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Per Curiam

NATIONAL SOCIALIST PARTY OF AMERICA ET AL. v. VILLAGE OF SKOKIE

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS

No. 76-1786. Decided June 14, 1977

The Illinois Supreme Court denied a stay of the trial court's injunction prohibiting petitioners from marching, walking, or parading in the uniform of the National Socialist Party of America or otherwise displaying the swastika, and from distributing pamphlets or displaying materials inciting or promoting hatred against Jews or persons of any faith, ancestry, or race, and also denied leave for an expedited appeal. Held:

1. The Illinois Supreme Court's order is a final judgment for purposes of this Court's jurisdiction, since it finally determined the merits of petitioners' claim that the injunction will deprive them of First Amendment rights during the period of appellate review.

2. The State must allow a stay where procedural safeguards, including immediate appellate review, are not provided, and the Illinois Supreme Court's order denied this right.

Certiorari granted; reversed and remanded.

PER CURIAM.

On April 29, 1977, the Circuit Court of Cook County entered an injunction against petitioners. The injunction prohibited them from performing any of the following actions within the village of Skokie, Ill.: "[m]arching, walking or parading in the uniform of the National Socialist Party of America; [m]arching, walking or parading or otherwise displaying the swastika on or off their person; [d]istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion." The Illinois Appellate Court denied an application for stay pending appeal. Applicants then filed a petition for a stay in the Illinois Supreme Court, together with a request for

REHNQUIST, J., dissenting

432 U.S.

a direct expedited appeal to that court. The Illinois Supreme Court denied both the stay and leave for an expedited appeal. Applicants then filed an application for a stay with MR. JUSTICE STEVENS, as Circuit Justice, who referred the matter to the Court.

Treating the application as a petition for certiorari from the order of the Illinois Supreme Court, we grant certiorari and reverse the Illinois Supreme Court's denial of a stay. That order is a final judgment for purposes of our jurisdiction, since it involved a right "separable from, and collateral to" the merits, Cohen v. Beneficial Loan Corp., 337 U. S. 541, 546 (1949). See Abney v. United States, 431 U. S. 651 (1977); cf. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476-487 (1975). It finally determined the merits of petitioners' claim that the outstanding injunction will deprive them of rights protected by the First Amendment during the period of appellate review which, in the normal course, may take a year or more to complete. If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland, 380 U. S. 51 (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423 U. S. 1319, 1327 (1975) (BLACKMUN, J., in chambers). Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right.

Reversed and remanded for further proceedings not inconsistent with this opinion.

MR. JUSTICE WHITE would deny the stay.

So ordered.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting.

The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of

43

REHNQUIST, J., dissenting

Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "[f]inal judgmen[t] or decre [e] rendered by the highest court of a State in which a decision could be had," which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U. S. C. § 1257. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476–487 (1975), relied upon by the Court, which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Cox there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants' federal claim.

I do not disagree with the Court that the provisions of the injunction issued by the Circuit Court of Cook County are extremely broad, and I would expect that if the Illinois appellate courts follow cases such as Freedman v. Maryland, 380 U. S. 51 (1965), and Nebraska Press Assn. v. Stuart, 423 U. S. 1319 (1975), relied upon by the Court, the injunction will be at least substantially modified by them. But I do not believe that in the long run respect for the Constitution or for the law is encouraged by actions of this Court which disregard the limitations placed on us by Congress in order to assure that an erroneous injunction issued by a state trial court does not wrongly interfere with the constitutional rights of those enjoined.

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E. I. DU PONT DE NEMOURS & CO. ET AL. v.
COLLINS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

No. 75-1870. Argued March 2, 1977-Decided June 16, 1977*

In approving the merger of a closed-end investment company (Christiana), 98% of whose assets consisted of Du Pont & Co. common stock, into an affiliate company (Du Pont), the Securities and Exchange Commission (SEC) held to have reasonably exercised its discretion under § 17(b) of the Investment Company Act of 1940, as amended, in valuing Christiana essentially on the basis of the market value of Du Pont stock rather than on the lower basis of Christiana's outstanding stock. Since the record before the SEC clearly reveals substantial evidence to support the findings of the SEC and since that agency's conclusions of law were based on a construction of the statute consistent with the legislative intent, the Court of Appeals erred in rejecting the SEC's conclusion and substituting its own judgment for that of the SEC. SEC v. Chenery Corp., 332 U. S. 194, 209. Pp. 52-57.

532 F. 2d 584, reversed.

BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 57. REHNQUIST, J., took no part in the consideration or decision of the cases.

Daniel M. Gribbon argued the cause for petitioners in No. 75-1870. With him on the briefs were Matthew J. Broderick and Richard S. Seltzer. David Ferber argued the cause for petitioner in No. 75-1872. With him on the briefs were former Solicitor General Bork, Acting Solicitor General Friedman, Jacob H. Stillman, and James R. Miller.

Richard J. Collins, Jr., respondent, argued the cause pro se and filed a brief in both cases. Lewis C. Murtaugh, respond

*Together with No. 75-1872, Securities and Exchange Commission v. Collins et al., also on certiorari to the same court.

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ent, argued the cause pro se in both cases. With him on the brief was Timothy J. Murtaugh III.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari1 in these cases to determine whether the Securities and Exchange Commission, in approving the merger of a closed-end investment company into an affiliate company, reasonably exercised its discretion under the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U. S. C. § 80a-1 et seq. The Commission valued the investment company essentially on the basis of the market value of the securities which constituted substantially all of its assets rather than on the lower basis of its own outstanding stock.

The statutory scheme here is relatively straightforward. Section 17 of the Investment Company Act of 1940, 15 U. S. C. § 80a-17, forbids an "affiliated person," as defined in the Act,2 to purchase any securities or other property from a registered investment company unless the Commission finds, inter alia, that the "evidence establishes that . . . the terms of the proposed transaction, including the consideration to be paid or

1429 U. S. 815 (1976).

2 Title 15 U. S. C. § 80a-2 (a) (3) defines an "affiliated person" as follows: "(3) 'Affiliated person' of another person means (A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof."

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