the agency action is arbitrary and capricious. Sierra Club v. Peterson, 230 U. S. App. D. C. 352, 717 F. 2d 1409 (1983).

This conflict is not merely semantic or academic. Certainly, there are individual cases in which application of one standard rather than the other makes no difference. But the lower courts that have wrestled with the question of what rule to adopt clearly have not viewed the issue as one that might be settled by the flip of a coin. Courts that have chosen the “reasonableness” standard have relied on the importance of “the basic jurisdiction-type conclusion involved,” or on the “mandatory nature” of the statute’s language. In settling on this more stringent rule, the Court of Appeals for the Fifth Circuit expressed the concern that “[t]he spirit of the Act would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect environment were too well shielded from impartial review.” Save Our Ten Acres, supra, at 466. In contrast, courts adopting the “arbitrary and capricious” test have emphasized that the decision not to prepare an EIS is one committed to the agency’s discretion, and that application of a more deferential standard “permits the agencies to have some leeway in applying the law to factual contexts in which they possess expertise.” The Court of Appeals did not state in this case that it would have reached the same result under a “reasonableness” standard, and it is not for us to say what conclusions it might have drawn had it applied different considerations to these facts.

The lower courts have long been in disarray on what standard of review to apply to an agency’s decision not to undertake an EIS. I would grant certiorari to end this confusion.

       An “environmental assessment” is a brief document that the Army Corps of Engineers prepares in order to determine whether a proposed action will have a significant effect on the human environment. If such an effect is anticipated, a more detailed “environmental impact statement” is required under 42 U. S. C. § 4332(2)(C). See App. to Pet. for Cert. 15a-16a, n. 1.

       Petitioner also contended that respondents failed to consider all reasonable alternatives and mitigation measures as required by 42 U. S. C. § 4332(2)(E), and that they had failed to verify certain financial data submitted by the applicant. These claims were rejected by the lower courts.

       The Eleventh Circuit has adopted as binding decisions of the former Fifth Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F. 2d 1206 (CA11 1981) (en banc). Therefore, the Eleventh Circuit would presumably employ a “reasonableness” standard in reviewing the failure to prepare an EIS statement.
      Courts that have applied a “reasonableness” standard have generally placed an initial burden on the plaintiff of raising a “substantial environmental issue concerning the proposed project,” after which the burden shifts to the agency to demonstrate the reasonableness of its negative determination. See Winnebago Tribe of Nebraska v. Ray, 621 F. 2d, at 271. See also Foundation for North American Wild Sheep v. United States Dept. of Agriculture, 681 F. 2d, at 1178; Pokorny v. Costle, 464 F. Supp. 1273, 1276 (Neb. 1979).

       The test used by the District of Columbia Circuit in scrutinizing an agency’s finding of “no significant impact” is:
      “(1) whether the agency took a ‘hard look’ at the problem;

        “(2) whether the agency identified the relevant areas of environmental concern;
      “(3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and
      “(4) if there was an impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum.” 230 U. S. App. D. C., at 366, 717 F. 2d, at 1413.

         Save Our Ten Acres v. Kreger, 472 F. 2d 463, 466 (CA5 1973).

        Foundation for North American Wild Sheep v. United States Dept. of Agriculture, supra, at 1177, n. 24; see also Wyoming Outdoor Coordinating Council v. Butz, 484 F. 2d 1244, 1249 (CA10 1973).

         Providence Road Community Assn. v. EPA, 683 F. 2d 80, 82 (CA4 1982).

         Hanly v. Kleindienst, 471 F. 2d 823, 829-830 (CA2 1972), cert. denied, 412 U. S. 908 (1973). See also First National Bank of Chicago v. Richardson, 484 F. 2d 1369, 1381 (CA7 1973).

       Cf. Providence Road Community Assn., supra, at 82, n. 3.


text:
    No. 84-1239.
    Young v. Lehman, Secretary of the Navy.
   C. A. 4th Cir. Certiorari denied.

Justice White, Justice Blackmun, and Justice O’Connor dissent and would grant the petition for writ of certiorari, vacate the judgment, and remand the case to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Anderson v. Bessemer City, 470 U. S. 564 (1985).


text:
    No. 84-1350.
    Cohen, Secretary, Department of Public Welfare of Pennsylvania, et al. v. Betson et al.
   C. A. 3d Cir. Motion of respondents Betson and Woodward for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1357.
    United States v. Morgan.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 84-1386.
    Morrissey v. William Morrow & Co., Inc., et al.
   C. A. 2d Cir. Certiorari denied.

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


text:
    No. 84-1470.
    Francois v. Raybestos-Manhattan, Inc., et al.
   C. A. 9th Cir. Certiorari denied.

Justice Powell would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 84-5972.
    Smith v. Texas.
   Ct. Crim. App. Tex. Certio-rari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 84-6145.
    Reyes v. Immigration and Naturalization Service.
   C. A. 6th Cir. Certiorari denied.

Justice White,

dissenting.

Because the decision in this case conflicts with Bolanos-Hernandez v. INS, 749 F. 2d 1316 (CA9 1984), I would grant certiorari in this case.


text:
    No. 83-1065.
    County of Oneida, New York, et al. v. Oneida Indian Nation of New York State et al.,
   470 U. S. 226. Petition for rehearing denied.


text:
    No. 83-1452.
    Marrese et al. v. American Academy of Orthopaedic Surgeons,
   470 U. S. 373. Motion of petitioners for clarification denied. Petition for rehearing denied.

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


text:
    No. 84-532.
    No. 84-5548.
    No. 84-5811.
    No. 84-6082.
    No. 84-6173.
    No. 84-6273.
    No. 84-6315.
    Rowland v. Mad River Local School District, Montgomery County, Ohio, Smith v. Jago, Superintendent, London Correctional Institution, Gacy v. Illinois, Attwell et al. v. United States Postal Service et al., Dingle v. Simpkins, Administrator of the Estate of Dingle, Mullins v. Ohio, In re McDonald,
   470 U. S. 1009;

470 U. S. 1060;

470 U. S. 1037;

470 U. S. 1008;

470 U. S. 1086;

470 U. S. 1059; and

470 U. S. 1082. Petitions for rehearing denied.

Justice Powell took no part in the consideration or decision of these petitions.


text:
    April 27, 1985
    No. 84-1409.
    Delta Air Lines, Inc. v. Jacobson.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    April 29, 1985
    No. 84-5795.
    Cornes v. Kellum et al.
   Appeal from App. Ct. Ill., 5th Dist., dismissed for want of substantial federal question.


text:
    No. 84-6381.
    Singer v. Bodley, Judge, et al.
   Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-1015.
    Goodson v. United States.
   Ct. Mil. App. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Smith v. Illinois, 469 U. S. 91 (1984).


text:
    No. 84-1208.
    Murr v. Tennessee Board of Law Examiners.
   Sup. Ct. Tenn. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Supreme Court of New Hampshire v. Piper, 470 U. S. 274 (1985).


text:
    No.-.
    Afflerbach et al. v. United States.
   Motion to direct the Clerk to file a petition for -writ of certiorari in typewritten form not in compliance with the Rules of this Court denied.


text:
    No.-.
    Davis et al. v. Amoco Oil Co. et al.
   Motion to direct the Clerk to file a petition for writ of certiorari out of time denied.


text:
    No. A-791.
    Holderman v. United States (No. 84-1637); and Holderman v. United States (No. 84-1638).
   C. A. 2d Cir. Application for stay, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. D-473.
    In re Disbarment of Hutchins.
    [For earlier order herein, see 469 U. S. 1202.]
   Disbarment entered.


text:
    No. D-474.
    In re Disbarment of Kozel.
   William Thomas Kozel, of Santa Maria, Cal., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on February 19, 1985 [469 U. S. 1202], is hereby discharged.


text:
    No. D-490.
    In re Disbarment of Holtzman.
   It is ordered that Frank E. Holtzman, of Southfield, 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. 84-822.
    American National Bank & Trust Company of Chicago et al. v. Haroco, Inc., et al.
   C. A. 7th Cir. [Certiorari granted, 469 U. S. 1157.] Motion of petitioners to supplement the record granted.


text:
    No. 84-1103.
    Hill v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. [Certiorari granted, 470 U. S. 1049.] Motion of petitioner for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that Jack T. Lassiter, Esquire, of Little Rock, Ark., be appointed to serve as counsel for petitioner in this case.


text:
    No. 84-6158.
    Ferrara v. Becton, Dickinson & Co. et al.,
   470 U. S. 1049. Motion of petitioner for reconsideration of the order denying leave to proceed informa pauperis denied.

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


text:
    No. 84-6370.
    No. 84-6375.
    In re Beachum; and In re Ely.
   Petitions for writs of mandamus denied.


text:
    No. 83-1968.
    Thornburg, Attorney General of North Carolina, et al. v. Gingles et al.
   Appeal from D. C. E. D. N. C. Probable jurisdiction noted limited to Questions I and III presented by the statement as to jurisdiction.


text:
    No. 84-1144.
    United States v. Von Neumann.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 84-1274.
    Board of Governors of the Federal Reserve System v. Dimension Financial Corp. et al.
   C. A. 10th Cir. Certiorari granted.

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


text:
    No. 84-1105.
    New Mexico v. Baker, Secretary of the Treasury.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1108.
    Wenturine v. Parfett et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1109.
    Bothke v. Racca.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1147.
    Simmons Fastener Corp. v. Illinois Tool Works, Inc.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1235.
    Waterman v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-1249.
    Norris et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1280.
    Bolden v. Tarrant County Department of Human Resources.
   Ct. App. Tex., 2d Sup. Jud. Dist. Certio-rari denied.


text:
    No. 84-1367.
    Guerra et al. v. Garcia et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1384.
    Pyramid Lake Paiute Tribe of Indians v. Carson-Truckee Water Conservancy District et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1412.
    McDonald v. United Air Lines, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1414.
    Haberman et al. v. Chemical Bank et al.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 84-1417.
    San Jose Unified School District et al. v. Diaz et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1421.
    Pudlo v. City of Chicago.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-1422.
    B. R. MacKay & Sons, Inc. v. Attorney General of Illinois.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1428.
    Trecker v. Scag et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 84-1433.
    Brown v. Paulus et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 84-1439.
    Johnson v. Branford Zoning Board of Appeals et al.
   App. Ct. Conn. Certiorari denied.


text:
    No. 84-1445.
    Moore et al. v. Kenyatta.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1450.
    Stepping Stones Associates v. City of White Plains.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-1458.
    Chesler et al. v. Stadler Associates, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1492.
    Beery v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1510.
    Smith v. Alyeska Pipeline Service Co. et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1527.
    Stonehill et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1533.
    Jaramillo v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1536.
    Clark v. Walters, Administrator of Veterans’ Affairs, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1590.
    Jensen et al. v. Gates Learjet Corp. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1595.
    Riggins v. Internal Revenue Service et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5854.
    Otalora v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5944.
    Peoples v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5959.
    Lambinus v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6054.
    Dixon v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 84-6064.
    Lewis v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6122.
    Wilks v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 84-6135.
    Perkins v. Stephenson, Superintendent, Caledonia and Odom Complex, et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 84-6161.
    Stallings v. Merit Systems Protection Board.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-6176.
    Fields v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6349.
    Birden v. Gousha.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6354.
    Toomey v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 84-6356.
    Pallett v. Harp et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 84-6357.
    Moore v. Mintzes, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6358.
    Stumes v. Solem, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6359.
    Radford v. Fairman, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6361.
    Robinson v. Ikari et al.
   Ct. App. La., 2d Cir. Certiorari denied.


text:
    No. 84-6366.
    Heath v. National Association of Government Employees Local R5-189 et al.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 84-6369.
    Ely v. Glen Ellyn Police Department.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 84-6371.
    Crist v. Lane, Director, Illinois Department of Corrections.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6373.
    Hernandez v. Duncan et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6400.
    Glover v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 84-6411.
    Hemby v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6428.
    Jones et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6431.
    Primbs v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-6433.
    Andrews v. Louisiana.
   Sup. Ct. La. Certio-rari denied.


text:
    No. 84-6440.
    Harter v. Shultz, Secretary of State, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6445.
    Dixon v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6450.
    Gaza v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 84-6451.
    Geoghegan v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6454.
    Dizzley v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6460.
    Gustus v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6466.
    Petrino v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 84-6468.
    Denison v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6493.
    Williams v. Galdi.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-550.
    No. 84-867.
    Interstate Commerce Commission v. Brae Corp. et al.; and Consolidated Rail Corporation v. Ahnapee & Western Railway Co. et al.
   C. A. D. C. Cir. Certiorari denied.

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

Reported below: 238 U. S. App. D. C. 352, 740 F. 2d 1023.

Justice White,

with whom Justice Rehnquist joins,

dissenting.

In the Staggers Rail Act of 1980, 49 U. S. C. §10101 et seq., Congress took a significant step away from the traditionally pervasive federal regulation of railroads. Displaying evident distrust of the regulatory model, the Act includes a 15-point National Rail Transportation Policy. § 10101a. Among the policies identified are “(1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for transportation by rail; [and] (2) to minimize the need for Federal regulatory control over the rail transportation system.” Ibid. The Act also provides that the Interstate Commerce Commission (ICC) “shall exempt” persons or transactions from an otherwise applicable regulation if the regulation “is not necessary to carry out the transportation policy of section 10101a” and “either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power.” § 10505(a).

These cases arise out of an ICC rulemaking regarding the deregulation of boxcar traffic. Exemption from Regulation—Boxcar Traffic, 367 I. C. C. 423 (1983); Alaska Railroad Certification, 367 I. C. C. 745 (1983). The Commission granted far-reaching exemptions pursuant to § 10505(a). First, it eliminated ceilings on boxcar rates. Particularly in light of economic pressures caused by competition from the trucking industry, the Commission found that rail carriers lacked market power and that regulation of boxcar rates was not necessary to further the National Rail Transportation Policy. Second, it extended this exemption to “joint rates.” A joint rate is the charge to a shipper for transportation over connected lines by more than one carrier. The revenues are divided among the carriers pursuant to joint rate agreements, which are regulated by 49 U. S. C. §10705. The Commission concluded that elimination of joint rate regulation would not lead to the demise of joint rates, long haul routes, or cooperation between large and small carriers. Third, the Commission exempted negotiated agreements from its “car hire rules.” Under the otherwise applicable rules, the owner of a boxcar could charge a per diem rental fee to the railroad with control over the boxcar for the entire time the car was on that railroad’s tracks, even if it was empty and still. The Commission found that in practice these rules resulted in extreme inefficiency, higher operating costs, an incentive for excessive purchases of boxcars, and a lack of responsiveness to market conditions.

Respondents sought judicial review in the Court of Appeals for the District of Columbia Circuit. The court sustained the exemption of boxcar traffic from maximum rate regulation, but set aside the other two rulings. 238 U. S. App. D. C. 352, 740 F. 2d 1023 (1984). With regard to the joint rate exemption, it found that the Commission’s consideration of the need for regulation and the possible adverse consequences of its elimination had been inadequate. Noting congressional concern about the possibility of large carriers squeezing profits from captive small carriers, it held the Commission’s failure to consider the effect of joint rate exemption on the fair division of joint rate revenue among carriers' had been arbitrary and capricious. Turning to the car hire issue, the Court of Appeals, echoing the position of dissenting ICC Chairman Taylor, held that the Commission’s decision was, in reality, not an exemption but a new regulation. As such, it exceeded the Commission’s authority under § 10505. That section was part and parcel of the Act’s emphasis on the reduction of regulatory burdens and Government oversight. The joint rate “exemption,” rather than leaving the contours of the car hire relationships to the market, skewed the initial economic relationship in favor of the destination carrier. This reregulation could only be accomplished pursuant to normal rulemaking procedures.

Consolidated Rail Corp., which had initially sought the rule-making, and the Commission itself now seek review in this Court. They are supported by a brief from the United States. Several aspects of the decision below are questionable. The court’s concern with the fair division of revenues between carriers is not squarely based on the statutory language, which requires only that the regulation from which an exemption is granted be “not needed to protect shippers from the abuse of market power.” § 10505(a)(2)(B) (emphasis added). There is also an arguable inconsistency between upholding the Commission with regard to maximum rate regulation generally and affirming its view of the surrounding circumstances supporting such a ruling, while refusing to do so as to joint rates. Finally, the court’s distinction between reregulation and deregulation is hard to pin down — on its face, the Commission’s ruling is certainly the latter.

More generally, the fact that the battle between the court and the agency has taken place on what may be considered the latter’s turf casts doubt on the decision below. It is the Commission that should be evaluating the nature of the rail transportation market and the effect and necessity of regulation.

Finally, these cases present a significant clash between an independent federal agency and a Federal Court of Appeals. The subject matter is important not only to the numerous parties but also to the Nation as a whole. These cases seem to be one episode of a larger struggle. See ICC v. Coal Exporters Assn. of United States, Inc., post, p. 1072. The court and the agency have rather divergent views of the mandate of the Staggers Act and the nature of the Commission’s task thereunder. The proper implementation of that important legislation requires that these larger issues be settled.

I would grant these petitions and consolidate them for oral argument.


text:
    No. 84-884.
    No. 84-885.
    Interstate Commerce Commission v. Coal Exporters Association of the United States, Inc., et al.; and Norfolk & Western Railway Co. et al. v. Coal Exporters Association of the United States, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.

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

Reported below: 240 U. S. App. D. C. 256, 745 F. 2d 76.

Justice White,

with whom Justice Rehnquist joins,

dissenting.

Like ICC v. Brae Corp. and Consolidated Rail Corp. v. Ahnapee & W. R. Co., ante, p. 1069, these cases involve implementation of the Staggers Rail Act of 1980, 49 U. S. C. § 10101 et seq. That Act begins with a 15-point National Rail Transportation Policy with a decidedly antiregulatory bent. § 10101a. It goes on to provide that the Interstate Commerce Commission (ICC) “shall exempt a person, class of persons, or a transaction or service” from any regulation that is not necessary to carry out the policies detailed in § 10101a or to “protect shippers from the abuse of market power.” § 10505(a).

Pursuant to this provision, the ICC exempted the rail transportation of coal bound for export from all regulation under the Interstate Commerce Act. Railroad Exemption—Export Coal, 367 I. C. C. 570 (1983). In the view of the Commission, relief from regulation would lead to improved efficiency, stronger railroads, and greater pricing flexibility. The resulting benefits would promote a variety of goals set out in § 10101a. In addition, continued regulation Was not needed to protect against abuse of market power by the railroads. They had an interest in the shippers’ success, and the competitive international coal market would prevent them from raising prices so high that producers would not be competitive abroad. In addition, as experience had shown, the shippers formed a concentrated industry with bargaining power essentially equal to that of the railroads. The Commission also noted that antitrust remedies were available should the railroads abuse what market power they had, and that the railroads were unlikely to do so even if they could because the Commission would respond by revoking the exemption.

The Court of Appeals for the District of Columbia Circuit vacated and remanded. Coal Exporters Assn. of United States v. United States, 240 U. S. App. D. C. 256, 745 F. 2d 76 (1984). It found that the Commission had overlooked a key element of National Transportation Policy: “to maintain reasonable rates where there is an absence of effective competition and where rail rates provide revenues which exceed the amount necessary to maintain the rail system and to attract capital.” 49 U. S. C. § 10101a(6). Reading this provision in tandem with § 10505’s requirement that an exemption not subject shippers to “the abuse of market power,” the court held that the Commission had too narrow an understanding of the latter phrase. As it read the Commission’s opinion, there would be no abuse of market power as long as the shippers had some bargaining power, however minimal, and received some share of the economic rents, however slight. The court condemned this view as “wholly unreasonable,” 240 U. S. App. D. C., at 275, 745 F. 2d, at 95, and indifferent to the Act’s concern for protecting the revenues of shippers, id., at 278, 745 F. 2d, at 98.

The railroads and the ICC, supported by the United States, petition for certiorari. They argue that the decision below effectively forecloses any use of the exemption provision. While this seems an overstatement, the opinion below does criticize the ICC for failing to quantify its conclusions with a precision that would appear unattainable. Moreover, the Court of Appeals involved itself in details of regulatory decisionmaking that might more properly be left to the agency. Precisely where hard bargaining leaves off and “abuse of market power” begins is the sort of issue best left to the agency’s expertise, and the Court of Appeals’ identification of abuse with any inequality is open to question.

More important, the decision below is set against the background of a fundamental clash between the Court of Appeals and the ICC concerning the deregulatory mandate of the Staggers Act. See ICC v. Brae Corp., ante, p. 1069. The exemption provision is the key mechanism by which that mandate is to be effected, and the Commission has had some difficulty in getting its exemptions past the Court of Appeals. As I noted in dissenting from the Court’s refusal to consider the Brae case, the effective implementation of the Staggers Act requires that the scope of the exemption requirement be settled.

I respectfully dissent.


text:
    No. 84-1067.
    District of Columbia v. Brown.
   C. A. D. C. Cir. Motion of respondent Brown, aka Yusaf Lateef Salahuddin, for leave to proceed in forma pauperis granted. Certiorari denied.

The Chief Justice and Justice White would grant certiorari.


text:
    No. 84-1098.
    General Motors Corp. v. Thomas, Administrator, United States Environmental Protection Agency.
   C. A. D. C. Cir. Certiorari denied.

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


text:
    No. 84-1209.
    Catlett et al. v. United States.
   C. A. 6th Cir. Certiorari denied.

Justice White,

dissenting.

Petitioners were convicted and fined for hunting doves in a “baited” field contrary to the Federal Migratory Bird Act, 16 U. S. C. §703, and the regulations issued thereunder, despite their claim that they were unaware of the baiting and that they could not reasonably have been aware of it, since the remaining bait on the property was hidden from view at the time of the hunt.

The Court of Appeals affirmed, observing that petitioners “were apparently unaware of, and had not participated in, the baiting of the field.” 747 F. 2d 1102, 1103 (CA6 1984). Nonetheless, the panel applied prior law of the Circuit to hold that scienter is not an element of the crime charged, and thus that petitioners could be convicted even if they could not have reasonably known that the field was baited.

The rule applied is that adopted by several Circuits, reading the regulation in question to impose strict liability on those who hunt over baited fields. See, e. g., United States v. Chandler, 753 F. 2d 360, 363 (CA4 1985); United States v. Brandt, 717 F. 2d 955, 958-959 (CA6 1983); United States v. Jarman, 491 F. 2d 764, 766-767 (CA4 1974); Rogers v. United States, 367 F. 2d 998, 1001 (CA8 1966), cert. denied, 386 U. S. 943 (1967). Nevertheless, as the Court of Appeals below recognized, the rule applied here is contrary to the holding of a case from another Federal Circuit which requires proof of at least the minimum scienter, that hunters should have known of the baited condition. United States v. Delahoussaye, 573 F. 2d 910, 912 (CA5 1978).

There is a clear and recognized division between Circuits on the elements of a federal criminal offense. As the court explained in Delahoussaye, the regulation at issue here “is a national one, founded on a treaty, and [it] should not mean one thing in one state and another elsewhere.” Id., at 913. I would grant certiorari to resolve the split among the Courts of Appeals.


text:
    No. 84-1258.
    Chemical Bank et al. v. Public Utility District No. 1 of Benton County, Washington, et al.
   Sup. Ct. Wash. Motions of Salomon Brothers, Inc., et al., American Bankers Association et al., Public Securities Association, American Association of Retired Persons, and National WPPSS 4 and 5 Bondholders’ Committee for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 84-1393.
    No. 84-1430.
    Boston Firefighters Union, Local 718 v. Boston Chapter, N. A. A. C. P., Inc., et al.; and Boston Police Patrolmen’s Assn., Inc. v. Castro et al.
   C. A. 1st Cir. Certiorari denied.

Justice Marshall took no part in the consideration or decision of these petitions.

Reported below: 749 F. 2d 102.


text:
    No. 84-1400.
    Donovan v. Merola, District Attorney of Bronx County, New York, et al.
   C. A. D. C. Cir. Certio-rari denied.

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


text:
    No. 84-1402.
    A. L. Adams Construction Co. v. Georgia Power Co.
   C. A. 11th Cir. Motion of Georgia Branch, Associated General Contractors of America, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.

Justice Black-mun took no part in the consideration or decision of this motion and this petition.