1

STEVENS, J., dissenting

ancing of the relative hardships of the parties. When a denial of a stay merely subjects the applicant to a continuing harm pending our decision on a subsequently filed certiorari petition, it is appropriate to deny the application unless the applicant demonstrates a likelihood that his petition will be granted. If it transpires that our tentative assessment of his case was incorrect, that error can be corrected by granting the subsequently filed certiorari petition, though naturally nothing can eliminate the interim harm the applicant suffered. In the instant case, however, a decision on the application is a final decision on the certiorari question—a decision to deny the stay renders a petition moot. The impact of our decision is therefore in no sense tentative, but our assessment of the case can only be a tentative one because it is based on probability rather than actuality. Accordingly, a preliminary negative evaluation of the certiorari question should not be the end of our analysis; we should also balance the relative hardships on the parties. I would strike that balance in favor of any applicant raising a nonfrivolous challenge to his capital conviction in his first federal habeas proceeding. In such a case, the importance of fully informed consideration of the certiorari question predominates over the interests of the State in expeditious execution of its judgment.

In one sense, the practical question that is raised by this stay application is whether the Court should give habeas petitioners on death row the same time to prepare and file certiorari petitions that other litigants receive. Unless the claims are frivolous, I believe that the overriding interest in the evenhanded administration of justice would be served by according an individual raising his first federal habeas challenge to his capital conviction the same opportunity to seek review in this Court as is accorded to other individuals. The practice adopted by the majority effectively confers upon state authorities the power to dictate the period in which these federal habeas petitioners may seek review in

STEVENS, J., dissenting

464 U. S.

this Court by scheduling an execution prior to the expiration of the period for filing a certiorari petition. Shortening the period allowed for filing a petition on such an ad hoc basis injects uncertainty and disparity into the review procedure, adds to the burdens of counsel, distorts the deliberative process within this Court, and increases the risk of error. Procedural shortcuts are always dangerous.* Greater-surely not lesser-care should be taken to avoid the risk of error when its consequences are irreversible. I respectfully dissent.

*“In my opinion the preservation of order in our communities will be best ensured by adherence to established and respected procedures. Resort to procedural expediency may facilitate an occasional conviction, but it may also make martyrs of common criminals." Groppi v. Leslie, 436 F. 2d 331, 336 (CA7 1971) (en banc) (Stevens, J., dissenting).

Syllabus

ALOHA AIRLINES, INC. v. DIRECTOR OF TAXATION OF HAWAII

APPEAL FROM THE SUPREME COURT OF HAWAII

No. 82-585. Argued October 4, 1983-Decided November 1, 1983* A Hawaii statute imposes a tax on the annual gross income of airlines operating within the State, and declares that such tax is a means of taxing an airline's personal property. Section 7(a) of the Airport Development Acceleration Act of 1973 (ADAA) prohibits a State from levying a tax, "directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom," but provides that property taxes are not included in this prohibition. Appellant airlines each brought an action for refund of taxes assessed under the Hawaii statute, claiming that the statute was pre-empted by § 7(a). The Hawaii Tax Appeal Court rejected this pre-emption argument, and the Hawaii Supreme Court affirmed.

Held: Section 7(a) pre-empts the Hawaii statute. Pp. 11-15.

(a) When a federal statute unambiguously forbids a State to impose a particular kind of tax on an industry affecting interstate commerce, as § 7(a) does here by its plain language, courts need not look beyond the federal statute's plain language to determine whether a state statute that imposes such a tax is pre-empted. P. 12.

(b) Moreover, nothing in the ADAA's legislative history suggests that Congress intended to limit § 7(a)'s pre-emptive effect to taxes on airline passengers or to save gross receipts taxes such as the one Hawaii imposes. Although § 7(a) was enacted to deal primarily with local head taxes on airline passengers, the legislative history contains many references to the fact that § 7(a) pre-empts state taxes on gross receipts of airlines. Pp. 12-13.

(c) The fact that the Hawaii tax is styled as a property tax measured by gross receipts rather than as a straightforward gross receipts tax does not entitle the tax to escape pre-emption under § 7(a)'s property tax exemption. Such styling of the tax does not mask the fact that the purpose and effect of the tax are to impose a levy upon the gross receipts

*Together with No. 82-586, Hawaiian Airlines, Inc. v. Director of Taxation of Hawaii, also on appeal from the same court.

of airlines, thus making it at least an "indirect" tax on such receipts. Pp. 13-14.

65 Haw. 1, 647 P. 2d 263, reversed and remanded.

MARSHALL, J., delivered the opinion for a unanimous Court.

Richard L. Griffith argued the cause for appellants in both cases. With him on the briefs were Michael A. Shea, Richard R. Clifton, Hugh Shearer, and H. Mitchell D'Olier.

William D. Dexter argued the cause for appellee. With him on the brief was Kevin T. Wakayama.†

JUSTICE MARSHALL delivered the opinion of the Court. These appeals present the question whether 49 U. S. C. § 1513(a) pre-empts a Hawaii statute that imposes a tax on the gross income of airlines operating within the State. We conclude that the Hawaii tax is pre-empted.

I

In 1970, Congress committed the Federal Government to assisting States and localities in expanding and improving the Nation's air transportation system. See Airport and Airway Development Act of 1970, Pub. L. 91-258, 84 Stat. 219. In the same session, Congress established the Airport and Airway Trust Fund to funnel federal resources to local airport expansion and improvement projects. See Airport and Air

+ Briefs of amici curiae urging affirmance were filed for the State of Alaska et al. by Kenneth O. Eikenberry, Attorney General of Washington, and Jeffrey D. Goltz, Assistant Attorney General, Norman C. Gorsuch, Attorney General of Alaska, and Diane T. Colvin, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Michael C. Turpen, Attorney General of Oklahoma, Chauncey H. Browning, Attorney General of West Virginia, and Jack C. McClung, Deputy Attorney General; and for the Multistate Tax Commission et al. by Eugene F. Corrigan.

Briefs of amici curiae were filed for the State of New York by Robert Abrams, Attorney General, Peter H. Schiff, and Francis V. Dow, Assistant Attorney General; and for the Air Transport Association of America by Andrew C. Hartzell, Jr.

way Revenue Act of 1970, Pub. L. 91-258, § 208, 84 Stat. 250. As originally devised, the Trust Fund received its revenues from several federal aviation taxes, including an 8% tax on domestic airline tickets, a $3 head tax on international flights out of the United States, and a 5% tax on air freight. See §§ 203, 204, 84 Stat. 238, 240 (codified, as amended, at 26 U. S. C. §§ 4261, 4271 (1976 ed. and Supp. V)). See generally Massachusetts v. United States, 435 U. S. 444 (1978).

Once the Airport and Airway Development Act was passed and the Trust Fund established, the question arose whether States and municipalities were still free to impose additional taxes on airlines and air travelers. In EvansvilleVanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972), this Court ruled that neither the Commerce Clause nor the Airport and Airway Development Act precluded state or local authorities from assessing head taxes on passengers boarding flights at state or local airports. In particular the Court noted: "No federal statute or specific congressional action or declaration evidences a congressional purpose to deny or pre-empt state and local power to levy charges designed to help defray the costs of airport construction and maintenance." Id., at 721.

Following the Evansville-Vanderburgh Airport decision, Committees in both Houses of Congress held hearings on local taxation of air transportation. Both Committees concluded that the proliferation of local taxes burdened interstate air transportation, and, when coupled with the federal Trust Fund levies, imposed double taxation on air travelers.2 To deal with these problems, Congress passed § 7(a) of the

'See Hearings on S. 2397 et al. before the Subcommittee on Aviation of the Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (1972); Hearings on H. R. 2337 et al. before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 92d Cong., 2d Sess. (1972).

2 See S. Rep. No. 93-12, pp. 17, 20-21 (1973); H. R. Rep. No. 93–157, pp. 4-5 (1973).