text:
    No. A-903.
    Francois v. Wainwright, Secretary, Florida Department of Corrections.
   Application for stay of execution of sentence of death scheduled for Wednesday, May 29, 1985, presented to Justice Powell, and by him referred to the Court, denied.

Justice Brennan,

with whom Justice Marshall 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, 227 (1976) (Brennan, J., dissenting), I would grant Francois’ application for a stay of execution.

Even if I believed otherwise, however, I would grant the application. The Court’s decision to send Francois to his death tomorrow morning is particularly disturbing because we have granted a writ of certiorari in a case raising the identical legal claim. Cabana v. Bullock, No. 84-1236, cert. granted, ante, p. 1052, poses the question whether a capital sentence may be carried out despite the fact that the sentencing jury was instructed on an imputed intent felony-murder theory of the type condemned in Enmund v. Florida, 458 U. S. 782 (1982). Francois was sentenced to death based on his role in six murders committed in the course of a robbery. Four persons were arrested for the crime; two were triggermen, one accompanied the triggermen into the house, and the fourth stayed in a car outside. Francois claims that he argued at his trial, and has argued consistently since trial, that he was not the triggerman and did not realize that lethal force was likely to be used by his companions. In the rush to execution, we have not yet received the record in this case, and must assume that Francois accurately describes his defense.

It is undisputed that Francois’ jury was instructed that “[a]ny person who knowingly aids [or] abets . . . the commission of [a felony] ... is equally guilty of the crime of first degree murder with the one who actually performs the act,” and that a killing in the course of a felony “is murder in the first degree even though there is no premeditated design or intent to kill.” Application for Stay 27 (emphasis added). Thus, even if the jury had believed Francois’ defense that he did not specifically intend to kill, they could have returned their death sentence against him under these instructions, which concededly were faulty under Enmund.

The jury instructions used in Cabana v. Bullock, supra, are indistinguishable. The jury there was told that capital murder included any killing “when done with or without any design to effect death, by any person engaged in the commission of the crime of . . . robbery.” Bullock v. Lucas, 743 F. 2d 244, 247 (CA5 1984) (emphasis added). Applying Enmund, supra, the Fifth Circuit concluded that although there had been some evidence introduced at trial that Bullock had intended the killing at issue, “the penalty of death may not stand in light of the jury instruction which would permit the imposition of the death penalty merely because Bullock participated in the robbery” without any intent to kill. 743 F. 2d, at 248. See Stromberg v. California, 283 U. S. 359 (1931); cf. Francis v. Franklin, ante, at 322-325; Sandstrom v. Montana, 442 U. S. 510, 526 (1979).

Until we have decided Cabana v. Bullock, supra, there can be no doubt that a death sentence imposed for a conviction based on such instructions is of doubtful validity, unless facts that would justify a finding of intent to kill under Enmund are undisputed. The Eleventh Circuit denied Francois’ claim on this issue only today. We have no record before us on which to evaluate Francois’ claim, nor has he ever had an opportunity fully to present his claims to this Court. The Eleventh Circuit has squarely and consistently rejected the Fifth Circuit’s approach, see, e. g., Ross v. Kemp, 756 F. 2d 1483, 1487-1488 (CA5 1985) (en banc), thereby creating a clear split of authority on the question presented. Accordingly, I would vote to stay Francois’ execution until Cabana v. Bullock is decided, or, at the very least, until we can consider Francois’' claim with the record of his trial before us.

I dissent.

       In Enmund we concluded that “the Eighth Amendment [does not] permi[t] imposition of the death penalty on one . . . who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” 458 U. S., at 797.

       Francois’ first state and federal habeas corpus petitions were filed in November 1982. After the Eleventh Circuit denied Francois relief on his first habeas petition, Francois v. Wainwright, 741 F. 2d 1275 (1984), his appellate counsel abandoned him and no petition for certiorari was filed. Because Florida did not recognize Enmund claims as cognizable on collateral review until 1984, the District Court rejected the State’s claim that Francois’ presentation of his intent claim in a second petition for habeas corpus constituted an abuse of the writ. Francois v. Wainwright, No. 85-1918, pp. 4-5 (SD Fla. May 23, 1985).


source: Caselaw Access Project

license: Public Domain

text:
    No. D-478.
    In re Disbarment of Hailey.
    [For earlier order, herein, see 470 U. S. 1047.]
   Disbarment entered.


text:
    No. D-487.
    In re Disbarment of Tabman.
    [For earlier order herein, see 470 U. S. 1081.]
   Disbarment entered.


text:
    No. 102,
    Orig.
    Indiana v. United States et al.
   Motion to amend the proposed complaint granted. Motion for leave to file bill of complaint denied. [For earlier order herein, see ante, p. 1002.]


text:
    No. 84-773.
    Bender et al. v. Williamsport Area School District et al.
   C. A. 3d Cir. [Certiorari granted, 469 U. S. 1206.] Motion of respondents for divided argument to permit American Jewish Congress to present oral argument as amicus curiae denied.


text:
    No. 84-1044.
    Pacific Gas & Electric Co. v. Public Utilities Commission of California et al.
   Appeal from Sup. Ct. Cal. [Probable jurisdiction noted, 470 U. S. 1083.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 84-1361.
    United States v. Loud Hawk et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 1014.] Motions for appointment of counsel granted, and it is ordered that Kenneth Saul Stern, Esquire, of Milwaukie, Ore., be appointed to serve as counsel for respondents in this case.


text:
    No. 84-6649.
    In re Magee.
   Petition for writ of habeas corpus denied.


text:
    No. 84-1538.
    Fisher et al. v. City of Berkeley, California, et al.
   Appeal from Sup. Ct. Cal. Motions of California Association of Realtors and California Building Industry Association for leave to file briefs as amici curiae granted. Probable jurisdiction noted limited to Question 1 presented by the statement as to jurisdiction. Appeal as to Question 2 presented by the statement as to jurisdiction is dismissed for want of a substantial federal question.


text:
    No. 84-1580.
    United States v. Inadi.
   C. A. 3d Cir. Cer-tiorari granted.


text:
    No. 84-1586.
    Malley et al. v. Briggs et al.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 84-1531.
    No. 84-1539.
    Michigan v. Jackson; and Michigan v. Bladel.
   Sup. Ct. Mich. Motions of respondents for leave to proceed in forma pauperis granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 421 Mich. 39, 365 N. W. 2d 56.


text:
    No. 84-1141.
    Holland et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1319.
    Densmore v. City of Boca Raton, Florida, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1376.
    Grim Hotel Co. et al. v. Brock, Secretary of Labor, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1385.
    Wright v. Parke, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1423.
    Feyers et ux. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1435.
    Adkinson v. Adkinson.
   Cir. Ct. W. Va., Jefferson County. Certiorari denied.


text:
    No. 84-1475.
    Holocard v. American Telephone & Telegraph Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1563.
    Blinder, Robinson & Co., Inc., et al. v. Securities and Exchange Commission et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1569.
    Aguilar et ux. v. County of Los Angeles et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1572.
    Marx v. Centran Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1573.
    Desai v. Tompkins County Trust Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1578.
    Morel de Letelier et al. v. Republic of Chile et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1581.
    Sealy, Inc., et al. v. Ohio-Sealy Mattress Manufacturing Co. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1582.
    Martin et al. v. Kilgore First Bancorp, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1592.
    Smelser v. Kelley, Judge, District Court of Oklahoma County, Oklahoma.
   Sup. Ct. Okla. Certiorari denied.


text:
    No. 84-1598.
    Holland v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1607.
    North East Independent School District et al. v. Findeisen.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1627.
    Davidson v. Caledonian Hospital.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1670.
    Fg Fleuzeugleasing GmbH et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1688.
    Ospina v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1690.
    Enriquez v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1696.
    Heaney v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6102.
    Jensen v. Merit Systems Protection Board.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-6196.
    Joost v. United States Parole Commission.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6303.
    Baldonado v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6329.
    Johnson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6495.
    Williams v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6502.
    Ming Shen Wong v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-6503.
    Peterson v. Melton et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6512.
    Harvey v. Andrist et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6514.
    Lepiscopo v. Shuman et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6525.
    Herrington v. Tomasky et al.
   Cir. Ct. W. Va., Monongalia County. Certiorari denied.


text:
    No. 84-6533.
    Ryder v. Morris, Superintendent, Moberly Training Center for Men.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6535.
    Magee v. Dabdoub et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6563.
    Tinghitella v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6568.
    Hayes v. LeFevre, Superintendent, Clinton Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6595.
    Robinson v. Oldham, Judge, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6608.
    Accibal v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-6611.
    Ruggiero v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6616.
    Bejjani v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6618.
    Johnson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6630.
    Williams v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-6637.
    Tribble v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6674.
    Fabian v. City of Miami et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1506.
    Airwork Service Division v. Director, Division of Taxation of New Jersey.
   Sup. Ct. N. J. Motions of

Consumer Bureau, Chamber of Commerce of the United States, and American Civil Liberties Union of New Jersey for leave to file briefs as amici curiae granted. Certiorari denied.


author: Justice Rehnquist,

text:
    No. 84-1524.
    Ollman v. Evans et al.
   C. A. D. C. Cir. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice joins,

dissenting.

In March 1978, petitioner, then a professor of political science at New York University, was nominated by a departmental search committee to head the Department of Government and Politics at the University of Maryland in College Park. The committee’s recommendation proved to be highly controversial, largely because petitioner was an avowed Marxist. Petitioner’s appointment was approved by the Provost of the University and the Chancellor of the College Park Campus, but was eventually overruled by the President of the University.

While this controversy was going on, respondents, nationally syndicated columnists, devoted one of their columns to it. In the course of the article, they made a number of statements about petitioner, including a description of his principal scholarly work as “a ponderous tome in adoration of the master,” and then went on to say:

“Such pamphleteering is hooted at by one political scientist in a major eastern university, whose scholarship and reputation as a liberal are well known. ‘Oilman has no status within the profession, but is a pure and simple activist,’ he said.”

Petitioner sued respondents for libel in the United States District Court for the District of Columbia, and that court granted summary judgment for respondents. 479 F. Supp. 292 (1979). On appeal, the Court of Appeals for the District of Columbia Circuit sitting en banc affirmed the judgment by a vote of six to five, producing three separate opinions concurring in the affirmance, and four dissenting opinions. 242 U. S. App. D. C. 301, 750 F. 2d 970 (1984).

The Court of Appeals rested its decision entirely on the First Amendment to the United States Constitution, and held that this statement about petitioner — that he had no status within his profession — could simply not form the basis of an action for defamation in the light of that Amendment. There was no question as to whether petitioner could meet the requirement of “malice” under New York Times Co. v. Sullivan, 376 U. S. 254 (1964), since the case had never been tried to a jury. The Court of Appeals majority relied upon a brief passage from our opinion in Gertz v. Robert Welch, Inc., 418 U. S. 323, 339-340 (1974). I think that the result' reached by the Court of Appeals in this case is nothing less than extraordinary. At the heart of the common law of defamation were a few areas of expression which even when spoken rather than written were regarded as so damaging as to be classified as “slander per se” and therefore not to require the proof of any special damages in order to allow recovery. One of these categories consists of statements which defame the plaintiff in connection with his business or occupation. See, e. g., November v. Time, Inc., 13 N. Y. 2d 175, 194 N. E. 2d 126 (1963); Stevens v. Morse, 185 Wis. 500, 201 N. W. 815 (1924).

Much of the extended treatment of this question in the Court of Appeals was devoted to the question of whether or not this statement was one of “fact” or of “opinion,” the implication being that if the statement were one of “opinion” it could not be actionable under any circumstances. But for nationally syndicated columnists to quote an unnamed political scientist as saying that petitioner has “no status within the profession” is far more than the mere statements of opinion traditionally protected by qualified privilege under the common law of libel. Doctors who are disapproved of by other doctors may find solace in the fees paid by their patients; lawyers disapproved of by other lawyers may comfort themselves by the retainers paid by their clients. But the academic who is disapproved of by his peers has no such healthy recourse outside of the profession. There, if ever, the opinion of one’s peers is virtually the sole component of one’s professional reputation.

The statement from our opinion in Gertz, supra, relied upon by the majority in the Court of Appeals was this:

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” 418 U. S., at 339-340.

At the time I joined the opinion in Gertz, supra, I regarded this statement as an exposition of the classical views of Thomas Jefferson and Oliver Wendell Holmes that there was no such thing as a false “idea” in the political sense, and that the test of truth for political ideas is indeed the marketplace and not the courtroom. I continue to believe that is the correct meaning of the quoted passage. But it is apparent from the cases cited by petitioner that lower courts have seized upon the word “opinion” in the second sentence to solve with a meat axe a very subtle and difficult question, totally oblivious “of the rich and complex history of the struggle of the common law to deal with this problem.” Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1239 (1976).

The scholarly treatment of this subject by the various opinions in the Court of Appeals comprises 148 pages in the appendix to the petition for certiorari in this case. Obviously the passage from Gertz quoted above has led the majority of that court to the conclusion that respondents’ article is not actionable as a matter of law. But if one draws back for a moment, and considers the passage in context and in the light both of the First Amendment and the history of common-law libel, see R. Sack, Libel, Slander and Related Problems 158 (1980), I find it impossible to disagree with Judge Wald’s characterization:

“[T]he columnists’ statement that ‘Oilman has no status within the profession, but is a pure and simple activist’ is an assertion of fact for which its authors can be made to answer, consistent with the requirements of the [Fjirst [Ajmendment, in a suit for libel.” 242 U. S. App. D. C., at 363, 750 F. 2d, at 1032.

I would grant the petition for certiorari in this case.


text:
    No. 84-1577.
    Forro Precision, Inc. v. International Business Machines Corp.
   C. A. 9th Cir. Certiorari denied. Justice Blackmun took no part in the consideration or decision of this petition.


author: Justice White,

text:
    No. 84-6156.
    No. 84-6249.
    Cooper v. United States; and Wesley v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 748 F. 2d 962.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Before 1982, 18 U. S. C. § 1503 (1976 ed.) prohibited influencing or intimidating “any witness, in any court of the United States,” or any juror or court officer in the discharge of his or her duty. The section also contained a residual clause forbidding anyone to obstruct or attempt to obstruct the “due administration of justice.” In 1982, Congress amended § 1503 to remove all references to witnesses. At the same time, it enacted the Victim and Witness Protection Act, 18 U. S. C. § 1512, addressed specifically to protecting witnesses, informants, and crime victims from harassment and intimidation. Congress did not, however, remove from § 1503 the residual “obstruction of justice” clause.

Petitioners in these cases were charged with violating both § 1503 and § 1512 by attempting to influence a witness to testify falsely. They argued that such conduct could no longer support a conviction under § 1503, because § 1512 was now the only statute covering witness tampering. The Court of Appeals for the Fifth Circuit rejected this contention and affirmed petitioners’ convictions under § 1503, reasoning that certain kinds of witness tampering could still be reached under the provision’s “obstruction of justice” clause. 748 F. 2d 962 (1984). The court observed that § 1512 did not proscribe “urging and advising” a witness to testify falsely, which was the conduct that was charged to have violated § 1503 in these cases. If urging a witness to commit perjury was not prohibited by § 1512, and if witnesses had been removed entirely from the scope of § 1503, the conduct with which petitioners were charged would violate neither section. The Court of Appeals saw no indication that in enacting § 1512 to broaden witness protection, Congress had intended to create such a gap.

In reaching this result, the Court of Appeals explicitly rejected the reasoning of United States v. Hernandez, 730 F. 2d 895 (CA2 1984). In that case, the Second Circuit vacated a conviction under § 1503 that was based on witness intimidation. Reviewing the language and legislative history of §§ 1503 and 1512, the court held that Congress “affirmatively intended to remove witnesses entirely from the scope of § 1503.” Id., at 898. The argument that the residual clause of that statute still covered witness harassment, the court stated, “def[ied] common sense.” Id., at 899.

The Courts of Appeals of two large Circuits have thus arrived at contrary interpretations of an important criminal statute. I would grant certiorari in these cases to resolve the conflict.


text:
    No. 84-6181.
    Cospito et al. v. Heckler, Secretary of Health and Human Services.
   C. A. 3d Cir. Motion of Arkansas Legal Services Support Center et al. for leave to file a brief as amici curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 84-6395.
    No. 84-6399.
    No. 84-6505.
    No. 84-6534.
    Herrera v. Texas. Cervi v. Kemp, Warden. Gaines v. Illinois. Stewart v. Illinois.
   Ct. Crim. App. Tex.;

Sup. Ct. Ga.;

Sup. Ct. Ill.; and

Sup. Ct. Ill. Certiorari denied. Reported below: No. 84-6395, 682 S. W. 2d 313; No. 84-6505, 105 Ill. 2d 79, 473 N. E. 2d 868; No. 84-6534, 105 Ill. 2d 22, 473 N. E. 2d 840.

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. 84-6507.
    Calvert v. Sharp.
   C. A. 4th Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 84-6250.
    No. 84-6311.
    No. 84-6340.
    Milton v. Procunier, Director, Texas Department of Corrections, Mitchell v. Meese, Attorney General, Day v. Amoco Chemicals Corp.,
   ante, p. 1030;

ante, p. 1021; and

ante, p. 1056. Petitions for rehearing denied.


text:
    No. 84-5564.
    Dano v. Szombathy,
   469 U. S. 1219. Petition for rehearing denied.

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


text:
    June 3, 1985
    No. 84-1609.
    Murphy et al. v. Pennsylvania Human Relations Commission et al.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 84-1763.
    Walber, dba Walber Construction Co. v. United States Department of Housing and Urban Development.
   Appeal from C. A. 6th 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. 84-1764.
    Walber, dba Walber Construction Co. v. United States.
   Appeal from C. A. Fed. 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. 84-6529.
    Gaunce v. Idaho.
   Appeal from Sup. Ct. Idaho dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. D-484.
    In re Disbarment of Wollrab.
    [For earlier order herein, see 470 U. S. 1081.]
   Disbarment entered.


text:
    No. D-485.
    In re Disbarment of Logan.
    [For earlier order herein, see 470 U. S. 1081.]
   Disbarment entered.


text:
    No. D-486.
    In re Disbarment of Delk.
   Leonard Adolph Delk, of Long Beach, Cal., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on March 25, 1985 [470 U. S. 1081], is hereby discharged.


text:
    No. D-494.
    In re Disbarment of Edwards.
   It is ordered that Robert Douglas Edwards, of Destín, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-495.
    In re Disbarment of Dicker.
   It is ordered that Leon Dicker, of New York, 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-496.
    In re Disbarment of Hyter.
   It is ordered that Charles Kilburn Hyter, of Hutchinson, Kan., 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-497.
    In re Disbarment of Moore.
   It is ordered that Michael Maulsby Moore, of Everett, Wash., 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-498.
    In re Disbarment of Slone.
   It is ordered that Harold G. Slone, of New York, 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. 84-6646.
    Turner v. Sielaff, Director, Virginia Department of Corrections.
   C. A. 4th Cir. [Certiorari granted, ante, p. 1098.] Motion for appointment of counsel granted, and it is ordered that J. Lloyd Snook III, Esquire, of Charlottesville, Va., be appointed to serve as counsel for petitioner in this case.


text:
    No. 84-1601.
    Aetna Life Insurance Co. v. Lavoie et al.
   Appeal from Sup. Ct. Ala. Further consideration of question of jurisdiction postponed to hearing of case on the merits. Reported below: 470 So. 2d 1060.


text:
    No. 84-782.
    South Carolina et al. v. Catawba Indian Tribe, Inc.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 84-1513.
    California v. Ciraolo.
   Ct. App. Cal., 1st App. Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 84-1602.
    Anderson et al. v. Liberty Lobby, Inc., et al.
   C. A. D. C. Cir. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 84-1636.
    Marshall, Superintendent, Southern Ohio Correctional Facility v. Mathews.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis and certio-rari granted.


text:
    No. 84-6470.
    Davidson v. Cannon et al.
   C. A. 3d Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Case set for oral argument in tandem with No. 84-5872, Daniels v. Williams [certiorari granted, 469 U. S. 1207].


text:
    No. 84-627.
    City Council of the City of Chicago v. Ketchum et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-708.
    American Horse Shows Assn., Inc. v. Eighth Judicial District Court of Nevada et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 84-866.
    Reed et al., Co-Executors of the Estate of Hancher v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-1134.
    Goldmar, Ltd., Inc., et al. v. Greeley et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1140.
    Melia v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1250.
    Messer v. Kansas.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 84-1285.
    Palmer v. Palmer et al.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 84-1320.
    Radford v. Jago, Superintendent, London Correctional Institution, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1374.
    Cain v. Virginia.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-1397.
    Northwest Commercial Fishermen’s Federal Recovery Assn. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1415.
    Martelon v. Temple, Director of the National Guard Bureau, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-1436.
    Dugan & Meyers Construction Co., Inc., et al. v. Worthington Pump Corp. (USA).
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1442.
    Carstens et al. v. Nuclear Regulatory Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-1502.
    Sheriff of the County of Newaygo, Michigan, et al. v. Deur.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 84-1504.
    S. G. Frantz Co., Inc. v. Director, Division of Taxation of New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 84-1568.
    Quaker City Gear Works, Inc., et al. v. Skil Corp.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1589.
    Barney v. Disciplinary Board of the Washington State Bar Assn.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 84-1597.
    Mann v. Spiegel.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 84-1599.
    Bass Aviation, Inc. v. Hernandez, as Personal Representative of the Estate of Hernandez, et al.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 84-1600.
    Hameed et al. v. Jones, Superintendent, Great Meadow Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1612.
    Kizer, Director, Department of Health Services, et al. v. Jeneski et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-1614.
    Campbell v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 84-1615.
    Borough of Demarest et al. v. Township of Mahwah et al.
   Sup. Ct. N. J. Certiorari denied. Reported


text:
    No. 84-1618.
    Kopczynski v. The Jacqueline et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1620.
    Bolar Pharmaceutical Co., Inc. v. Ciba-Geigy Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-1629.
    International Association of Machinists & Aerospace Workers Pension Plan et al. v. Shaw.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1631.
    Lucas v. Daniel International Corp.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 84-1651.
    Florida v. Manee.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 84-1694.
    Sharyland Water Supply Corp. v. Block, Secretary of Agriculture, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1721.
    Rafter v. Anglo-Iranian Oil Co., Ltd., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1735.
    Waters v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 84-1742.
    Carbone v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1753.
    Feuling v. Wood, dba Aluminum Accessories, et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-1762.
    Cerasani v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6171.
    Benitez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6387.
    Smith v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6530.
    Dusakto v. Florida.
   Sup. Ct. Fla. Certio-rari denied.


text:
    No. 84-6532.
    Pichon v. Texas.
   Ct. Crim. App. Tex. Cer-tiorari denied.


text:
    No. 84-6538.
    Simpson-Wood v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 84-5642.
    Prince v. Lockhart, Director, Arkansas Department of Corrections.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6543.
    Wilson v. Wiley et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 84-6545.
    DeMarco v. A. Illum Hansen, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6546.
    Williams v. Nix, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6547.
    Sayan v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6548.
    Clark v. Bruce, Sheriff, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6550.
    Baylies et al. v. Prince George’s County, Maryland.
   Cir. Ct. Prince George’s County, Md. Certiorari

denied.


text:
    No. 84-6552.
    Austin v. Brown, Warden.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-6554.
    Gambrell et al. v. Martin et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6555.
    Shabazz v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-6556.
    Graves v. Garraghty, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6557.
    Howell v. Cole, Judge, Circuit Court for Cecil County.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6559.
    Strahan v. Blackburn, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6564.
    Sarron v. Frumkes.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 84-6569.
    Johnson v. United Automobile Workers et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6581.
    Keen v. Texas.
   Ct. Crim. App. Tex. Certio-rari denied.


text:
    No. 84-6586.
    Colino Escobar v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6599.
    Cohodas v. Air Products & Chemicals, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6645.
    McDaniel v. Texas.
   Ct. App. Tex., 1st Sup. Jud. Dist. Certiorari denied. tiorari denied. Reported below: 754 F. 2d 817.


text:
    No. 84-6648.
    No. 84-6650.
    Chen v. United States; and Chen v. United States.
   C. A. 9th Cir. Cer-


text:
    No. 84-6652.
    LeAmous v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-6654.
    Humphrey v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6656.
    Lindsley v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-6657.
    Fahnbulleh v. United States.
   C. A. Sth Cir. Certiorari denied.


text:
    No. 84-6664.
    Flowers v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6670.
    Norman v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 84-6680.
    Baker v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6684.
    Salman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-6690.
    Pizarro v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-6692.
    Seals v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-634.
    Chevron U. S. A., Inc., et al. v. Sheffield, Governor of Alaska, et al.
   C. A. 9th Cir. Certiorari denied.

Opinion of Justice Stevens respecting the denial of the petition for 'writ of certiorari.

Reasonable Justices can certainly differ on whether certiorari should be granted in this case. Justice White, in dissent, has explained why he favors a grant of the petition for writ of cer-tiorari. There is, of course, no reason why that dissent should identify the reasons supporting a denial of the petition. Matters such as the fact that apparently only one 26-year-old vessel may be affected by the Ninth Circuit’s ruling, that apparently no other State has enacted a deballasting prohibition similar to Alaska’s, and that the Coast Guard retains the power to modify its regulations relating to deballasting lend support to the Court’s discretionary determination that review in this Court is not necessary even if the Court of Appeals’ decision is arguably incorrect. I add these few words only becaure of my concern that unanswered dissents from denial of certiorari sometimes lead the uninformed reader to conclude that the Court is not managing its discretionary docket in a responsible manner. See Singleton v. Commissioner, 439 U. S. 940, 942, 945 (1978) (opinion of Stevens, J., respecting the denial of the petition for writ of certiorari).

Justice White,

dissenting.

In this case, the United States Court of Appeals for the Ninth Circuit held that the State of Alaska’s Tanker Act, former Alaska Stat. Ann. §46.03.750(e) (Supp. 1977), amended in 1980 and currently Alaska Stat. Ann. §§ 46.03.750(a), (b) (1982), which restricts deballasting by oil tankers in Alaskan waters, was not pre-empted by regulations promulgated by the Coast Guard under Title II of the Ports and Waterways Safety Act of 1972 (PWSA). Chevron U. S. A., Inc. v. Hammond, 726 P. 2d 488 (1984). I believe that in so holding, the court arguably “decided a federal question in a way in conflict with applicable decisions of this Court.” This Court’s Rule 17.1(c). Accordingly, I would grant certiorari to review the judgment of the Court of Appeals.

In Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978), we held that federal regulations governing oil tanker design and construction promulgated under Title II of the PWSA pre-empt more stringent state regulations covering the same subject matter. Our holding was based in large part on our conclusion that Title II was intended to authorize comprehensive standards “[t]o implement the twin goals of providing for vessel safety and protecting the marine environment.” Id., at 161. Under the statute, we observed, “the Secretary [of Transportation] must issue all design and construction regulations that he deems necessary for these ends, after considering the specified statutory standards.” Id., at 165. When a State has imposed a more stringent standard than the Secretary but the state and federal standards “ai[m] at precisely the same ends,” we concluded, “[t]he Supremacy Clause dictates that the federal judgment . . . prevail over the contrary state judgment.” Ibid.

As the court below pointed out, Ray dealt with federal standards for tanker design and construction, whereas this case involves standards governing tanker operations — specifically, standards governing the discharge of seawater loaded into cargo compartments and used as ballast. The need for national uniformity in the area of standards for tanker operations, the court concluded, is not so great as the need for uniformity in standards governing tanker operation and design; for while a tanker can under some circumstances alter its operating practices to conform to the requirements of the State whose territorial waters it is traversing, it cannot alter its construction or design. Accordingly, the absence of uniform design and construction requirements may be a far more serious impediment to the tanker industry than a lack of uniformity with respect to operations.

Although this distinction is not insubstantial, the similarities between this case and Ray strike me as greater than the lower court was willing to recognize. Like Ray, this case involves federal regulations promulgated under Title II of the PWSA. As in Ray, the Secretary was obliged by the Act to issue “all . . . regulations that he deems necessary” to meet the goal of protecting the marine environment. Id., at 165; see 46 U. S. C. §§ 391a(1)(D), 391a(6)(A). And, as in Ray, the state statute at issue in this case aims at precisely the same goal as the federal regulation, and thus amounts to a rejection by the State of the federal judgment as to the level of protection necessary to achieve the common goal. Under these circumstances, I would have thought that there would be a strong presumption that our ruling in Ray was applicable here as well.

In rejecting the applicability at Ray, the Court of Appeals relied not only on its perception of a diminished need for uniformity in the area of standards governing tanker operations, but also on its belief that the Clean Water Act, 33 U. S. C. §1251 et seq., reflects congressional recognition of concurrent state and federal authority to protect the environment within the territorial waters of the States. The court placed primary emphasis on those provisions of the Act that establish the National Pollutant Discharge Elimination System (NPDES), 33 U. S. C. § 1342, under which minimum federal standards regulating the discharge of pollutants may be supplanted by more stringent state standards. These provisions of the Clean Water Act, however, are of extremely limited relevance to the questions posed by this case, as federal regulations specifically exempt from the NPDES program discharges from vessels incident to their normal operation. 40 CFR § 122.3(a) (1984). The Clean Water Act thus sheds little or no fight on the question whether protection of the marine environment against the threats posed specifically by oil tanker traffic is, under Title II of the PWSA, a matter in which federal regulation has displaced state control.

The apparent inconsistency of the decision below with our own decision in Ray, coupled with the lower court’s reliance on statutory materials of questionable relevance to the case before it, leads me to conclude that this is a case in which we should exercise our discretionary jurisdiction. I therefore dissent from the denial of certiorari.

       Moreover, this vessel is able to comply with the Alaska statute at some ports because of the presence of onshore reception facilities, thus further highlighting the minimal effect of the Court of Appeals’ ruling.

       As I noted in Singleton:

      “Since the Court provides no explanation of the reasons for denying certiorari, the dissenter’s arguments in favor of a grant are not answered and therefore typically appear to be more persuasive than most other opinions. Moreover, since they often omit any reference to valid reasons for denying certiorari, they tend to imply that the Court has been unfaithful to its responsibilities or has implicitly reached a decision on the merits when, in fact, there is no basis for such an inference.” 439 U. S., at 945.

       86 Stat. 424. Title II of the PWSA, as amended by the Port and Tanker Safety Act of 1978, Pub. L. 95-474, 92 Stat 1471, was, until 1983, codified at 46 U. S. C. § 391a. In 1983, the PWSA/PTSA was recodified at 46 U. S. C. §§3701-3718 (1982 ed., Supp. I).

       The federal standard prohibits discharge of such water within 50 miles of shore unless the water meets certain standards of cleanliness. 33 CFR §§ 157.03(a)(1), 157.29, 157.37(a)(1) (1982). The state standards forbid any discharge of water from a tanker’s cargo tanks within Alaskan territorial waters, regardless of the cleanliness of the water.

       The distinction should probably not be overstated, however. Design specifications and operating procedures are in many respects inextricably linked, and this linkage is striking where ballasting — the subject of the regulations at issue in this case — is concerned. The design of a tanker may require it to use seawater as ballast in order to operate safely. Such a tanker may be unable to take on oil at a particular port if it may not deballast in waters adjacent to that port. Restrictions on deballasting thus may exclude certain tankers from certain ports fully as effectively as regulations prohibiting all tankers with particular design features.


text:
    No. 84-1307.
    Odend’hal et al. v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Motion to substitute Harry R. Smith, Jr., as Personal Representative of Estate of Ivan V. Magal, deceased, as a party petitioner granted. Certiorari denied.


text:
    No. 84-1495.
    Kemp, Warden v. Davis.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-6449.
    No. 84-6639.
    Rose v. Florida. Nash, aka Henderson v. Arizona.
   Sup. Ct. Fla.; and

Sup. Ct. Ariz. Certiorari denied. Reported below: No. 84-6449, 461 So. 2d 84; No. 84-6639, 143 Ariz. 392, 694 P. 2d 222.

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 and Justice Marshall, Justice White,

text:
    No. 84-6601.
    Davis v. Kemp, Warden.
   C. A. 11th Cir. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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

Justice White,

dissenting.

In Sandstrom v. Montana, 442 U. S. 510 (1979), we held that where intent is an element of the crime charged, a jury instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” violates the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt. In Connecticut v. Johnson, 460 U. S. 73 (1983), we granted certiorari to resolve the question whether the giving of such a burden-shifting instruction may ever be deemed harmless error. Johnson, however, left that question unanswered: a plurality took the position that Sand-strom error was virtually never harmless, while four Justices would have found such errors harmless if a reviewing court could say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption. 460 U. S., at 97, n. 5. On two subsequent occasions, we have granted certiorari in cases raising the harmless-error question, but on both occasions we have not resolved it. Engle v. Koehler, 707 F. 2d 241 (CA6 1983), aff’d by an equally divided Court, 466 U. S. 1 (1984); Francis v. Franklin, ante, p. 307.

In the present case, the Court of Appeals for the Eleventh Circuit, sitting en banc, correctly held that the jury instructions given at petitioner’s trial for first-degree murder unconstitutionally shifted the burden of proof on the issues of malice and intent. 752 F. 2d 1515 (1985). See Francis v. Franklin, supra. Noting that this Court in Johnson had failed to adopt a rule that Sand-strom error was per se reversible, the majority held that the error here was harmless because intent was not a contested issue at trial. Petitioner’s main defense had been that he had nothing to do with the murder, not that he lacked intent, and.the evidence was “overwhelming” that whoever had committed the murder had done so with intent and malice. 752 F. 2d, at 1521. Five judges dissented on this point, arguing that the error was not harmless because, “[ejxcept where it includes a direct admission of intent, no defense, in and of itself, can take the element of intent out of ‘issue.’” Id., at 1528. The dissenters also observed that the plurality opinion in Johnson “cast serious doubt on whether the doctrine of harmless error can be applied to the shifting of a presumption which is so integral to the concept of a fair trial.” 752 F. 2d, at 1527.

This is the fourth time that the Court has been presented with the opportunity to decide whether Sandstrom error may be harmless under any circumstances. Because resolution of this important and frequently recurring question is long overdue, I would grant certiorari in this case.

       Justice Stevens concurred in the disposition allowing the decision of the Connecticut Supreme Court to stand, but found that no federal question was presented.

       The judge instructed the jury that “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but the presumption may be rebutted.” The jury was further instructed that “while it is true that the law presumes malice when a homicide has been shown, yet that presumption of malice may be rebutted by the defendant.” 752 F. 2d, at 1524, 1526, n. 1. In Francis, we held that a virtually identical instruction on intent violated the Due Process Clause under Sandstrom.

       The plurality opinion in Johnson suggested that Sandstrom error might be harmless if the defendant had “conceded the issue of intent,” and noted that in presenting a defense such as alibi, a defendant might admit that the act alleged by the prosecution was intentional. 460 U. S., at 87. Although the petitioner in this case presented an alibi defense, the majority below noted that “there was no explicit concession of intent and malice.” 752 F. 2d, at 1521.

       The respondent filed a separate petition for certiorari raising different and “uncertworthy” objections to the opinion below. Kemp v. Davis, No. 84-1495, cert. denied, ante, p. 1143.


text:
    No. 84-1299.
    No. 84-1329.
    No. 84-5339.
    No. 84-6018.
    No. 84-6262.
    No. 84-6320.
    No. 84-6373.
    No. 84-6431.
    Arango v. Florida, Crea v. New York, Wingo v. Louisiana, Harrison v. Meachum, Director, Oklahoma Department of Corrections, et al., Bragg v. Cave, Judge, Day v. Cartwright et al., Hernandez v. Duncan et al., Primbs v. United States,
   ante, p. 1010;

ante, p. 1011;

ante, p. 1030;

ante, p. 1055;

ante, p. 1020;

ante, p. 1056;

ante, p. 1068; and

ante, p. 1068. Petitions for rehearing denied.


text:
    No. 84-5801.
    Austin v. Young, Superintendent, Waupun Correctional Institution, Waupun, Wisconsin,
   470 U. S. 1055. Motion for leave to file petition for rehearing denied.

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


text:
    No. 84-6152.
    Friedman v. Heckler, Secretary of Health and Human Services, et al.,
   470 U. S. 1057. Petition for rehearing denied.

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


author: Justice Rehnquist, Circuit Justice.

text:
    NATIONAL FARMERS UNION INSURANCE COS. et al. v. CROW TRIBE OF INDIANS et al.
    No. A-778.
    Decided April 24, 1985
   Justice Rehnquist, Circuit Justice.

The Court of Appeals for the Ninth Circuit has stayed all proceedings with respect to this case in the United States District Court and in the Crow Tribal Court pending resolution of the merits of the case by this Court. Applicants contend that the Court of Appeals was without jurisdiction to issue the stay, and request me to “dissolve” the stay issued by the Court of Appeals. The jurisdiction of the Court of Appeals to issue the stay order is indeed debatable, but I do not believe that four Members of the Court would wish to review that separate issue in addition to resolving the merits of the principal case argued on April 16th. Nor do I believe that the equities favor a stay to preserve the posture between the parties that applicants seek, given the present state of affairs in the District and Tribal Courts. Decision of the merits by this Court may ordinarily be expected before the summer recess around July 1st, and the stay issued by the Court of Appeals will expire by its own terms upon the happening of that event. The application is therefore denied.


author: Chief Justice Burger

text:
    SCHREIBER v. BURLINGTON NORTHERN, INC., et al.
    No. 83-2129.
    Argued January 9, 1985
    Decided June 4, 1985

      Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the decision of the case, and O’Connor, J., who took no part in the consideration or decision of the case.

      Irving Bizar argued the cause and filed briefs for petitioner.

      Marc P. Cherno argued the cause for respondents. With him on the brief were Robert K. Payson, Harvey L. Pitt, Stephen D. Alexander, A. Gilchrist Sparks III, and Howard W. Goldstein.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve a conflict in the Circuits over whether misrepresentation or nondisclosure is a necessary element of a violation of § 14(e) of the Securities Exchange Act of 1934, 15 U. S. C. § 78n(e).

I

On December 21, 1982, Burlington Northern, Inc., made a hostile tender offer for El Paso Gas Co. Through a wholly owned subsidiary, Burlington proposed to purchase 25.1 million El Paso shares at $24 per share. Burlington reserved the right to terminate the offer if any of several specified events occurred. El Paso management initially opposed the takeover, but its shareholders responded favorably, fully subscribing the offer by the December 30, 1982, deadline.

Burlington did not accept those tendered shares; instead, after negotiations with El Paso management, Burlington announced on January 10, 1983, the terms of a new and friendly takeover agreement. Pursuant to the new agreement, Burlington undertook, inter alia, to (1) rescind the December tender offer, (2) purchase 4,166,667 shares from El Paso at $24 per share, (3) substitute a new tender offer for only 21 million shares at $24 per share, (4) provide procedural protections against a squeeze-out merger of the remaining El Paso shareholders, and (5) recognize “golden parachute” contracts between El Paso and four of its senior officers. By-February 8, more than 40 million shares were tendered in response to Burlington’s January offer, and the takeover was completed.

The rescission of the first tender offer caused a diminished payment to those shareholders who had tendered during the first offer. The January offer was greatly oversubscribed and consequently those shareholders who retendered were subject to substantial proration. Petitioner Barbara Schreiber filed suit on behalf of herself and similarly situated shareholders, alleging that Burlington, El Paso, and members of El Paso’s board of directors violated § 14(e)’s prohibition of “fraudulent, deceptive, or manipulative acts or practices ... in connection with any tender offer.” 15 U. S. C. §78n(e). She claimed that Burlington’s withdrawal of the December tender offer coupled with the substitution of the January tender offer was a “manipulative” distortion of the market for El Paso stock. Schreiber also alleged that Burlington violated § 14(e) by failing in the January offer to disclose the “golden parachutes” offered to four of El Paso’s managers. She claims that this January nondisclosure was a deceptive act forbidden by § 14(e).

The District Court dismissed the suit for failure to state a claim. 568 F. Supp. 197 (Del. 1983). The District Court reasoned that the alleged manipulation did not involve a misrepresentation, and so did not violate § 14(e). The District Court relied on the fact that in cases involving alleged violations of § 10(b) of the Securities Exchange Act, 15 U. S. C. §78j(b), this Court has required misrepresentation for there to be a “manipulative” violation of the section. 568 F. Supp., at 202.

The Court of Appeals for the Third Circuit affirmed. 731 F. 2d 163 (1984). The Court of Appeals held that the acts alleged did not violate the Williams Act, because “§ 14(e) was not intended to create a federal cause of action for all harms suffered because of the proffering or the withdrawal of tender offers.” Id., at 165. The Court of Appeals reasoned that § 14(e) was “enacted principally as a disclosure statute, designed to insure that fully-informed investors could intelligently decide how to respond to a tender offer.” Id., at 165-166. It concluded that the “arguable breach of contract” alleged by petitioner was not a “manipulative act” under § 14(e).

We granted certiorari to resolve the conflict, 469 U. S. 815 (1984). We affirm.

II

A

We are asked in this case to interpret § 14(e) of the Securities Exchange Act, 82 Stat. 457, as amended, 15 U. S. C. § 78n(e). The starting point is the language of the statute. Section 14(e) provides:

“It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative.”

Petitioner relies on a construction of the phrase, “fraudulent, deceptive, or manipulative acts or practices.” Petitioner reads the phrase “fraudulent, deceptive, or manipulative acts or practices” to include acts which, although fully disclosed, “artificially” affect the price of the takeover target’s stock. Petitioner’s interpretation relies on the belief that § 14(e) is directed at purposes broader than providing full and true information to investors.

Petitioner’s reading of the term “manipulative” conflicts with the normal meaning of the term. We have held in the context of an alleged violation of § 10(b) of the Securities Exchange Act:

“Use of the word ‘manipulative’ is especially significant. It is and was virtually a term of art when used in connection with the securities markets. It connotes intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities.” Ernst & Ernst v. Hochfelder, 425 U. S. 185, 199 (1976) (emphasis added).

Other cases interpreting the term reflect its use as a general term comprising a range of misleading practices:

“The term refers generally to practices, such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity. . . . Section 10(b)’s general prohibition of practices deemed by the SEC to be ‘manipulative’ — in this technical sense of artificially affecting market activity in order to mislead investors — is fully consistent with the fundamental purpose of the 1934 Act ‘ “to substitute a philosophy of full disclosure for the philosophy of caveat emptor ... Indeed, nondisclosure is usually essential to the success of a manipulative scheme. ... No doubt Congress meant to prohibit the full range of ingenious devices that might be used to manipulate securities prices. But we do not think it would have chosen this ‘term of art’ if it had meant to bring within the scope of § 10(b) instances of corporate mismanagement such as this, in which the essence of the complaint is that shareholders were treated unfairly by a fiduciary.” Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 476-477 (1977).

The meaning the Court has given the term “manipulative” is consistent with the use of the term at common law, and with its traditional dictionary definition.

She argues, however, that the term “manipulative” takes on a meaning in § 14(e) that is different from the meaning it has in § 10(b). Petitioner claims that the use of the disjunctive “or” in § 14(e) implies that acts need not be deceptive or fraudulent to be manipulative. But Congress used the phrase “manipulative or deceptive” in § 10(b) as well, and we have interpreted “manipulative” in that context to require misrepresentation. Moreover, it is a “‘familiar principle of statutory construction that words grouped in a list should be given related meaning.’” Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 207, 218 (1984). All three species of misconduct, i. e., “fraudulent, deceptive, or manipulative,” listed by Congress are directed at failures to disclose. The use of the term “manipulative” provides emphasis and guidance to those who must determine which types of acts are reached by the statute; it does not suggest a deviation from the section’s facial and primary concern with disclosure or congressional concern with disclosure which is the core of the Act.

B

Our conclusion that “manipulative” acts under § 14(e) require misrepresentation or nondisclosure is buttressed by the purpose and legislative history of the provision. Section 14(e) was originally added to the Securities Exchange Act as part of the Williams Act, 82 Stat. 457. “The purpose of the Williams Act is to insure that public shareholders who are confronted by a cash tender offer for their stock will not be required to respond without adequate information.” Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 58 (1975).

It is clear that Congress relied primarily on disclosure to implement the purpose of the Williams Act. Senator Williams, the bill’s Senate sponsor, stated in the debate:

“Today, the public shareholder in deciding whether to accept or reject a tender offer possesses limited information. No matter what he does, he acts without adequate knowledge to enable him to decide rationally what is the best course of action. This is precisely the dilemma which our securities laws are designed to prevent.” CO t-H t-H Cong. Rec. 24664 (1967).

The expressed legislative intent was to preserve a neutral setting in which the contenders could fully present their arguments. The Senate sponsor went on to say:

“We have taken extreme care to avoid tipping the scales either in favor of management or in favor of the person making the takeover bids. S. 510 is designed solely to require full and fair disclosure for the benefit of investors. The bill will at the same time provide the offeror and management equal opportunity to present their case.” Ibid.

To implement this objective, the Williams Act added §§ 13(d), 13(e), 14(d), 14(e), and 14(f) to the Securities Exchange Act. Some relate to disclosure; §§ 13(d), 14(d), and 14(f) all add specific registration and disclosure provisions. Others — §§ 13(e) and 14(d) — require or prohibit certain acts so that investors will possess additional time within which to take advantage of the disclosed information.

Section 14(e) adds a “broad antifraud prohibition,” Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 24 (1977), modeled on the antifraud provisions of § 10(b) of the Act and Rule 10b-5, 17 CFR §240.10b-5 (1984). It supplements the more precise disclosure provisions found elsewhere in the Williams Act, while requiring disclosure more explicitly addressed to the tender offer context than that required by § 10(b).

While legislative history specifically concerning § 14(e) is sparse, the House and Senate Reports discuss the role of § 14(e). Describing § 14(e) as regulating “fraudulent transactions,” and stating the thrust of the section:

“This provision would affirm the fact that persons engaged in making or opposing tender offers or otherwise seeking to influence the decision of investors or the outcome of the tender offer are under an obligation to make full disclosure of material information to those with whom they deal.” H. R. Rep. No. 1711, 90th Cong., 2d Sess., 11 (1968) (emphasis added); S. Rep. No. 550, 90th Cong., 1st Sess., 11 (1967) (emphasis added).

Nowhere in the legislative history is there the slightest suggestion that § 14(e) serves any purpose other than disclosure, or that the term “manipulative” should be read as an invitation to the courts to oversee the substantive fairness of tender offers; the quality of any offer is a matter for the marketplace.

To adopt the reading of the term “manipulative” urged by petitioner would not only be unwarranted in light of the legislative purpose but would be at odds with it. Inviting judges to read the term “manipulative” with their own sense of what constitutes “unfair” or “artificial” conduct would inject uncertainty into the tender offer process. An essential piece of information — whether the court would deem the fully disclosed actions of one side or the other to be “manipulative” — would not be available until after the tender offer had closed. This uncertainty would directly contradict the expressed congressional desire to give investors full information.

Congress’ consistent emphasis on disclosure persuades us that it intended takeover contests to be addressed to shareholders. In pursuit of this goal, Congress, consistent with the core mechanism of the Securities Exchange Act, created sweeping disclosure requirements and narrow substantive safeguards. The same Congress that placed such emphasis on shareholder choice would not at the same time have required judges to oversee tender offers for substantive fairness. It is even less likely that a Congress implementing that intention would express it only through the use of a single word placed in the middle of a provision otherwise devoted to disclosure.

C

We hold that the term “manipulative” as used in § 14(e) requires misrepresentation or nondisclosure. It connotes “conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities.” Ernst & Ernst v. Hochfelder, 425 U. S., at 199. Without misrepresentation or nondisclosure, § 14(e) has not been violated.

Applying that definition to this case, we hold that the actions of respondents were not manipulative. The amended complaint fails to allege that the cancellation of the first tender offer was accompanied by any misrepresentation, nondisclosure, or deception. The District Court correctly found: “All activity of the defendants that could have conceivably affected the price of El Paso shares was done openly.” 568 F. Supp., at 203.

Petitioner also alleges that El Paso management and Burlington entered into certain undisclosed and deceptive agreements during the making of the second tender offer. The substance of the allegations is that, in return for certain undisclosed benefits, El Paso managers agreed to support the second tender offer. But both courts noted that petitioner’s complaint seeks only redress for injuries related to the cancellation of the first tender offer. Since the deceptive and misleading acts alleged by petitioner all occurred with reference to the making of the second tender offer — when the injuries suffered by petitioner had already been sustained— these acts bear no possible causal relationship to petitioner’s alleged injuries. The Court of Appeals dealt correctly with this claim.

Ill

The judgment of the Court of Appeals is

Affirmed.

Justice Powell took no part in the decision of this case.

Justice O’Connor took no part in the consideration or decision of this case.

       A “squeeze-out” merger occurs when Corporation A, which holds a controlling interest in Corporation B, uses its control to merge B into itself or into a wholly owned subsidiary. The minority shareholders in Corporation B are, in effect, forced to sell their stock. The procedural protection provided in the agreement between El Paso and Burlington required the approval of non-Burlington members of El Paso’s board of directors before a squeeze-out merger could proceed. Burlington eventually purchased all the remaining shares of El Paso for $12 cash and one-quarter share of Burlington preferred stock per share. The parties dispute whether this consideration was equal to that paid to those tendering during the January tender offer.

       Petitioner alleged in her complaint that respondent Burlington failed to disclose that four officers of El Paso had entered into “golden parachute” agreements with El Paso for “extended employment benefits in the event El Paso should be taken over, which benefits would give them millions of dollars of extra compensation.” The term “golden parachute” refers generally to agreements between a corporation and its top officers which guarantee those officers continued employment, payment of a lump sum, or other benefits in the event of a change of corporate ownership. As described in the Schedule 14D-9 filed by El Paso with the Securities and Exchange Commission on January 12,1983, El Paso entered into “employment agreements” with two of its officers for a period of not less than five years, and with two other officers for a period of three years. The Schedule 14D-9 also disclosed that El Paso’s Deferred Compensation Plan had been amended “to provide that for the purposes of such Plan a participant shall be deemed to have retired at the instance of the Company if his duties as a director, officer or employee of the Company have been diminished or curtailed by the Company in any material respect.”

       The Court of Appeals for the Sixth Circuit has held that manipulation does not always require an element of misrepresentation or nondisclosure. Mobil Corp. v. Marathon Oil Co., 669 F. 2d 366 (1981), cert. denied, 455 U. S. 982 (1982). The Court of Appeals for the Second and Eighth Circuits have applied an analysis consistent with the one we apply today. Feldbaum v. Avon Products, Inc., 741 F. 2d 234 (CA8 1984); Buffalo Forge Co. v. Ogden Corp., 717 F. 2d 757 (CA2), cert. denied, 464 U. S. 1018 (1983); Data Probe Acquisition Corp. v. Datatab, Inc., 722 F. 2d 1 (CA2 1983), cert. denied, 465 U. S. 1052 (1984).

       See generally L. Loss, Securities Regulation 984-989 (3d ed. 1983). For example, the seminal English case of Scott v. Brown, Doering, McNab & Co., [1892] 2 Q. B. 724 (C. A.), which broke new ground in recognizing that manipulation could occur without the dissemination of false statements, nonetheless placed emphasis on the presence of deception. As Lord Lopes stated in that case, “I can see no substantial distinction between false rumours and false and fictitious acts.” Id., at 730. See also United States v. Brown, 5 F. Supp. 81, 85 (SDNY 1933) (“[E]ven a speculator is entitled not to have any present fact involving the subject matter of his speculative purchase or the price thereof misrepresented by word or act”).

       See Webster’s Third New International Dictionary 1376 (1971) (Manipulation is “management with use of unfair, scheming, or underhanded methods”).

        Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 476-477 (1977); Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 43 (1977); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 199 (1976).

       For a more thorough discussion of the legislative history of the Williams Act, see Piper v. Chris-Craft Industries, Inc., supra, at 24-37.

       The process through which Congress developed the Williams Act also suggests a calculated reliance on disclosure, rather than court-imposed principles of “fairness” or “artificiality,” as the preferred method of market regulation. For example, as the bill progressed through hearings, both Houses of Congress became concerned that corporate stock repurchases could be used to distort the market for corporate control. Congress addressed this problem with § 13(e), which imposes specific disclosure duties on corporations purchasing stock and grants broad regulatory power to the Securities and Exchange Commission to regulate such repurchases. Congress stopped short, however, of imposing specific substantive requirements forbidding corporations to trade in their own stock for the purpose of maintaining its price. The specific regulatory scheme set forth in § 13(e) would be unnecessary if Congress at the same time had endowed the term “manipulative” in § 14(e) with broad substantive significance.

       Section 13(d) requires those acquiring a certain threshold percentage of a company’s stock to file reports disclosing such information as the purchaser’s background and identity, the source of the funds to be used in making the purchase, the purpose of the purchase, and the extent of the purchaser’s holdings in the target company. 15 U. S. C. §78m(d). Section 13(e) imposes restrictions on certain repurchases of stock by corporate issuers. 15 U. S. C. §78m(e). Section 14(d) imposes specific disclosure requirements on those making a tender offer. 15 U. S. C. § 78n(d)(1). Section 14(d) also imposes specific substantive requirements on those making a tender offer. These requirements include allowing shareholders to withdraw tendered shares at certain times during the bidding process, 15 U. S. C. §78n(d)(5), the proration of share purchases when the number of shares tendered exceeds the number of shares sought, 15 U. S. C. § 78n(d)(6), and the payment of the same price to all those whose shares are purchased, 15 U. S. C. §78n(d)(7). Section 14(f) imposes disclosure requirements when new corporate directors are chosen as the result of a tender offer.

       Section 10(b) provides:
      “It shall be unlawful for any person, directly or indirectly, . . .
      “(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. §78j(b).
      Rule 10b-5 provides:
      “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
      “(a) To employ any device, scheme, or artifice to defraud,
      “(b) To make any untrue statement of a material fact or to omit to state a fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
      “(c) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 CFR § 240.10b-5 (1984).
      Because of the textual similarities, it is often assumed that § 14(e) was modeled on § 10(b) and Rule 10b-5. See, e. g., Panter v. Marshall Field & Co., 646 F. 2d 271, 283 (CA7), cert. denied, 454 U. S. 1092 (1981). For the purpose of interpreting the term “manipulative,” the most significant changes from the language of § 10(b) were the addition of the term “fraudulent,” and the reference to “acts” rather than “devices.” Neither change bears in any obvious way on the meaning to be given to “manipulative.”
      Similar terminology is also found in § 15(c) of the Securities Exchange Act, 15 U. S. C. § 78o(c), § 17(a)'of the Securities Act of 1933, 15 U. S. C. §77q(a), and §206 of the Investment Advisers Act of 1940, 15 U. S. C. § 80b-6.

       The Act was amended in 1970, and Congress added to § 14(e) the sentence, “The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative.” Petitioner argues that this phrase would be pointless if § 14(e) was concerned with disclosure only.
      We disagree. In adding the 1970 amendment, Congress simply provided a mechanism for defining and guarding against those acts and practices which involve material misrepresentation or nondisclosure. The amendment gives the Securities and Exchange Commission latitude to regulate nondeceptive activities as a “reasonably designed” means of preventing manipulative acts, without suggesting any change in the meaning of the term “manipulative” itself.