text:
    No. 84-916.
    No. 84-958.
    Monroe et al. v. United Air Lines, Inc., et al.; and Air Line Pilots Assn., International v. Higman et al.
   C. A. 7th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 84-919.
    New York University Medical Center v. National Labor Relations Board et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-923.
    Carnival Cruise Lines, Inc. v. Kornberg et ux.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-975.
    Deere & Co. v. Kinzenbaw et al.
   C. A. Fed.

Cir. Certiorari dehied.


text:
    No. 84-1032.
    Alcon Laboratories, Inc., et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-1055.
    Drury v. Louisiana State Bar Assn.
   Sup. Ct. La. Certiorari denied.


text:
    No. 84-1057.
    Hutcherson et al. v. Board of Supervisors of Franklin County, Virginia, et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 84-1060.
    Aukamp v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-1061.
    Merchent et al. v. Cubbage.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1073.
    Fitzpatrick v. Villanova University.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1078.
    Carson v. Indiana et al.
   Ct. App. Ind. Certiorari denied.


text:
    No. 84-1080.
    Southern Pacific Communications Co. et al. v. American Telephone & Telegraph Co. et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1087.
    Davis et al. v. Avco Financial Services, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1094.
    Fornash v. Kentucky.
   Cir. Ct. Ky., Camp-

bell County. Certiorari denied.


text:
    No. 84-1095.
    FitzPatrick v. DiMartino, Judge, Superior Court, Law Division, Gloucester County, New Jersey, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1111.
    Sussman v. News Journal Corp.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1117.
    Winslow Manufacturing, Inc., et al. v. Kain, dba Brock-Kain.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1130.
    Dempster et al. v. Turner.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1138.
    Garman v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1169.
    Peebles v. United States Postal Service.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1189.
    Grier v. Board of Commissioners for Moore County et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1206.
    Fooladi v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1215.
    Hendricks v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1241.
    Knobeloch v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5344.
    Lewis v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5594.
    Brantley v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5679.
    Antonelli v. Luther, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5681.
    Chase v. King, Secretary, Louisiana Department of Corrections, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5700.
    Zogaib v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5728.
    Clark v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5731.
    Saylor v. Kentucky.
   Sup. Ct. Ky. Certio-rari denied.


text:
    No. 84-5822.
    Lewis v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 84-5868.
    Welch v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5869.
    Wilson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5898.
    Johnson v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 84-5911.
    Janssen v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-5925.
    Nuey v. Departmental Disciplinary Committee for the First Judicial Department.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 84-5953.
    Horton v. District of Columbia et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5984.
    Mark v. Athmann et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5991.
    Bickley v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5999.
    McMinn v. D. V. Ramani, M. D. & Associates, Inc.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 84-6000.
    D’Agostino v. County of Madison et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6001.
    Alberton v. State Bar of California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 84-6004.
    Reed v. Joseph et al.
   Sup. Ct. Ore. Certio-rari denied.


text:
    No. 84-6008.
    Sledge v. Morris, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6009.
    Moore v. Rice, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6010.
    Austin v. Moran, Director, Department of Corrections of Rhode Island.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-6016.
    Gentsch v. Lowe, Clerk, Texas Court of Criminal Appeals.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6020.
    Montgomery v. National Multiple Sclerosis Society.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-6025.
    Ash v. Cvetkov et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 84-6026.
    Chamberlain v. Erickson, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6028.
    Erickson v. Wisconsin.
   Ct. App. Wis. Cer-tiorari denied.


text:
    No. 84-6053.
    Harris v. Friedline et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6071.
    McKinney v. Heckler, Secretary of Health and Human Services.
   C. A. 4th Cir. Certiorari

denied.


text:
    No. 84-6082.
    Attwell et al. v. United States Postal Service et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6085.
    Houston v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6100.
    Hawthorne v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6103.
    Gigli v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 84-6114.
    Pantoja-Soto v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6119.
    Okot v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 84-6120.
    Gorgei v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6121.
    Menier v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6129.
    Thomas v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6130.
    Rieck v. Wood, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6136.
    Marino v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-654.
    Texas v. Wilkerson.
   Ct. Crim. App. Tex. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-723.
    Garraghty, Warden, et al. v. Hinton.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 83-6646.
    No. 84-5504.
    No. 84-5683.
    No. 84-5794.
    No. 84-6011.
    Young v. Zant, Warden, Georgia Diagnostic and Classification Center. Ybarra v. Nevada. Lamb v. Texas. Clisby v. Alabama. Coleman v. Tennessee.
   C. A. 11th Cir.;

Sup. Ct. Nev.;

Ct. Crina. App. Tex.;

Sup. Ct. Ala.; and

Ct. Crim. App. Tenn. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


author: Justice Brennan,

text:
    No. 84-532.
    Rowland v. Mad River Local School District, Montgomery County, Ohio.
   C. A. 6th Cir. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

This case raises important constitutional questions regarding the rights of public employees to maintain and express their private sexual preferences. Petitioner, a public high school employee, “was fired because she was a homosexual who revealed her sexual preference — and, as the jury found, for no other reason.” 730 F. 2d 444, 454 (CA6 1984) (Edwards, J., dissenting). Because determination of the appropriate constitutional analysis to apply in such a case continues to puzzle lower courts and because this Court has never addressed the issues presented, I would grant certiorari and set this case for oral argument.

I

In December 1974, petitioner was suspended from her nontenured position as a high school guidance counselor. In April 1975, the respondent School District acting through its School Board decided not to renew petitioner’s contract. A jury later made unchallenged findings that petitioner was suspended and not rehired solely because she was bisexual and had told her secretary and some fellow teachers that she was bisexual, and not for “any other reason.” See id., at 460 (Special Verdict VIII). The jury also found that petitioner’s mention of her bisexuality did not “in any way interfere with the proper performance of [her or other school staff members’] duties or with the regular operation of the school generally.” Id., at 456-458 (Special Verdicts I, II, and III). The jury concluded that petitioner had suffered damages as a result of the decisions to suspend and not rehire her in the form of personal humiliation, mental anguish, and lost earnings.

The trial judge ruled that these findings supported petitioner’s claims for violation of her constitutional right to free speech under Pickering v. Board of Education, 391 U. S. 563 (1968), and to equal protection of the laws under the Fourteenth Amendment. He therefore entered a judgment for damages for petitioner.

The Court of Appeals for the Sixth Circuit reversed. The court first ruled that in light of our intervening decision in Connick v. Myers, 461 U. S. 138 (1983), the decision to discharge petitioner based on her workplace statements was unobjectionable under the First Amendment because petitioner’s speech was not about “a matter of public concern.” 730 F. 2d, at 451. While accepting the jury’s finding that petitioner’s mention of her bisexuality had not interfered “in any way” with the “regular operation of the school,” the court concluded that it was constitutionally permissible to dismiss petitioner “for talking about it.” Id., at 450. Second, the court held that no equal protection claim could possibly have been made out, because there was presented “no evidence of how other employees with different sexual preferences were treated.” Ibid. Without citation to any precedent, the court characterized the judgment for petitioner in the absence of such comparative evidence as “plain error.”

II

This case starkly presents issues of individual constitutional rights that have, as the dissent below noted, “swirled nationwide for many years.” Id., at 453 (Edwards, J., dissenting). Petitioner did not lose her job because she disrupted the school environment or failed to perform her job. She was discharged merely because she is bisexual and revealed this fact to acquaintances at her workplace. These facts are rendered completely unambiguous by the jury’s findings. Yet after a jury and the trial court who heard and evaluated the evidence rendered verdicts for petitioner, the court below reversed based on a crabbed reading of our precedents and unexplained disregard of the jury and judge’s factual findings. Because they are so patently erroneous, these maneuvers suggest only a desire to evade the central question: may a State dismiss a public employee based on her bisexual status alone? I respectfully dissent from the Court’s decision not to give its plenary attention to this issue.

A

That petitioner was discharged for her nondisruptive mention of her sexual preferences raises a substantial claim under the First Amendment. “For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” 461 U. S., at 142. Nevertheless, Connick held that if “employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community,” disciplinary measures taken in response to such expression cannot be challenged under the First Amendment “absent the most unusual circumstances.” Id., at 146, 147. The court below ruled that Connick requires the conclusion that a bisexual public employee constitutionally may be dismissed for “talking about it.” This conclusion does not result inevitably from Connick, and may be questioned on at least two grounds: first, because petitioner’s speech did indeed “touch upon” a matter of public concern, see id., at 149, and second, because speech even if characterized as private is entitled to constitutional protection when it does not in any way interfere with the employer’s business.

Connick recognized that some issues are “inherently of public concern,” citing “racial discrimination” as one example. Id., at 148, n. 8. I think it impossible not to note that a similar public debate is currently ongoing regarding the rights of homosexuals. The fact of petitioner’s bisexuality, once spoken, necessarily and ineluctably involved her in that debate. Speech that “touches upon” this explosive issue is no less deserving of constitutional attention than speech relating to more widely condemned forms of discrimination.

Connick’s reference to “matters of public concern” does not suggest a strict rule that an employee’s first statement related to a volatile issue of public concern must go unprotected, simply because it is the first statement in the public debate. Such a rule would reduce public employees to second-class speakers, for they would be prohibited from speaking until and unless others first bring an issue to public attention. Cf. Egger v. Phillips, 710 F. 2d 292, 317 (CA7 1983) (en banc) (“[T]he unpopularity of the issue surely does not mean that a voice crying out in the wilderness is entitled to less protection than a voice with a large, receptive audience”). It is the topic of the speech at issue, and not whether a debate on that topic is yet ongoing, that Connick directed federal courts to examine.

Moreover, even if petitioner’s speech did not so obviously touch upon a matter of public concern, there remains a substantial constitutional question, reserved in Connick, whether it lies “totally beyond the protection of the First Amendment” given its nondis-ruptive character. See 461 U. S., at 147. The recognized goal of the Pickering-Connick rationale is to seek a “balance” between the interest of public employees in speaking freely and that of public employers in operating their workplaces without disruption. See 461 U. S., at 142, 154; Pickering, 391 U. S., at 568-569. As the jury below found, however, the latter interest simply is not implicated in this case. In such circumstances, Connick does not require that the former interest still receive no constitutional protection. Connick, and, indeed, all our precedents in this area, addressed discipline taken against employees for statements that arguably had some disruptive effect in the workplace. See, e. g., 461 U. S., at 151 (“mini-insurrection”); Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 285 (1977) (“dramatic and perhaps abrasive incident”); Pickering, supra, at 569 (“critical statements”). This case, however, involves no critical statements, but rather an entirely harmless mention of a fact about petitioner that apparently triggered certain prejudices held by her supervisors. Cf. Terminiello v. Chicago, 337 U. S. 1, 4-5 (1949). The Court carefully noted in Connick that it did “not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.” 461 U. S., at 154. This case poses the open question whether nondisruptive speech ever can constitutionally serve as the basis for termination under the First Amendment.

B

Apart from the First Amendment, we have held that “[a] State cannot exclude a person from . . . any . . . occupation . . . for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.” Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239 (1957). And in applying the Equal Protection Clause, “we have treated as presumptively invidious those classifications that disadvantage a ‘suspect class,’ or that impinge upon the exercise of a ‘fundamental right.’” Plyler v. Doe, 457 U. S. 202, 216-217 (1982) (footnote omitted); see also id., at 245 (Burger, C. J., dissenting) (“The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility”). Under this rubric, discrimination against homosexuals or bisexuals based solely on their sexual preference raises significant constitutional questions under both prongs of our settled equal protection analysis.

First, homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is “likely ... to reflect deep-seated prejudice rather than . . . rationality.” Id., at 216, n. 14. State action taken against members of such groups based simply on their status as members of the group traditionally has been subjected to strict, or at least heightened, scrutiny by this Court.

Second, discrimination based on sexual preference has been found by many courts to infringe various fundamental constitutional rights, such as the rights to privacy or freedom of expression. Infringement of such rights found to be “explicitly or implicitly guaranteed by the Constitution,” San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 38-34 (1973), likewise requires the State to demonstrate some compelling interest to survive strict judicial scrutiny. Plyler, supra, at 217. I have previously noted that a multitude of our precedents supports the view that public employees maintain, no less than all other citizens, a fundamental constitutional right to make “private choices involving family life and personal autonomy.” Whisenhunt v. Spradlin, 464 U. S. 965, 971 (1983) (dissenting from denial of certiorari). Whether constitutional rights are infringed in sexual preference cases, and whether some compelling state interest can be advanced to permit their infringement, are important questions that this Court has never addressed, and which have left the lower courts in some disarray. See n. 9, supra; cf. Carey v. Population Services International, 431 U. S. 678, 688, n. 5, 694, n. 17 (1977).

Finally, even if adverse state action based on homosexual conduct were held valid under application of traditional equal protection principles, such approval would not answer the question, posed here, whether the mere nondisruptive expression of homosexual preference can pass muster even under a minimal rationality standard as the basis for discharge from public employment. This record plainly demonstrates that petitioner did not proselytize regarding her bisexuality, but rather that it became known simply in the course of her normal workday conversations. The School District agreed to submit the issue of disruption to the jury, and the jury found that knowledge of petitioner’s non-heterosexual status did not interfere with the school’s operation “in any way.” I have serious doubt in light of that finding whether the result below can be upheld under any standard of equal protection review.

Ill

The issues in this case are clearly presented. By reversing the jury’s verdict, the Court of Appeals necessarily held that adverse state action taken against a public employee based solely on his or her expressed sexual preference is constitutional. Nothing in our precedents requires that result; indeed, we have never addressed the topic. Because petitioner’s case raises serious and unsettled constitutional questions relating to this issue of national importance, an issue that cannot any longer be ignored, I respectfully dissent from the decision to deny this petition for a writ of certiorari.

       United States Magistrate Robert A. Steinberg, presiding by agreement of the parties pursuant to 28 U. S. C. § 636. His opinion is reprinted at 1 App. to Record (Rec. App.) 97-111.

       This ruling overturned the jury’s clear finding to the contrary that when the school Principal and Superintendent had suspended petitioner and recommended to the School Board that she not be rehired, they had “treated [petitioner] differently than similarly situated employees, because she was homosexual/bisexual. ” 730 F. 2d, at 458-459 (Special Verdict V). The Court of Appeals also criticized the trial judge for “ignoring]” an additional finding that petitioner had not properly performed her job on one occasion when she had identified two homosexual students that she was counseling to her secretary. Id., at 450; see id., at 459 (Special Verdict V, question 9); 2 Rec. App. 96-99. Of course, because the jury had determined that the one incident of poor performance was not a motivating factor in the decision to fire petitioner, it was entirely correct for the trial judge not to consider the incident in entering judgment for petitioner. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (plaintiff must show that constitutionally protected conduct was “motivating factor” in hiring decision, and that school board would not have reached same decision absent that conduct).

       In Pickering v. Board of Education, 391 U. S. 563, 574 (1968), we unanimously held that “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Our subsequent decisions demonstrate that decisions not to rehire nontenured public employees may be challenged under the Pickering First Amendment rationale. See, e. g., Mt. Healthy City Board of Ed. v. Doyle, supra; Perry v. Sindermann, 408 U. S. 593 (1972).

       As the dissent below noted, once petitioner’s bisexuality became known through her mention of it, “it [became] an important matter of public concern” in southern Ohio. 730 F. 2d, at 453.

       See Van Ooteghem v. Gray, 654 F. 2d 304 (CA5 1981) (en banc) (per curiam) (termination of a public employee because he reveals homosexuality and intention to speak publicly on that topic “clearly” constitutes Pickering violation).

       Many courts have noted that the disruptive potential of speech remains a vital component of First Amendment analysis in any public employment context after Connick. See, e. g., Curl v. Reavis, 740 F. 2d 1323, 1329, n. 5 (CA4 1984); Agromayor v. Colberg, 738 F. 2d 55, 61 (CA1 1984); McBee v. Jim Hogg County, Texas, 730 F. 2d 1009, 1017 (CA5 1984) (en banc); Berry v. Bailey, 726 F. 2d 670, 676 (CA11 1984); McGee v. South Pemiscot School District, 712 F. 2d 339, 342-343, n. 4 (CA8 1983); Egger v. Phillips, 710 F. 2d 292, 320, nn. 29, 30 (CA7 1983) (en banc); McKinley v. City of Eloy, 705 F. 2d 1110, 1115 (CA9 1983).

       Judge Edwards’ dissent cited evidence indicating that homosexuals may constitute from 8-15% of the average population. 730 F. 2d, at 455-456 (citing J. Marmor, Homosexual Behavior: A Modern Reappraisal (1980)). He concluded that nonheterosexual preference, like minority race status, “evoke[s] deeply felt prejudices and fears on the part of many people.” 730 F. 2d, at 453.

       See, e. g., Mississippi University for Women v. Hogan, 458 U. S. 718, 723-724 (1982) (discrimination based on gender); Trimble v. Gordon, 430 U. S. 762, 767 (1977) (discrimination based on illegitimacy); Loving v. Virginia, 388 U. S. 1, 11 (1967) (discrimination based on race); Korematsu v. United States,
        323 U. S. 214, 216 (1944) (discrimination based on national origin); see also Plyler v. Doe, 457 U. S. 202, 218-223 (1982) (suggesting heightened scrutiny for discrimination against alien children).

       See, e. g., Gay Alliance of Students v. Matthews, 544 F. 2d 162, 167 (CA4 1976) (refusal to allow homosexual student group equal access to state university facilities invalidated because infringement of First Amendment rights to expression and association not supported by any “substantial governmental interest”); benShalom v. Secretary of the Army, 489 F. Supp. 964, 969, 973-977 (ED Wis. 1980) (regulation requiring discharge based on homosexual “tendencies, desire, or interest, but . . . without overt homosexual acts” held unconstitutional as violative of First and Ninth Amendment rights and right to privacy); New York v. Onofre, 51 N. Y. 2d 476, 487-488, 492, n. 6, 415 N. E. 2d 936, 940, 942, n. 6 (1980) (criminal statute prohibiting private homosexual conduct found to infringe constitutional rights to privacy and equal protection under “compelling state interest” test), cert. denied, 451 U. S. 987 (1981). See also Rich v. Secretary of the Army, 735 F. 2d 1220, 1227, n. 7, 1228-1229 (CA10 1984) (noting “significant split of authority as to whether some private consensual homosexual behavior may have constitutional protection” but finding military’s “compelling interest” in regulating homosexual conduct sufficient to uphold discharge based on false denial of homosexuality); Beller v. Middendorf, 632 F. 2d 788, 809-810 (CA9 1980) (same), cert. denied sub nom. Beller v. Lehman, 452 U. S. 905 (1981); but see Dronenburg v. Zech, 239 U. S. App. D. C. 229, 236-239, 741 F. 2d 1388, 1395-1398 (1984) (naval discharge for homosexual conduct upheld as “rationally related” to permissible goals of the military; no constitutional right of privacy implicated). See generally Karst, The Freedom of Intimate Association, 89 Yale L. J. 624, 682-686 (1980); Symposium: Sexual Preference and Gender Identity, 30 Hastings L. J. 799-1181 (1979).

       In this case, the School District has not even attempted to posit some legitimate interest that was advanced by terminating petitioner for her non-disruptive mention of her sexual preference. The School District had a full and fair opportunity to persuade a jury that petitioner’s bisexuality or her mention of it interfered with some aspect of school administration, but the jury found to the contrary.

       Petitioner’s first mention of her bisexuality at school apparently came in response to friendly but repeated questions from her secretary as to why petitioner seemed in a particularly “good mood” one day. When petitioner eventually responded that she was in love with a woman, the secretary apparently was upset by the unexpected answer, and reported it to petitioner’s Principal. 2 Rec. App. 101-102. On another occasion, petitioner was confronted by an angry mother who wanted to know why petitioner was counseling her to accept her son’s expressed homosexuality when such conduct was “against the Bible.” Petitioner did not inform the mother of her own preferences, but did inform her Vice Principal, because she was “uneasy” that if the mother complained her own “job would be at stake.” Id., at 105-107. Finally, petitioner mentioned her bisexuality to some of her fellow teachers, first simply in the course of her friendships with them and later to enlist their support when it became clear that she would be disciplined for her bisexuality. Id., at 102-104, 113.
      This evidence indicates that petitioner’s “speech” perhaps is better evaluated as no more than a natural consequence of her sexual orientation, in the same way that co-workers generally know whom their fellow employees are dating or to whom they are married. Under this view, petitioner’s First Amendment and equal protection claims may be seen to converge, because it is realistically impossible to separate her spoken statements from her status. The suggestion below that it was error not to separate the claims precisely for the jury’s benefit, and reliance on that suggestion to avoid discussion of the merits of petitioner’s claim, see 730 F. 2d, at 450, again simply exposes the Court of Appeals’ reluctance to confront forthrightly the difficult issues posed by petitioner’s case. The jury’s role was to find the facts, which it did in detail. It is the court’s proper role to analyze, not avoid, those facts in light of the applicable legal principles.

       The District Court based its judgment against the School District for petitioner’s damages on two factual findings. First, the court found that the School Board itself had violated petitioner’s rights by acting not to renew her contract for the same impermissible reasons that had motivated the administrators’ actions. Second, although the court ruled that the school administrators had taken their actions against petitioner in good faith, it found that the Superintendent had acted as “a policymaker or decisionmaker” for the School District. 1 Rec. App. 106. See Owen v. City of Independence, 445 U. S. 622, 656 (1980). The Court of Appeals, however, concluded that petitioner could not recover her damages from the School District. In light of the trial judge’s factual findings on this point, the latter decision was so clearly erroneous that I would reverse the decision as to liability without argument and limit oral argument to the Connick and equal protection questions discussed above.

       Cf. Gay Alliance of Students, supra, at 166 (a statute criminalizing mere “status” of being homosexual would be unconstitutional) (dictum); benShalom, supra, at 969, 973-977 (regulation requiring discharge based on homosexual “interest” without evidence of conduct held unconstitutional absent showing that soldier’s “sexual preferences interfered with her abilities as a soldier or adversely affected other members of the Service”).

       The Court of Appeals’ argument that petitioner’s claim should not be considered because there was no evidence in the record of how “similarly situated” heterosexual teachers were treated is mere makeweight. We have recognized that, “[a]s in any lawsuit,” a discrimination plaintiff “may prove his case by direct or circumstantial evidence.” U. S. Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 714, n. 3 (1983). This record is replete with direct evidence that petitioner’s superiors discriminated against her because of her sexual preference: A jury is entitled to make rational inferences and apply its common-sense knowledge of the world, which includes the knowledge that most teachers are openly heterosexual and yet go undisciplined for that sexual preference. The jury’s finding to that effect is reflected in its Special Verdict V. See n. 2, supra. The Court of Appeals’ substitution of its own evaluation of the evidence for that of the factfinder’s, on this and other questions, see nn. 2, 10, 11, supra, is simply impermissible. See Sentilles v. Inter-Caribbean Shipping Corp., 361 U. S. 107, 109-110 (1959). This is especially so where, as here (see 1 Rec. App. 149-150), the defendant made no motion for a directed verdict prior to submission to the jury. See, e. g., Wells v. Hico Independent School Dist., 736 F. 2d 243, 249 (CA5 1984). As the dissent below lucidly explained:
      “The jury clearly did not believe that the above actions would have been taken against [petitioner] if she had not admitted a sexual preference which [the school Superintendent, Principal] and, ultimately, the School Board disapproved of. The question was one of credibility and logical inference which the jury was uniquely positioned to resolve.” 730 F. 2d, at 454.


author: Justice O’Connor,

text:
    No. 84-5720.
    Gregory v. Town of Pittsfield et al.
   Sup. Jud. Ct. Me. Certiorari denied.

Justice O’Connor,

with whom Justice Brennan and Justice Marshall join,

dissenting.

This petition raises important and unresolved issues concerning the protection afforded by the Due Process Clause of the Fourteenth Amendment to applicants for general assistance. Because the decision below relies on a questionable reading of this Court’s precedent to hold that such applicants are entitled to no procedural safeguards whatsoever and, alternatively, that state law remedies provide sufficient due process, I would grant certiorari.

Petitioner Cindy Gregory and her husband on April 13, 1982, filed an application with respondent town of Pittsfield, Maine, seeking general assistance in order to pay their rent. The Town Manager, respondent Gene Moyers, denied this request on the grounds that Mrs. Gregory had quit her job and had spent an Aid to Families with Dependent Children check to obtain her husband’s release from jail. Contrary to the requirements of state law, Moyers did not provide a written notice of this decision informing Mrs. Gregory of her right to an administrative hearing. Mrs. Gregory unsuccessfully requested assistance again on April 16. On the morning of April 23, she filed an action in the Superior Court of Somerset County, State of Maine, requesting a temporary restraining order against the town’s denial of general assistance. The court directed Mrs. Gregory to exhaust the administrative hearing procedure established by Me. Rev. Stat. Ann., Tit. 22, §4507 (1980), and instructed the town’s hearing authority to follow the decision of the Maine Supreme Court in Page v. City of Auburn, 440 A. 2d 363 (1982), which held that voluntary termination of employment is not a valid ground for denying general assistance. On the afternoon of April 23, Mrs. Gregory went to the Pittsfield Municipal Office and filed written requests for general assistance and for an administrative hearing on the denial of her April 13 application. The request for assistance was denied, and the town again failed to provide Mrs. Gregory with written notice of the decision. On April 29, 1983, the town’s hearing authority upheld the denial of benefits requested on April 13 and refused to review the denial of the April 23 application.

Thwarted in her efforts to obtain assistance, Mrs. Gregory then filed an action in Superior Court requesting review of the hearing authority’s decision pursuant to state law and also seeking relief under 42 U. S. C. § 1983 for alleged constitutional deprivations. The Superior Court held that Mrs. Gregory was entitled to an award of assistance based on the April 13 application and that the town’s hearing authority had violated statutory requirements by refusing to hold a hearing on her April 23 application. Moreover, the court found that the town’s policy was not to provide applicants with a written decision unless the applicant went to the Municipal Office and submitted a request. This policy, along with the refusal to hold a hearing on the April 23 application, “flagrantly violated the statutory procedures for the administration of the general assistance program.” App. 2 to Pet. for Cert. 6 (footnote omitted). The Superior Court further found that the town’s failure to provide Mrs. Gregory written notice of her right to a hearing to review the denial of benefits and the subsequent refusal to conduct such a hearing constituted a denial of due process in violation of the Fourteenth Amendment. Before damages were determined with respect to the due process claim, the Superior Court amended its earlier decision in light of Jackson v. Inhabitants of Town of Searsport, 456 A. 2d 852 (Me.), cert. denied sub nom. Jackson v. Handley, 464 U. S. 825 (1983), to hold that petitioner did not have a cognizable claim of a denial of due process. Consequently, the court dismissed with prejudice Mrs. Gregory’s § 1983 claim.

The Maine Supreme Judicial Court affirmed the dismissal of the § 1983 claim on alternative grounds. 479 A. 2d 1304 (1984). First, the state court noted that under state law, general assistance grants are made on the basis of a specific determination of need. Recipients are not eligible for continued payments simply on the basis of prior benefits, but instead must make a de novo showing of eligibility to obtain each particular grant. Me. Rev. Stat. Ann., Tit. 22, §4450(2) (1980). This fact, the Supreme Judicial Court concluded, implies that an applicant for general assistance does not have a property interest in benefits until he or she is found eligible to receive such assistance. “Without this determination, an applicant, no matter what his financial status, has no more than an abstract expectancy of benefits, which in no case can rise to the level of a constitutionally protected property right.” 479 A. 2d, at 1308. In the alternative, the Supreme Judicial Court held that even if Mrs. Gregory was entitled to the protections of due process, Parratt v. Taylor, 451 U. S. 527 (1981), indicated that state procedures afforded all the process due. 479 A. 2d, at 1308-1309. Under state law, unsuccessful applicants for assistance are entitled to an administrative hearing and judicial review.. Pursuant to those provisions, after the Superior Court issued its first decision in February 1983, the town awarded Mrs. Gregory the assistance that it had denied the previous April. See id., at 1306, n. 2. Relying on its decision in Jackson v. Town of Searsport, supra, the Supreme Judicial Court concluded that state law remedies were adequate to compensate petitioner and her husband for any loss and thereby satisfied the requirements of due process. 479 A. 2d, at 1308.

The conclusion of the Supreme Judicial Court that an applicant for general assistance does not have an interest protected by the Due Process Clause is unsettling in its implication that less fortunate persons in our society may arbitrarily be denied benefits that a State has granted as a matter of right. There is no dispute that Mrs. Gregory was entitled under Maine law to the general assistance benefits denied to her in April 1982. We have held that state statutes or regulations prescribing the substantive predicates for state action may create liberty interests protected by due process. Hewitt v. Helms, 459 U. S. 460, 470-472 (1983) (finding that prisoner had protected liberty interest in remaining in general prison population). One would think that where state law creates an entitlement to general assistance based on certain substantive conditions, there similarly results a property interest that warrants at least some procedural safeguards. Cf. Green-holtz v. Nebraska Penal Inmates, 442 U. S. 1, 12 (1979) (finding parole applicant’s expectancy of release entitled to some measure of constitutional protection). Although this Court has never addressed the issue whether applicants for general assistance have a protected property interest, see Peer v. Griffeth, 445 U. S. 970 (1980) (Rehnquist, J., dissenting from denial of certiorari), the weight of authority among lower courts is contrary to the conclusion of the Supreme Judicial Court. See, e. g., Daniels v. Woodbury County, Iowa, 742 F. 2d 1128, 1132-1133 (CA8 1984); Griffeth v. Detrich, 603 F. 2d 118, 120-121 (CA9 1979), cert. denied sub nom. Peer v. Griffeth, supra; White v. Roughton, 530 F. 2d 750, 755 (CA7 1976); Johnston v. Shaw, 556 F. Supp. 406, 412-413 (ND Tex. 1982). But see Zobriscky v. Los Angeles County, 28 Cal. App. 3d 930, 105 Cal. Rptr. 121 (1972).

Assuming that applicants for general assistance are entitled to some procedural safeguards, the Supreme Judicial Court further held that the statutory procedures afforded by state law provide sufficient process. This conclusion rests on a reading of Parrott v. Taylor that is more expansive than this Court previously has endorsed. Parrott held that a postdeprivation state tort action afforded all the process that was due to remedy a “tortious loss of . . . property as a result of a random and unauthorized act by a state employee.” 451 U. S., at 541. See also Hudson v. Palmer, 468 U. S. 517, 533 (1984) (applying Parratt to unauthorized, intentional deprivation of property by a state employee). The present case is far removed from the facts of Parratt, where prison employees negligently lost an inmate’s mail-order hobby kit. In contrast, here the town of Pittsfield had a policy, contrary to the requirements of state law, not to provide written notice to applicants denied general assistance. If we assume, arguendo, that due process requires the provision of such notice, it is questionable whether Parratt suggests that a municipal policy denying those procedures comports with the Constitution so long as state law makes some remedy available. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 435-436 (1982) (postdeprivation remedies do not satisfy due process where deprivation is caused by established state procedures).

Parratt reasoned that postdeprivation procedures may satisfy the requirements of due process in circumstances in which pre-deprivation process is impracticable. 451 U. S., at 539-541. In the context of unauthorized deprivations by individual state employees, the State cannot possibly provide a meaningful pre-deprivation hearing, and therefore adequate postdeprivation state remedies may satisfy the procedural requirements of the Due Process Clause. Id., at 541-542; see also Hudson v. Palmer, supra, at 533. This reasoning cannot readily be extended to the facts of the present case. First, the deprivation involved here did not result from the unauthorized conduct of individual employees, but instead reflected the town’s policy. Second, the alleged denial of due process was not the town’s failure to provide a hearing prior to denying the application for general assistance. Instead, petitioner complains of the town’s refusal to provide her with notice explaining the décision and informing her of a statutory right to a hearing. It does not seem impracticable to insist that the town afford these minimal procedural protections.

Even if the reasoning of Parratt applies in circumstances in which a municipal policy causes deprivations of protected property interests, it is by no means clear that the state law remedies available in the instant case are adequate. The state procedures did allow Mrs. Gregory to obtain grants of general assistance nearly one year after her application was improperly denied. Those procedures, however, made no provision for the recovery of damages resulting from the town’s failure to provide her with notice or a prompt hearing. Mrs. Gregory’s complaint alleged that as a result of the town’s actions, she and her children were forced to leave their home and to move to another town. Any state tort action against the town or responsible employees apparently would be barred by the immunity provisions of the Maine Tort Claims Act, Me. Rev. Stat. Ann., Tit. 14, §§8103, 8111 (1980). Although Parrott acknowledged that state remedies may be adequate even though they may not provide a plaintiff with as large a recovery as he might receive in a § 1983 action, 451 U. S., at 544, it would be a novel extension of that proposition to infer that eventual restoration of a property interest, no matter how belated, constitutes an adequate remedy for the intervening deprivation and any consequent damages. Cf. ibid, (noting that available state remedies could fully compensate for property loss).

By suggesting that an applicant for general assistance may arbitrarily be denied benefits, the holding below adopts a proposition not endorsed previously by this Court and in conflict with the decisions of several other courts. Moreover, our previous decisions do not easily support the conclusion below that if applicants are entitled to some procedural safeguards, postdeprivation procedures are sufficient to remedy a municipal policy of denying unsuccessful applicants a required written notice explaining their right to an administrative hearing. The reasoning of the Supreme Judicial Court is troubling in its general implications as well as its application in this case. Consequently, I respectfully dissent from the denial of certiorari.

       The general assistance statute in effect at the time required that a decision concerning an applicant’s eligibility be made within 24 hours after an application was submitted. Me. Rev. Stat. Ann., Tit. 22, §4504(3)(C) (1980). Furthermore, the statute required that an applicant be provided written notice explaining the reasons for the decision and the right to an administrative hearing. § 4505. The administrative hearing was to be held within seven days of receipt of a written request for a hearing. § 4507.
      Maine has since replaced its previous general assistance statute. 1983 Me. Acts, eh. 577, §1. See Me. Rev. Stat. Ann., Tit. 22, §§4301-4324 (Supp. 1984-1985). The new provisions also contain requirements for written notice of a right to hearing. See §§4321, 4322.

       Indeed, the Superior Court noted that the town had previously entered into a consent decree related to its refusal to follow the procedural requirements of Maine’s general assistance statute. Grass v. Commissioner of Dept, of Human Services, Civ. Action No. 79-31-SD (Me., Mar. 31, 1980), App. 2 to Pet. for Cert. 6-7, n. 3.


text:
    No. 84-5829.
    McKinley v. Illinois.
   Sup. Ct. Ill. Certio-rari denied. Justice Brennan would grant certiorari.


text:
    No. 84-5969.
    Lindsey v. Alabama.
   Sup. Ct. Ala. Certio-rari denied. Justice Marshall would grant certiorari.

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.


text:
    No. 84-336.
    No. 84-629.
    No. 84-653.
    No. 84-692.
    No. 84-707.
    No. 84-781.
    No. 84-784.
    No. 84-5502.
    No. 84-5545.
    No. 84-5684.
    No. 84-5810.
    No. 84-5926.
    Bushey et al. v. New York State Civil Service Commission et al., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. McCollum et al., Schleifer v. Children’s Memorial Hospital, Hawkins v. Alex. Brown & Sons et al., Dunn v. United States et al., Iowa Express Distribution, Inc. v. National Labor Relations Board, Tracey v. United States, Campbell v. Clark, Secretary of the Interior, Spivey v. Georgia, Boles v. Baker et al., Brown v. Young et al., Saunders v. United States,
   469 U. S. 1117;

469 U. S. 1127;

469 U. S. 1108;

469 U. S. 1108;

469 U. S. 1132;

469 U. S. 1088;

469 U. S. 1109;

469 U. S. 1193;

469 U. S. 1132;

469 U. S. 1113;

469 U. S. 1194; and

469 U. S. 1196. Petitions for rehearing denied.


text:
    No. 83-6350.
    McCorquodale v. Balkcom, Warden, et al.,
   466 U. S. 954. The orders entered May 21, 1984 [467 U. S. 1202], suspending the effect of the order denying the petition for writ of certiorari and staying execution of sentence of death are vacated. Petition for rehearing 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 dissent from the Court’s order vacating the stay of execution in this case.


text:
    March 1, 1985
    No. 75-6990.
    Ball v. Dunlap, Chairman, Rhode Island State Pilotage Commission, et al.
   C. A. 1st Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    March 4, 1985

    No. 84-1214.
    Charles v. Kentucky.

      Justice Powell took no part in the consideration or decision of the orders announced on this date.

   Appeal from Ct. App. Ky. dismissed for want of substantial federal question.


text:
    No. 84-6049.
    Raphael-Johnson v. District of Columbia.
   Appeal from Ct. App. D. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-613.
    United States v. Robinson.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Young, ante, p. 1. Justice Brennan would deny certiorari.


text:
    No. A-642.
    Brownlee v. United States.
    (See No. 84-914, ante, p. 409.)
   D. C. Del. Application for stay, presented to Justice O’Connor, and by her referred to the Court, denied.


text:
    No. D-479.
    In re Disbarment of Goffen.
   It is ordered that William Goffen, of Brooklyn, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-480.
    In re Disbarment of Black.
   It is ordered that Warren J. Black, of New York City, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-481.
    In re Disbarment of Gold.
   It is ordered that Eugene Gold, of Brooklyn, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 84-261.
    Commodity Futures Trading Commission v. Weintraub et al.
   C. A. 7th Cir. [Certiorari granted, 469 U. S. 929.] Motion of the Solicitor General to permit Bruce N. Kuhlik, Esquire, to present oral argument pro hoc vice granted.


text:
    No. 84-363.
    Northeast Bancorp, Inc., et al. v. Board of Governors of the Federal Reserve System et al.
   C. A. 2d Cir. [Certiorari granted, 469 U. S. 1105.] Motions of David F. Bolger Revocable Trust, Bank of New York Co., Inc., New York State Bankers Association, and Alphonse M. D’Amato et al. for leave to file briefs as amici curiae granted.


text:
    No. 84-433.
    School Committee of the Town of Burlington, Massachusetts, et al. v. Department of Education of Massachusetts et al.
   C. A. 1st Cir. [Certiorari granted, 469 U. S. 1071.] Motion of Developmental Disabilities Law Center et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-679.
    Bateman Eichler, Hill Richards, Inc. v. Berner et al.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1105.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Justice Marshall took no part in the consideration or decision of this motion.

      See also note, supra, p. 1025.


text:
    No. 84-870.
    No. 84-900.
    Louisiana Public Service Commission et al. v. South Central Bell Telephone Co. New England Telephone & Telegraph Co. v. Public Utilities Commission of Maine et al.
   Appeal from C. A. 5th Cir.; and C. A. 1st Cir. The Solicitor General, is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 84-836.
    Vasquez, Warden v. Hillery.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-5555.
    Heath v. Alabama.
   Sup. Ct. Ala. Motion of petitioner for leave to proceed in forma pauperis granted. Cer-tiorari granted limited to Question II. In addition, the parties are requested to address the following question: “What is the applicability, if any, of the dual sovereignty doctrine to successive prosecutions by two different states?”


text:
    No. 84-5630.
    Thomas v. Arn, Superintendent, Ohio Reformatory for Women.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 82-1974.
    City of Macon v. Joiner et al.
    (See also No. 84-6049, supra.)

   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-257.
    City Council of Augusta, Georgia v. Alewine et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-321.
    Alabama v. Sturdivant.
   Sup. Ct. Ala. Cer-tiorari denied.


text:
    No. 84-693.
    No. 84-5748.
    Harrell v. United States; and Hawkins v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-700.
    West Michigan Broadcasting Co. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certio-rari denied.


text:
    No. 84-924.
    Smith v. Russell.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 84-955.
    Bell v. Bell.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 84-961.
    Vance et al. v. Tennessee Valley Authority et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-974.
    Battipaglia et al. v. New York State Liquor Authority et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-984.
    No. 84-1133.
    National Broadcasting Co., Inc. v. Herman et al.; and Herman et al. v. National Broadcasting Co., Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1012.
    Haney, Administrator of the Estate of Mayes v. City of Louisvile, Kentucky, et al.
   Ct. App. Ky. Certiorari denied.


text:
    No. 84-1085.
    Metropolitan Life Insurance Co. v. Kelley.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1090.
    Lostal et al. v. Manville Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1106.
    Northern California District Council of Laborers et al. v. Frederick Meiswinkel, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1114.
    Blair v. Committee on Legal Ethics of the West Virginia State Bar.
   Sup. Ct. App. W. Va. Certiorari

denied.


text:
    No. 84-1115.
    Legal Services Corporation et al. v. East Arkansas Legal Services.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1118.
    Atkins v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 84-1119.
    Goldberg v. Sitomer, Sitomer & Porges et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-1123.
    Armour & Co. v. Holsey et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1124.
    Para Transit Corp. et al. v. County of Monroe et al.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 84-1129.
    Conti et al. v. Ford Motor Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1158.
    Singer et al. v. Wadman et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1162.
    Burlington Northern Railroad Co. v. Clay.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1196.
    Certain-Teed Corp. v. Contractor Utility Sales Co., Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1203.
    No. 84-1218.
    No. 84-1229.
    Fischbach & Moore, Inc. v. United States; Lord Electric Co., Inc. v. United States; and Arbogast v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1247.
    Azarian v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1272.
    Carey v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5692.
    Covington v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-5710.
    Butler v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5719.
    Coker v. Williams, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5745.
    Little v. Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 84-5772.
    Small v. Wisconsin.
   Ct. App. Wis. Certio-rari denied.


text:
    No. 84-5796.
    Peterson, by Chance, Next Friend v. City of Aurora, Colorado.
   Dist. Ct. Colo., Arapahoe County.

Certiorari denied.


text:
    No. 84-5889.
    Neal v. Ohio.
   Ct. App. Ohio, Montgomery County. Certiorari denied.


text:
    No. 84-5902.
    Clay v. Texas.
   Ct. Crim. App. Tex. Certio-rari denied.


text:
    No. 84-6022.
    Williams v. Parke, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6023.
    Shivers v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 84-6024.
    Brown v. Wainwright, Director, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6031.
    Krug v. Abel.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6035.
    Ballengee v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-6037.
    Faison v. Davis, Judge, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6038.
    Stewart v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6042.
    Bradley v. Rees, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6044.
    Day v. DeAnda, Judge, United States District Court for the Southern District of Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6046.
    Moore v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6047.
    Norris v. Davis, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6056.
    Minneman v. Indiana.
   Sup. Ct. Ind. Certio-rari denied.


text:
    No. 84-6058.
    Pallett v. Malheur County Circuit Court.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 84-6066.
    Cooper v. Maryland.
   Ct. Sp. App. Md. Cer-tiorari denied.


text:
    No. 84-6072.
    Westfall v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-6126.
    Combs v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6137.
    Stead v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6140.
    Achawamethekul v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6142.
    Day v. United States.
   Ct. App. D. C. Cer-tiorari denied.


text:
    No. 84-6162.
    Smith v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6163.
    Chua Han Mow v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6169.
    Levine v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6177.
    Silva v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 84-6178.
    Smith v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6184.
    Barnard v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6185.
    Greer v. United States.
   C. A. 4th Cir. Certiorari denied.


author: Justice Blacken,

text:
    No. 84-559.
    Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp.
   C. A. 2d Cir. Certiorari denied. Justice Brennan would grant certiorari.

Justice Blacken,

with whom Justice Marshall joins,

dissenting.

The admiralty jurisdiction of the federal courts extends generally to a transaction that “‘relates to ships and vessels, masters and mariners, as the agents of commerce.’” Kossick v. United Fruit Co., 365 U. S. 731, 736 (1961), quoting 1 E. Benedict, Admiralty 131 (6th ed. 1940). Notwithstanding the broad sweep of the admiralty jurisdiction, this Court, since the time of its single-page opinion in Minturn v. Maynard, 17 How. 477 (1855), has refused to extend admiralty jurisdiction to disputes involving general agency contracts that call for “husbanding” a vessel, that is, arranging for the performance of the various services that are preliminary to maritime movement. This case presents an opportunity to address the continued vitality of this much-criticized exception to admiralty jurisdiction, an exception that has been applied inconsistently and that has created unnecessary confusion in the federal courts.

Petitioner Peralta is the general agent in the United States for an operator of several oceangoing cargo vessels. In 1979, it executed a sub-agency agreement with respondent Smith & Johnson whereby it appointed respondent as “Gulf agents” responsible for arranging services for the principal’s vessels calling on ports between Brownsville, Tex., and Tampa, Fla. Under the agreement, respondent promised to act as the “husbanding agen[t]” by providing for services such as

“arranging for entrance and clearance of vessels at the Custom House, execution of all Custom House documents incidental thereto, arranging for fuel, water, provisions, emergency repairs, port charges and other similar matters, and for stevedoring, storage and other cargo handling; arranging for tugs,”

and a number of other services directly involved with the operation of vessels while at port preparing for departure. See 739 F. 2d 798, 799 (CA2 1984).

Two years after the agreement was signed, petitioner commenced this action in the United States District Court for the Southern District of New York. Relying on the court’s admiralty jurisdiction, petitioner alleged that respondent had breached the agency agreement. It sought an accounting and recovery of money said to have been wrongfully retained by respondent. In particular, Peralta sought to recover freight collected on vessels and not turned over to it, and money advanced by petitioner to pay suppliers but diverted by respondent. Addressing cross-motions for summary judgment, the District Court on its own questioned its subject-matter jurisdiction. It concluded that the sub-agency “husbanding” contract under which respondent acted as local port agent for the principal was not a maritime contract within the court’s admiralty jurisdiction. It therefore dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(h)(3).

The Court of Appeals affirmed, 739 F. 2d 798 (CA2 1984), holding that it was constrained by Minium, supra, and those Second Circuit cases that had faithfully adhered to the rule established in Mintum that admiralty jurisdiction does not extend to general agency or sub-agency “husbanding” contracts. 739 F. 2d, at 802-803. The court declined to narrow the scope of Mintum by finding an exception for husbanding sub-agency contracts that provide services necessary for the continuing voyage, rather than services preliminary to the voyage, though it recognized that the Ninth Circuit had taken this approach in Hinkins Steamship Agency v. Freighters, Inc., 351 F. Supp. 373 (ND Cal. 1972), aff’d, 498 F. 2d 411 (1974). See 739 F. 2d, at 803-804. Finally, the court recognized that the Mintum rule made little sense in light of the policy concerns underlying the grant of admiralty jurisdiction — the federal interest in promoting and protecting the maritime industry. See 739 F. 2d, at 804. Though it “would welcome” a decision from this Court overruling Mintum, because agency and sub-agency agreements are clearly an integral part of maritime commerce, and thus should be included within the admiralty jurisdiction, it recognized that it was without authority to issue such a decision, and that “‘only the Supreme Court should do it,”’ quoting Admiral Oriental Line v. Atlantic Gulf & Oriental S.S. Co., 88 F. 2d 26, 27 (CA2 1937). See 739 F. 2d, at 804.

“The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U. S., at 735. Generally, however, contract actions that relate to maritime service or maritime transactions have been understood to fall within the admiralty jurisdiction of the federal courts. Though the need for bright-line rules in this area is evident, the line drawn in Mintum has been criticized widely and severely because it excludes so much that obviously concerns maritime transactions. Thus G. Gilmore & C. Black, Law of Admiralty 28, and n. 94b (2d ed. 1975), regard the rule as one of “dubious defensibility,” and have predicted that, when this Court reaches the issue, it will hold that general agency and other vessel-management agreements fall within the admiralty jurisdiction, and will overrule Mintum and its progeny. See also 7A J. Moore & A. Pelaez, Moore’s Federal Practice ¶.250, p. 3006 (1983) (“Quite clearly, such agreements are an integral part of, and in furtherance of, maritime commerce and, consequently, should be cognizable within the admiralty jurisdiction of the district courts”).

Not only is the Mintum rule of dubious validity, but in efforts to narrow its application, the Courts of Appeals have developed a number of equally questionable exceptions to the rule that have created confusion and disagreement. Thus, for purposes of determining admiralty jurisdiction, the Ninth Circuit would distinguish among maritime agency contracts based on a series of factors, including the degree of importance of the services rendered by the agent, the extent of supervision of performance, and the existence of a continuing relationship between agent and principal. Hinkins, supra. The Fifth Circuit appears to have taken the position that Mintum applies only to an action for an accounting. See Hadjipateras v. Pacifica, S.A., 290 F. 2d 697, 704, and n. 15 (1961). The Second Circuit in the present case recognized that its decision was in conflict with these decisions of the Fifth and Ninth Circuits. See 739 F. 2d, at 803, and n. 4.

The conflict between the approaches to this question taken by the Courts of Appeals is reason enough to grant this petition, for uniformity and predictability in the maritime industry were the ends sought in the Constitution when federal-court maritime jurisdiction was created in the first instance. A substantial argument has been advanced that the rule established in Mintum improperly excludes from federal maritime juridiction disputes that directly concern the business of maritime commerce. In light of the strength of that argument, of the confusion and conflict in the courts, and of the need for a uniform rule, I would grant this petition.

I therefore dissent.

      “[T]he distinctions made by the courts in dealing with agreements with brokers and agents seem contrived and not based upon sound reason or policy.” 7A J. Moore & A. Pelaez, Moore’s Federal Practice ¶ .250, p. 3003 (1983).


text:
    No. 84-748.
    No. 84-5774.
    No. 84-5856.
    No. 84-5877.
    No. 84-6041.
    No. 84-6093.
    No. 84-6043.
    No. 84-6091.
    Green v. Texas. Wilcher v. Mississippi. Grandison v. Maryland. Knapp v. Arizona. Sample v. Tennessee. McKay v. Tennessee. Jackson v. Alabama. Johns v. Missouri.
   Ct. Crim. App. Tex.;

Sup. Ct. Miss.;

Ct. App. Md.;

Super. Ct. Ariz., Maricopa

County;

Sup. Ct. Tenn.;

Sup. Ct. Tenn.;

Sup. Ct. Ala.; and

Sup. Ct. Mo. 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 sentences in these cases.


text:
    No. 84-762.
    Reed et al. v. Slakan.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-1178.
    Florida v. Fasenmyer.
   Sup. Ct. Fla. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


author: Justice White,

text:
    No. 84-763.
    No. 84-1018.
    San Filippo v. United States Trust Company of New York et al.; and United States Trust Company of New York et al. v. San Filippo et al.
   C. A. 2d Cir. Certiorari denied.

Justice White,

dissenting.

Augustin San Filippo sued United States Trust Company and two of its officers under 42 U. S. C. § 1983 for malicious prosecution. San Filippo alleged that the U. S. Trust officers had conspired with a New York County Assistant District Attorney to present false testimony to a grand jury that was investigating San Filippo’s alleged fraud in obtaining loans from U. S. Trust for two of his clients. Although the grand jury had returned an indictment against San Filippo, a jury had subsequently acquitted him of all charges.

The defendants asserted several affirmative defenses in the United States District Court for the Southern District of New York, including their absolute immunity from § 1983 liability for their grand jury testimony or prior discussions with the prosecutor. Partly on the basis of this claimed immunity, they sought a protective order against further discovery and also moved for dismissal or summary judgment. These motions were denied by the District Court, and the defendants appealed. The United States Court of Appeals for the Second Circuit held that the denials of these motions were properly before it under the “collateral final order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949), at least insofar as they were premised on a rejection of the defendants’ absolute immunity defense. 737 F. 2d 246, 254 (1984). On the merits, the court reasoned that the defendants were entitled to absolute immunity for their actual testimony before the grand jury, citing Briscoe v. LaHue, 460 U. S. 325 (1983), but not for any extrajudicial conspiracy between themselves and the prosecutor leading to the giving of the allegedly false testimony. The court then went on, however, to hold that San Filippo’s “completely unsubstantiated allegations of conspiracy” were insufficient to state a valid, claim for relief under § 1983. Recognizing that this ground for relief did not “in its own right merit interlocutory review under Cohen,” the court held that it had jurisdiction to consider the issue “under the doctrine of pendent appellate jurisdiction,” and determined to exercise that jurisdiction in this case in view of “the waste of judicial resources” were the suit to go forward on remand. 737 F. 2d, at 255-256.

In reaching that holding, the Court of Appeals failed to mention our decision in Abney v. United States, 431 U. S. 651 (1977). In that case, we .held that a court of appeals may exercise jurisdiction under Cohen over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds. We further concluded, however, that this jurisdiction did not extend to “other claims presented to, and rejected by, the district court in passing on the accused’s motion to dismiss.” Id., at 663. We specifically cautioned that “such claims are appealable if, and only if, they too fall within Cohen’s collateral-order exception to the final-judgment rule.” Any other rule, we reasoned, would encourage the assertion of frivolous but appealable claims in order to obtain premature appellate review of otherwise unappealable “pendent” claims.

The decision below is clearly in tension with our rationale in Abney. Moreover, it is in direct conflict with the holding of the Court of Appeals for the Third Circuit in Akerly v. Red Barn System, Inc., 551 F. 2d 539, 542-543 (1977). In Akerly — like this, a civil case — the Third Circuit concluded that a District Court’s refusal to disqualify counsel was a “collateral order” under 28 U. S. C. §1291, and that it therefore had appellate jurisdiction to rule on the issue. The court refused, however, to extend its jurisdiction to the District Court’s denial of a motion to dismiss. Recognizing that it would have asserted jurisdiction over this separate issue if the appeal had arisen under 28 U. S. C. § 1292(b), the Third Circuit reasoned that the governing principle behind the collateral-order doctrine was not judicial efficiency, but the separability of the order from the remainder of the case. Furthermore, the collateral-order doctrine was to be sparingly applied. 551 F. 2d, at 543. See also Forsyth v. Kleindienst, 599 F. 2d 1203, 1209 (CA3 1979). But see Metlin v. Palastra, 729 F. 2d 353 (CA5 1984); Dellums v. Powell, 212 U. S. App. D. C. 403, 405, n. 6, 660 F. 2d 802, 804, n. 6 (1981).

These cases betray confusion among the lower courts concerning the proper application of Abney to appeals arising under the Cohen doctrine. I would grant certiorari to clarify the law concerning this important and frequently recurring question.

      United States Trust and its officers have filed a conditional cross-petition, No. 84-1018. I would also grant certiorari on the cross-petition, limited to the first question presented — the only question actually resolved by the Court of Appeals. That question is whether the courts below erred in rejecting absolute immunity for the defendants for their off-the-stand contacts with the Assistant District Attorney, leading to their allegedly false testimony before the grand jury.


text:
    No. 84-812.
    Grand Trunk Western Railroad v. Mulay Plastics, Inc.
   C. A. 7th Cir. Certiorari denied. Justice White would grant certiorari.


text:
    No. 84-1128.
    DiGilio v. New Jersey.
   Super. Ct. N. J., Chancery Div. Certiorari denied. Justice Brennan took no part in the consideration or decision of this petition.

      See also note, supra, p. 1025.


author:
Justice Brennan,
      Justice Marshall,

text:
    No. 84-5811.
    Gacy v. Illinois.
   Sup. Ct. Ill. 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.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Illinois insofar as that judgment leaves petitioner’s death sentence undisturbed. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari and vacate the death sentence imposed here.

The petitioner challenges two aspects of the Illinois capital sentencing scheme, each of which poses a serious constitutional question. First, after a sentencing jury has found one or more aggravating factors, the statute imposes on the defendant the burden of adducing mitigating evidence “sufficient to preclude the imposition” of the death penalty. Ill. Rev. Stat., ch. 38, ¶9 — 1(g) (Supp. 1984). The statute thereby places on the defendant the burden of proving that death is not appropriate in his particular case. As I have stated before in reference to this statute, I do not read our precedents as permitting a defendant to bear the risk of persuading a jury that his life should be spared. See Jones v. Illinois, 464 U. S. 920 (1983) (Marshall, J., dissenting from denial of certiorari).

Second, the Illinois statute places the decision on whether to convene a death hearing solely in the hands of the individual Illinois prosecutor. Ill. Rev. Stat., ch. 38, ¶9-1^) (Supp. 1984). As a result, it vests in the prosecutor the unlimited and unguided discretion to select, among potential capital defendants, those who may be subject to the death penalty. The statute thereby introduces into the sentencing phase of trial — a phase in which our precedents require that discretion be carefully guided — an element of completely unbridled discretion, and it invites irrational and arbitrary decisionmaking. See Eddmonds v. Illinois, 469 U. S. 894, 895 (1984) (Marshall, J., dissenting from denial of certiorari). Because I continue to believe that this Court should consider both of these issues, I respectfully dissent from the Court’s denial of certiorari in this case.


text:
    No. 84-5966.
    Summit v. Louisiana.
   Sup. Ct. La. Certio-rari denied. Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 83-6865.
    No. 84-269.
    No. 84-788.
    No. 84-5454.
    No. 84-5749.
    No. 84-5806.
    No. 84-5828.
    No. 84-5891.
    Vincent v. Louisiana, Bloom v. United States, Landers v. State Farm Mutual Automobile Insurance Co. et al., Staples v. Towne et al., Bridges et al. v. Phillips Petroleum Co., Day v. Supreme Court of Texas et al., Rocco v. Central Municipal Court, County of Orange, Slater v. United States,
   469 U. S. 1166;

469 U. S. 1157;

469 U. S. 1159;

469 U. S. 1162;

469 U. S. 1163;

469 U. S. 1194;

469 U. S. 1195; and

469 U. S. 1195.

Petitions for rehearing denied.


author: Justice Marshall,

text:
    March 5, 1985
    No. 84-6325 (A-666).
    Witt v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Rehnquist, and by him referred to the Court, denied. Certiorari denied. Justice Stevens would grant the application. Justice Powell took no part in the consideration or decision of this application and this petition.

Justice Marshall,

with whom Justice Brennan joins,

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, 231 (1976) (Marshall, J., dissenting), I would grant Witt’s application for a stay of execution. But even if I thought otherwise, I would stay this execution because Witt’s petition raises an issue— crucial to the administration of capital punishment in this country — on which there exists a split of authority among the Courts of Appeals. This Court is certain to grant certiorari in the immediate future to resolve this issue, and our resolution will govern the question whether Witt’s death sentence is constitutional. Under these circumstances, a denial of Witt’s application for a stay is manifestly unjust.

I

Witt was convicted of murder and sentenced to death. After exhausting Florida’s postconviction remedies, he sought federal habeas corpus relief. The United States Court of Appeals for the Eleventh Circuit upheld Witt’s conviction but reversed his sentence on the basis of Witherspoon v. Illinois, 391 U. S. 510 (1968). Witt v. Wainwright, 714 F. 2d 1069 (1983). This Court reversed and remanded. Wainwright v. Witt, 469 U. S. 412 (1985). A second federal habeas petition was filed in Federal District Court on February 26, 1985, while Witt was simultaneously exhausting state remedies. On March 1, 1985, the District Court denied ha-beas relief and an application for stay of execution pending appeal. On March 4, the Court of Appeals affirmed the denial of habeas relief and denied an application for a stay of execution pending disposition of a petition for certiorari to this Court. On the same day Witt petitioned this Court for certiorari and applied for a stay of execution pending disposition of that petition. Barring a stay by this Court, Witt will be executed at 7 a. m. on March 6, 1985.

Witt alleges that his Sixth and Fourteenth Amendment rights were violated when the State submitted the general venire to a process of “death-qualification.” The crux of Witt’s argument is that the currently permissible, but constitutionally circumscribed, voir dire process in capital cases of excluding jurors opposed to the death penalty, see Wainwright v. Witt, supra, has the unconstitutional effect of rendering juries more predisposed to find a defendant guilty than would a jury from which those opposed to the death penalty had not been excused. This argument implicates both the right, to an impartial jury and the right to a jury from which an identifiable segment of the community has not been excluded. See, e. g., Taylor v. Louisiana, 419 U. S. 522, 538 (1975).

Witherspoon explicitly left open the question that Witt raises. The Court declined to address the question primarily because the empirical data then available were too fragmentary to permit conclusive resolution of the question whether “death-qualified” juries are unconstitutionally prone to convict. We made quite clear, however, that a sufficient empirical showing to that effect would raise grave constitutional questions:

“[T]he question would then arise whether the State’s interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant’s interest in a completely fair determination of guilt or innocence — given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment.” 391 U. S., at 520, n. 18.

See also Bumper v. North Carolina, 391 U. S. 543, 545 (1968). Our recent decision in Wainwright v. Witt, supra, in no way forecloses this issue, and may have made its immediate resolution imperative. See id., at 460, n. 11 (Brennan, J., dissenting).

The District Court in this case ruled on the merits of Witt’s claim and rejected the argument that the “death-qualified” jury is unconstitutionally prone to convict. Tr. 17. In doing so, the court followed a recent en banc ruling of the the Eleventh Circuit rejecting the identical claim. See McCleskey v. Kemp, 753 F. 2d 877 (1985). To support rejection of the claim the Eleventh Circuit in McCleskey specifically relied on Spinkellink v. Wainwright, 578 F. 2d 582, 583-596 (CA5 1978), cert. denied, 440 U. S. 976 (1979). In Spinkellink, the Fifth Circuit had held that, irrespective of empirical data showing that “death-qualified” juries are biased in favor of the prosecution, the process of “death-qualification” of capital jurors violates no constitutional rights of a capital defendant because the proposition that “a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant.” 578 F. 2d, at 593-594 (emphasis added). The Fourth Circuit has in recent months also relied on the Fifth Circuit’s analysis in Spinkellink to reject a challenge identical to the one presented in this case. See Keeten v. Garrison, 742 F. 2d 129 (1984).

A recent en banc decision of the Eighth Circuit directly conflicts with this established Fourth, Fifth, and Eleventh Circuit law. See Grigsby v. Mabry, 758 F. 2d 226 (1985). After carefully scrutinizing a large body of empirical evidence on which the District Court had relied in making the factual finding that “death-qualified” juries are more prone to convict, the Eighth Circuit ruled that a conviction rendered by such a jury violates the capital defendant’s Sixth and Fourteenth Amendment rights to an impartial jury. Id., at 241-242 (“The issue is not whether a jury would be biased one way or the other, but whether an impartial jury can exist when a distinct group in the community is excluded by systematically challenging them for cause”). In reaching this conclusion, the Eighth Circuit acknowledged and explained its rejection of the analysis that led the Fifth Circuit in Spinkellink, the Fourth Circuit in Keeten, and the Eleventh Circuit in McCleskey to a contrary result. Grigsby v. Mabry, supra, at 238-242.

This Court will certainly grant certiorari to resolve this issue in the immediate future because it presents a clear split in the Courts of Appeals on an issue of constitutional law whose importance to the administration of the States’ criminal justice systems is undoubted. In light of the certainty that this Court will soon address the issue and the uncertainty as to its proper resolution, the State of Florida’s effort to execute Witt should be stayed pending our disposition of the issue.

II

Despite the overwhelming public importance of this issue, the State of Florida, raising a procedural barrier to Witt’s claim, would allow Witt to die with the issue still hanging in the balance. The State argues that Witt should not be allowed to have the issue aired because he did not present it in an earlier federal habeas petition; on the basis of this argument, the Eleventh Circuit closed its doors to Witt’s substantial constitutional claim. Abuse of the writ was found because in Witt’s first federal habeas petition, filed on May 5, 1980, he did not raise his death-qualified jury claim — a claim accepted for the first time by any court on August 5, 1983. See Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark 1983), aff’d, 758 F. 2d 226 (CA8 1985) (en banc). Witt’s claim raises questions going to the heart of the jury system by which he was convicted, and to bar him from raising it merely because his counsel either did not know of the claim in 1980 or recognized the futility of raising it at that time would cast serious doubt on the willingness of this Court to ensure that executions are carried out in compliance with the Constitution.

This Court has had little occasion to address the abuse-of-the-writ principles now codified in 28 U. S. C. § 2244(b) and in 28 U. S. C. § 2254 Rule 9. In 1948, shortly before § 2244(b) was passed, the Court in Price v. Johnston, 334 U. S. 266, 291 (1948), overturned a District Court’s dismissal without a hearing of a fourth habeas petition that presented issues not previously adjudicated. Discussing general equitable principles governing issuance of the writ, the Court noted that “[t]he primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned,” and that the mere fact that petitioner had filed three previous petitions was no reason to refuse to reach the merits of his claim. In Sanders v. United States, 373 U. S. 1 (1963), the Court undertook its only full explication of abuse-of-the-writ principles. Citing the deliberate bypass standard of Fay v. Noia, 372 U. S. 391 (1963), the Court in Sanders emphasized that previously unadjudicated claims must be decided on the merits unless the petitioner has made a conscious decision deliberately to withhold them, is pursuing “needless piecemeal litigation,” or the claims are raised only to “vex, harass, or delay.” 373 U. S., at 18. To illustrate the proper application of this principle, the Court discussed Wong Doo v. United States, 265 U. S. 239 (1924), in which the petitioner had raised two claims in a first petition but offered no evidence on one of those claims. An attempt to reassert that claim in a second petition was held an abuse of the writ, for the petitioner was found to have deliberately abandoned the claim in the earlier proceeding.

Other than these isolated instances, the Court has had little occasion in full opinions to elaborate upon the contours of the abuse-of-the-writ doctrine. Instead, the doctrine develops sub rosa when uliis Court refuses to stay executions or to consider substantive claims raised in certiorari petitions that arise from second or later habeas petitions. That alone should be reason to pause before declining, without plenary consideration, to reach the merits of the major issue in current death-penalty law that this stay application and certiorari petition raise; lower courts, as well as the public, are entitled to guidance as to what standards this Court is employing when it refuses to reach the merits of what are clearly substantial issues in the administration of the death penalty. Surely the mere fact that this is a second habeas petition is not in and of itself enough to bar consideration of the merits of Witt’s claim. See Woodard v. Hutchins, 464 U. S. 377, 383 (1984) (White and Stevens, JJ., dissenting).

Moreover, while the Court has abandoned Fay’s deliberate bypass standard in some contexts and required petitioners to show cause and prejudice for their delay in presenting issues, see Wainwight v. Sykes, 433 U. S. 72 (1977), it is clear that the deliberate bypass standard of Sanders still governs dismissal of successive habeas petitions. First, in enacting Rule 9(b), Congress explicitly adopted the abuse-of-the-writ standard announced in Sanders. See Rose v. Lundy, 455 U. S. 509, 521 (1982). Second, Congress explicitly rejected a “cause and prejudice” test in this context; although a proposed draft of the Rule would have allowed dismissal when the failure to raise a claim earlier was “not excusable,” see H. R. Rep. No. 94-1471, p. 8 (1976), Congress amended the proposed Rule for fear that “the ‘not excusable’ language created a new and undefined standard that gave a judge too broad a discretion to dismiss a second or successive petition.” Id., at 5 (emphasis added). Instead, a less stringent standard — that of Sanders — was adopted. Under that standard, dismissal is allowed only when a second petition “constitute[s] an abuse of the writ.” Id., at 5, 8.

Thus, a successive petitioner is not required to demonstrate that he was unable to raise the claim earlier. Instead, the petitioner need show only that the claim was not deliberately withheld for the purpose of abusing the process in some way. Witt cannot be accused of such abuse. First, unlike Wong Doo, Witt did not present this claim in his first petition and then abandon it. See also Antone v. Dugger, 465 U. S. 200 (1984). Second, Witt can hardly be said to be engaging in “needless piecemeal litigation,” Sanders, supra, at 18 (emphasis added); his only failing was to raise his claim at a time when it was clear that it was foreclosed in Florida, see, e. g., Riley v. State, 366 So. 2d 19 (Fla. 1978), and in the Eleventh Circuit, see Spinkellink v. Wainwright, 578 F. 2d 582 (CA5 1978), cert. denied, 440 U. S. 976 (1979), and when this Court had refused to entertain the claim many times. Were the rule otherwise, as it seems to be becoming, defense counsel in every criminal case would have to include in a first federal habeas petition a laundry list of potentially meritorious but clearly rejected constitutional claims in order to preserve them should the law later change. Rather than promoting efficiency, such a rule would further clog the courts and confound lower court judges. Third, Witt’s petition is not one “whose only purpose is to vex, harass, or delay.” 373 U. S., at 18. Witt has raised a substantial claim going to the validity of his conviction. Finally, it is clear that, were this Court upon plenary consideration to invalidate death-qualified juries, such a holding would constitute an intervening change in law sufficient to allow Witt then to have his claim adjudicated on the merits. Surely Witt’s fate should not rest on the fortuity of his execution having been scheduled before, rather than after, this Court’s consideration of the Eighth Circuit’s decision.

Perhaps of even greater importance, Sanders left no doubt that a claim raised for the first time in a second or later habeas petition could be considered if “the ends of justice” would thereby be served. See id., at 17., “Even as to [a successive] application, the federal judge clearly has the power — and, if the ends of justice demand, the duty — to reach the merits.” Id., at 18-19. Yet I fail to see how this standard can be applied in any meaningful way before we address the merits of the underlying death-qualified juror claim that the Court must soon face. Witt’s claim strikes at the heart of every premise upon which the legitimacy of his conviction rests. A great deal of empirical work has been devoted to exploring this claim, and the evidence supporting it is strong enough to have convinced the en banc Eighth Circuit, and two District Courts, that the claim is sound. Until we have the issue before us for plenary consideration, examine the underlying evidence, and reach some decision on both the merits of the claim and the nature and scope of any constitutional defect that might exist, I simply cannot understand how the “ends of justice” test can be applied to determine whether Witt’s claim should be procedurally barred. “The availability of habeas corpus relief should depend primarily on the character of the alleged constitutional violation and not on the procedural history underlying the claim.” Rose v. Lundy, supra, at 547-548 (Stevens, J., dissenting). To apply the procedural bar in advance of full consideration of this central issue is to turn the Great Writ on its head.

Ill

Witt will not be the first person whose execution this Court has sanctioned notwithstanding a claim that his conviction by a “death-qualified” jury violated the Sixth and Fourteenth Amendments. See, e. g., Knighton v. Maggio, 468 U. S. 1229 (1984) (Brennan, J., dissenting); Woodard v. Hutchins, supra, at 382 (Brennan, J., dissenting). Nor will he be the first person whose execution this Court has sanctioned “while the constitutionality of his sentence is in doubt.” See, e. g., Stephens v. Kemp, 469 U. S. 1098, 1099 (1984) (Brennan, J., dissenting); Green v. Zant, 469 U. S. 1143, 1144 (1985) (Brennan, J., dissenting). The responsibility to decide profoundly difficult and divisive legal questions is not a comfortable one. All too often, judges seek to avoid this responsibility by hiding behind unexplained and unexplainable procedural “rules” that purport to allow cases to be disposed of without confronting their merits. Every Member of this Court knows that certiorari must be granted in the immediate future to resolve the issue that Witt has raised in his petition for certiorari. Our refusal to grant his stay application pending resolution of the issue unmasks the hollowness of this Court’s purported commitment to unique procedural safeguards against arbitrariness “‘on a matter so grave as the determination of whether a human life should be taken or spared.’” Zant v. Stephens, 462 U. S. 862, 874 (1983) (quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976)); see also Lockett v. Ohio, 438 U. S. 586, 604 (1978) (Burger, C. J.).

I dissent.


text:
    No. 84-6325 (A-666).
    Witt v. Wainwright, Secretary, Florida Department of Corrections, et al.,
   immediately supra. Petition for rehearing of denial of certiorari and of the order denying a stay of execution of sentence of death denied. Justice Powell took no part in the consideration or decision of this petition.


text:
    March 18, 1985

    No. 84-1168.
    Nash v. City of Santa Monica et al.

      Justice Powell took no part in the consideration or decision of the orders announced on this date.

   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.


text:
    No. 84-6081.
    Johnson v. New Jersey.
   Appeal from Sup. Ct. N. J. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-6227.
    Manko v. United States.
   Appeal from C. A. 8th 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. 84-1089.
    Novicky v. Syntex Ophthalmics, Inc., et al.
   C. A. Fed. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Marrese v. American Academy of Orthopaedic Surgeons, ante, p. 378.


text:
    No.-.
    Life for God’s Stray Animals, Inc., et al. v. New North Rockdale County Homeowners Assn., Inc., et al.
    (See No. 84-690, ante, p. 522.)
   Motion to direct the Clerk to file a petition for writ of

certiorari out of time denied.


text:
    No. D-478.
    In re Disbarment of Hailey.
   It is ordered that Anna Cotton Hailey, of Elwood, Ind., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court.


text:
    No. D-482.
    In re Disbarment of Brunwin.
   It is ordered that Thomas Miles Brunwin, of Arcadia, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-483.
    In re Disbarment of Bond.
   It is ordered that Clifford Jackson Bond III, of Winston-Salem, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 83-1925.
    Hillsborough County, Florida, et al. v. Automated Medical Laboratories, Inc.
   C. A. 11th Cir. [Probable jurisdiction noted, 469 U. S. 1156.] Motion of American Blood Resources Association for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 84-363.
    Northeast Bancorp, Inc., et al. v. Board of Governors of the Federal Reserve System et al.
   C. A. 2d Cir. [Certiorari granted, 469 U. S. 1105.] Motion of Frank L. Morsani for leave to file a brief as amicus curiae granted. Motion of respondents Bank of New England Corp. et al. for divided argument granted. Motion of petitioners Northeast Bancorp, Inc., et al. for divided argument denied.


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 American Bankers Association for leave to file a brief as amicus curiae granted.


text:
    No. 84-835.
    No. 84-776.
    New Jersey Department of Corrections v. Nash; and Carchman, Mercer County Prosecutor v. Nash.
   C. A. 3d Cir. [Certiorari granted, 469 U. S. 1157.] Motion of petitioners for divided argument denied.


text:
    No. 84-849.
    Kentucky, dba Bureau of State Police v. Graham et al.
   C. A. 6th Cir. [Certiorari granted, 469 U. S. 1156.] Motion of National League of Cities et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-861.
    National Labor Relations Board v. International Longshoremen’s Assn., AFL-CIO, et al.
   C. A. 4th Cir. [Certiorari granted, 469 U. S. 1188.] Motions of Delta Steamship Lines, Inc., and Chamber of Commerce of the United States of America for leave to file briefs as amici curiae granted.


text:
    No. 84-902.
    No. 84-921.
    No. 84-922.
    No. 84-926.
    No. 84-929.
    No. 84-1041.
    Wardair Canada Inc. v. Florida Department of Revenue; Northeastern International Airways, Inc., et al. v. Florida Department of Revenue; Lineas Aereas Costarricenses, S.A., et al. v. Florida Department of Revenue; Eastern Airlines Inc. v. Florida Department of Revenue; Delta Air Lines, Inc. v. Florida Department of Revenue; and Air Jamaica Ltd. et al. v. Florida Department of Revenue.
   Appeals from Sup. Ct. Fla. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 84-1023.
    United States v. Rojas-Contreras.
   C. A. 9th Cir. [Certiorari granted, 469 U. S. 1207.] Motion for appointment of counsel granted, and it is ordered that Judy Clare Clarke, of San Diego, Cal., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-5108.
    Liparota v. United States.
   C. A. 7th Cir. [Certiorari granted, 469 U. S. 930.] Motion of the Solicitor General to permit Charles Rothfeld to present oral argument pro hac vice granted.