The Mayor of Philadelphia is empowered by the city charter to
appoint a Nominating Panel, which, in turn, submits to him nominees
to fill vacancies on the School Board. The Panel consists of 13
members. The Mayor must appoint four members from the citizenry at
large; each of the remaining nine must be the highest ranking
officer of one of nine designated categories of city-wide
organizations. A new Panel is convened in every odd-numbered year.
Respondents brought this action for declaratory and injunctive
relief charging that Mayor Tate had violated the Equal Protection
Clause of the Fourteenth Amendment by discriminating against
Negroes in appointments to the 1971 Panel. Following hearings, the
District Court found that respondents had failed to prove racial
discrimination and dismissed their complaint. The Court of Appeals
reversed, concluding that respondents had established an unrebutted
prima facie case of unlawful exclusion of Negroes from
consideration for service on the 1971 Panel. Although Tate was
succeeded, while the case was
sub judice, by Mayor Rizzo
(as to whose Panel appointment practices the record is silent), the
court directed the issuance of certain injunctive relief against
Rizzo with regard to the 1973 Panel and future Panels.
Held:
1. The Mayor's principal argument, that federal courts may not
interfere with the discretionary appointment powers of an elected
executive officer, is of greater importance than was accorded it by
the Court of Appeals, but the argument need not be addressed here,
since the record is devoid of reliable proof of racial
discrimination. Pp.
415 U. S.
613-616.
2. The Court of Appeals' finding of racial discrimination rests
on ambiguous testimony as to a statement in 1969 by then Mayor Tate
with regard to the 1969 School Board, not the 1971 Panel; the
unawareness of certain organizations on the part of a city official
who did not have final authority over the challenged appointments;
and racial-composition percentage comparisons the
Page 415 U. S. 606
District Court correctly rejected as meaningless in the context
of this case. The Court of Appeals therefore erred in overturning
the District Court's findings and conclusions. Pp.
415 U. S.
616-621.
3. The Court of Appeals erred in ordering injunctive relief
against Mayor Rizzo with regard to the 1973 Panel and future
Panels, since the record speaks solely to the appointment practices
of Tate, his predecessor, who left office in 1972. Pp.
415 U. S.
621-623.
4. The principal issue throughout this litigation has been
whether Mayor Tate violated the Fourteenth Amendment. There is no
basis for remanding the case to the District Court for resolution
of peripheral state law issues under that court's pendent
jurisdiction or, alternatively, for abstention so that the case may
be tried anew in a state court. Pp.
415 U. S.
623-629.
472 F.2d 612, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J.,
filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ.,
joined, and in Part II of which DOUGLAS, J., joined,
post,
p.
415 U. S.
633.
MR. JUSTICE POWELL delivered the opinion of the Court.
In 1965, the voters of Philadelphia approved a public education
supplement to their city charter establishing the present structure
of the Philadelphia Board of Education (the School Board or Board).
The supplement, which appears as Art. XII of the city charter,
[
Footnote 1] vests in the Mayor
a double appointment power with regard to the School Board. The
Mayor appoints the nine
Page 415 U. S. 607
members of the Board, but he is assisted in that task by another
entity that he also appoints, the Educational Nominating Panel (the
Nominating Panel or Panel). The function of the Panel is to seek
out qualified candidates for service on the School Board by polling
civic organizations and the citizenry at large, to interview those
candidates, to deliberate on their qualifications, and to submit
selected nominees to the Mayor. The Panel submits three nominees
for every vacancy on the Board. In his discretion, the Mayor may
request an additional three nominees per vacancy. The Mayor must
then make appointments to the School Board from among the nominees
submitted by the Panel.
The Nominating Panel consists of 13 members. Under the terms of
the city charter, the Mayor appoints four members of the Panel from
the citizenry at large. Each of the remaining members must be the
highest ranking officer of one of nine categories of city-wide
organizations or institutions, such as a labor union council, a
commerce organization, a public school parent-teachers association,
a degree-granting institution of higher learning, and the like.
[
Footnote 2] Although the city
charter describes with
Page 415 U. S. 608
substantial specificity the nine categories of organizations or
institutions whose leaders may serve on the Nominating Panel, the
charter does not designate any particular organization or
institution by name. Accordingly, it is possible for more than one
such city-wide entity to qualify under any given category.
The members of the Nominating Panel serve two-year terms. A new
Panel is appointed and convened in every odd-numbered year, when,
in the ordinary course, three vacancies occur on the School Board.
[
Footnote 3] Thus, since 1965,
there have been five Panels. Mayor James J. H. Tate, whose term
expired in 1972, appointed the 1965, 1967, 1969, and 1971 Panels.
The present Mayor, Frank Rizzo, appointed the 1973 Panel.
Respondents include the Educational Equality League, [
Footnote 4] the president of the
League, another citizen of Philadelphia, and two students attending
the city's public schools. Shortly after Mayor Tate's
appointment
Page 415 U. S. 609
of the 1971 Nominating Panel, respondents filed this suit as a
class action in the United States District Court for the Eastern
District of Pennsylvania, relying on 42 U.S.C. § 1983 and 28 U.S.C.
§ 1343(3). The gravamen of their complaint, which named the Mayor
of Philadelphia and the Nominating Panel as defendants, was that
Mayor Tate had violated the Equal Protection Clause of the
Fourteenth Amendment by discriminating against Negroes in his
appointments to the 1971 Panel. Respondents sought an injunction
barring the 1971 Panel from submitting nominees for the Board to
the Mayor and a declaratory judgment that Mayor Tate had violated
the Constitution. They also requested an order directing the Mayor
to appoint a Nominating Panel "fairly representative of the racial
composition of the school community."
Respondents did not challenge the racial composition of the
School Board, which consisted of two Negroes and seven whites when
respondents filed their complaint and which now consists of three
Negroes and six whites. [
Footnote
5] They did not allege that the 1971 Panel discriminated in its
submission of School Board nominees to the Mayor. [
Footnote 6] Such an attack would have been
difficult to
Page 415 U. S. 610
mount in any event. Of the nine nominees submitted to the Mayor
by the 1971 Panel, four were Negroes and five were whites.
[
Footnote 7] Moreover,
respondents did not dispute the validity of the qualifications set
forth in the city charter with regard to the Nominating Panel.
Finally, despite the prayer in their complaint for an order
directing the appointment of a Panel "fairly representative of the
racial composition of the school community . . . ," respondents
disclaimed any effort to impose a racial quota on the Mayor in his
appointments to the Panel. [
Footnote 8] Respondents sought solely to establish that
the Mayor unconstitutionally excluded qualified Negroes from
consideration for membership on the Nominating Panel and to remedy
that alleged defect prospectively as well as retrospectively.
[
Footnote 9]
Following two days of hearings, the District Court dismissed
respondents' complaint.
Educational Equality League v.
Tate, 333 F.
Supp. 1202 (ED Pa.1971). In its findings of fact, the court
noted that approximately 34% of the population of Philadelphia and
approximately 60% of the students attending the city's various
schools were Negroes.
Id. at 1202-1204. The court found
the following racial composition of the Nominating
Page 415 U. S. 611
Panels from 1965 to 1971: the 1965 Panel had 10 whites and three
Negroes; the 1967 Panel had 11 whites and two Negroes; the 1969
Panel had 12 whites and one Negro; and the 1971 Panel had 11 whites
and two Negroes. [
Footnote
10]
Id. at 1204. The court further found that "several
organizations reflecting the views and participation of the black
community" could qualify as organizations whose highest ranking
officers might serve on the Nominating Panel.
Ibid. The
court also found that Deputy Mayor Zecca, the person assigned by
Mayor Tate to assist in selecting qualifying organizations and
institutions, at the time of the hearing was unaware of the
existence of many of these "black organizations."
Ibid.
On the basis of its finding of fact, the District Court
concluded that respondents had failed to prove that the 1971 Panel
was appointed in violation of the Fourteenth Amendment. It held
that differences between the percentage of Negroes in the city's
population (34%) or in the student body of the public school system
(60%) and the percentage of Negroes on the 1971 Nominating Panel
(15%) had no significance.
Id. at 1205-1207. In large
part, this was because the number of positions on the Panel was too
small to provide a reliable sample; the addition or subtraction of
a single Negro meant an 8% change in racial composition.
Id. at 1206. The court also rejected as unreliable data
submitted by respondents in an effort to show that Mayor Tate's
appointments to various positions in the city government other than
the Panel reflected a disproportionately low
Page 415 U. S. 612
percentage of Negroes and a pattern of discrimination.
Ibid. Moreover, the court dismissed as inadmissible
hearsay a 1969 newspaper account of an alleged statement by Mayor
Tate that, at that time, he would appoint no more Negroes to the
School Board.
Ibid.
The Court of Appeals for the Third Circuit reversed.
Educational Equality League v. Tate, 472 F.2d 612 (1973).
[
Footnote 11] Relying on
statistical data about the Panel rejected by the District Court and
going outside that court's findings of fact in other respects, the
Court of Appeals concluded that respondents had established an
unrebutted
prima facie case of unlawful exclusion of
Negroes from consideration for service on the 1971 Panel.
Id. at 618. Moreover, although the Mayor's office had
changed hands while the case was
sub judice, and, although
there was nothing in the record addressed to the appointment
practices of the new Mayor with regard to the Nominating Panel, the
Court of Appeals directed the issuance of extensive injunctive
relief against the new Mayor.
Id. at 619. In particular,
the Court of Appeals ordered the District Court to undertake an
ongoing supervision of the new Mayor's appointments to the 1973
Panel and future Panels.
Ibid. [
Footnote 12]
Page 415 U. S. 613
We granted the Mayor's petition for certiorari. 411 U.S. 964
(1973). We conclude that the Court of Appeals erred in overturning
the District Court's findings and conclusions. We also hold that it
erred in ordering prospective injunctive relief against the new
Mayor in a case devoted exclusively to the personal appointment
policies of his predecessor.
I
The Mayor's principal contention is that judicial review of the
discretionary appointments of an executive officer contravenes
basic separation of powers principles. The Mayor cites cases
concerning discretionary appointments in the Federal Executive
Branch, such as
Marbury v.
Madison, 1 Cranch 137 (1803), and
Myers v.
United States, 272 U. S. 52
(1926). He notes that Pennsylvania, like the Federal Government,
has a tripartite governmental structure, and he argues that the
principles shaping the appropriate scope of judicial review are the
same at the state level as at the federal level.
Neither the District Court nor the Court of Appeals addressed
this argument at length. The District Court expressed its
"reservations" about exerting control over "an elected chief
executive in the exercise of his discretionary appointive power. .
. ," 333 F. Supp. at 1206, but that court based its dismissal of
respondents' complaint on the absence of proof of discrimination.
The Court of Appeals brushed aside the "reservations" of the
District Court, concluding that the Nominating Panel was not
intended to operate as part of the Mayor's staff, and thus that the
appointments were not discretionary.
Page 415 U. S. 614
472 F.2d at 617. And, although nine of the seats on the Panel
are subject to restrictive qualifications embodied in the city
charter, which are not challenged by respondents, the Court of
Appeals proceeded as though this were a case where access to
participation in a governmental or other entity or function is open
to all citizens equally. Drawing by analogy from cases dealing with
such incidents of citizenship as jury service and the right to
nondiscrimination in employment,
e.g., Turner v. Fouche,
396 U. S. 346
(1970), and
Smith v. Yeager, 465 F.2d 272 (CA3),
cert.
denied sub nom. New Jersey v. Smith, 409 U.S. 1076 (1972), the
court declared that
"a
prima facie case is established by a demonstration
that blacks were underrepresented [on the Panel] and that there was
an opportunity for racial discrimination."
472 F.2d at 618.
We disagree with the Court of Appeals' conclusion that the
appointments at issue are not discretionary. The court's view that
the Panel is not a part of the staff of the mayor is not
self-evident, as we understand the functions of the Panel. But, in
any event, this is irrelevant to whether the Mayor's power to
appoint the Panel is discretionary. Executive officers are often
vested with discretionary appointment powers over officials who by
no stretch of the imagination are members of the staff of the
appointing officer. The appointment of judges is a familiar
example. Likewise, the appointments to the Panel are discretionary
by any reasonable measure. With regard to the four seats on the
Panel devoted to the citizenry at large, the city charter holds the
Mayor accountable only at the polls. And, although the charter
narrows the Mayor's range of choice in filling the other nine
seats, it remains true that the final selection of the membership
of the Panel rests with the Mayor, subject always to the oversight
of the voters.
Page 415 U. S. 615
It is also our view that the Court of Appeals did not assign
appropriate weight to the constitutional considerations raised by
the Mayor. To be sure, the Mayor's reliance on federal separation
of powers precedents is, in part, misplaced, because this case,
unlike those authorities, has nothing to do with the tripartite
arrangement of the Federal Constitution. [
Footnote 13] But, to the degree that the principles
cited by the Mayor reflect concern that judicial oversight of
discretionary appointments may interfere with the ability of an
elected official to respond to the mandate of his constituency,
they are in point. There are also delicate issues of federal-state
relationships underlying this case. The federalism questions are
made particularly complex by the interplay of the Equal Protection
Clause of the Fourteenth Amendment, with its special regard for the
status of the rights of minority groups and for the role of the
Federal Government in protecting those rights. The difficulty of
the issues at stake has been alluded to by the Court, without
elaboration, as recently as in
Carter v. Jury Comm'n of Greene
County, 396 U. S. 320
(1970).
Carter concerned a state governor's alleged
discriminatory exclusion of Negroes in his discretionary
appointments to a county jury commission. The Court found on the
record an absence of proof of discrimination, but it nevertheless
recognized "the problems that would be involved in a federal
court's ordering the Governor of a State to exercise his discretion
in a particular way. . . . "
Id. at
396 U. S. 338.
[
Footnote 14]
Page 415 U. S. 616
Were we to conclude that respondents had established racial
discrimination in the selection process for the Panel, we would be
compelled to address the "problems" noted in
Carter,
supra, and raised by the Mayor. We need not go so far,
however, because we find that this case founders on an absence of
proof, even under the approach taken by the Court of Appeals.
II
The Court of Appeals bottomed its conclusion that the Fourteenth
Amendment had been violated on three indicia, only one of which was
based on a finding by the District Court. Whether taken singly or
in combination, these factors provide no adequate basis for the
court's conclusion that respondents had established a
prima
facie case of racial discrimination.
First, the Court of Appeals relied on an alleged statement by
Mayor Tate in 1969 that, in filling the vacancies then open on the
School Board, he would appoint no Negroes in addition to
the two already on it. 472 F.2d at 615-616. Respondents presented
two items as evidence of this statement. During cross-examination
of Deputy Mayor Zecca, counsel for respondents directed Mr. Zecca's
attention to a 1969 newspaper article dealing with the alleged
statement. Deputy Mayor Zecca denied the accuracy of the newspaper
account; [
Footnote 15]
the
Page 415 U. S. 617
District Court ruled that the newspaper account was inadmissible
hearsay. [
Footnote 16] The
Court of Appeals made no mention of this newspaper account. Rather,
although noting that the District Court had made no finding on the
subject, the court focused on the testimony of one of respondents'
witnesses that Mayor Tate had made the 1969 statement. [
Footnote 17] The court apparently
assumed the
Page 415 U. S. 618
truth of the statement, for it declared that the testimony was
made "without contradiction or objection. . . ." [
Footnote 18]
In our view, the Court of Appeals' reliance on the alleged 1969
statement was misplaced. Assuming the admissibility and reliability
of such double hearsay, [
Footnote 19] we are unable to conclude that an ambiguous
statement purportedly made in 1969 with regard to the racial
composition of the then School Board proves anything with regard to
the Mayor's motives two years later in appointing the 1971
Nominating Panel. The Court of Appeals noted that, if the Mayor
had, in 1969, decided to exclude Negro nominees from appointment to
the Board,
"an inference may be drawn that the Mayor in similar manner
excluded blacks from consideration as members
Page 415 U. S. 619
of the 19.71 Panel."
472 F.2d at 616 n. 9. That inference is supposition. It cannot
be viewed as probative of a future intent to discriminate on the
basis of race with regard to a different governmental entity.
Furthermore, it is refuted by the fact that the Mayor later
appointed Negroes to the 1971 Panel and, for that matter, to the
School Board itself.
Second, the Court of Appeals cited the District Court's finding
that Deputy Mayor Zecca had been unaware of many "black-oriented
organizations" that could qualify under the categories of
organizations and institutions set out in the city charter.
Id. at 616. The court thought that, given Mr. Zecca's
important position in the appointment process in 1971, his
ignorance would "support an inference that the selection process
had a discriminatory effect."
Id. at n. 13. This is
another speculative inference. Deputy Mayor Zecca did not make the
appointments to the Panels. That task belonged to Mayor Tate. It is
unlikely that an elected mayor would be ignorant of any viable
city-wide organization or institution, particularly if he had held
office for a number of years. Thus, Deputy Mayor Zecca's
unfamiliarity with certain organizations may not be imputed
automatically to the official holding the appointment power.
Moreover, there has been no showing in this record that Mr. Zecca's
unawareness of organizations or institutions was restricted to what
the Court of Appeals referred to as "black-oriented organizations."
Id. at 616. The Deputy Mayor may well have been equally
uninformed of the existence of many other Philadelphia
organizations and groups.
As a third indicator of the exclusion of Negroes, the Court of
Appeals again went outside the District Court's findings. As noted
earlier, the District Court rejected as unreliable percentage
comparisons of the racial composition
Page 415 U. S. 620
of the Panel and of the population of Philadelphia. 333 F. Supp.
at 1206, 1207. The Court of Appeals thought it unfortunate that
"the parties did not introduce the expert testimony of a
statistician on whether the frequency of black appointments to the
13-member Panel fell outside the range to be expected were race not
a factor. . . ,"
472 F.2d at 618, but nevertheless found the small proportion of
Negroes on the Panel "significant."
Ibid. This led the
court to conclude that "the small proportion of blacks on the Panel
points toward the possibility of discrimination."
Ibid.
Statistical analyses have served and will continue to serve an
important role as one indirect indicator of racial discrimination
in access to service on governmental bodies, particularly where, as
in the case of jury service, the duty to serve falls equally on all
citizens.
E.g., Carter v. Jury Comm'n of Greene County,
396 U. S. 320
(1970);
Hernandez v. Texas, 347 U.
S. 475 (1954);
Avery v. Georgia, 345 U.
S. 559 (1953).
See McDonnell Douglas Corp. v.
Green, 411 U. S. 792,
411 U. S. 805
(1973) (employment discrimination). But the simplistic percentage
comparisons undertaken by the Court of Appeals lack real meaning in
the context of this case. Respondents do not challenge the
qualifications for service on the Panel set out in the charter,
whereby nine of the 13 seats are restricted to the highest ranking
officers of designated categories of city-wide organizations and
institutions. Accordingly, this is not a case in which it can be
assumed that all citizens are fungible for purposes of determining
whether members of a particular class have been unlawfully
excluded. At least with regard to nine seats on the Panel and
assuming,
arguendo, that percentage comparisons are
meaningful in a case involving discretionary appointments, the
relevant universe for comparison purposes consists of the highest
ranking officers of the categories of
Page 415 U. S. 621
organizations and institutions specified in the city charter,
not the population at large. The Court of Appeals overlooked this
distinction. Furthermore, the District Court's concern for the
smallness of the sample presented by the 13-member Panel was also
well founded. The Court of Appeals erred in failing to recognize
the importance of this flaw in straight percentage comparisons.
In sum, the Court of Appeals' finding of racial discrimination
rests on ambiguous testimony as to an alleged statement in 1969 by
then Mayor Tate with regard to the 1969 School Board, not the 1971
Panel; the unawareness of certain organizations on the part of a
city official who did not have final authority over or
responsibility for the challenged appointments; and racial
composition percentage comparisons that we think were correctly
rejected by the District Court as meaningless. In our view, this
type of proof is too fragmentary and speculative to support a
serious charge in a judicial proceeding. [
Footnote 20]
III
The Court of Appeals prefaced its discussion of appropriate
relief by noting that it would be "the district court's function to
determine the precise nature
Page 415 U. S. 622
of the relief to which [respondents] are entitled." 472 F.2d at
618. Nevertheless, the court held, in part, that the District
Court
"should enjoin the present Mayor from discriminating in regard
to the 1973 or future Panels and should require that, before the
1973 Panel is selected, the Mayor or his staff submit to the court
evidence that organizations in the black community . . . have
received proper consideration."
Id. at 619. (Footnote omitted.) Mayor Tate was
succeeded by Mayor Rizzo on January 3, 1972. The Court of Appeals
issued its opinion on January 11, 1973. Accordingly, the injunctive
orders mandated by the court with regard to the 1973 and future
Panels would have run against Mayor Rizzo, not Mayor Tate. As its
sole reason for directing such relief against Mayor Rizzo, the
Court of Appeals noted that Mr. Zecca continued as Deputy Mayor
under the Rizzo administration.
Id. at 619 n. 21. But
petitioner alleges, and respondents do not deny, that, under Mayor
Rizzo's stewardship, Mr. Zecca no longer has any responsibility
with regard to Panel appointments. Moreover, the entire case has
been focused on the appointments made by Mayor Tate. Nothing in the
record speaks to the appointment policies of Mayor Rizzo with
regard to the Panel. Thus, the record does not support the premise
that Mayor Rizzo's appointment record for the Panel will track that
of his predecessor. Where there have been prior patterns of
discrimination by the occupant of a state executive office but an
intervening change in administration, the issuance of prospective
coercive relief against the successor to the office must rest, at a
minimum, on supplemental findings of fact indicating that the new
officer will continue the practices of his predecessor.
E.g.,
Spomer v. Littleton, 414 U. S. 514
(1974). The Court of Appeals did not have the benefit of such
findings at the time it instructed
Page 415 U. S. 623
the District Court to enter injunctive relief against Mayor
Rizzo with regard to future Panels. The Court of Appeals therefore
erred in its decision on remedies, as well as in concluding that
respondents had established a violation of the Fourteenth
Amendment.
IV
We turn, finally, to the dissent's argument that this case
should be remanded to the District Court for resolution of state
law issues under the court's pendent jurisdiction or, in the
alternative, for abstention so that the case may be tried from
scratch in state court. This approach ignores what the parties have
briefed and argued before us, espouses on behalf of respondents
state law claims of barely colorable relevance to the instant suit,
and would produce a result inconsistent with a common sense
application of the pendent jurisdiction and abstention
doctrines.
As the dissent concedes,
post at
415 U. S. 642,
its state law arguments were neither raised in the petition, argued
in the briefs, nor articulated in oral argument before this Court.
To address them would require us to disregard the admonition of
Supreme Court Rule 23.1(c) that "[o]nly the questions set forth in
the petition or fairly comprised therein will be considered by the
court."
See also, e.g., Mazer v. Stein, 347 U.
S. 201,
347 U. S. 206
n. 5 (1954);
National Licorice Co. v. NLRB, 309 U.
S. 350,
309 U. S. 357
n. 2 (1940);
General Talking Pictures Corp. v. Western Electric
Co., 304 U. S. 175,
304 U. S.
177-178 (1938). Moreover, the assertion that pendent
jurisdiction is appropriate and that pendent state claims should be
decided first presumes that the state claims have color and make it
possible for the case to be "decided without reference to questions
arising under the Federal Constitution. . . ."
Siler v.
Louisville & Nashville R. Co.,
Page 415 U. S. 624
213 U. S. 175,
213 U. S. 193
(1909). That is not true here. In their complaint, respondents set
out the following four points of state law and no others: that the
1971 Panel was convened on May 28, whereas the Charter required May
25; that the Mayor appointed the chairman of the Panel, although
the Charter allegedly restricts that appointment responsibility to
the Panel itself; that one of the Mayor's appointees was not the
highest ranking officer of the organization he represented; and
that the Mayor appointed certain city officials to the Panel in
alleged contravention of the Charter. A decision for respondents on
all of these issues would not have approached resolving the case,
nor would it have provided a basis for granting the relief to which
respondents laid claim. These state law claims were wholly
tangential to the principal theme of respondents' lawsuit -- an
alleged violation of the Equal Protection Clause of the Fourteenth
Amendment. It is hardly surprising that respondents have not
pursued these claims at either stage of appellate review. In fact,
respondents scarcely addressed them in the District Court.
At the opening of the evidentiary hearings, the District Court
asked counsel for respondents to describe the basis of the suit.
Counsel responded that "the single issue in the case, as we have
presented it, is whether there has been racial discrimination in
violation of the Fourteenth Amendment in the composition of the
Nominating Panel." Tr., Aug. 25, 1971, p. 4. There could be no
clearer statement that a litigant's case turns on federal, rather
than state, law. And respondents presented their case, as they had
drafted their complaint, essentially as an exposition of federal
law. To ignore all of this and to compel the District Court now to
decide nondispositive state law questions would require a unique
reading of the pendent jurisdiction doctrine.
Page 415 U. S. 625
Despite the language of the complaint, respondents' counsel's
characterization of the suit before the District Court, and the
almost exclusively federal character of the record, the dissent
attributes to respondents an independent state law argument that
the charter requires "a balanced racial composition on the Panel
as a whole. . . ." (Emphasis added.)
Post at
415 U. S. 638.
In our view, this is a misreading of the record. Midway through the
hearing, the District Court asked respondents whether they were
asserting a claim under the language of the charter. Respondents'
counsel replied in a manner that makes clear that he viewed the
charter as merely supportive of the federal law claim and as a part
only of a general "picture" or "image" of racial discrimination,
not as an independent requirement of racial balance on the Panel as
a whole. [
Footnote 21]
Page 415 U. S. 626
A reluctance by respondents to assert an independent claim that
the charter requires racial balance on the whole Panel is not
surprising if one focuses on the language of the charter itself.
The only conceivably pertinent provision is § 12-206(c):
"
In order to represent adequately the entire community,
the four other members of the Educational Nominating Panel shall be
appointed by the Mayor from the citizenry at large."
(Emphasis added.) As should be immediately apparent, the
emphasized phrase, on which the dissent relies and which it
apparently views as a requirement of racial balance,
speaks
only to the four at-large seats. The phrase does not address
the nine seats restricted to the head of designated categories of
city-wide organizations, and thus plainly does not address the
Panel "as a whole." Thus, assuming the language is capable of
carrying the meaning that the dissent would import to it, and
overlooking the fact that respondents did not set it out as an
independent ground in their complaint or elsewhere, the provision
is simply incapable of resolving a lawsuit addressed at all 13
seats on the Panel. As the District Court noted,
"failing to appoint at-large members to adequately represent the
entire community [is] not relevant in determining whether racial
discrimination was involved with the appointments [to the Panel]. .
. ."
333 F. Supp. at 1207. [
Footnote 22]
Page 415 U. S. 627
We also believe that the dissent's view of pendent jurisdiction
as something akin to subject matter jurisdiction that may be raised
sua sponte at any stage and that is capable of aborting
prior federal court proceedings is a misreading of the law. "It has
consistently been recognized that pendent jurisdiction is a
doctrine of discretion, not of plaintiff's right."
Mine Workers
v. Gibbs, 383 U. S. 715,
383 U. S. 726
(1966).
See 6 C. Wright & A. Miller, Federal Practice
and Procedure 813 (1971). To argue that the doctrine requires us to
wipe out three levels of federal court litigation of a federal law
issue on the off chance that a peripheral state law claim might
have merit ignores the Court's recognition that the doctrine's
"justification lies in considerations of judicial economy,
convenience and fairness to litigants. . . ."
Gibbs, supra
at
383 U. S. 726.
[
Footnote 23]
Page 415 U. S. 628
The dissent suggests, in the alternative, that the District
Court be directed to abstain while the parties start this case all
over again in state courts. This proposal comes nearly three years
after the filing of the complaint, and would produce delay
attributable to abstention that the Court in recent years has
sought to minimize.
See, e.g., England v. Medical
Examiners, 375 U. S. 411,
375 U. S.
425-426 (1964) (DOUGLAS, J., concurring). And abstention
would be pointless, since the state issues put forward by the
dissent are plainly insufficient to merit such treatment. Moreover,
the dissent's theme of the "paramount concern of avoiding
constitutional questions, where possible . . ." strikes a
particularly jarring note in a civil rights case in which the
plaintiffs asserted that "the single issue . . . is whether there
has been racial discrimination in violation of the Fourteenth
Amendment. . . ." Although we have no occasion to decide the issue
here, there is substantial authority for the proposition that
abstention is not favored in an equal protection, civil rights case
brought, as was this one, under 42 U.S.C. § 1983 and 28 U.S.C. §
1343. [
Footnote 24]
Page 415 U. S. 629
We are in general accord, of course, with the dissent's view of
the importance of the constitutional decision-avoidance principles
articulated by Mr. Justice Brandeis in
Ashwander v. Tennessee
Valley Authority, 297 U. S. 288,
297 U. S.
345-348 (1936). But those standards are susceptible of
misuse. [
Footnote 25] And we
think that to commence relitigation of this case on an
insubstantial state issue abandoned by the parties would be a
serious abuse of the
Ashwander standards. There simply is
not "present some other ground upon which the case may be disposed
of."
Id. at
297 U. S.
347.
The judgment is reversed.
It is so ordered.
|
415
U.S. 605app|
APPENDIX TO OPINION OF THE COURT
Philadelphia Home Rule Charter
ARTICLE XII
PUBLIC EDUCATION
CHAPTER 1
THE HOME RULE SCHOOL DISTRICT
Section 12-100. The Home Rule School District.
A separate and independent home rule school district is hereby
established and created to be known as "The School District of
Philadelphia."
Section 12-101. The New District to Take Over All Assets and
Assume All Liabilities of the Predecessor School District.
Page 415 U. S. 630
The home rule school district shall
(a) succeed directly the now existing school district for all
purposes, including, but not limited to, receipt of all grants,
gifts, appropriations, subsidies or other payments;
(b) take over from the now existing school district all assets,
property, real and personal, tangible and intangible, all easements
and all evidences of ownership in part or in whole, and all
records, and other evidences pertaining thereto; and
(c) assume all debt and other contractual obligations of the now
existing school district, any long-term debt to be issued, secured
and retired in the manner now provided by law.
CHAPTER 2
THE BOARD OF EDUCATION
Section 12-200. The Board Created; Its Function.
There shall be a Board of Education of the School District of
Philadelphia which shall be charged with the administration,
management and operation of the home rule school district.
Section 12-201. Members of the Board; Method of Selection.
There shall be nine members of the Board of Education who shall
be appointed by the Mayor from lists of names submitted to him by
the Educational Nominating Panel. . . .
Section 12-202. Eligibility for Board Membership.
Members of the Board of Education shall be registered voters of
the City. No person shall be eligible to be appointed . . . to more
than two full six-year terms.
Section 12-203. Terms of Board Members.
The terms of members of the Board of Education shall begin on
the first Monday in December and shall be six
Page 415 U. S. 631
years except that (1) of the first members of the Board
appointed . . . three shall be appointed . . . for terms of two
years, three for terms of four years, and three for terms of six
years. . . .
Section 12-204. Removal of Members of the Board.
Members of the Board of Education may be removed as provided by
law.
Section 12-205. Vacancies on the Board.
A vacancy in the office of member of the Board of Education
shall be filled for the balance of the unexpired term in the same
manner in which the member was selected who died or resigned. If a
member of the Board is removed from office, the resulting vacancy
shall be filled as provided by law.
Section 12-206. Educational Nominating Panel; Method of
Selection.
(a) The Mayor shall appoint an Educational Nominating Panel
consisting of thirteen (13) members. Members of the Panel shall be
registered voters of the City and shall serve for terms of two
years from the dates of their appointment.
(b) Nine members of the Educational Nominating Panel shall be
the highest ranking officers of City-wide organizations or
institutions which are, respectively:
"(1) a labor union council or other organization of unions of
workers and employes organized and operated for the benefit of such
workers and employes,"
"(2) a council, chamber, or other organization established for
the purpose of general improvement and benefit of commerce and
industry,"
"(3) a public school parent-teachers association,"
"(4) a community organization of citizens established for the
purpose of improvement of public education, "
Page 415 U. S. 632
(5) a federation, council, or other organization of nonpartisan
neighborhood or community associations,
(6) a league, association, or other organization established for
the purpose of improvement of human and inter-group relations,
(7) a nonpartisan committee, league, council, or other
organization established for the purpose of improvement of
governmental, political, social, or economic conditions,
(8) a degree-granting institution of higher education whose
principal educational facilities are located within Philadelphia,
and
(9) a council, association, or other organization dedicated to
community planning of health and welfare services or of the
physical resources and environment of the City.
(c) In order to represent adequately the entire community, the
four other members of the Educational Nominating Panel shall be
appointed by the Mayor from the citizenry at large.
(d) In the event no organization as described in one of the
clauses (1) through(9) of subsection (b) exists within the City, or
in the event there is no such organization any one of whose
officers is a registered voter of the City, the Mayor shall appoint
the highest ranking officer who is a registered voter of the City
from another organization or institution which qualifies under
another clause of the subsection.
(e) A vacancy in the office of member of the Educational
Nominating Panel shall be filled for the balance of the unexpired
term in the same manner in which the member was selected who died,
resigned, or was removed.
(f) The Educational Nominating Panel shall elect its own
officers and adopt rules of procedure.
Page 415 U. S. 633
Section 12-20 . The Educational Nominating Panel; Duties and
Procedure.
(a) The Mayor shall appoint and convene the Educational
Nominating Panel (1) not later than May twenty-fifth of every
odd-numbered year, and (2) whenever a vacancy occurs in the
membership of the Board of Education.
(b) The Panel shall within forty (40) days submit to the Mayor
three names of qualified persons for every place on the Board of
Education which is to be filled. If the Mayor wishes an additional
list of names, he shall so notify the Panel within twenty (20)
days. Thereupon the Panel shall within thirty (30) days send to the
Mayor an additional list of three qualified persons for each place
to be filled. The Mayor shall within twenty (20) days make an
appointment. . . .
"
* * * *"
(d) The Educational Nominating Panel shall invite business,
civic, professional, labor, and other organizations, as well as
individuals, situated or resident within the City to submit for
consideration by the Panel the names of persons qualified to serve
as members of the Board of Education.
(e) Nothing herein provided shall preclude the Panel from
recommending and the Mayor from appointing or nominating persons
who have previously served on any board of public education other
than the Board of Education created by these charter
provisions.
[
Footnote 1]
The relevant provisions of Art. XII of the Philadelphia Home
Rule Charter are set forth as an
415
U.S. 605app|>appendix,
infra, p.
415 U. S. 629
et seq.
[
Footnote 2]
Section 12-206(b) of Art. XII of the Philadelphia Home Rule
Charter provides:
"Nine members of the Educational Nominating Panel shall be the
highest ranking officers of City-wide organizations or institutions
which are, respectively:"
"(1) a labor union council or other organization of unions of
workers and employes organized and operated for the benefit of such
workers and employes,"
"(2) a council, chamber, or other organization established for
the purpose of general improvement and benefit of commerce and
industry,"
"(3) a public school parent-teachers association,"
"(4) a community organization of citizens established for the
purpose of improvement of public education,"
"(5) a federation, council, or other organization of nonpartisan
neighborhood or community associations,"
"(6) a league, association, or other organization established
for the purpose of improvement of human and inter-group
relations,"
"(7) a non-partisan committee, league, council, or other
organization established for the purpose of improvement of
governmental, political, social, or economic conditions,"
"(8) a degree-granting institution of higher education whose
principal educational facilities are located within Philadelphia,
and"
"(9) a council, association, or other organization dedicated to
community planning of health and welfare services or of the
physical resources and environment of the City."
[
Footnote 3]
The Mayor must also convene the Nominating Panel whenever a
vacancy occurs on the School Board due to resignation, removal, or
other unexpected event.
[
Footnote 4]
The Educational Equality League is a nonprofit corporation
devoted to safeguarding the educational rights of all Philadelphia
citizens regardless of race. It was founded in 1932 and, presently
has approximately nine hundred members.
[
Footnote 5]
Educational Equality League v. Tate, 333 F.
Supp. 1202, 1204 (ED Pa.1971); Tr. of Oral Arg. 14. In their
complaint, respondents alleged that Mayor Tate had denied Negroes
"proper representation" on the School Board. But respondents have
not pursued this contention at any stage of this suit.
[
Footnote 6]
Counsel for respondents commented at oral argument that
respondents "are not in any way attacking the actions of the
panel." Tr. of Oral Arg. 44.
See id. at 24. This
apparently means only that respondents do not contend that the 1971
Panel, in fact, excluded Negroes from consideration in recommending
School Board nominees to the Mayor. It does not mean that
respondents do not seek to undo what the Panel has done. Indeed,
respondents have sought relief that would invalidate the
nominations made by the Panel on the theory that the Panel was
selected in violation of the Constitution and that its actions,
although not discriminatory, are voidable.
See nn.
9 12 infra.
[
Footnote 7]
Education Equality League v. Tate, supra, at 1204.
[
Footnote 8]
Tr. of Oral Arg. 25.
See Educational Equality League v.
Tate, 472 F.2d 612, 616 (CA3 1973).
[
Footnote 9]
Although respondents' suit is addressed to the Nominating Panel,
the relief they seek would have an impact on the School Board as
well. In order to cure any taint deriving from the allegedly
unlawful selection of the 1971 Panel, respondents take the view
that the federal courts should remove from the Board all persons
nominated by that Panel. Tr. of Oral Arg. 37, 43-44. Given the
racial mix of the present Board, this would require the removal of
Negroes as well as whites.
Id. at 44.
[
Footnote 10]
Mayor Tate's appointments to the 1971 Panel initially consisted
of 12 whites and one Negro. However, after Mayor Tate selected the
president of a particular city-wide organization, but before the
1971 Panel convened, the leadership of the organization changed
hands, and its white president was replaced by a Negro. The Mayor
then reaffirmed his selection of that organization, which produced
the 11-to-2 racial mix of the 1971 Panel.
[
Footnote 11]
The Court of Appeals held that the Nominating Panel is not a
"person" within the meaning of 42 U.S.C. § 1983, and it therefore
affirmed the District Court's dismissal of the complaint as to the
Panel. 472 F.2d at 614, nn. 1 and 4. Respondents do not seek review
of this holding, and we do not address it.
[
Footnote 12]
The Court of Appeals remanded to the District Court the question
of whether those persons appointed to the School Board from among
the nominees submitted by the 1971 Panel should be removed from
office.
Id. at 618 n. 20. In an unsuccessful petition for
rehearing filed with the Court of Appeals, respondents requested
the court to modify its opinion
"and specifically direct the District Court to use appropriate
equitable remedies to assure that all members of the School Board
who were appointed through the unconstitutional processes described
in this case be promptly replaced by persons appointed as a result
of a nominating process which conforms to the requirements of the
Fourteenth Amendment, these equitable remedies to take into account
the necessity of having an operating school board at all
times."
[
Footnote 13]
This is not to say, of course, that the State of Pennsylvania my
not pattern its government after the scheme set forth in the
Federal Constitution or in any other way it sees fit. The
Constitution does not impose on the States any particular plan for
the distribution of governmental powers.
See Sweezy v. New
Hampshire, 354 U. S. 234,
354 U. S. 256
(1957) (Frankfurter, J., concurring).
[
Footnote 14]
In a concurring opinion in
Carter, Mr. .Justice Black
revealed that, for him, these "problems," as the Court put it, were
conclusive.
"In my judgment, the Constitution no more grants this Court the
power to compel a governor to appoint or reject a certain
individual or a member of any particular group than it grants this
Court the power to compel the voters of a State to elect or defeat
a particular person or a member of a particular group."
396 U.S. at
396 U. S. 341.
Mr. Justice Black's views have not, however, been adopted by the
Court.
[
Footnote 15]
The interchange between counsel for respondents and Mr. Zecca
concerning the 1969 statement, App. 91a-93a, was as follows:
"By MR WOLF:"
"Q. Mr. Zecca, we were discussing earlier a statement by Mayor
Tate in 1969 that he would not appoint any additional Negroes to
the School Board, and you said you didn't recall that
statement."
"A. I said I don't think that he made such a statement."
"Q. Well, all right."
"May I show you a very bad copy of a page of the Philadelphia
Inquirer, Saturday, May 3, 1969, and the article says he indicated,
referring to the Mayor, he would not appoint another Negro to the
Board because the Negro community has good representation in the
two Negroes now serving on the Board."
"Do you recall that article?"
"
* * * *"
"THE WITNESS: I don't recall the article specifically, but it
doesn't say he is not going to name another member."
"It said that he indicated that he wouldn't name another member;
and this is, of course, the reporter's version of this, but the
quote said the Negro community has good representation in the two
Negroes now serving on the Board."
"They may have asked him whether he was going to appoint any
more Negroes to the Board and he said the Negro community has good
representation on the Board as it is; just like it has excellent
representation right in this story."
"By MR. WOLF:"
"Q. You don't recall, however, this having happened?"
"A. No."
[
Footnote 16]
333 F. Supp. at 1206.
[
Footnote 17]
Under direct examination by respondents' counsel, the witness
testified:
"At that time [in 1969] the Mayor made a public statement that
he was not going to appoint any more Negroes to the Board because,
in his feeling, they had adequate representation, and that he was
going to appoint someone from the nominees to the Board of
Education."
App. 41a.
[
Footnote 18]
472 F.2d at 616. The testimony was, in fact, contradicted by
Deputy Mayor Zecca while under cross-examination by respondents'
counsel.
See n 15,
supra.
[
Footnote 19]
There is some question in the record whether respondents'
witness' knowledge of the 1969 statement derived from the 1969
newspaper account that the District Court ruled inadmissible
hearsay or from an independent source. At oral argument, counsel
for respondents informed the Court that the witness giving the
testimony had heard the statement on television, although counsel
conceded that this had not been made clear in the record. Tr. of
Oral Arg. 31. Whether the testimony reflected the newspaper account
or a television report, it was nonetheless hearsay. The Court of
Appeals made no effort to determine whether the testimony met any
recognized exception to the general rule that hearsay is
inadmissible.
The dissenting opinion, based in part on this single ambiguous
piece of testimony, argues that this "highly probative evidence"
was not hearsay.
Post at
415 U. S. 644.
It may have been admissible for what it was worth as an exception
to the hearsay rule, but
hearsay it certainly was -- and
its probative value was so dubious that the District Court ignored
it. Mayor Tate was not called as a witness by either side, and
accordingly did not testify. Thus, it is hardly surprising that
"nowhere in this record can one find a denial by Mayor Tate that he
did not say what the testimony indicated."
Post at
415 U. S.
645.
[
Footnote 20]
We share the view expressed in the dissent that facts in a case
like the instant one,
"when seen through the eyes of judges familiar with the context
in which they occurred, may have special significance that is lost
on those with only the printed page before them."
Post at
415 U. S. 644.
That is one reason why we believe that the Court of Appeals, "with
only the printed page before [it] . . . ," erred in reversing the
District Court. The judge most "familiar with the context in which
[the facts] occurred . . ." was obviously the District Judge, since
he heard and viewed the testimony and other evidence presented.
Nothing in our opinion should be seen as detracting from the
salutary principle that great weight should be accorded findings of
fact made by district courts in cases turning on peculiarly local
conditions and circumstances.
E.g., White v. Regester,
412 U. S. 755,
412 U. S.
769-770 (1973).
[
Footnote 21]
The relevant interchange was as follows
"THE COURT. Do I understand you to say that it is your
interpretation of the wording of the charter in connection with the
makeup of the panel that it should be representative of the
community generally? Is that what you are saying?"
"MR. WOLF. The language is 'represent adequately the entire
community,' and what I want to try to make clear in the course of
my presentation is that we are not going around looking for a hook
to hang our case on."
"We expect to present to you a picture, and we think that each
of these items will fit into the picture, and paint an image of
racial discrimination."
"We think that one of the pieces that will be in that picture is
the statutory context, which is that this committee, this panel,
should represent adequately the entire community. We are not
arguing that that means X number of what have you; we are just
saying that that is relevant."
"If it weren't there, maybe there would be a stronger argument
to be made that you should not expect a large number of Blacks
there, but it is supposed to represent adequately the entire
community, and that means something. It doesn't mean anything
exactly, but it means something. It points you in a direction to
suggest that you should find -- "
"THE COURT. And this is one of the sticks in the bundle that I
should weigh."
"MR. WOLF. That's right. You should find some Blacks on there
under the statute."
Tr., Aug. 25, 1971, pp. 75-76.
[
Footnote 22]
The dissent also refers to a statement by the chairman of the
commission that drafted the Panel with regard to a "balanced
cross-section of the entire community. . . ." The statement by the
chairman relied on by the dissent was coupled with the thought that
one of the commission's principal purposes was to preserve the
Mayor's accountability at the polls for his appointments. The
commission apparently believed that the appropriate check on the
Mayor's actions was the court of public opinion. Moreover, it is
instructive to quote the chairman's statement. After noting that
the Panel should serve as a substitute for public election of the
School Board, the chairman said:
"It follows that the panel's composition should be so arranged
in the charter that it can always constitute a balanced
representation or cross-section of the people of the entire
community -- all of the community's ethnic, racial, economic, or
geographic elements and segments."
To convert that statement, as would the dissent, into nothing
more than a mandate for racial balance between Negroes and whites
is to disregard wholly what the chairman actually said.
[
Footnote 23]
Assuming,
arguendo, that there is substance to the
state claims perceived by the dissent, there would still be serious
question about the appropriateness of pendent jurisdiction. The
dissent concedes that "the sufficiency of the evidence to support
[respondents' federal case] is arguable. . . ."
Post at
415 U. S. 644.
The dissent is, therefore, urging avoidance by a district court of
a federal claim in favor of state law matters in a case where the
federal issue is dubious, yet is the only basis for federal
jurisdiction. This amounts to an argument that the state tail
should wag the federal dog,
e.g., H. Hart & H.
Wechsler, The Federal Courts and the Federal System 925 (2d
ed.1973), and we do not view it as an efficacious application of
the pendent jurisdiction doctrine.
Alma Motor Co. v. Timken
Co., 329 U. S. 129
(1946), on which the dissent relies in concluding that this case
should be remanded for resolution of state issues, was a case in
which the alternative ground for decision was a federal statute
over which a district court would have jurisdiction without regard
to the presence of federal constitutional issues. It plainly is not
in point here. In the instant case, the alternative ground
championed by the dissent is not, by itself, capable of conferring
federal jurisdiction.
[
Footnote 24]
See, e.g., McNeese v. Board of Education, 373 U.
S. 668 (1963);
Harrison v. NAACP, 360 U.
S. 167,
360 U. S. 180
(1959) (DOUGLAS, J., joined by Warren, C.J., and BRENNAN, J.,
dissenting); ALI Study of the Division of Jurisdiction Between
State and Federal Courts § 1371(g), commentary at 297 (1969).
[
Footnote 25]
See Gunther, The Subtle Vices of the "Passive Virtues"
-- A Comment on Principle and Expediency in Judicial Review, 64
Col. L Rev. 1, 16-17 (1964).
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE
MARSHALL join, and with whom MR. JUSTICE DOUGLAS joins in Part II,
dissenting.
I
Although the majority describes the "gravamen" of the
respondents' complaint as grounded on the Equal
Page 415 U. S. 634
Protection Clause of the Fourteenth Amendment, respondents
equally contended that the racially discriminatory appointment of
members to the Educational Nominating Panel violated "the express
provisions and intended purpose of the Educational Supplement" to
the Philadelphia Home Rule Charter. [
Footnote 2/1] The action sought injunctive and
declaratory relief under 42 U.S.C. § 1983, and jurisdiction was
invoked under 28 U.S.C. § 1343(3).
The District Court, after trial at which evidence was developed
on both the constitutional and state claims, decided the
constitutional claim adversely to the respondents. As to the state
claim, the court stated:
"Further, plaintiffs would have us construe Section 12-206(c) of
the Educational Supplement to hold that the phrase 'representative
of the community' refers to racial balance. However, the
interpretation of this statute would more properly be decided by
the State courts, and we take no position thereto. [
Footnote 2/2]"
Educational Equality League v. Tate, 333 F.
Supp. 1202, 1206-1207 (ED Pa.1971).
Page 415 U. S. 635
The Court of Appeals reversed on the constitutional ground,
noting that,
"[i]n view of the result reached on plaintiffs' federal claims,
the district court declined to exercise pendent jurisdiction over
plaintiffs' claim that the Mayor had also violated state law --
namely, various provisions of the Educational Supplement -- in
selecting Panel Members."
Educational Equality League v. Tate, 472 F.2d 612, 616
n. 15 (CA3 1973).
Although the court did not directly reach the state claim, it
thought that the legislative history of the Educational Supplement
"serves as the background for the facts of which plaintiffs
complain,"
id. at 615, particularly the evidence that the
chairman of the Educational Home Rule Charter Commission, which
drafted the Educational Supplement, contemplated that the
composition of the Panel would
"constitute a balanced representation or cross-section of the
people of the entire community -- all of the community's ethnic,
racial, economic, or geographic element and segments."
Id. at 614-615.
There is no question in this case that the District Court had
jurisdiction over this 1983 action under § 1343(3), since the equal
protection claim was clearly substantial.
Hagans v. Lavine,
ante, p.
415 U. S. 528. It
is equally clear that, if the pendent claim were a federal
statutory one, the constitutional issue should not be reached if
the statutory claim was dispositive.
Id. at
415 U. S. 543.
The statement of this principle in
Hagans, and the cases
on which it relied,
California Human Resources Dept. v.
Java, 402 U. S. 121,
402 U. S. 124
(1971);
Dandridge v. Williams, 397 U.
S. 471,
397 U. S.
475-476 (1970);
Rosado v. Wyman, 397 U.
S. 397,
397 U. S. 402
(1970);
King v. Smith, 392 U. S. 309
(1968), are ultimately premised on what has come to be known as the
rule of necessity, of avoiding resolution of controversies
Page 415 U. S. 636
on constitutional grounds where possible.
Ashwander v.
TVA, 297 U. S. 288,
297 U. S. 341
(1936) (Brandeis, J., concurring). Mr. Justice Brandeis stated the
rule as follows:
"The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some
other ground upon which the case may be disposed of. . . . Thus, if
a case can be decided on either of two grounds, one involving a
constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter.
Siler v. Louisville & Nashville R. Co., 213 U. S.
175,
213 U. S. 191;
Light v.
United States, 220 U. S. 523,
220 U. S.
538."
Id. at
297 U. S. 347.
In
Siler v. Louisville & Nashville R. Co.,
213 U. S. 175
(1909), a state order regulating rates was attacked as
unconstitutional, under the Fourteenth Amendment, on due process
and equal protection grounds, as well as under Art. IV, § 4. The
complaint also challenged the validity of the order under a state
statute. The Circuit Court had invalidated the state regulation on
equal protection and due process grounds. This Court began by
noting that there was no question of the federal court's
jurisdiction by virtue of the federal questions. The Court,
however, invalidated the regulation on state grounds, declaring
this preferable to an unnecessary determination of federal
constitutional questions:
"Where a case in this court can be decided without reference to
questions arising under the Federal Constitution, that course is
usually pursued, and is not departed from without important
reasons. In this case, we think it much better to decide it with
regard to the question of a local nature, involving the
construction of the state statute and the authority therein given
to the commission to make the
Page 415 U. S. 637
order in question, rather than to unnecessarily decide the
various constitutional questions appearing in the record."
213 U.S. at
213 U. S. 193.
This course was taken despite the fact that the Court was without
benefit of a construction of the statute by the highest state court
of Kentucky.
Id. at
213 U. S. 194.
This method of adjudication "avoids decision of constitutional
questions where possible, and it permits one lawsuit, rather than
two, to resolve the entire controversy." C. Wright, Federal Courts
63 (2d ed.1970).
See H. Hart & H. Wechsler, The
Federal Courts and the Federal System 922 (2d ed.1973).
The policy of directly proceeding to a local law issue to avoid
deciding a constitutional question, ruled upon in
Siler,
and which achieved doctrinal status in
Ashwander, is "well
settled."
Hillsborough v. Cromwell, 326 U.
S. 620,
326 U. S. 629
(1946). Since the District Court and Court of Appeals passed by the
state law claim, and directly proceeded to the federal
constitutional issue, I would vacate the judgment of the Court of
Appeals and remand to the District Court for assessment of the
state law claim. [
Footnote 2/3]
The basic relief sought by respondents was to bar the 1971 Panel
appointed by Mayor Tate from submitting nominees for the Board to
the Mayor, and an order directing the Mayor to appoint a Nominating
Panel "fairly representative of the racial composition of the
school community." This relief would be equally available
Page 415 U. S. 638
as a remedy for violations by the Mayor of the Educational
Supplement.
If the District Court had proceeded to the state law claim, it
might have decided that it was without merit, or even perhaps
frivolous, in which case it would, in any event, have been required
to answer the constitutional question. Perhaps if this Court
believed the state court claim were of a truly insubstantial
nature, the suggestion for a remand might appear not to be worth
the candle, and productive of unnecessary delay. I do not believe
this to be the case, however.
The respondents' view of state law was that the Mayor, here with
the assistance of Deputy Mayor Zecca, was required to compile a
list of all organizations which qualified under the nine categories
set up by the city charter, and from this group to select the chief
executive officer of one of those organizations in each category
with the view of achieving a balanced racial composition on the
Panel as a whole. This view was supported by the fact that the
chairman of the Educational Home Rule Charter Commission, which
drafted the Supplement, stated that the composition of the Panel
should constitute a balanced cross-section of the entire community,
on racial, as well as other grounds. Minutes from the meetings of
the Charter Commission were relied upon to support this reading of
the charter.
On the other hand, petitioner reads the charter quite
differently. Deputy Mayor Zecca testified that the description of
certain categories almost dictated which organization was to have
representation on the Nominating Panel. Category one on the
Nominating Panel required representation of
"a labor union council or other organization of unions of
workers and employes organized and operated for the benefit of such
workers and employes."
Mr. Toohey, the head of the AFL-CIO
Page 415 U. S. 639
in Philadelphia, was appointed to the position. When Deputy
Mayor Zecca was asked whether there was any other organization in
Philadelphia which would fit this general category, he replied,
"I don't believe there is another organization that would fit
that category to the extent that the AFL-CIO Council operates. This
is the broadest possible group."
Tr., Aug. 25, 1971, p. 206. Zecca was then asked about the
second category which provides for "a council, chamber, or other
organization established for the purpose of general improvement and
benefit of commerce and industry." The Mayor had appointed the
Philadelphian who was the chief ranking officer of the Chamber of
Commerce and Industry. When asked why that appointment was made,
Zecca stated:
"Well, the Chamber of Commerce -- I think the wording of the
Charter makes it almost implicit that it is referring to the
Chamber of Commerce, referring to the use of the word 'chamber.' I
think that these restraints, the framers of that Home Rule
Supplement practically did everything but dictate exactly who they
wanted to serve in those nine categories."
Id. at 207.
Respondents and petitioner thus squarely joined issue on the
intent of the charter. [
Footnote
2/4] Respondents thought any
Page 415 U. S. 640
group fitting a given category should be put into a pool for
that category, and then a particular group selected for each
category with a view to achieving certain balances on the Panel as
a whole. Evidently, the city's view was that the most
representative group of the Philadelphia community in each category
should be picked without regard to balancing the Panel as a whole.
The balancing was already achieved through the diversity of types
of organizations to be represented on the Panel. Of course, to the
extent that any predominantly white group was more representative
of the citizens of Philadelphia, as a whole, than any predominantly
black group, this might work to minimize the number of blacks
appointed to the Panel, assuming the chief executive officer of a
group reflects its predominant racial composition. The resolution
of this issue is far from clear, and should have been decided by
the District Court without proceeding immediately to the
constitutional claim.
The majority only comes to grips with the state law claim of
racial discrimination in a footnote, stating:
"The statement by the chairman relied on by the dissent was
coupled with the thought that one of the commission's principal
purposes was to preserve the Mayor's accountability at the polls
for his appointments. The commission apparently believed that the
appropriate check on the Mayor's actions was the court of
public
Page 415 U. S. 641
opinion."
Ante at
415 U. S.
626-627, n. 22. Whether the charter intended to confine
the discretion of the Mayor is a matter of state law not passed
upon by the two federal courts which have reviewed this case. I see
no need for this Court, which is far away from the controversy at
hand, to decide the merits of the state law claim, on the basis of
its own reading of the charter. The state law claim should be left,
in the first instance, to the District Court. [
Footnote 2/5]
As the majority opinion indicates, one of the grounds relied
upon by the Court of Appeals in finding racial discrimination in
the appointment of the Panel, under the Fourteenth Amendment, was
the fact that Zecca was unaware of many black organizations and
institutions set out in the city charter. Wholly aside from whether
the "lack of awareness" might support an inference of racial
discrimination, the Court of Appeals noted that Zecca thought that
only particular organizations could qualify for appointment under
various charter provisions. As I read his testimony, all Zecca
claimed he had to know was that the Chamber of Commerce and the
AFL-CIO were the most representative trade and labor groups in the
city, which automatically dictated appointment of their
representatives to the Panel. I take it that, under his view of the
charter, it was not necessary to proceed further. If respondents'
reading of the charter requirements were to prevail over that of
petitioner's, a violation
Page 415 U. S. 642
of the state law might well give rise to the relief
requested.
Of course, the District Court on remand might decide that it
should leave to the state courts resolution of the state law issue,
and abstain. In such event, the proper course to follow would be to
retain jurisdiction over the constitutional issue pending
resolution of the state claim in another forum. The decision to
abstain is by no means required, and whether that course meets the
test of "special circumstances,"
see Lake Carriers' Assn. v.
MacMullan, 406 U. S. 498,
406 U. S. 509
(1972), is far from certain. I raise this possibility only for the
purpose of stressing that, even if abstention were to be deemed
appropriate, a question on which I indicate no view, the District
Court should still refrain from deciding the constitutional issue.
The paramount concern of avoiding constitutional questions, where
possible, persists. The Court has noted that application of the
abstention doctrine inevitably gives rise to delay and expense,
England v. Medical Examiners, 375 U.
S. 411,
375 U. S. 418
(1964), but the policies underlying the
Ashwander doctrine
should prevail even at this late date in the litigation.
The bearing of the
Ashwander doctrine was not raised by
the parties to this litigation, either in the District Court, the
Court of Appeals, or in this Court. However, this Court clearly has
"the power to notice a
plain error' though it is not assigned
or specified," Brotherhood of Carpenters v. United States,
330 U. S. 395,
330 U. S. 412
(1947), and this holds true whether the error has or has not been
briefed or argued in this Court. Silber v. United States,
370 U. S. 717
(1962).
In
Alma Motor Co. v. Timken Co., 329 U.
S. 129 (1946), the Court of Appeals had before it not
only a constitutional question which it decided, but also a
nonconstitutional question, which alone would have disposed
Page 415 U. S. 643
of the appeal. The Court of Appeals ruled on the constitutional
question, and it appears that at no time did any party urge that
court to rule on the statutory ground. This Court granted
certiorari on the constitutional issue, and heard argument at the
October, 1944, Term on the constitutional question. After the case
had been set down for further argument in the 1945 Term, the United
States, which was an intervenor in the action, pointed out that the
case could be decided on statutory grounds, and moved to vacate the
judgment of the Court of Appeals and to remand the case to it for
determination of the statutory question. The Court adopted the
suggestion of the United States, relying on
Siler and
stating:
"This Court has said repeatedly that it ought not pass on the
constitutionality of an act of Congress unless such adjudication is
unavoidable. This is true even though the question is properly
presented by the record. If two questions are raised, one of
nonconstitutional and the other of constitutional nature, and a
decision of the nonconstitutional question would make unnecessary a
decision of the constitutional question, the former will be
decided."
Id. at
329 U. S. 136.
The presence of the nonconstitutional ground had not been raised
below, or in this Court until after argument, but the Court
observed:
"We agree that much time has been wasted by the earlier failure
of the parties to indicate, or the Circuit Court of Appeals or this
Court to see, the course which should have been followed. This,
however, is no reason to continue now on the wrong course. The
principle of avoiding constitutional questions is one which was
conceived out of considerations of
Page 415 U. S. 644
sound judicial administration. It is a traditional policy of our
courts."
Id. at
329 U. S.
142.
II
Since the majority fails to accept my views on the matter of
reaching the constitutional question, I feel compelled to express
my thoughts on the merits of the claim of racial
discrimination.
On the record in evidence before it, the Court of Appeals found
that the 1971 Nominating Panel was discriminatorily chosen.
Although the sufficiency of the evidence to support that conclusion
is arguable, I would not substitute our own view of the facts and
overturn the Court of Appeals' judgment in this respect. Negroes
constituted 34% of the population, and 60% of the public school
students were Negroes. The purpose of the ordinance establishing
the Nominating Panel was to stimulate and invite participation by
all groups in the community, including Negroes and other
minorities. It is, therefore, especially significant, even from
this distant vantage point, that, despite the evident intent of the
ordinance to have municipal authorities seek out city-wide
associations and interest groups, the city official most
responsible, short of the Mayor, for the composition of the Panel
confessed ignorance of many of the organizations from which
nominations to the Panel might have been made and which might have
put forward meritorious suggestions for School Board membership.
There was also highly probative evidence with respect to the
Mayor's statement that he intended to appoint no more Negroes to
the School Board. These facts, when seen through the eyes of judges
familiar with the context in which they occurred, may have special
significance that is lost on those with only the printed page
before them. Sometimes a word, a gesture,
Page 415 U. S. 645
or an attitude tells a special story to those who are part of
the surrounding milieu. This is one of those situations, and I
would not purport to reassess the facts and overturn the considered
judgment of the Court of Appeals.
The Court complains that the testimony about the Mayor's
statement concerning school membership for Negroes was inadmissible
hearsay, and was thus entitled to no credence.
Ante at
415 U. S. 618
and n.19. But nowhere in this record can one find a denial by Mayor
Tate that he did not say what the testimony indicated. His
declaration that he was not going to appoint any more Negroes to
the School Board was a statement of future intention, and, as such,
was quite plainly admissible in evidence.
"[W]henever the intention is of itself a distinct and material
fact in a chain of circumstances, it may be proved by
contemporaneous oral or written declarations of the party."
"The existence of a particular intention in a certain person at
a certain time being a material fact to be proved, evidence that he
expressed that intention at that time is as direct evidence of the
fact, as his own testimony that he then had that intention would
be."
Mutual Life Insurance Co. v. Hillmon, 145 U.
S. 285,
145 U. S. 295
(1892). As an eminent commentator has observed:
"[I]t is now clear that out-of-court statements which tend to
prove a plan, design, or intention of the declarant are admissible,
subject to the usual limitations as to remoteness in time and
apparent sincerity common to all declarations of mental state, to
prove that the plan, design, or intention of the
Page 415 U. S. 646
declarant was carried out by the declarant."
C. McCormick, Evidence § 295, p. 697 (2d ed.1972).
More importantly, the statement evidencing the Mayor's attitude
toward Negroes and their appointment to the School Board was simply
not hearsay. At the time that the challenged statement was
assertedly made and when it was later related by the witness who
saw the Mayor make it on television, [
Footnote 2/6] Mayor Tate was still in office and a party
to the lawsuit. The statement was an admission on his part, and, as
such, it was not hearsay. This elementary proposition of evidence
law has most recently been recognized by the draftsmen of the
Proposed Rules of Evidence for the United States Courts and
Magistrates. Rule 801(d)(2) expressly acknowledges that an
admission by a party opponent is not hearsay if the statement is
offered against the party and was actually made by him in either
his individual or representative capacity. The Advisory Committee's
Note succinctly outlines the reasons justifying the rule:
"Admissions by a party opponent are excluded from the category
of hearsay on the theory that their admissibility in evidence is
the result of the adversary system, rather than satisfaction of the
conditions of the hearsay rule. Strahorn, A Reconsideration of the
Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937);
Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore § 1048. No
guarantee of trustworthiness is required in the case of an
admission. The freedom which admissions have enjoyed from technical
demands of searching for an assurance of trustworthiness in some
against-interest circumstance, and from the restrictive influences
of the opinion rule and the
Page 415 U. S. 647
rule requiring first-hand knowledge, when taken with the
apparently prevalent satisfaction with the results, calls for
generous treatment of this avenue to admissibility."
The District Court, therefore, was in error in refusing to admit
the Mayor's statement in evidence, and the Court of Appeals was
correct in considering it and giving it the weight it deserved. Its
conclusion was that the statement supported an inference that there
was racial discrimination in the formation of the Nominating Panel.
But this Court now says that the inference is not a strong one, and
is insufficient, along with the other evidence, to sustain the
judgment. It is at precisely this point, however, that I would not
profess superior insight as to the meaning of "local" facts and
override the judgment of the Court of Appeals with respect to the
issue of discrimination.
My disagreement with the Court does not go beyond what I
consider its improvident exercise of a factfinding role in this
particular case. I do not question the long established principle
that this Court has a special responsibility, if not an affirmative
duty, to ensure by independent review of the facts that the
Constitution is not frittered away.
"This Court's duty is not limited to the elaboration of
constitutional principles; we must also in proper cases review the
evidence to make certain that those principles have been
constitutionally applied."
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 285
(1964). Similarly,
"That the question is one of fact does not relieve us of the
duty to determine whether, in truth a federal right has been
denied. . . . If this requires
Page 415 U. S. 648
an examination of evidence, that examination must be made.
Otherwise, review by this Court would fail of its purpose in
safeguarding constitutional rights."
Norris v. Alabama, 294 U. S. 587,
294 U. S.
589-590 (1935). The constitutional obligation of this
Court, therefore, is to scrutinize a record in a case raising
federal constitutional questions with detachment and
circumspection, and always with an eye toward the impact of factual
determinations on the federal right asserted.
But this has never been thought to be a license to rummage
through a record looking for shreds of evidence that will discredit
the judgment under review and suggest a contrary conclusion. Quite
assuredly, reasonable men can, will, and often should differ as to
questions of fact as well as law. Likewise, the records in many
cases coming to this Court contain complicated, interwoven
questions of what have been designated as "law and fact."
See H. Hart & H. Wechsler,
supra at
601-610.
"[I]t is almost impossible[, however,] to conceive how this
Court might continue to function effectively were we to resolve
afresh the underlying factual disputes in all cases containing
constitutional issues."
Time, Inc. v. Pape, 401 U. S. 279,
401 U. S. 294
(1971) (Harlan, J., dissenting).
In this case, two interrelated "factual" questions are
presented: did the Mayor make the statement evidencing his attitude
toward appointing Negroes to the School Board and, if so, is the
inference strong enough to support the judgment of the Court of
Appeals? The District Court apparently assumed the statement was
made, but ruled it inadmissible hearsay that the court should not
consider. The Court of Appeals, however, accepted the making of the
statement and reached the conclusion, based on the statement,
that,
"[i]f the Mayor decided, prior to receiving nominees from the
Panel to exclude
Page 415 U. S. 649
black nominees from consideration, an inference may be drawn
that the Mayor in similar manner excluded blacks from consideration
as members of the 1971 Panel."
472 F.2d at 616 n. 9. The Court apparently disagrees with the
unanimous Court of Appeals' assessment that the statement was ever
made, but surely this is not the type of historical fact that
should command this Court's attention, at least absent some
unusually extraordinary or complicating factors. As for the second
issue -- whether the inference was strong enough to support the
judgment of racial discrimination -- I fail to see how we are
better equipped for this determination than our counterparts on the
Court of Appeals.
The District Court, having failed to consider the case with the
Mayor's statement in evidence, provides no crutch for this Court.
If the District Court's assessment of the presence of racial
discrimination is deemed a critical factor, the proper course would
be to remand the case to the District Court, rather than to reject,
on its own motion, the weight given to that testimony by the Court
of Appeals. In
United States v. Matlock, ante at
415 U. S.
177-178, where we determined that the District Court had
erroneously excluded evidence as hearsay, we determined the
evidence should be admitted, but remanded the case to the District
Court to determine what weight should be given to the evidence. In
the present posture of this case, the Court is in no position to
rely on any view of the relevant and admissible facts other than
its own.
I am also unconvinced that we must reverse every ultimate
factual conclusion of the courts of appeals whenever we disagree
with them or simply because we would not have arrived at the same
conclusion had we been deciding the issue in the first instance.
Where ample evidence supports the court of appeals' judgment and
reasonable
Page 415 U. S. 650
men could make different assessments of the facts, there is room
for deferring to the court of appeals. This is especially true
where its judgment rests on "an intensely local appraisal" of the
facts "in the light of past and present reality. . . ."
White
v. Regester, 412 U. S. 755,
412 U. S.
769-770 (1973).
I must dissent. [
Footnote
2/7]
[
Footnote 2/1]
This was a "short and plain statement of the claim," and was a
general assertion that there had been racially discriminatory
appointments in violation of the Charter. As the Court stated in
Conley v. Gibson, 355 U. S. 41,
355 U. S. 48
(1957),
"[t]he Federal Rules reject the approach that pleading is a game
of skill in which one misstep by counsel may be decisive to the
outcome, and accept the principle that the purpose of pleading is
to facilitate a proper decision on the merits."
A fair reading of the complaint shows that this general claim
was supported by allegations of racial discrimination in the body
of the complaint, and that other violations of the Supplement were
asserted "[i]n addition" to the allegations of racial
discrimination.
[
Footnote 2/2]
As to another subsidiary state law point, the court stated:
"Similarly, while it is clear that the Mayor has not appointed
the chief executive officer of the various organizations selected
for representation on the Panel as required by the Educational
Supplement, such violations have no bearing on the charges of
racial discrimination and should also be decided by the State
courts."
[
Footnote 2/3]
This case raises entirely separate issues than were posed in
Mine Workers v. Gibbs, 383 U. S. 715
(1966), where a state claim was pendent to a federal statutory
claim. Under such circumstances, the
Ashwander doctrine is
inapplicable, since there is no federal constitutional claim, and,
once having decided the federal claim, upon which jurisdiction is
premised, the court must determine whether it is proper to resolve
the pendent state claim as well.
[
Footnote 2/4]
The general claim of discrimination was not abandoned at trial.
As the transcript shows, the statutory claim remained "one of the
pieces" in the "picture" of racial discrimination. After evidence
was taken, respondents continued to press this claim in their
post-trial brief, which stated:
"The evidence presented clearly demonstrates that the entire
scheme of appointments violated the central principle of the Panel
as expressed by the framers of the Supplement. It is clear from the
documents introduced by the defendant that the Panel method of
selecting School Board members was adopted after great
consideration of a number of alternatives. It is equally clear that
the Commission intended that the Panel mechanism function as a
substitute for or counterpart of popular election; it should
therefore constitute a balanced representation of the people of the
entire community."
The statement of counsel at the opening of the trial obviously
did not fully reflect or anticipate the evidence at trial or the
issues tendered and accepted by the District Court. That court,
rather than deciding the state law issues as part of the
constitutional claim, expressly left them for resolution in the
state courts. The fact that a state law claim is presented with a
constitutional argument does not remove the claim as an alternative
ground of decision.
[
Footnote 2/5]
In arguing that the claim was insubstantial, the majority
attacks a straw man. It assumes that the claim could only have been
based on § 12-206(c) of the charter, which relates to the selection
of at-large members of the Panel. But the claim advanced by
respondents was that the framers of the charter intended that the
nine organizational seats on the Panel, selected under § 12-206(b),
when combined with the four at-large selections, represent a racial
cross-section of the community.
[
Footnote 2/6]
Tr. of Oral Arg. 31.
[
Footnote 2/7]
I do agree with the Court that the remedy against the incumbent
Mayor Rizzo was improvident.
See Spomer v. Littleton,
414 U. S. 514
(1974).