12

DOUGLAS, J., concurring

promote nuclear energy was also charged with the responsibility of protecting the public against its abuse. But a promoter is naturally shortsighted when it comes to the adverse effects of his project on the community. With the establishment of the Nuclear Regulatory Commission, Congress undertook to rectify this weakness in the control system by separating the promotion function from the function of safeguarding the public.1 But the power to change the rules after the contest has been concluded would once more put the promotion of nuclear energy ahead of the public's safety.

Eminent scientists have been steadfast in opposing the growth of nuclear power plants in this Nation. The number who think nuclear power should be abandoned has been growing. The future of nuclear power in this

2

1 The separation of promotional and regulatory functions was accomplished under the Energy Reorganization Act of 1974, 88 Stat. 1233, 42 U. S. C. § 5801 et seq. (1970 ed., Supp. IV). The legislation transferred the research and development functions of the AEC to the new Energy Research and Development Administration. § 5814 (c). The AEC's regulatory functions became the responsibility of the Nuclear Regulatory Commission. § 5841 (f). Also transferred to this new Commission were the responsibilities of the Atomic Safety and Licensing Board and the Atomic Safety and Licensing Appeal Board. § 5841 (g).

The legislative history of the Act indicates that this division of functions was "a response to growing criticism that there is a basic conflict between the AEC's regulation of the nuclear power industry and its development and promotion of new technology for the industry." S. Rep. No. 93-980, p. 2 (1974). "The [Nuclear Regulatory Commission] will have solely regulatory responsibilities, in keeping with a basic purpose of this act to separate the regulatory functions of the Atomic Energy Commission from its developmental and promotional functions, which are transferred to [the Energy Research and Development Administration]." Id., at 19.

2 J. Gofman & A. Tamplin, Poisoned Power: The Case Against Nuclear Power Plants (1971); see Ford & Kendall, What Price

DOUGLAS, J., concurring

423 U.S.

country is not a policy matter for courts to decide, but those who oppose the promotion of nuclear power should have at least a chance to know what the issues are when a case is set down for hearing and adjudication, and to argue meaningfully about those issues. If the rules can be changed by the Commission at any time even after the hearing is over-the protection afforded by the opposition of scientific and environmental groups is greatly weakened. Ad hoc rulemaking in those areas touching the public safety is to be looked upon with disfavor.

Nuclear Power?, 10 Trial 11 (1974); Tamplin, Reacting to Reactors, 10 Trial 15 (1974); Hearings on AEC Licensing Procedure and Related Legislation before the Subcommittee on Legislation of the Joint Committee on Atomic Energy, 92d Cong., 1st Sess., pt. 1, pp. 294-302 (1971).

Per Curiam

ROSE, WARDEN v. HODGES ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 75-139. Decided November 11, 1975

Respondents were convicted of murder and sentenced to death. The Tennessee Court of Criminal Appeals affirmed the convictions, but reversed and remanded to the trial court on the punishment issue. Shortly thereafter the Governor commuted the death sentences to 99 years' imprisonment, and the State immediately petitioned for a rehearing in the Court of Criminal Appeals, which sustained the commutations and held its remand "for naught," thus affirming the convictions and sentences, as modified. After the State Supreme Court denied certiorari, respondents sought habeas corpus in the Federal District Court, claiming, inter alia, that their Fourteenth Amendment rights were violated by the illegal commutations, but the District Court dismissed on this issue for failure to exhaust state remedies. On respondents' appeal the Court of Appeals held that since the death sentences had been vacated at the time of the Governor's order, there were no death sentences to commute and hence the commutations were invalid. Held:

1. Whether or not respondents' sentences were subject to commutation, and the extent of the Governor's authority under the circumstances, are questions of Tennessee law which the State Criminal Appeals Court resolved in favor of the Governor's action, and it was not a federal habeas court's province to re-examine these questions.

2. Respondents' Fourteenth and Sixth Amendment rights to jury trial were not infringed by the state proceedings. After such commutations of sentences defendants are not entitled to have their sentences redetermined by a jury, the Federal Constitution affording no impediment to a State's choice to allow the Governor to reduce a death penalty to a term of years without resort to further judicial proceedings.

Certiorari granted; 519 F. 2d 1402, reversed.

PER CURIAM.

Respondents Hodges and Lewis were convicted of committing murder in the perpetration of a rape in Memphis,

On

Tenn., and sentenced to death by electrocution. July 31, 1972, the Tennessee Court of Criminal Appeals affirmed the judgments of conviction but reversed and remanded the record to the trial court on the issue of punishment, declaring that "[t]he Supreme Court of the United States has decreed that the death sentence is contrary to the Eighth Amendment . . . .” Hodges v. State, 491 S. W. 2d 624, 628 (1972).

On August 7, 1972, the Governor of Tennessee commuted respondents' death sentences to 99 years' imprisonment. On August 8, 1972, the State (represented by petitioner here) filed a timely petition for rehearing in the Court of Criminal Appeals pursuant to Tenn. Code Ann. § 16-451 (Supp. 1974), which provides that such a petition must be filed within 15 days of the entry of the judgment.

The Court of Criminal Appeals then found the commutations by the Governor to be "valid and a proper exercise of executive authority," citing Bowen v. State, 488 S. W. 2d 373 (Tenn. 1972), and held its remand "for naught," thus affirming the convictions and the sentences, as modified, in full, 491 S. W. 2d, at 629. On March 5, 1973, the Supreme Court of Tennessee denied certiorari.

Respondents Hodges and Lewis then petitioned for habeas corpus in the Federal District Court asserting, inter alia, that their Fourteenth Amendment rights were violated by the illegal commutation of their sentences. The case was transferred to the Federal District Court for the Western District of Tennessee, which dismissed as to this issue for failure to exhaust state remedies. Respondents appealed to the United States Court of Appeals for the Sixth Circuit.

In a brief order, that court held that since the death sentences had been vacated at the time of the Governor's

commutation order, "there were . . . no viable death sentences to commute" and therefore declared the commutations invalid.1

Upon reconsideration, the court noted that the judgment of the Court of Criminal Appeals vacating the death penalties had been timely modified by that court to comply with the commutation order. However, it did not alter its earlier decision, except to note that respondents had exhausted their state remedies as to this point.2

A necessary predicate for the granting of federal habeas relief to respondents is a determination by the federal court that their custody violates the Constitution, laws, or treaties of the United States, 28 U. S. C. § 2241; Townsend v. Sain, 372 U. S. 293, 312 (1963). The one sentence in the opinion of the Court of Appeals dealing with the invalidity of the Governor's commutations contains no reference to any provision of the Constitution, laws, or treaties of the United States or to any decision of this Court or any other court. Whether or not the sentences imposed upon respondents were sub

3

1 This order would have returned respondents to the trial court for resentencing to between 20 years and life as a jury might determine. Tenn. Code Ann. § 39-2405 (1956).

2 The dissent would have us probe beneath the surface of the opinions below in search of a logical foundation. In cases where the holding of the court below is unclear, such a technique may be required. Here, however, that court clearly "hold [s] the purported commutation . . . invalid." In its second opinion it reversed the District Court on the exhaustion question and otherwise specifically reaffirmed the earlier order. We are forced to take the Court of Appeals at its word.

3 Two other panels of the same court have correctly recognized, in cases virtually identical to this one, that no federal constitutional question was presented by such a commutation. Smith v. Rose, No. 74-1753 (Nov. 15, 1974); Bowen v. Rose, No. 74-1087 (Mar. 19, 1974).