STEWART, J., dissenting 426 U.S. discharge a striking teacher is a policy matter entrusted to the discretion of the local school board, whereas the respondents contend that a striking teacher cannot be discharged unless that sanction is reasonable in view of the circumstances culminating in the strike. The Court acknowledges, as it must, that it is "bound to accept the interpretation of Wisconsin law by the highest court of the State." Ante, at 488. Yet it then proceeds to reverse that court by assuming, as the petitioners urge, that under Wisconsin law the determination to discharge the striking teachers only "involved the [Board's] exercise of its discretion as to what should be done to carry out the duties the law placed on the Board." Ibid. It dismisses the respondents' version of Wisconsin law in a footnote. Ante, at 490 n. 3. But the fact is that the Wisconsin Supreme Court has not clearly delineated the state-law criterion that governs the discharge of striking teachers, and this Court is wholly without power to resolve that issue of state law. I would therefore remand this case to the Wisconsin Supreme Court for it to determine whether, on the one hand, the School Board is charged with considering the reasonableness of the strike in light of its own actions, or is, on the other, wholly free, as the Court today assumes, to exercise its discretion in deciding whether to discharge the teachers. Under the petitioners' view of the Wisconsin law, the discharge determination is purely a policy judgment involving an assessment of the best interest of the school system. Since that judgment does not require the Board to assess its own conduct during the negotiations, and since there is no indication that the Board members have a financial or personal interest in its outcome, the only basis for a claim of partiality rests on the Board's knowledge of the events leading to the strike acquired through its participation in the negotiation process. As 482 STEWART, J., dissenting the Court notes, however, "[m]ere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not . . . disqualify a decisionmaker." Ante, at 493. But a distinctly different constitutional claim is presented if, as the respondents contend, the School Board members must evaluate their own conduct in determining whether dismissal is a reasonable sanction to impose on the striking teachers. Last Term in Withrow v. Larkin, supra, the Court noted that "[a]llowing a decisionmaker to review and evaluate his own prior decisions raises problems that are not present" where the bias issue rests exclusively on familiarity with the facts of a case. 421 U. S., at 58 n. 25. Apart from considerations of financial interest or personal hostility, the Court has found that officials "directly involved in making recommendations cannot always have complete objectivity in evaluating them." Morrissey v. Brewer, 408 U. S. 471, 486. See Goldberg v. Kelly, 397 U. S. 254. "[U]nder a realistic appraisal of psychological tendencies and human weakness," weakness," Withrow v. Larkin, supra, at 47, I believe that there is a constitutionally unacceptable danger of bias where school board members are required to assess the reasonableness of their own actions during heated contract negotiations that have culminated in a teachers' strike. If, therefore, the respondents' interpretation of the state law is correct, then I would agree with the Wisconsin Supreme Court that "the board was not an impartial decision maker in a constitutional sense and that the [teachers] were denied due process of law." 66 Wis. 2d 469, 494, 225 N. W. 2d 658, 671. For the reasons stated, I would vacate the judgment before us and remand this case to the Supreme Court of Wisconsin. UNITED STATES ET AL. v. CHESAPEAKE & OHIO RAILWAY CO. ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA No. 75-420. Argued April 26-27, 1976-Decided June 17, 1976 In April 1974, virtually all the Nation's railroads, including appellees, the Chessie System, filed with the Interstate Commerce Commission (ICC) a joint petition for a general revenue increase, stating as a reason therefor that "billions of dollars are needed immediately and in the coming decade for maintenance and improvement of the Nation's rail transportation plant." Though the ICC on June 3, 1974, suspended the operation of the new schedules, it authorized the railroads to file new tariffs subject to conditions that would assure that the additional revenue would be expended for "delayed capital improvements" and "deferred maintenance" of plant and equipment, defining those terms in a subsequent order, which also permitted up to 3% of the revenue derived from the increase to be applied to higher nonfuel material and supply costs. Thereafter, appellees, alleging that they had no "deferred maintenance" or "delayed capital improvements" that would qualify under the ICC's definitions; that they were precluded from applying the additional revenues to earlier commitments; and that they were placed at a competitive disadvantage with railroads that could meet the ICC's conditions, sought reconsideration from the ICC. Dissatisfied with the ICC's response, appellees brought this suit attacking the lawfulness of the conditions imposed and seeking to have the ICC's orders set aside. The District Court issued an injunction prohibiting the ICC from enforcing against appellees those portions of the challenged orders that required revenues to be spent for specified purposes, concluding that "Congress has not authorized the [ICC] to control a carrier's expenditure of funds as a condition to withholding the suspension of rates." Held: The ICC may, as a condition for not suspending and subsequently investigating the lawfulness of a proposed tariff, require the railroads to devote the additional revenues for the purposes the carriers invoked in support of the increase. Pp. 509-515. (a) Imposition of the condition precedent to the immediate 500 Opinion of the Court implementation of the rate increase was directly related to the ICC's statutory mandate to assess the reasonableness of the rates and to suspend them if there was a question as to their legality. Instead of suspending the proposed rates for the seven-month statutory period, as it could have done, the ICC offered an alternative more precisely tailored to the particular circumstances presented. P. 514. (b) Since the District Court held that the ICC did not have the power to impose conditions on the refiling of the tariff, it did not consider appellees' contention that their inability to use the new revenues makes the ICC's action arbitrary and capricious as to them, and that question may, if appellees choose, be raised on remand. P. 515. 392 F. Supp. 358, reversed and remanded. BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 521. POWELL, J., took no part in the consideration or decision of the case. Deputy Solicitor General Friedman argued the cause for the United States et al. On the briefs were Solicitor General Bork, Assistant Attorney General Kauper, Carl D. Lawson, Fritz R. Kahn, Betty Jo Christian, Hanford O'Hara, and Arthur J. Cerra. Doyle S. Morris argued the cause for appellees. With him on the briefs were Owen Clarke, Charles C. Rettberg, Jr., George D. Gibson, and E. Milton Farley III. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. This case is here on direct appeal, pursuant to 28 U. S. C. §§ 1253, 2325, from an order of the District Court which permanently enjoined the Interstate Com 1 For cases filed after March 1, 1975, review of Interstate Commerce Commission orders is in the court of appeals with further merce Commission from enforcing, against the appellee railway system,2 an order requiring the application of increased revenues to deferred capital improvements and deferred maintenance as a condition for the nonsuspension of the rate increases. 392 F. Supp. 358 (ED Va. 1975). In April 1974, the Nation's railroads, including the appellees, filed with the Interstate Commerce Commission a joint petition for a general revenue increase “with respect to the revenue needs of all carriers by railroad operating in the United States." App. 97. Ex parte No. 305, Nationwide Increase of Ten Percent in Freight Rates and Charges, 1974. The proposed tariffs included a 10% increase in the level of freight rates. In their petition, the railroads alleged in part: "The railroad industry is capital-intensive and must generate huge amounts of capital annually just to replace stationary facilities and equipment as it becomes worn out or obsolete. When earnings are inadequate to support this level of spending, as now, then a process of asset liquidation occurs accelerating as facilities and equipment are consumed by increased traffic. Even if the liquidation of assets is arrested by earnings sufficient to support maintenance and replacement there is a further need to modernize and expand capacity if the railroads are to be able to meet sharply increasing demands review possible by petition for writ of certiorari to this Court. Pub. L. 93-584, 88 Stat. 1917. The present case was filed prior to March 1, 1975. 2 Appellees are the Chesapeake and Ohio Railway Co., the Baltimore and Ohio Railroad Co., and the Western Maryland Railway. These railroads are known as the Chessie System and will be referred to as such or as Chessie throughout this opinion. 8 |