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BRENNAN, J., dissenting

456 U. S.

ther proceedings.* I adhere to my view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires that except in extremely limited circumstances not present here, "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction" be prosecuted in one proceeding. Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (BRENNAN, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (BRENNAN, J., dissenting); Cousins v. Maryland, 429 U. S. 1027 (BRENNAN, J., dissenting); Dempsey v. United States, 423 U. S. 1079 (1976) (BRENNAN, J., dissenting); Susi v. Flowers, 423 U. S. 1006 (1975) (BRENNAN, J., dissenting); Vardas v. Texas, 423 U. S. 904 (1975) (BRENNAN, J., dissenting); Stewart v. Iowa, 423 U. S. 902 (1975) (BRENNAN, J., dissenting); Waugh v. Gray, 422 U. S. 1027 (1975) (BRENNAN, J., dissenting); Wells v. Missouri, 419 U. S. 1075 (1974) (BRENNAN, J., dissenting); Moton v. Swenson, 417 U. S. 957 (1974) (BRENNAN, J., dissenting); Tijerina v. New Mexico, 417 U. S. 956 (1974) (BRENNAN, J., dissenting); Ciuzio v. United States, 416 U. S. 995 (1974) (BRENNAN, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (concurring statement); Waller v. Florida, 397 U. S. 387, 395 (1970) (BRENNAN, J., concurring). See also People v. White, 390 Mich. 245, 212 N. W. 2d 222 (1973); State v. Brown, 262 Ore. 442, 497 P. 2d 1191 (1972); Commonwealth v. Campana, 452 Pa. 233, 304 A. 2d 432, vacated and remanded, 414 U. S. 808 (1973), adhered to on remand, 455 Pa. 622, 314 A. 2d 854 (1974); State v. Gregory, 66 N. J. 510, 333 A. 2d 257 (1975).

*Because the Court of Appeals held that "the double jeopardy clause is not applicable in this case," it declined to consider petitioner's "contention that by pleading guilty he did not waive his right to claim dismissal by reason of double jeopardy." App. to Pet. for Cert. A-3. The case therefore should be remanded to permit the Court of Appeals to consider this contention.

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No. 81-6323. GAINES v. ILLINOIS. Sup. Ct. Ill. Certiorari denied. Reported below: 88 Ill. 2d 342, 430 N. E. 2d 1046.

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.

Rehearing Denied

No. 80-6701.

Ross v. REED ET AL., ante, p. 921;

No. 81-1369. SCHWANECKE ET AL. v. HARRIS COUNTY HOSPITAL DISTRICT, 455 U. S. 1019;

No. 81-6224. GODFREY v. GEORIGA, ante, p. 919; No. 81-6278. HARTFORD V. ARIZONA, ante, p. 933; No. 81-6282. HEJL v. TEXAS ET AL., ante, p. 933; and No. 81-6297. MCCOLPIN v. EIKELBLOOM ET AL., ante, p. 947. Petitions for rehearing denied.

No. 80-1430. ENGLE, CORRECTIONAL SUPERINTENDENT v. ISAAC; PERINI, CORRECTIONAL SUPERINTENDENT v. BELL; and ENGLE, CORRECTIONAL SUPERINTENDENT v. HUGHES, ante, p. 107. Petitions of Howard Hughes and Lincoln Isaac for rehearing denied.

No. 80-1595. UNITED STATES v. FRADY, ante, p. 152. Petition for rehearing denied. THE CHIEF JUSTICE and JUSTICE MARSHALL took no part in the consideration or decision of this petition.

MAY 26, 1982

Dismissal Under Rule 58

No. 81-1864. COMMUNITY COMMUNICATIONS CO., INC. v. CITY OF BOULDER, COLORADO, ET AL. C. A. 10th Cir. Certiorari dismissed under this Court's Rule 53. Reported below: 660 F. 2d 1370.

456 U. S.

Affirmed on Appeal

No. 81-837.

JUNE 1, 1982

CITY OF INDIANOLA, MISSISSIPPI, ET AL. V.

DOTSON ET AL. Affirmed on appeal from D. C. N. D. Miss.

Reported below:

No. 81-1856.

521 F. Supp. 934.

SUMTER COUNTY SCHOOL DISTRICT ET AL.

v. EDGE ET AL. Affirmed on appeal from D. C. M. D. Ga. Reported below: 541 F. Supp. 55.

Appeals Dismissed

No. 81-1529. BILOFSKY ET AL. v. DEUKMEJIAN, ATTORNEY GENERAL OF CALIFORNIA, ET AL. Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question. JUSTICE BRENNAN and JUSTICE WHITE would note probable jurisdiction and set case for oral argument. Reported below: 124 Cal. App. 3d 825, 177 Cal. Rptr. 621.

No. 81-1829. KRAFT, INC. v. FLORIDA DEPARTMENT OF CITRUS. Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question. Reported below: 406 So. 2d 1079.

No. 81-1862. WILLIAMS ET AL. v. SMITH ET AL. Appeal from Ct. App. Ohio, Wood County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Certiorari Granted-Vacated and Remanded

No. 81-656.

CONSOLIDATED FOODS CORP. v. UNGER. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kremer v. Chemical Construction Corp., ante, p. 461. Reported below: 657 F. 2d 909.

JUSTICE BLACKMUN, concurring.

Respondent Trudy Unger filed charges with the Illinois Fair Employment Practices Commission (FEPC) alleging

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BLACKMUN, J., concurring

that she had been a victim of sex discrimination in employment. The FEPC ruled against her, but on judicial review the state trial court found that the FEPC's decision was against the manifest weight of the evidence. The Appellate Court of Illinois reversed, concluding that the FEPC's order was not arbitrary, capricious, or an abuse of discretion. Unger v. Sirena Division of Consolidated Foods Corp., 60 Ill. App. 3d 840, 845, 377 N. E. 2d 266, 270-271 (1978). The Illinois Supreme Court denied respondent's petition for leave to appeal.

During the pendency of the state proceedings, respondent filed this Title VII suit in the United States District Court for the Northern District of Illinois. Sometime after the Illinois Appellate Court ruled against respondent, the District Court found that she had in fact been a victim of sex discrimination. The United States Court of Appeals for the Seventh Circuit affirmed on this issue. 657 F. 2d 909 (1981).

Following its recent decision in Kremer v. Chemical Construction Corp., ante, p. 461, the Court must grant, vacate, and remand the case for further consideration. But since the Illinois court professed to apply a deferential standard of review, it is not clear that Kremer governs this case. See ante, at 480-481, n. 21; ante, at 492–493, n. 8 (BLACKMUN, J., dissenting). In addition, on remand respondent will be free to argue that Kremer should not apply retroactively. Chevron Oil Co. v. Huson, 404 U. S. 97 (1971).

See

If the Court of Appeals concludes that Kremer controls this case, it will be forced to order the dismissal of respondent's complaint as barred by the Illinois Appellate Court's affirmance of the FEPC's decision. Only one court, the District Court, has given respondent a full de novo hearing, and that court determined that respondent had been discriminated against because of her sex. Yet application of this Court's Kremer decision denies her any relief under Title VII, simply because she took the reasonable step of seeking correction of the FEPC's decision in the state courts. As I explained in my Kremer dissent, ante, p. 486, I cannot accept that this re

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sult is consistent with the congressional purpose underlying Title VII-that the fight against employment discrimination be a national policy of the highest priority. Surely all future discrimination victims in respondent's situation should be very careful to avoid the state courts entirely so that those victims will not risk losing the relief that Congress intended Title VII to afford them.

Miscellaneous Orders

No.

HYDABURG COOPERATIVE ASSN. ET AL. v. UNITED STATES. Ct. Cl. Motion of petitioners for leave to proceed in forma pauperis granted.

No. A-968. ERNEST v. COHEN, UNITED STATES ATTORNEY FOR THE DISTRICT OF MAINE, ET AL. Application for injunction and/or writ of habeas corpus, addressed to JUSTICE O'CONNOR and referred to the Court, denied.

No. A-988 (81-5848). GILBERT ET AL. v. SOUTH CAROLINA, ante, p. 984. Application to suspend the effect of the order denying certiorari, presented to THE CHIEF JUSTICE, and by him referred to the Court, denied. JUSTICE BRENNAN and JUSTICE MARSHALL would grant the application.

No. D-263. IN RE DISBARMENT OF KITCHEN. Disbarment entered. [For earlier order herein, see ante, p. 903.]

No. D-274. IN RE DISBARMENT OF KLEINDIENST. It is ordered that Richard G. Kleindienst, of Tucson, Ariz., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. JUSTICE REHNQUIST and JUSTICE O'CONNOR took no part in the consideration or decision of this order.

No. 80, Orig. COLORADO v. NEW MEXICO ET AL. Motion of Kaiser Steel Corp. et al. for leave to file a brief as amici curiae granted. Exceptions of New Mexico to the Report of the Special Master are set for oral argument in due course. [For earlier order herein, see, e. g., 455 U. S. 932.]

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