text:
    October 21, 1985
    No. 84-2011.
    Oettinger v. Oettinger.
   Appeal from Ct. App. La., 2d Cir., dismissed for want of substantial federal question.

Justice White,

with whom Justice Brennan joins,

dissenting.

Appellant Albert Oettinger and appellee Leona Gordon Oettin-ger were married in Louisiana in 1967. Both had been married before, and both had substantial property of their own at the time of the marriage. Unbeknownst to appellant, at the time of the marriage appellee recorded a declaration of paraphernality under the authority of Article 2386 of the Louisiana Civil Code. This declaration allowed a wife to reserve for herself any fruits from her paraphernal property (nondotal property she brought into the marriage); it also gave her the right to manage such property and the fruits from such property. See La. Civ. Code Ann., Art. 2386 (West 1971). Under the Louisiana marital property laws in effect at that time, the husband would, absent such a declaration, have the right to manage the fruits of the wife’s paraphernal property, and those fruits would thus normally fall into the community property. See La. Civ. Code Ann., Arts. 2402, 2404 (West 1971).

Under Louisiana law at that time, no similar provision existed for the husband. For a husband to reserve the fruits of his separate property to himself, he had to prove that they were separate property; a simple declaration was not possible for him. See La. Civ. Code Ann., Art. 2405 (West 1971). Thus, although a husband had the right to manage his separate property (because he had the right under law, with certain exceptions, to manage all separate and community property), the fruits from that property that accrued during the marriage would normally become community property.

During their marriage, appellant and appellee attempted to maintain their finances separately. In 1980, they were divorced. In 1982, appellee sued for a partition of former community property and for settlement of the former community. Appellant, mindful of this Court’s recent gender-discrimination decisions, see, e. g., Orr v. Orr, 440 U. S. 268 (1979), challenged inclusion in the community of the property that he had brought into the marriage and of the fruits from that property on the ground that the Louisiana Civil Code provision that allowed the wife but not the husband to reserve the fruits of such property to herself by a mere declaration of paraphernality was an unconstitutional denial of equal protection. That provision, Article 2386, had been repealed by the Louisiana Legislature in 1979, but appellee’s declaration effected under it in 1967 remained valid.

The state trial court considered and rejected appellant’s constitutional argument. The trial court noted that the laws effective in 1967 gave the husband, without any action on his part or his wife’s part, the ability to manage the community property, his separate property, and her separate property. Although the law did discriminate on the basis of sex, the trial court held that the paraphernality provision was substantially related to important governmental objectives. Specifically, the trial court held that the purpose of Article 2386 had been to “suppl[y] the wife with a limited degree of protection with respect to her separate property against her husband.” App. to Juris. Statement B-3.

On appeal from this decision, the Louisiana Court of Appeal cited the legal standard set forth by this Court for addressing gender-discrimination cases, i. e., a gender classification must be substantially related to an important governmental interest, noted the various gender-discrimination cases of this Court — some of which upheld gender-based classifications and some of which struck them down — and concluded that the challenged provision was substantially related to the important state interest of “allowing wives an opportunity to manage their own separate property on an equal basis with their husbands.” 463 So. 2d 875, 878 (1985). The Court of Appeal concluded that any law attempting to equalize the status of wives and husbands could not be unconstitutional. The Supreme Court of Louisiana denied appellant’s application for a writ of certiorari. 466 So. 2d 467 (1985).

In his jurisdictional statement, appellant again asserts that the application of former Article 2386 constitutes a violation of equal protection. I believe that this argument presents a substantial federal question. Article 2386 treated husbands and wives differently. The only justification for this differential treatment that appears in the record was that of allowing the wife some parity in the management of her separate property. To begin with, this justification assumes that the overall statutory scheme governing the management of marital property, under which the husband is the automatic manager of all property owned by the spouses together or separately, is seriously suspect under our prior decisions in this area. See, e. g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Orr v. Orr, supra. I believe that there is a substantial federal question as to whether a facially discriminatory provision may be justified on the ground that it is a remedial exception to an overall statutory scheme that is constitutionally defective. See Parham v. Hughes, 441 U. S. 347, 361-368 (1979) (White, J., dissenting).

Further, I do not see that such a justification, even assuming its validity, can support a provision that enables a wife not only to manage the fruits of her paraphernal property but also to keep those fruits separate from the community property with a mere declaration, which latter ability is not given to her husband. I thus believe that there is also a substantial question as to whether the justification, even if valid, is adequately tailored to the asserted governmental interest.

Nor do I believe that the fact that Article 2386 is no longer in effect should prevent our considering this issue. Although it has been repealed, former Article 2386 remains relevant with respect to declarations filed before that date. Further, we have previously considered the application of a statutory scheme which had been repealed prior to our decision. See, e. g., Kirchberg, supra, at 459, n. 6. I do not believe that this fact renders the federal question presented by this case insubstantial. Consequently, I would note probable jurisdiction.

       Article 2386 stated:
      “The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.
      “If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.”


source: Caselaw Access Project

license: Public Domain

text:
    No. 85-118.
    Trump et al. v. Chu, Commissioner of New York State Tax Commission.


text:
    No. 85-446.
    Roberts Enterprises, Inc. v. Secretary of Transportation of Kansas.
   Appeal from Sup. Ct. Kan. dismissed for want of substantial federal question.


text:
    No. 85-159.
    Remmenga et ux. v. California Coastal Commission.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question.

The Chief Justice, Justice Brennan, and Justice Rehnquist would note probable jurisdiction and set case for oral argument.


text:
    No. 85-204.
    Chicago Tribune Co. et al. v. Johnson, Director, Illinois Department of Revenue, et al.
   Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question.

Justice White, Justice Stevens, and Justice O’Con-nor would note probable jurisdiction and set case for oral argument.


text:
    No. 85-330.
    Glenwood T. V., Inc., et al. v. Ratner, Commissioner, Department of Consumer Affairs of the City of New York.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-375.
    Lupert v. California State Bar et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-278.
    Hutto, Individually and as State Corrections Commissioner, et al. v. Jones et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded to the Court of Appeals with instructions to dismiss the appeal for want of a final judgment. Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737, 742-745 (1976).


text:
    No. 85-172.
    Cataldo v. Meskill, Judge, United States Court of Appeals for the Second Circuit.
   C. A. 2d Cir. Certiorari dismissed for want of jurisdiction.


text:
    No.-.
    Dean v. United States.
   Motion to direct the Clerk to waive the Rules and file the petition for writ of cer-tiorari denied.


text:
    No. A-232 (85-5403).
    Handley et al. v. United States.
   C. A. 11th Cir. Application to recall and stay mandate, addressed to Justice White and referred to the Court, denied.


text:
    No. D-497.
    In re Disbarment of Moore.
    [For earlier order herein, see 471 U. S. 1133.]
   Disbarment entered.


text:
    No. D-505.
    In re Disbarment of Hurd.
    [For earlier order herein, see 472 U. S. 1024.]
   Disbarment entered.


text:
    No. D-525.
    In re Disbarment of Phelps.
   It is ordered that Robert Edward Phelps, Jr., of Houston, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-526.
    In re Disbarment of Dobbs.
   It is ordered that Hubert Lee Dobbs, Jr., of Phoenix, Ariz., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-527.
    In re Disbarment of Mann.
   It is ordered that Michael Benjamin Mann, of Panama City, Fla., 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. 104,
    Orig.
    New Jersey v. Nevada et al.
   Motion to expedite consideration of motion for leave to file bill of complaint denied. Motion for preliminary injunction denied. Motion for leave to file bill of complaint granted and defendants allowed 60 days within which to answer.


text:
    No. 84-1661.
    Kimmelman, Attorney General of New Jersey, et al. v. Morrison.
   C. A. 3d Cir. [Certiorari granted, ante, p. 815.] Motion for appointment of counsel granted, and it is ordered that William E. Staehle, Esquire, of Chatham, N. J., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-2015.
    MacDonald, Sommer & Frates v. County of Yolo et al.
   Appeal from Ct. App. Cal., 3d App. Dist. Probable jurisdiction noted.


text:
    No. 84-1903.
    Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico et al.
   Appeal from Sup. Ct. P. R. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 85-224.
    City of Riverside et al. v. Rivera et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 85-289.
    United States Department of Transportation et al. v. Paralyzed Veterans of America et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 85-363.
    New York v. P. J. Video, Inc., dba Network Video, et al.
   Ct. App. N. Y. Certiorari granted.


text:
    No. 84-1972.
    Federal Deposit Insurance Corporation v. Philadelphia Gear Corp.
   C. A. 10th Cir. Motion of Council on International Banking, Inc., for leave to file a brief as amicus curiae granted. Certiorari granted.


text:
    No. 85-162.
    New Mexico v. Earnest.
   Sup. Ct. N. M. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 85-410.
    Memphis Community School District et al. v. Stachura.
   C. A. 6th Cir. Certiorari granted limited to Questions I and III presented by the petition.


text:
    No. 85-5487.
    Smith v. Sielaff, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted limited to Questions 1 and 2 presented by the petition. Reported below: 769 F. 2d 170.


text:
    No. 84-1826.
    Prevatte v. Gibson, Judge, United States District Court for the Western District of Michigan.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1845.
    Sorensen v. Fitzgerald, Trustee.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1872.
    Consolidated Rail Corporation v. Hallamore Motor Transportation, Inc.
   Sup. Jud. Ct. Mass. Cer-tiorari denied.


text:
    No. 84-1919.
    Parks et al. v. Belletire, Director, Department of Mental Health and Developmental Disabilities, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1930.
    Montana v. Hodel, Secretary of the Interior, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-2018.
    DialAmerica Marketing, Inc. v. Brock, Secretary of Labor.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6994.
    Shelor v. Kentucky.
   Sup. Ct. Ky. Certio-rari denied.


text:
    No. 84-7005.
    Abdullah v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 84-7006.
    Hooper v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 85-18.
    Pittsburgh Terminal Corp. et al. v. Baltimore & Ohio Railroad Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-27.
    No. 85-213.
    Los Angeles Unified School District et al. v. Los Angeles NAACP et al.; and Los Angeles Branch NAACP et al. v. Los Angeles Unified School District et al.
   C. A. 9th Cir. Certiorari denied. Reported below: 750 F. 2d 731.


text:
    No. 85-96.
    Aiello et al. v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 85-201.
    Lovinger v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-308.
    Anderson County, Tennessee, et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-312.
    Bohemia, Inc., et al. v. Block, Secretary of Agriculture, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-322.
    Eagle Books, Inc. v. Jones et al.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 85-326.
    Goldberg et al. v. United Parcel Service of America, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-328.
    Warnick et al. v. Jin Cha et al.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 85-338.
    Redic v. Schwartz.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-340.
    Hart Schaffner & Marx et al. v. Natural Footwear, Ltd., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-348.
    Val/Del, Inc. v. Superior Court of Arizona, Pima County, et al. (Pascua Yaqui Tribe, Real Party in Interest).
   Ct. App. Ariz. Certiorari denied.


text:
    No. 85-354.
    Ortho Pharmaceutical Corp. v. MacDonald et al.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 85-357.
    Johnson v. Johnson et al.
   Ct. App. Mich. Certiorari denied.


text:
    No. 85-368.
    Seibold v. UNR-Rohn Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-369.
    Tucker v. Hartford Federal Savings & Loan Assn.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 85-402.
    Awrey v. Progressive Casualty Insurance Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-404.
    Shelton et ux. v. Washington et al.
   Ct. App. Wash. Certiorari denied.


text:
    No. 85-412.
    Wright v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-416.
    Scaglione v. Communications Workers of America, Local 1395, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-448.
    Atwell v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-486.
    Boykin v. Reagan Administration et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-496.
    Woolard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-505.
    Zoeller v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5074.
    Tafoya v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5098.
    Marrapese v. Rhode Island et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-5112.
    Rickus v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5195.
    Green v. Schwarzer, U. S. District Judge.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5309.
    Robinson v. Delaware.
   Sup. Ct. Del. Cer-tiorari denied.


text:
    No. 85-5314.
    Green v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 85-5316.
    Wilson v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5317.
    Cole v. Fulcomer, Superintendent, State Correctional Institution at Huntingdon.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5320.
    Deacon v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-5321.
    Cole v. Benson et al.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 85-5326.
    Pickard v. Angelone, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5327.
    Pitt v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 85-5328.
    Shaw v. Woodard, Secretary, North Carolina Department of Corrections, et al.
   Ct. App. N. C. Certiorari denied.


text:
    No. 85-5335.
    Mabin v. Howard University.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5338.
    Collins v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5345.
    Fells v. Snyder et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 85-5352.
    Sanders v. Junior College District of Metropolitan Kansas City, Missouri.
   C. A. D. C. Cir. Certio-rari denied.


text:
    No. 85-5358.
    Gorham v. Franzen et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5385.
    Day v. Black, Judge, United States District Court for the Southern District of Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5392.
    Chagra v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5409.
    Gobely v. Minnesota.
   Sup. Ct. Minn. Cer-tiorari denied.


text:
    No. 85-5413.
    Petrillo v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 85-5419.
    Hayes v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5440.
    Frazier et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5453.
    Corcoran v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5456.
    Bodine v. Department of Transportation et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-5458.
    Hill v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 85-5460.
    Iris v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-5462.
    Spivey v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5464.
    Peterson v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5470.
    Latham v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5472.
    Esdaille v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5482.
    Barrett v. United States.
   C. A. 1st Cir. Certiorari denied.


author: Justice O’Connor,

text:
    No. 84-1584.
    No. 84-1810.
    Bonner et al. v. Commissioner of Internal Revenue; and Gladney et al. v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied. Reported below: 745 F. 2d 955.

Justice O’Connor,

with whom Justice Blackmun and Justice Powell join,

dissenting.

Section 4945 of the Internal Revenue Code, 26 U. S. C. §4945, imposes a substantial excise tax on noncharitable expenditures by a private foundation. Transfers remain taxable under this section only as long as the organization retains its foundation status. Upon the termination of that status, tax liability is assessed pursuant to § 507(c). Petitioners are trustees and residuary legatees of a testamentary trust established in 1905 and later organized as a private foundation. In 1971, a Louisiana court ordered the dissolution of the trust and the distribution of its remaining assets to the settlor’s heirs. The Internal Revenue Service acknowledged that the trust’s § 507(c) liability was zero. Nonetheless, viewing the distributions as § 4945 “taxable expenditures” by a still extant foundation, it imposed a 100% excise tax on the transfer. Petitioners contested liability, and an action in Tax Court ensued. Concluding that the trust’s private foundation status terminated upon the issuance of the state court judgment, the court found for petitioners. 45 TCM 280, ¶ 82-707 P-H Memo TC (1982). A divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that notwithstanding the prior dissolution of the trust and the absence of any § 507(c) liability whatever, the distribution qualified as a §4945 taxable expenditure. 745 F. 2d 955 (1984). Because I seriously question whether the harsh result reached by the Court of Appeals is consistent with either the letter or intent of the relevant provisions of the Code, I would grant the petitions for certiorari.


author: Justice White,

text:
    No. 84-1914.
    Jackson v. United States.
   C. A. 4th Cir. Certiorari denied.

Justice White,

dissenting.

Title 18 U. S. C. § 649(a) makes it a crime for one having “money of the United States” under his or her control to fail to deposit it when required to do so. Petitioner, who was convicted under this statute, argued on appeal that the evidence on certain counts was insufficient because it showed only her failure to deposit checks payable to the United States. The United States Court of Appeals for the Fourth Circuit rejected petitioner’s argument that checks are not “money of the United States” for purposes of § 649(a). 759 F. 2d 342 (1985). This holding conflicts with the Tenth Circuit’s interpretation of the statute. See United States v. Fernando, 745 F. 2d 1328 (1984) (strictly construing “money of the United States” to include only currency and not negotiable documents). I would grant certiorari to resolve this conflict between two Courts of Appeals.


text:
    No. 84-1978.
    Spicer v. United States.
   Ct. Mil. App. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 84-2032.
    Green v. United States.
   C. A. 9th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan joins,

dissenting.

This case presents the question whether, in a prosecution for mail fraud under 18 U. S. C. § 1341, a defendant who makes out an adequately supported defense of good faith is entitled to a separate jury instruction on that issue when the court gives a sufficient instruction on specific intent. Here, the United States Court of Appeals for the Ninth Circuit held that if a specific-intent instruction adequately covers the issue of good faith, that is sufficient to present the defense to the jury, and the defendant is not entitled to a separate good-faith instruction. 745 F. 2d 1205 (1984). Three other Courts of Appeals have reached the same conclusion. United States v. Gambler, 213 U. S. App. D. C. 278, 281, 662 F. 2d 834, 837 (1981); United States v. Bronston, 658 F. 2d 920, 930 (CA2 1981), cert. denied, 456 U. S. 915 (1982); United States v. Sherer, 653 F. 2d 334, 337-338 (CA8), cert. denied, 454 U. S. 1034 (1981). Both the Fifth Circuit in United States v. Fowler, 735 F. 2d 823, 828 (1984), and the Tenth Circuit in United States v. Hopkins, 744 F. 2d 716, 718 (1984) (en banc), however, have reached the opposite conclusion. Both of these courts have held that when the defendant presents eviden-tiary support for his good-faith defense, the trial court must give a separate instruction to the jury on this issue. See also United States v. McGuire, 744 F. 2d 1197, 1201 (CA6 1984). Given this square conflict among the Courts of Appeals, I would grant certio-rari in this case.


author:
Justice Brennan,
      Justice Marshall,

text:
    No. 84-6780.
    Smith v. Francis, Warden.
   Sup. Ct. Ga. Certiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting.

I would vacate the judgment of the Georgia Supreme Court insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). The petitioner has presented an important question concerning the Eighth Amendment’s ban on cruel and unusual punishment as applied to the execution of a mentally retarded person.

I

The petitioner is mentally retarded, with an IQ of 65 and mental abilities roughly equivalent to those of a 10-year-old child. He was tried for the murder of one Dan Turner, a friend of the petitioner and his family. There were no eyewitnesses to the crime. The petitioner had gone into Turner’s grocery store to buy some cigarettes. The petitioner testified at trial that he grabbed Turner when the latter opened the cash register. Turner reacted by picking up a hammer, and the petitioner then stabbed him and hit him with the hammer after it fell from the victim’s hand. The petitioner took money from the cash register and Turner’s wallet and fled.

The petitioner turned himself in to the police and gave a lengthy statement in which he admitted stabbing Turner. When asked about the reasons for his actions, the petitioner stated that he had wanted to get money. At trial, however, the petitioner stated that he had not entered the store intending to rob Turner, and did not know why he had grabbed Turner as the latter was getting the petitioner’s cigarettes.

A psychiatrist who examined the petitioner stated that the petitioner showed considerable remorse in discussing the murder. The petitioner testified at trial that he “didn’t mean to kill Mr. Dan,” but had gotten “carried away” after he saw the victim wielding the hammer in what the petitioner interpreted as a threatening manner. There was evidence that the petitioner was under considerable stress in the days preceding the murder. The petitioner’s counsel argued that the petitioner was insane or, at minimum, lacked the requisite mental intent because of his retardation. Nevertheless, the jury found the petitioner guilty of malice murder and armed robbery and sentenced him to death.

II

In Furman v. Georgia, 408 U. S. 238, 363-369 (1972) (Marshall, J., concurring), I concluded that the death penalty was “morally reprehensible” to contemporary society based, in part, on its discriminatory imposition. Statistically, it was “evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society.” Id., at 365-366 (footnote omitted). The petitioner suffers the unfortunate distinction of meeting each of these criteria. His case, like so many others coming before this Court, convinces me of the continuing validity of my observations in Furman.

I need not recount here our country’s shameful history with respect to the mentally retarded. See Cleburne v. Cleburne Living Center, 473 U. S. 432, 455 (1985) (Marshall, J., concurring in judgment in part and dissenting in part). I believe, however, that the courts bear a special responsibility when faced with the' possible execution of a member of a group that has been subject for so long to irrational social stigma. This is particularly true in the instant case, because the petitioner’s handicap necessarily diminishes his culpability. A mentally retarded person who is susceptible to confusion and impulsive reaction when put in a stressful situation is the very opposite of the cold-blooded, calculating killers that populate this Court’s opinions validating the death penalty. See, e. g., Gregg v. Georgia, supra, at 185-186 (opinion of Stewart, Powell, and Stevens, JJ.).

This Court has demanded that a capital sentencing scheme provide, at a minimum, a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not,” Furman, supra, at 313 (White, J., concurring); see Godfrey v. Georgia, 446 U. S. 420, 427-428 (1980) (plurality opinion). In this case, the mechanical application of the Georgia sentencing scheme undermined one purpose that the Court has determined to underlie such procedures — to reserve the penalty of death for the most culpable killers, thus satisfying society’s “‘instinct for retribution,’” Gregg v. Georgia, supra, at 183 (quoting Furman, supra, at 308 (Stewart, J., concurring)). The execution of a mentally retarded person serves this retributive function extremely poorly, because the level of “personal responsibility and moral guilt,” Enmund v. Florida, 458 U. S. 782, 801 (1982), is so much lower than in the case of a fully competent person who commits the same crime. As applied to the petitioner, the death penalty is “nothing more than the purposeless and needless imposition of pain and suffering,” Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion), and therefore unconstitutional.

       It cannot be denied that American communities have traditionally shown a strong desire to be rid of the mentally retarded in any way possible. See Cleburne, 473 U. S., at 462 (retarded subjected during end of 19th and beginning of 20th centuries to a “regime of state-mandated segregation and degradation . . . that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow”). See also Buck v. Bell, 274 U. S. 200, 207 (1927) (upholding compulsory sterilization as alternative to “waiting to execute degenerate offspring for crime”); Halderman v. Pennhurst State School & Hospital, 446 F. Supp. 1295, 1299-1300 (ED Pa. 1977) (noting history of institutionalization of mentally retarded), aff’d in part and rev’d in part, 612 F. 2d 84 (CA3 1979), rev’d, 451 U. S. 1 (1981).

       A psychiatrist who examined the petitioner testified that he exhibits these characteristics. See Affidavit of Dr. Fisher, App. H to Pet. for Cert. The characteristics are typically found in the mentally retarded. See M. Stern-licht & M. Deutsch, Personality Development and Social Behavior in the Mentally Retarded 81-82 (1972).

       Courts have often shown reluctance to impute to a retarded defendant the necessary culpability to uphold a sentence of death. See, e. g., State v. Hall, 176 Neb. 295, 309-310, 125 N. W. 2d 918, 926-927 (1964) (exercising its statutory prerogative to “ ‘reduce the sentence rendered . . . when in its opinion the sentence is excessive,’ ” court concluded that where the defendant, had an IQ of 64, “reduction of the death penalty to one of life imprisonment is warranted”); State v. Behler, 65 Idaho 464, 474-475, 146 P. 2d 338, 343 (1944) (“Undoubtedly, one possessing a normal mind should be held to a full, strict accountability for his conduct, but, should a person with a pronounced subnormal mind be held to the same high degree of accountability?”); Commonwealth v. Green, 396 Pa. 137, 151 A. 2d 241 (1959) (vacating death sentence where sentencer had failed to consider mitigating factors, including defendant’s youth and subnormal intelligence). See also Thompson v. State, 456 So. 2d 444, 448 (Fla. 1984) (trial judge erred in overriding jury recommendation of life imprisonment on the grounds that no mitigating circumstances existed, where “appellant’s mental retardation could have been considered by the jury as a basis for recommending life imprisonment”). Legislatures have also acknowledged that the retarded are less deserving of the death penalty than other offenders. Many state statutes make mental disease or defect at the time of the criminal act a mitigating factor. See Ark. Stat. Ann. § 41-1304(3) (1977); Cal. Penal Code Ann. § 190.3(h) (West Supp. 1985); Conn. Gen. Stat. § 53a-46a(f)(2) (1985); Ind. Code § 35-50-2-9(c)(6) (1985); Ky. Rev. Stat. § 532.025(2)(b)(7) (1985); La. Code Crim. Proc. Ann., Art. 905.5(e) (West 1984); Md. Ann. Code, Art. 27, § 413(g)(4) (Supp. 1985); Neb. Rev. Stat. § 29-2523(2)(g) (1979); N. J. Stat. Ann. § 2C:ll-3(c)(5)(d) (West 1982); Ohio Rev. Code Ann. § 2929.04(B)(3) (1982); Tenn. Code Ann. § 39-2-203(j)(8) (1982); Wash. Rev. Code § 10.95.070(6) (1983). See also Ala. Code § 13A-5 — 51(6) (1982); Ariz. Rev. Stat. Ann. § 13-703(G)(1) (Supp. 1984-1985); Fla. Stat. § 921.141(6)(f) (1983); Miss. Code Ann. § 99-19-101(6)(f) (Supp. 1985); Mo. Rev. Stat. § 565.032(3)(6) (Supp. 1984); Mont. Code Ann. §46-18-304(4) (1983); N. H. Rev. Stat. Ann. § 630:5(II)(b)(4) (1983); N. M. Stat. Ann. § 31-20A-6(C) (1981); N. C. Gen. Stat. § 15A-2000(f )(6) (1983); 42 Pa. Cons. Stat. § 9711(e)(3) (1982); S. C. Code § 16-3-20(C)(b)(6) (1985); Va. Code § 19.2-264.4(B)(iv) (1983); Wyo. Stat. § 6-2-102(j)(vi) (1983).

       Recognizing the greatly lower culpability of the mentally defective is certainly not novel; Blackstone notes that “by the law . . . ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment.” 4 W. Blackstone, Commentaries *23.


text:
    No. 84-6792.
    Kerr v. Finkbeiner, Warden, et al.
   C. A. 4th Cir. Certiorari denied.

Justice White,

with whom Justice Marshall joins,

dissenting.

In April 1979, fugitive warrants were issued against petitioner Kerr by the Circuit Court of Spotsylvania County, Virginia. At that time, Kerr was incarcerated in North Carolina. On May 21, 1979, Kerr filed a “Motion and Request for a Speedy Trial Upon Pending Charge or for Dismissal of Detainer” in the Spotsylvania County Circuit Court. Receipt of the motion was acknowledged by that court on May 23, 1979. On September 25, 1979, Kerr was transported to Virginia from North Carolina. A preliminary hearing was set for November 7, 1979, but the hearing was rescheduled for November 28, 1979, at the request of Kerr’s attorney. On the latter date, Kerr waived his right to a preliminary hearing and consented to the State’s proceeding by grand jury indictment. The Spotsylvania County grand jury indicted Kerr on January 21, 1980, and his trial was set for May 22, 1980.

On May 19, 1980, Kerr moved to dismiss the indictment. He based this motion on Article 111(a) of the Interstate Agreement on Detainers (IAD), which provides that a prisoner against whom a detainer has been lodged “shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court . . . written notice of . . . his request for a final disposition to be made of the indictment, information, or complaint . . . ,” as set forth in 18 U. S. C. App. §2. Article V(c) of the IAD further provides that

“in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III. . . hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice . . .

Kerr’s motion was denied, and he was tried and found guilty as charged. His petition to the Supreme Court of Virginia for a writ of error was denied.

Kerr then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. He asserted in that petition that he was entitled to relief because he had not been tried within the time limits prescribed by Article 111(a) of the IAD. The District Court dismissed the complaint on the ground that it did not state a claim for relief under 28 U. S. C. §2254.

The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of Kerr’s habeas corpus petition. 757 F. 2d 604 (1985). The Fourth Circuit cited Davis v. United States, 417 U. S. 333 (1974), as setting forth the inquiry for determining whether habeas relief is warranted: “ ‘whether the claimed error of law was “a fundamental defect which inherently results in a complete miscarriage of justice,” and whether “[i]t . . . presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.”’” 757 F. 2d, at 606 (quoting Davis, supra, at 346 (in turn quoting Hill v. United States, 368 U. S. 424, 428 (1962))). The court then noted that in a similar case concerning Article IV(e) of the IAD (under which a prisoner must be tried before being returned to his original place of incarceration and to which the same Article V sanction applies), a previous panel of the Circuit had held that the IAD violation did not present a cognizable habeas claim under the Davis test. See Bush v. Muncy, 659 F. 2d 402 (CA4 1981). In that case, the court had concluded that “only those statutory rights of a fundamental nature closely related to constitutionally secured rights to fair prosecution and adjudication should be subject to vindication by collateral review of criminal convictions.” Id., at 409.

The Court of Appeals also noted in this case that the Circuits are divided on the question whether Articles III and IV IAD violations present cognizable habeas claims under Davis. The Third and Ninth Circuits have held that they do. The Third Circuit, for example, has held that such a violation constitutes a “fundamental defect” because, although it does not go to the question of guilt or innocence, Congress made such a violation an absolute defense to prosecution; this strong congressional policy comprises the type of “exceptional circumstance” that makes habeas relief appropriate. See United States v. Williams, 615 F. 2d 585, 590 (1980). See also Cody v. Morris, 623 F. 2d 101 (CA9 1980).

All the other Circuits that have addressed the issue have determined that habeas relief is not appropriate in this context, although it may be if prejudice or special circumstances are shown. See, e. g., Greathouse v. United States, 655 F. 2d 1032 (CA10 1981), cert. denied, 455 U. S. 926 (1982); Mars v. United States, 615 F. 2d 704 (CA6), cert. denied, 449 U. S. 849 (1980); Fasano v. Hall, 615 F. 2d 555 (CA1), cert. denied, 449 U. S. 867 (1980); Huff v. United States, 599 F. 2d 860 (CA8), cert. denied, 444 U. S. 952 (1979); Edwards v. United States, 564 F. 2d 652 (CA2 1977). The Court of Appeals below followed the latter group of cases and held that since Kerr had introduced no evidence of prejudice, his petition had properly been dismissed.

The conflict among the Circuits on this issue is clear. In some Circuits an IAD violation that constitutes an absolute defense under the Agreement can, without more, serve as the basis for habeas relief. In others, prejudice must be shown. Furthermore, it is obvious that the issue is a recurring one. I would grant the petition to settle this conflict.


text:
    No. 85-59.
    North Side Lumber Co. et al. v. Block, Secretary of Agriculture, et al.
   C. A. 9th Cir. Certiorari denied.

Justice White,

dissenting.

This is a suit brought in Federal District Court by various lumber companies who had contracted to purchase timber from the United States. The plaintiffs — petitioners here — seek both a declaratory judgment to the effect that the contracts are void as a matter of federal common law and an injunction restraining the United States from enforcing them. The District Court granted preliminary injunctive relief, but the Court of Appeals for the Ninth Circuit reversed, holding that the District Court lacked jurisdiction over petitioners’ underlying claim for declaratory relief. Although conceding that such a suit arose under federal law for purposes of 28 U. S. C. § 1331, the court concluded that the Tucker Act, 28 U. S. C. §§ 1346 and 1491, impliedly barred the relief sought. The court reasoned that the Tucker Act, under which declaratory relief is not available, see Richardson v. Morris , 409 U. S. 464 (1973), defined the extent of the United States’ waiver of sovereign immunity against the types of claims for which the Tucker Act authorizes monetary relief. Because, in the view of the Court of Appeals, the suit to void the contracts was a “claim against the United States . . . founded . . . upon [an] express or implied contract,” 28 U. S. C. § 1346(a)(2), the relief available was governed by the Tucker Act, and declaratory relief was therefore unavailable.

My doubts about the correctness of this ruling and its consistency with the decision of another Court of Appeals lead me to believe that review of the Ninth Circuit’s conclusion in this Court is warranted. Even accepting the Court of Appeals’ view that the Tucker Act impliedly bars declaratory and injunctive relief in all cases in which assertion of a claim of damages would require invocation of the Tucker Act, the Court of Appeals’ conclusion that petitioners’ suit was a “claim against the United States . . . founded . . . upon [a] . . . contract” is highly questionable. In fact, the claim is precisely the opposite of a claim founded upon a contract: it is a claim that no contract exists. At least one United States Court of Appeals has ruled the suits seeking declaratory judgments to the effect that valid contracts exist are not claims founded upon a contract for purposes of the Tucker Act. See B. K. Instrument, Inc. v. United States, 715 F. 2d 713, 726-728 (CA2 1983). If B. K. Instrument was correctly decided, it would follow a fortiori that a federal common-law claim that a contract does not exist is not “founded upon a contract.”

The Ninth Circuit’s conclusion that a district court lacks jurisdiction to issue a declaratory judgment that a contract between a private party and the United States is void is problematic from another standpoint as well. Had petitioners breached their contracts rather than first seeking a declaratory judgment, the District Court would have had jurisdiction under 28 U. S. C. § 1345 over an action for breach of contract brought by the United States as plaintiff. In such an action, petitioners could have raised as a defense their claim that the contracts were void as a matter of federal common law; and surely no one would argue that, were the defense valid, the District Court would lack jurisdiction to declare the contracts void. Why, then, should similar relief be barred in a claim brought in anticipation of the breach? In both cases, the claim is in essence a defense to the Government’s contractually based claim; and if petitioners’ declaratory judgment action meets ordinary standards of ripeness and arises under federal law for purposes of 28 U. S. C. § 1331, I see no reason to hold that the relief that would be available to petitioners as defendants should be denied them as plaintiffs. In such instances, “[i]t is the nature of the controversy, not the method of its presentation or the particular party who presents it, that is determinative.” Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 244 (1937). Cf. Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667 (1950). The contrary rule, as announced by the Ninth Circuit in this case, leaves a person who has contracted with the Government but who believes the contract to be void no choice but to breach the contract and assert his claim as a defense, thereby risking liability for damages. I had thought this was precisely the situation the Declaratory Judgment Act was designed to remedy.

Concededly, this case does not at first glance appear to be one of great moment, and I certainly do not mean to express any view of the merits of petitioners’ underlying substantive claims. Nonetheless, the Ninth Circuit’s expansive reading of the Tucker Act as precluding a declaratory judgment as to the validity of a contract with the United States appears to be in tension with the law of the Second Circuit as well as with ordinary principles governing declaratory actions. I would grant certiorari to consider and resolve the jurisdictional issues this case presents.

       The court concluded that the United States’ general waiver of sovereign immunity against suits seeking relief other than money damages, 5 U. S. C. § 702, was inapplicable by virtue of its proviso, which states that “[n]othing herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” The court concluded that the Tucker Act impliedly denied consent to suit for non-monetary relief with respect to all cases involving claims of the type for which the Act authorizes damages actions.

       The Tucker Act also applies to claims for damages “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department.” 28 U. S. C. §§ 1346(a)(2) and 1491(a). Thus, the Ninth Circuit’s reasoning, if taken literally, would also bar a suit for injunctive or declaratory relief against officers of the United States Government founded upon the Constitution, a federal statute, or a federal regulation, even if the claim for declaratory or injunctive relief was not accompanied by a claim for damages. Title 5 U. S. C. § 702, the provision of the Administrative Procedure Act waiving the United States’ sovereign immunity against claims other than claims for money damages, would thus be rendered a dead letter. As the Second Circuit has observed, “[a] literal reading of the ‘founded either upon’ language of § 1491(a) would mean that all claims of wrongful action by federal officials involving more than $10,000 would have to be brought in the Claims Court — a result clearly in conflict with historic practice and with the plain intent of Congress . . . .” B.K. Instrument, Inc. v. United States, 715 F. 2d 713, 727 (1983).

       In Shelly Oil, the Court observed:
      “Prior to [the Declaratory Judgment] Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff’s right even though no immediate enforcement of it was asked.” 339 U. S., at 671-672.
      Of course, the specific holding in Shelly was that a declaratory judgment as to the validity of a contract was unavailable where the only basis for federal subject-matter jurisdiction was a federal-law defense to a state-law contract claim. This problem is not present here, as federal jurisdiction is not predicated solely on petitioners’ asserted federal-law defense to the contract action. First, the “coercive action” that would be available for resolution of the issues presented — that is, the Government’s claim for breach of contract — would be within the District Court’s jurisdiction by virtue of 28 U. S. C. § 1345. Second, the coercive action for breach of contract in this ease would also arise under federal law for purposes of 28 U. S. C. § 1331, for “[t]he validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any State.” United States v. County of Allegheny, 322 U. S. 174, 183 (1944). See also United States v. Seckinger, 397 U. S. 203, 209-210 (1970); Clearfield Trust Co. v. United States, 318 U. S. 363 (1943).

       1 do not mean to suggest that the Declaratory Judgment Act, 28 U. S. C. § 2201, itself constitutes consent to suit by the United States. I refer to the policies of the Act only insofar as they bear on the wisdom of construing the Tucker Act to render inoperative in cases of this type the waiver of sovereign immunity found at 5 U. S. C. § 702.


text:
    No. 85-151.
    McCotter, Director, Texas Department of Corrections v. Muniz.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 85-421.
    Prudential-Bache Securities Inc. v. Angelastro.
   C. A. 3d Cir. Certiorari denied.

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


author: Justice Brennan and Justice Marshall,

text:
    No. 85-5164.
    No. 85-5180.
    No. 85-5291.
    No. 85-5308.
    No. 85-5310.
    No. 85-5477.
    Collins et al. v. Illinois. Madej v. Illinois. Cooks v. Oklahoma. Thomas v. McCotter, Director, Texas Department of Corrections, et al. Baxter v. Georgia. Harrell v. Alabama.
   Sup. Ct. Ill.;

Sup. Ct. Ill.;

Ct. Crim. App. Okla.;

C. A. 5th Cir.;

Sup. Ct. Ga.; and

Ct. Crim. App. Ala. Certiorari denied. Reported below: No. 85-5164, 106 Ill. 2d 237, 478 N. E. 2d 267; No. 85-5180, 106 Ill. 2d 201, 478 N. E. 2d 392; No. 85-5291, 699 P. 2d 653; No. 85-5308, 767 F. 2d 916; No. 85-5310, 254 Ga. 538, 331 S. E. 2d 561; No. 85-5477, 470 So. 2d 1303.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 84-1597.
    Mann v. Spiegel,
   471 U. S. 1136. Petition for rehearing denied.


text:
    October 22, 1985
    No. 85-5447.
    Towles v. United States.
   Ct. App. D. C. Certiorari dismissed under this Court’s Rule 53.


text:
    November 4, 1985
    No. 85-244.
    Adventurers Whitestone Corp. v. City of New York.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 85-422.
    Colonial Pipeline Co. v. Alabama.
   Appeal from Ct. Civ. App. Ala. dismissed for want of substantial federal question.


text:
    No. 85-5387.
    Nelson v. Pleasant Grove City Corp.
   Appeal from Sup. Ct. Utah dismissed for want of substantial federal question.


text:
    No. 85-367.
    Huskey v. Tennessee.
   Appeal from Sup. Ct. Tenn. dismissed for want of jurisdiction.


text:
    No. 85-380.
    Camden Fire Insurance Assn. v. Justice.
   Appeal from Sup. Ct. App. W. Va. Motion of appellee for award of costs and damages for delay denied. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-415.
    Perruzza v. County of Los Angeles et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-534.
    Wilmshurst et al. v. New Motor Vehicle Board et al.
   Appeal from Ct. App. Cal., 3d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


author: Justice Stevens,

text:
    No. 85-295.
    County of Los Angeles et al. v. Kling.
   C. A. 9th Cir. Certiorari granted and judgment reversed. Anderson v. Bessemer City, 470 U. S. 564 (1985).

Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).

Justice Stevens,

dissenting.

Respondent is afflicted with Crohn’s disease. Although originally accepted, her application for admission to the Los Angeles County School of Nursing was ultimately denied, at least in part, because of the school physician’s opinion that the school program was “too stressful” for her. Finding of Fact No. 12, App. to Pet. for Cert. D-40. Nevertheless, the District Court concluded that respondent had “failed to show that she was denied admission to the School solely by reason of her affliction or because she had Crohn’s disease.” Finding of Fact No. 18, App. to Pet. for Cert. D-43. Based on this critical finding, the District Court denied respondent any relief under §504 of the Rehabilitation Act of 1973, 29 U. S. C. §794.

The Court of Appeals for the Ninth Circuit reversed. After reviewing the prior history of the case and explaining why it had previously reversed the District Court’s order denying respondent’s motion for a preliminary injunction, the Court of Appeals wrote:

“The trial in the district court did not produce substantially different evidence from that which we considered in Kling I. The district court’s findings are clearly erroneous and in many instances are inconsistent. We find that Mary Kling is an ‘otherwise qualified handicapped individual’ within the meaning of section 504 of the Rehabilitation Act and that she was denied admission to the School of Nursing solely because of her handicap. The school’s physician, Dr. Crary, rejected Kling because she suffers from Crohn’s Disease. He assumed that merely because of her disease she would be unable to complete the school’s program. He did not evaluate her on an individual basis and even testified that had he known more about Kling’s medical history, he would have been ‘swayed very strongly toward acceptance.’ It is precisely this type of general assumption about a handicapped person’s ability that section 504 was designed to avoid. See Bentivegna v. United States Department of Labor, 694 F. 2d 619 (9th Cir. 1982); Pushkin v. Board of Regents of the University of Colorado, 658 F. 2d 1372, 1385 (10th Cir. 1981). This district court’s legal conclusions are similarly erroneous.

App. to Pet. for Cert. A-6 — A-7, and nn. 1, 2.

As this Court’s summary disposition today demonstrates, the Court of Appeals would have been well advised to discuss the record in greater depth. One reason it failed to do so is that the members of the panel decided that the issues presented by this case did not warrant discussion in a published opinion that could be “cited to or by the courts of this circuit, save as provided by Rule 21(c).” Id., at A-2, n. **. That decision not to publish the opinion or permit it to be cited — like the decision to promulgate a rule spawning a body of secret law — was plainly wrong.

The brevity of analysis in the Court of Appeals’ unpublished, noncitable opinion, however, does not justify the Court’s summary reversal. Presumably, the Court’s reversal is not based on a view that the Court of Appeals misapprehended the governing standard: as the Ninth Circuit stated, findings of fact by the District Court are reviewable to determine if they are “clearly erroneous.” Fed. Rule Civ. Proc. 52(a). Apparently, the Court disagrees with the Ninth Circuit’s application of that standard. However, the Court’s reversal is not accompanied by a review of the District Court’s factual findings or a determination that they are not, in fact, “clearly erroneous.” The Court is thus spared the necessity of explaining the apparent inconsistencies in the District Court’s findings. The Court is also spared the necessity of addressing the fact that petitioners’ own rendition of the incidents in question suggests that the District Court’s findings give a less than complete accounting of certain events — events that may well influence a court’s view of the matter at hand.

Finally, the Court is spared the necessity of analyzing the District Court’s factual findings in the context of the record. The absence of such an analysis is somewhat puzzling. The entirety of the majority’s analysis is a reference to Anderson v. Bessemer City, 470 U. S. 564 (1985). In that case, the Court found it necessary to review the record before it reversed the Court of Appeals’ conclusion that the District Court’s findings were clearly erroneous. Id., at 576-581. The Court’s refusal to undertake such a review for its summary disposition in the case before us is especially disturbing when it is recalled that, under current Court practice, the petitioner does not usually file the record with a petition for certiorari.

In my judgment, this Court does not use its scarce resources wisely when it undertakes to engage in the de novo review of factual records in relatively routine litigation. Cf. United States v. Hasting, 461 U. S. 499, 516-518 (1983) (Stevens, J., concurring in judgment). When such review is necessary to a disposition, however, and the Court fails to provide it, the problems of this Court’s review are still more troubling. For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decisionmaking without the discipline and accountability that the preparation of opinions requires.

I respectfully dissent from the Court’s summary reversal.

Justice Brennan dissents from the Court’s summary reversal substantially for the reasons stated by Justice Stevens.

      “’29 U. S. C. § 794. See 34 CFR § 104.3®.

      “2The School of Nursing’s claim that Kling was not otherwise qualified because she failed to meet the mathematical entrance requirement is meritless. Because Kling was rejected solely because of her handicap and because this decision was made without regard to her mathematical deficiency and before she had an opportunity to submit evidence that she had or had not remedied the deficiency, it is irrelevant that the deficiency may have existed.”

       The proliferation of this secret law has prompted extensive comment. See, e. g., R. Posner, The Federal Courts 120-126 (1985); Wald, The Problem with the Courts: Black-robed Bureaucracy, or Collegiality Under Challenge?, 42 Md. L. Rev. 766, 781-783 (1983); Reynolds & Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573 (1981); Reynolds & Richman, The Non-Precedential Precedent — Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978); Stevens, Address to the Illinois State Bar Association’s Centennial Dinner, 65 Ill. Bar J. 508, 510 (1977). Cf. Grodin, The Depublication Practice of the California Supreme Court, 72 Calif. L. Rev. 514 (1984).

       The petition for certiorari submitted the Ninth Circuit’s opinion as it was issued, with the footnote explaining that the opinion could not be published or cited. Two days after the petition for certiorari was filed, the Ninth Circuit panel issued an order, as part of the publication of the slip opinion, that “re-designated” the earlier decision as “an authored opinion.” See Kling v. County of Los Angeles, No. 83-6193, Order and Opinion (Aug. 23, 1985). The opinion is now published. See 769 F. 2d 532 (1985).

       Compare Finding of Fact No. 16, App. to Pet. for Cert. D-42 (“Plaintiff has failed to show that she is a person who has a physical or mental impairment which substantially limits one or more of her major life activities, or has a record of such impairment or is regarded as having such an impairment”) with Finding of Fact No. 4, App. to Pet. for Cert. D-36 (“Plaintiff at all times herein mentioned suffered from Crohn’s disease, an inflamatory [sic] bowel disorder involving the digestive tract which prevents passage and absorption of food and causes in plaintiff unpredictable episodes of nausea, vomiting, fever, headaches, loss of weight and acute abdominal pain among other things and which can require rest, medication, treatment, and hospitalization”) and Finding of Fact No. 10, App. to Pet. for Cert. D-39 (“The record reflected that in the ten months preceding Dr. Crary’s review, plaintiff had been hospitalized four times for Crohn’s disease, although plaintiff only reported three hospitalizations”).
      Compare also Finding of Fact No. 12, App. to Pet. for Cert. D-40 — D-41 (Dr. Crary’s “rejection of plaintiff as a candidate for the School on June 11, 1979 was for health reasons, because he believed it was unlikely she could complete the rigorous program and because he believed her health would be endangered if she attempted to complete the program”) and Finding of Fact No. 13, App. to Pet. for Cert. D-41 (“Neither the Admissions Committee nor Mary Duncan, Registrar, had the authority to overrule Dr. Crary’s medical decision”) with Finding of Fact No. 18, App. to Pet. for Cert. D-43 (“Plaintiff has failed to show that she was denied admission to the School solely by reason of her affliction or because she had Crohn’s disease”).

       Compare Finding of Fact No. 7, App. to Pet. for Cert. D-37 (“Plaintiff’s application was considered by the Admissions Committee of the School on April 6, 1979. Her acceptance academically by the School was conditional due to her failure to achieve a passing score in mathematics”) with Pet. for Cert. 4-5 (“In April, 1979, by mistake, respondent was given a letter unconditionally accepting her application, even though her score on a mathematics portion of the entrance examination was deficient, and even though she had not been cleared for admission by the School’s Student Health Physician, Gerald C. Crary, M. D. . . . In an interview on April 20, 1979, the School’s Registrar, Mary J. Duncan, told respondent that her acceptance was actually conditional on her presenting evidence of tutoring and testing to establish the requisite thirteenth-grade level of proficiency in mathematics concepts and problems, and on her passing the physical requirements”).

       See this Court’s Rule 21; Stevens, The Life Span of a Judge-Made Rule, 58 N. Y. U. L. Rev. 1, 13 (1983); R. Stern & E. Gressman, Supreme Court Practice 424-429 (5th ed. 1978).

       “In our law the opinion has in addition a central forward-looking function which reaches far beyond the cause in hand: the opinion has as one if not its major office to show how like cases are properly to be decided in the future. This also frequently casts its shadow before, and affects the deciding of the cause in hand. (If I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good.) Thus the opinion serves as a steadying factor which aids reekonability.”
      K. Llewellyn, The Common Law Tradition 26 (1960), quoted in Reynolds & Richman, supra n. 1, at 1204.


text:
    No.-.
    Jureczki v. City of Seabrook, Texas, et al.
   Motion to direct the Clerk to file the petition for writ of cer-tiorari which does not comply with the Rules of this Court denied.


text:
    No. A-223.
    Dodson v. Cooper, Superintendent, Shadow Mountain Correctional Facility.
   Sup. Ct. Colo. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-251.
    Jennings v. Jennings.
   Sup. Ct. Iowa. Application for stay, addressed to Justice White and referred to the Court, denied.


text:
    No. D-528.
    In re Disbarment of Larkin.
   It is ordered that Tom L. Larkin, of Birmingham, Ala., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-529.
    In re Disbarment of Mendell.
   It is ordered that Stephen W. Mendell, of St. Joseph, Mo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-530.
    In re Disbarment of Siegfried.
   It is ordered that Scott Thomas Siegfried, of Wadsworth, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 103,
    Orig.
    South Dakota v. Nebraska et al.
   The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 83-2004.
    Matsushita Electric Industrial Co., Ltd., et al. v. Zenith Radio Corp. et al.
   C. A. 3d Cir. [Certio-rari granted, 471 U. S. 1002.] Motion of the Solicitor General to permit Charles F. Rule, Esquire, to present oral argument pro hac vice granted.


text:
    No. 84-773.
    Bender et al. v. Williamsport Area School District et al.
   C. A. 3d Cir. [Certiorari granted, 469 U. S. 1206.] Motion of petitioners for leave to file a supplemental brief after argument granted.


text:
    No. 84-1362.
    Public Service Commission of Maryland v. Chesapeake & Potomac Telephone Company of Maryland.
   C. A. 4th Cir. [Certiorari granted, 472 U. S. 1026.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.

Justice Powell and Justice O’Connor took no part in the consideration or decision of this motion.


text:
    No. 84-1484.
    Wisconsin Department of Industry, Labor and Human Relations et al. v. Gould Inc.
   C. A. 7th Cir. [Probable jurisdiction noted, 471 U. S. 1115.] Motion of Chamber of Commerce of the United States of America for leave to file a brief as amicus curiae granted.


text:
    No. 84-1531.
    No. 84-1539.
    Michigan v. Jackson; and Michigan v. Bladel.
   Sup. Ct. Mich. [Certio-rari granted, 471 U. S. 1124.] Motion of petitioner to reconsider order denying motion for divided argument [ante, p. 810] denied.


text:
    No. 84-1948.
    Block, Secretary of Agriculture, et al. v. Payne et al.
   C. A. 11th Cir. [Certiorari granted, ante, p. 815.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 84-6263.
    Batson v. Kentucky.
   Sup. Ct. Ky. [Certio-rari granted, 471 U. S. 1052.] Motion of Elizabeth Holtzman, District Attorney for Kings County, New York, for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for oral argument denied.


text:
    No. 84-6859.
    Skipper v. South Carolina.
   Sup. Ct. S. C. [Certiorari granted, ante, p. 900.] Motion for appointment of counsel granted, and it is ordered that David I. Brack, Esquire, of Columbia, S. C., be appointed to serve as counsel for petitioner in this case.


text:
    No. 85-129.
    Wimberly v. Labor and Industrial Relations Commission of Missouri et al.
   Sup. Ct. Mo.; and


text:
    No. 85-279.
    American Petrofina Company of Texas v. Oil Chemical & Atomic Workers International Union Local No. 4-23 et al.
   C. A. 5th Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 85-188.
    Kemp, Warden v. Blake.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 85-5023.
    No. 85-5024.
    Poland v. Arizona; and Poland v. Arizona.
   Sup. Ct. Ariz. [Certio-rari granted, ante, p. 816.] Motions for appointment of counsel granted, and it is ordered that H. K. Wilhelmsen, Esquire, of Prescott, Ariz., be appointed to serve as counsel for petitioners in these cases.


text:
    No. 85-5401.
    In re Day.
   Sup. Ct. Tex. Petition for writ of common-law certiorari denied.


text:
    No. 85-5381.
    No. 85-5414.
    No. 85-5430.
    No. 85-5441.
    In re Pallett; In re Meadows; In re Parrish; and In re Jokinen.
   Petitions for writs of mandamus denied.


text:
    No. 84-902.
    Wardair Canada Inc. v. Florida Department of Revenue.
   Appeal from Sup. Ct. Fla. Probable jurisdiction noted.


text:
    No. 84-1904.
    United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. Galioto.
   Appeal from D. C. N. J. Probable jurisdiction noted.


text:
    No. 85-62.
    Maine v. Taylor et al.
   Appeal from C. A. 1st Cir. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 85-140.
    Bowers, Attorney General of Georgia v. Hardwick et al.
   C. A. 11th Cir. Certiorari granted.


text:
    No. 85-198.
    Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 85-227.
    Smalis et al. v. Pennsylvania.
   Sup. Ct. Pa. Certiorari granted.


text:
    No. 85-385.
    Brock, Secretary of Labor v. Pierce County.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 85-5189.
    McLaughlin v. United States.
   C. A. 4th Cir. Motion of petitioner for leave to proceed informa pauperis and certiorari granted.


text:
    No. 84-1645.
    Weiss v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 84-1766.
    Smith v. Thigpen, Commissioner, Mississippi Department of Corrections, et al.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 84-1952.
    Wood v. Federal Deposit Insurance Corporation.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-2005.
    In re Grothe.
   Ct. Crim. App. Tex. Certio-rari denied.


text:
    No. 84-6748.
    Wiley v. Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6753.
    Carson v. Turner et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6756.
    Lewis v. Port Authority of New York et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6759.
    Midwife et al. v. Woods et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6786.
    Wilson v. Rees, Superintendent, Kentucky State Reformatory.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6845.
    Mark, aka Williams v. Caldwell et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6931.
    Martinez-Valdez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6932.
    Chitty v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-17.
    Vernon v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-43.
    Senft et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-44.
    Bergman v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-79.
    Toland v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 85-211.
    Dracos, Administratrix for the Estate of Dracos v. Hellenic Lines Ltd.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-221.
    Jensen v. Heckler, Secretary of Health and Human Services.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-222.
    Baker, Individually and dba Baker Coal Co. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-234.
    United Artists Communications, Inc. v. United States et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-263.
    Maggette v. Cook County Police and Corrections Merit Board et al.
   App. Ct. Ill., 1st Dist. Certio-rari denied.


text:
    No. 85-273.
    Florida v. Ross.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 85-287.
    Court House Plaza Co. v. City of Palo Alto et al.
   Ct. App. Cal., 6th App. Dist. Certiorari denied.


text:
    No. 85-321.
    Peterson v. Air Line Pilots Assn., International, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-343.
    Prudential Federal Savings & Loan Assn. v. Equal Employment Opportunity Commission.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-345.
    Allen v. City of Kinloch, Missouri.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-349.
    Tomczak v. City of Chicago.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-351.
    W. A. Foote Memorial Hospital, Inc. v. Grubb.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-360.
    No. 85-407.
    No. 85-514.
    Wasserstrom v. Eisenberg et al.; Weinstein v. Eisenberg et al.; and Pelino, Wasserstrom, Chucas & Monteverde, P. C. v. Eisenberg et al.
   C. A. 3d Cir. Certiorari denied. Reported below: 766 F. 2d 770.


text:
    No. 85-365.
    Rustin et al. v. District of Columbia.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-370.
    Hepler v. Columbia Broadcasting System, Inc.
   Ct. App. Wash. Certiorari denied.


text:
    No. 85-371.
    Genesis Broadcasting Ltd. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-373.
    Reed et al. v. Terrell et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-374.
    Denson v. Department of Health and Human Services.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-378.
    Roberts et al. v. Simpson, Executrix of the Estate of Beel, et al.
   Ct. App. Ark. Certiorari denied.


text:
    No. 85-381.
    Patel v. Flying Tiger Line, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-382.
    Heggy v. Welty et ux.
   Ct. App. Wis. Cer-tiorari denied.


text:
    No. 85-383.
    Johnston v. City of Ann Arbor et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-384.
    Brown v. Ferro Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-387.
    Maines et al. v. Secretary of State of Maine.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 85-389.
    Chapman et al. v. Luna et al.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 85-397.
    Fudger v. County of Montgomery.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-399.
    Young et al. v. Great Atlantic & Pacific Tea Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-401.
    McCotter, Director, Texas Department of Corrections v. Jones.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-403.
    Scheller v. American Medical International, Inc., et al.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 85-409.
    Hunt, by and Through his Father and Next Friend, Hunt, et al. v. Guilford County Board of Education.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-414.
    Ambrose v. Sperry Rand Corp. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-419.
    General Drivers & Helpers Union, Local No. 554 v. Mid-Continent Bottlers, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-424.
    Mead, a Minor, by Mead, his Father and Next Friend v. United States
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-435.
    City of Gainesville, Florida v. Island Creek Coal Sales Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-436.
    Florida State University Health Center et al. v. Joshi.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-439.
    California ex rel. Cooper, City Attorney of Santa Ana, California v. Mitchell Brothers’ Santa Ana Theater et al.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-449.
    Islamic Republic of Iran et al. v. McDonnell Douglas Corp.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-453.
    San Antonio Independent School District v. City of San Antonio.
   Ct. App. Tex., 4th Sup. Jud. Dist. Cer-tiorari denied.


text:
    No. 85-454.
    Sibaja et al. v. Dow Chemical Co. et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-464.
    Meyers Industries, Inc. v. Prill et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-479.
    Medina v. United States et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-480.
    Strode v. Gregory et al.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 85-491.
    Razzano et al. v. Dunlop Tire & Rubber Co., Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-511.
    Pak-Mor Manufacturing Co. v. Jones et al.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 85-518.
    Pinckard et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-520.
    Holway v. Burger, Chief Justice of the United States, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-543.
    Moreno v. Mississippi.
   Sup. Ct. Miss. Certio-rari denied.


text:
    No. 85-564.
    Provenzano et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-565.
    Woodside, Executor of the Estate of Woodside v. Hoerner et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-580.
    Martorano v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-582.
    Sparrow v. Devine, Director, U. S. Office of Personnel Management, et al.
   C. A. D. C. Cir. Certio-rari denied.


text:
    No. 85-593.
    Pappanikolaou et al. v. Secretary of the Army.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5001.
    McCrary, aka Evans v. Franklin State Bank.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 85-5017.
    Wigley v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 85-5034.
    Appoloney v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5056.
    Mitchell v. Davis, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5090.
    Smith v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 85-5107.
    Burton v. Reed et al.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 85-5145.
    Mullady v. Smith, Superintendent, Attica Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5162.
    Cortez v. Pennsylvania.
   Sup. Ct. Pa. Cer-tiorari denied.


text:
    No. 85-5329.
    Smith v. City of Pittsburgh.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5336.
    Scott v. Denton et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 85-5344.
    Page et al. v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 85-5351.
    Dano v. Szombathy.
   Sup. Ct. N. J. Certio-rari denied.


text:
    No. 85-5353.
    Mahdavi v. Shirani.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-5355.
    Weeks v. Johnson, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5359.
    Kahikina v. Hawaii.
   Sup. Ct. Haw. Certio-rari denied.


text:
    No. 85-5361.
    Coleman et al. v. Delaware et al.
   Sup. Ct. Del. Certiorari denied.


text:
    No. 85-5366.
    Jones v. California Institution for Men.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5367.
    In re James.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5373.
    Reed v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5374.
    Ball v. United States.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 85-5376.
    Holliday v. Hauptman, Trustee in Bankruptcy.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5378.
    Bishop v. Davis.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 85-5388.
    Miller v. Elrod, Sheriff, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5389.
    Gay v. Petsock, Superintendent, State Correctional Institution and Diagnostic and Classification Center, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5393.
    Earl v. Israel, Superintendent, Waupun Correctional Institution.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5395.
    Fowler v. Southeast Toyota Distributors, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5397.
    Williams v. Phelps, Secretary, Louisiana Department of Public Safety and Corrections, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5398.
    Miller v. New York.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 85-5399.
    Young v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5402.
    Grady v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 85-5403.
    Handley et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5405.
    Ames v. Alaska et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-5406.
    Dupree v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 85-5412.
    McDonald v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 85-5415.
    Roberts v. Rutgers State University of New Jersey et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5422.
    Zellers v. Duckworth, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5424.
    Stocki v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-5426.
    Fulsom v. Morris, Superintendent, Missouri Training Center for Men.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5427.
    England v. Ryan, Warden.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5432.
    Goldblatt v. Vogel et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5438.
    Hicks v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5450.
    Cardenas-Montilla et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5452.
    Prewitt v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5459.
    Kouhestanian v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5465.
    McDowell v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5479.
    Crespo-Diaz v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5483.
    Hatcher et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5484.
    Poquiz v. Department of Transportation.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-5490.
    Givens v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5505.
    Pascuel-Soler v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5507.
    Kotvas v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5515.
    Bryant v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5537.
    Brakefield v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5549.
    Lamb v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-5582.
    Walker v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5597.
    Vanover v. Kentucky.
   Sup. Ct. Ky. Certio-rari denied.


text:
    No. 83-1250.
    Kewanee Oil Co. v. Holmes, Executrix of the Estate of Holmes, et al.
   Sup. Ct. Kan. Certiorari denied.

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