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Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | adverse impact on competition, were not the least restrictive means of expressing petitioner's opposition to the use of polyvinyl chloride conduit in the marketplace, and unreasonably restrained trade in violation of the antitrust laws. The jury then awarded respondent damages, to be trebled, of $3.8 million for lost profits resulting from the effect that excluding polyvinyl chloride conduit from the 1981 Code had of its own force in the marketplace. No damages were awarded for injuries stemming from the adoption of the 1981 Code by governmental entities.[2] The District Court then granted a judgment n.o.v. for petitioner, reasoning that immunity applied because the Association was "akin to a legislature" and because petitioner, "by the use of methods consistent with acceptable standards of political action, genuinely intended to influence the [Association] with respect to the National Electrical Code, and to thereby influence the various state and local legislative bodies which adopt the [Code]." App. to Pet. for *499 Cert. 28a, 30a. The Court of Appeals reversed, rejecting both the argument that the Association should be treated as a "quasi-legislative" body because legislatures routinely adopt the Code and the argument that efforts to influence the Code were immune under as indirect attempts to influence state and local governments. We granted certiorari to address important issues regarding the application of immunity to private standard-setting associations.[3] II Concerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability under the doctrine established by ; Mine ; and California Motor The scope of this protection depends, however, on the source, context, and nature of the anticompetitive restraint at issue. "[W]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action," those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint. ; see also In addition, where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is "incidental" to a valid effort to influence governmental action. The validity of such efforts, and thus the applicability of immunity, varies with the context and nature of the activity. A publicity campaign directed at the general public, seeking legislation or executive action, enjoys antitrust immunity even when the campaign employs unethical *500 and deceptive methods. But in less political arenas, unethical and deceptive practices can constitute abuses of administrative or judicial processes that may result in antitrust violations.[4]California Motor In this case, the restraint of trade on which liability was predicated was the Association's exclusion of |
Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | on which liability was predicated was the Association's exclusion of respondent's product from the Code, and no damages were imposed for the incorporation of that Code by any government. The relevant context is thus the standard-setting process of a private association. Typically, private standard-setting associations, like the Association in this case, include members having horizontal and vertical business relations. See generally 7 P. Areeda, Antitrust Law ¶ 1477, p. 343 (trade and standard-setting associations routinely treated as continuing conspiracies of their members). There is no doubt that the members of such associations often have economic incentives to restrain competition and that the product standards set by such associations have a serious potential for anticompetitive harm.[5] See American Society of Mechanical Engineers, Agreement on a product standard is, after all, implicitly an agreement not to manufacture, distribute, or purchase certain types of products. Accordingly, private standard-setting associations have traditionally been objects of antitrust scrutiny. See, e. g., ibid.; Radiant Burners, See also When, however, private associations promulgate safety standards based on the merits of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling product competition, cf. those private standards can have significant procompetitive advantages. It is this potential for procompetitive benefits that has led most lower courts to apply rule-of-reason analysis to product standard-setting by private associations.[6] Given this context, petitioner does not enjoy the immunity accorded those who merely urge the government to restrain trade. We agree with the Court of Appeals that the Association cannot be treated as a "quasi-legislative" body simply because legislatures routinely adopt the Code the Association publishes. -944. Whatever de facto authority the Association enjoys, no official authority has been conferred on it by any government, and the decisionmaking body of the Association is composed, at least in part, of persons with economic incentives to restrain trade. See Continental Ore See also ; "We may presume, absent a showing to the contrary, that [a government] acts in the public interest. A private party, on the other hand, may be presumed to be acting primarily on his or its own behalf." The dividing line between restraints resulting from governmental action and those resulting from private action *502 may not always be obvious.[7] But where, as here, the restraint is imposed by persons unaccountable to the public and without official authority, many of whom have personal financial interests in restraining competition, we have no difficulty concluding that the restraint has resulted from private action. immunity might still apply, however, if, as petitioner argues, the exclusion |
Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | might still apply, however, if, as petitioner argues, the exclusion of polyvinyl chloride conduit from the Code, and the effect that exclusion had of its own force in the marketplace, were incidental to a valid effort to influence governmental action. Petitioner notes that the lion's share of the anticompetitive effect in this case came from the predictable adoption of the Code into law by a large number of state and local governments. See n. 1. Indeed, petitioner argues that, because state and local governments rely so heavily on the Code and lack the resources or technical expertise to second-guess it, efforts to influence the Association's standard-setting process are the most effective means of influencing legislation regulating electrical conduit. This claim to immunity has some force. The effort to influence governmental action in this case certainly cannot be characterized as a sham given the actual adoption of the 1981 Code into a number of statutes and local ordinances. Nor can we quarrel with petitioner's contention that, given the widespread adoption of the Code into *503 law, any effect the 1981 Code had in the marketplace of its own force was, in the main, incidental to petitioner's genuine effort to influence governmental action.[8] And, as petitioner persuasively argues, the claim of immunity cannot be dismissed on the ground that the conduct at issue involved no "direct" petitioning of government officials, for itself immunized a form of "indirect" petitioning. See (immunizing a publicity campaign directed at the general public on the ground that it was part of an effort to influence legislative and executive action). Nonetheless, the validity of petitioner's actions remains an issue. We cannot agree with petitioner's absolutist position that the doctrine immunizes every concerted effort that is genuinely intended to influence governmental action. If all such conduct were immunized then, for example, competitors would be free to enter into horizontal price agreements as long as they wished to propose that price as an appropriate level for governmental ratemaking or price supports. But see 6-463 (19). Horizontal conspiracies or boycotts designed to exact higher prices or other economic advantages from the government would be immunized on the ground that they are genuinely intended to influence the government to agree to the conspirators' terms. But see Firms could claim immunity for boycotts or horizontal output restrictions on the ground that they are intended to dramatize the plight of their industry and spur legislative action. Immunity might even be *504 claimed for anticompetitive mergers on the theory that they give the merging corporations added political clout. Nor is it necessarily dispositive that packing |
Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | added political clout. Nor is it necessarily dispositive that packing the Association's meeting may have been the most effective means of securing government action, for one could imagine situations where the most effective means of influencing government officials is bribery, and we have never suggested that that kind of attempt to influence the government merits protection. We thus conclude that the immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also on the context and nature of the activity. Here petitioner's actions took place within the context of the standard-setting process of a private association. Having concluded that the Association is not a "quasi-legislative" body, we reject petitioner's argument that any efforts to influence the Association must be treated as efforts to influence a "quasi-legislature" and given the same wide berth accorded legislative lobbying. That rounding up supporters is an acceptable and constitutionally protected method of influencing elections does not mean that rounding up economically interested persons to set private standards must also be protected. Nor do we agree with petitioner's contention that, regardless of the Association's nonlegislative status, the effort to influence the Code should receive the same wide latitude given ethically dubious efforts to influence legislative action in the political arena, see 365 U. S., simply because the ultimate aim of the effort to influence the private standard-setting process was (principally) legislative action. The ultimate aim is not dispositive. A misrepresentation to a court would not necessarily be entitled to the same antitrust immunity allowed deceptive practices in the political arena simply because the odds were very good that the court's decision would be codified nor for that matter would misrepresentations made under oath at a legislative committee hearing in the hopes of spurring legislative action. *505 What distinguishes this case from and its progeny is that the context and nature of petitioner's activity make it the type of commercial activity that has traditionally had its validity determined by the antitrust laws themselves. True, in we immunized conduct that could be characterized as a conspiracy among railroads to destroy business relations between truckers and their customers. But we noted there: "There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all the evidence in the record, both oral and documentary, deals with the railroads' efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads' charges that heavy trucks injure the roads, |
Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | another the railroads' charges that heavy trucks injure the roads, violate the laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry." 365 U.S., -143. In light of those findings, we characterized the railroads' activity as a classic "attempt to influence legislation by a campaign of publicity," an "inevitable" and "incidental" effect of which was "the infliction of some direct injury upon the interests of the party against whom the campaign is directed." The essential character of such a publicity campaign was, we concluded, political, and could not be segregated from the activity's impact on business. Rather, the plaintiff's cause of action simply embraced the inherent possibility in such political fights "that one group or the other will get hurt by the arguments that are made." As a political activity, special factors counseled against regulating the publicity campaign under the antitrust laws: *506 "Insofar as [the Sherman] Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and, as we have already pointed out, a publicity campaign to influence governmental action falls clearly into the category of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical." In then, the political context and nature of the activity precluded inquiry into its antitrust validity.[9] Here the context and nature of the activity do not counsel against inquiry into its validity. Unlike the publicity campaign in the activity at issue here did not take place in the open political arena, where partisanship is the hallmark of decisionmaking, but within the confines of a private standard-setting process. The validity of conduct within that process has long been defined and circumscribed by the antitrust laws without regard to whether the private standards are likely to be adopted into law. See Indeed, because private standard-setting by |
Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | be adopted into law. See Indeed, because private standard-setting by associations comprising firms with horizontal and vertical business relations is permitted at all under the antitrust laws only on the *507 understanding that it will be conducted in a nonpartisan manner offering procompetitive benefits, see ib the standards of conduct in this context are, at least in some respects, more rigorous than the standards of conduct prevailing in the partisan political arena or in the adversarial process of adjudication. The activity at issue here thus cannot, as in be characterized as an activity that has traditionally been regulated with extreme caution, see or as an activity that "bear[s] little if any resemblance to the combinations normally held violative of the Sherman Act," And petitioner did not confine itself to efforts to persuade an independent decisionmaker, cf. ; rather, it organized and orchestrated the actual exercise of the Association's decisionmaking authority in setting a standard. Nor can the setting of the Association's Code be characterized as merely an exercise of the power of persuasion, for it in part involves the exercise of market power. The Association's members, after all, include consumers, distributors, and manufacturers of electrical conduit, and any agreement to exclude polyvinyl chloride conduit from the Code is in part an implicit agreement not to trade in that type of electrical conduit. Cf. Although one could reason backwards from the legislative impact of the Code to the conclusion that the conduct at issue here is "political," we think that, given the context and nature of the conduct, it can more aptly be characterized as commercial activity with a political impact. Just as the antitrust laws should not regulate political activities "simply because those activities have a commercial impact," so the antitrust laws should not necessarily immunize what are in essence commercial activities simply because they have a political impact.[10] *508 8 U.S. 886 is not to the contrary. In that case we held that the First Amendment protected the nonviolent elements of a boycott of white merchants organized by the National Association for the Advancement of Colored People and designed to make white government and business leaders comply with a list of demands for equality and racial justice. Although the boycotters intended to inflict economic injury on the merchants, the boycott was not motivated by any desire to lessen competition or to reap economic benefits but by the aim of vindicating rights of equality and freedom lying at the heart of the Constitution, and the boycotters were consumers who did not stand to profit financially from a lessening of competition |
Justice Brennan | 1,988 | 13 | majority | Allied Tube & Conduit Corp. v. Indian Head, Inc. | https://www.courtlistener.com/opinion/112091/allied-tube-conduit-corp-v-indian-head-inc/ | not stand to profit financially from a lessening of competition in the boycotted market. Here, in contrast, *509 petitioner was at least partially motivated by the desire to lessen competition, and, because of petitioner's line of business, stood to reap substantial economic benefits from making it difficult for respondent to compete.[11] Thus in this case the context and nature of petitioner's efforts to influence the Code persuade us that the validity of those efforts must, despite their political impact, be evaluated under the standards of conduct set forth by the antitrust laws that govern the private standard-setting process. The antitrust validity of these efforts is not established, without more, by petitioner's literal compliance with the rules of the Association, for the hope of procompetitive benefits depends upon the existence of safeguards sufficient to prevent the standard-setting process from being biased by members with economic interests in restraining competition. An association cannot validate the anticompetitive activities of its members simply by adopting rules that fail to provide such safeguards.[12] The issue of immunity in this case thus collapses into the issue of antitrust liability. Although we do not here set forth the rules of antitrust liability governing the private standard-setting process, we hold that at least where, as here, an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants, that *510 party enjoys no immunity from any antitrust liability flowing from the effect the standard has of its own force in the marketplace. This conclusion does not deprive state and local governments of input and information from interested individuals or organizations or leave petitioner without ample means to petition those governments. Cf. -138. See also California Motor Petitioner, and others concerned about the safety or competitive threat of polyvinyl chloride conduit, can, with full antitrust immunity, engage in concerted efforts to influence those governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression. To the extent state and local governments are more difficult to persuade through these other avenues, that no doubt reflects their preference for and confidence in the nonpartisan consensus process that petitioner has undermined. Petitioner remains free to take advantage of the forum provided by the standard-setting process by presenting and vigorously arguing accurate scientific evidence before a nonpartisan private standard-setting body.[13] And petitioner can avoid the strictures of the private standard-setting process by attempting to influence legislatures through other forums. *511 What petitioner may not do (without exposing itself to possible antitrust liability for direct injuries) is bias the process by, as in this |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus. I Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision: "`Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the *432 lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'" quoting Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol the equivalent of carrying a gun in a holster but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post, at 448, is colorful, but lacks any basis in fact. Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress. The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme 510 So. 2d, at The *433 Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that "`an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'" The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional.[*] The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see ; but they may not engage in the same behavior on a bus. We granted certiorari, to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence. II The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable *434 suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit. Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in : "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." ; see There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest." We have stated that even *435 when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see ; at ; ask to examine the individual's identification, see at ; ; United ; and request consent to search his or her luggage, see as long as the police do not convey a message that compliance with their requests is required. Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment. The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave" rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person *436 would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive. In this respect, the Court's decision in is dispositive. At issue there was the INS' practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building's exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity: "Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents' conduct should have given employees "no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." The present case is analytically indistinguishable from Like the workers in that case, Bostick's freedom |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | indistinguishable from Like the workers in that case, Bostick's freedom of movement was restricted by a factor independent of police conduct i. e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This *437 formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." See also Hodari 499 U. S., at Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer's request without fearing prosecution. See Brief for United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See at -217; ; The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point gnns at Bostick or otherwise threaten him and that they specifically advised Bostick that he could refuse consent. Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact that the encounter took place on a bus rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick's argument that he must have been seized *438 because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | search of luggage that he or she knows contains drugs. This argument cannot prevail because the "reasonable person" test presupposes an innocent person. See ("The fact that [respondent] knew the search was likely to turn up contraband is of course irrelevant; the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position"). Accord, The dissent characterizes our decision as holding that police may board buses and by an "intimidating show of authority," post, at 447 (emphasis added), demand of passengers their "voluntary" cooperation. That characterization is incorrect. Clearly, a bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage. The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this case whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particular *439 mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional. The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, and are just a few examples. As we have explained, today's decision follows logically from those decisions and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken. This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." See post, at 440, 450-451. If that war is to be fought, those who fight it must respect the rights |
Justice O'Connor | 1,991 | 14 | majority | Florida v. Bostick | https://www.courtlistener.com/opinion/112631/florida-v-bostick/ | be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case. We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to *440 encounters on a bus. The Florida Supreme Court erred in adopting a per se rule. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment. On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently *309 conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966. On May 5, 1970, appellees filed a motion to dismiss the indictment "for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States." No evidence was submitted, but from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease-and-desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October 1967, reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office's investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney's office, Allied delivered certain of its records to that office, and in an interview there appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury's concern with them until March 1970, and the indictment was finally handed down in April. *3 Appellees moved to dismiss because the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses." They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for "lack of speedy prosecution" at the conclusion of the hearing and remarked that since the Government must have become aware of the relevant facts in 1967, the defense of the case "is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968."[1] *311 The United States appealed directly to this Court pursuant to 18 U.S. C. 3731 (1964 ed., Supp. V).[2] We postponed consideration of the question of jurisdiction until the hearing on the merits of the case.[3] We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court. I Prior to its recent amendment, 18 U.S. C. 3731 (1964 ed., Supp. V) authorized an appeal to this Court *312 by the United States when in any criminal case a district court sustained "a motion in bar, when the defendant has not been put in jeopardy." It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48 (b), as a ground for dismissal.[4] Our jurisdiction to hear this appeal has been satisfactorily established. *313 II Appellees do not claim that the Sixth Amendment was |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | II Appellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an "accused," an event that occurred in this case only when the appellees were indicted on April 21, 1970. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been "accused" in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. "[T]he essential ingredient is orderly expedition and not mere speed." Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating *314 that it does not mean what it appears to say,[5] nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge.[6] The framers could hardly have selected less *315 appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellees' thesis,[7] and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved.[8] *316 Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has *317 been accused of a crime. The Court has pointed out that "[a]t the |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | a crime. The Court has pointed out that "[a]t the common law and in the absence of special statutes of limitations the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the Government or the failure of the grand jury to indict." United Since it is "doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the *318 heads of citizens, and they have been committed for unreasonable periods, resulting in hardship," the Court noted that many States "[w]ith a view to preventing such wrong to the citizen [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial" had passed statutes limiting the time within which such trial must occur after charge or indictment.[9] Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused.[] The statutes vary greatly in substance, *319 structure, and interpretation, but a common denominator is that "[i]n no event [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this." Note, The Right to a Speedy Trial, 57 Colo. L. Rev. 846, 848 (1957). No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint "[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial" The rule clearly is limited to post-arrest situations.[11] Appellees' position is, therefore, at odds with longstanding legislative and judicial constructions of the *320 speedy trial provisions in both national and state constitutions. III It is apparent also that very little support for appellees' position emerges from a consideration of the purposes of the Sixth Amendment's speedy trial provision, a guarantee that this Court has termed "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United ; see also ; Inordinate delay between arrest, indictment, and trial may impair a |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in see also So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. *321 Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.[12] But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.[13] But this *322 possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case. The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United "the applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges." Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they "are made for the repose of society and the protection of those who may [during the limitation] have lost their means of defense." Public These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced.[14] As this *323 Court observed in : "The purpose of a |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | this *323 Court observed in : "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity." There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function. Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the *324 indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations.[15] Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.[16] Cf. ; However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution.[17] Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal *325 prosecution.[18] To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases. IV In the case before us, neither appellee was arrested, charged, or otherwise subjected |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into "accused" defendants who are subject to the speedy trial protections of the Sixth Amendment. The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely *326 on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature. Reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, concurring in the result. I assume that if the three-year delay in this case had occurred after the indictment had been returned, the right to a speedy trial would have been impaired and the indictment would have to be dismissed. I disagree with the Court that the guarantee does not apply if the delay was at the pre-indictment stage of a case. From March 15, 1965, to February 6, 1967, appellees acting through Allied Enterprises, Inc., sold and installed home intercom, fire control, and burglar detection devices in the District of Columbia metropolitan area. Their business endeavors were soon met with a spate of lawsuits seeking recovery for consumer fraud and, on February 6, 1967, their brief career was ended by a cease-and-desist order entered by the Federal Trade Commission. Public notoriety continued to surround appellees' activities and, in a series of articles appearing in the Washington Post in September and October of 1967, their business was mentioned as being under investigation by the United States Attorney. The special grand jury that was impaneled on October 9, 1967, to investigate consumer fraud did |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | impaneled on October 9, 1967, to investigate consumer fraud did not, however, return an indictment against * appellees. Sometime between the summer of 1968 and January 1969, appellees delivered their business records to the United States Attorney, but an indictment was not returned against them until April 21, 1970. The indictment charged some 19 counts of mail fraud, wire fraud, and transportation of falsely made securities in interstate commerce all between September 3, 1965, and January 19, 1966. Appellees moved "to dismiss the indictment for failure to commence prosecution within such time as to [satisfy the] rights to due process of law and to a speedy trial" The United States Attorney sought to excuse the delay, alleging that his office had been understaffed at the time and that it had given priority to other types of crimes. The District Court granted appellees' motion[1] and the United States appealed. 18 U.S. C. 3731 (1964 ed., Supp. V). The majority says "that it is either a formal indictment or information or else the actual restraints imposed by *328 arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision" Ante, at 320. The Sixth Amendment, to be sure, states that "the accused shall enjoy the right to a speedy and public trial." But the words "the accused," as I understand them in their Sixth Amendment setting, mean only the person who has standing to complain of prosecutorial delay in seeking an indictment or filing an information. The right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pre-indictment delays as it is to post-indictment delays. Much is made of the history of the Sixth Amendment as indicating that the speedy trial guarantee had no application to pre-prosecution delays. There are two answers to that proposition. First, British courts historically did consider delay as a condition to issuance of an information. Lord Mansfield held in Rex v. Robinson, 1 Black. W. 541, 5, 96 Eng. Rep. 313 (K. B. 1765), that the issuance of an information was subject to time limitations: "If delayed, the delay must be reasonably accounted for." In Regina v. Hext, 4 Jurist 339 (Q. B. 1840), an information was refused where a whole term of court had passed since the alleged assault took place. Accord: Rex v. Marshall, 13 East 322, 4 Eng. Rep. 394 (K. B. 1811). Baron Alderson said in Regina v. Robins, 1 Cox's C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality: "It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the *329 charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial." Second, and more basically, the 18th century criminal prosecution at the common law was in general commenced in a completely different way from that with which we are familiar today. By the common law of England which was brought to the American colonies, the ordinary criminal prosecution was conducted by a private prosecutor, in the name of the King. In case the victim of the crime or someone interested came forward to prosecute, he retained his own counsel and had charge of the case as in the usual civil proceeding. See G. Dession, Criminal Law, Administration and Public Order (1948). Procedurally, the criminal prosecution was commenced by the filing of a lawsuit, and thereafter the filing of an application for criminal prosecution or rule nisi or similar procedure calling for the defendant to show cause why he should not be imprisoned. The English common law, with which the Framers were familiar, conceived of a criminal prosecution as being commenced prior to indictment. Thus in that setting the individual charged as the defendant in a criminal proceeding could and would be an "accused" prior to formal indictment.[2] *330 The right to a speedy trial, which we have characterized "as fundamental as any of the rights secured by the Sixth Amendment," protects several demands of criminal justice: the prevention of undue delay and oppressive incarceration prior to trial; the reduction of anxiety and concern accompanying public accusation; and limiting the possibilities that long delay will impair the ability of an accused to defend himself. See also The right also serves broader interests: "The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction." At least some of these values served by the right to a speedy trial are not unique to any particular stage of the criminal proceeding. See Note, 43 N. Y. U. L. Rev. 722, 725-726 (1968); Note, 77 Yale L. J. 767, 780-783 (1968); Comment, Undue delay may be as offensive to the right to a speedy trial before as after an indictment or information. The anxiety *331 and concern attendant on public accusation may weigh more heavily upon an individual who has not yet been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to a speedy trial may be denied when a citizen is damned by clandestine innuendo and never given the chance promptly to defend himself in a court of law. Those who are accused of crime but never tried may lose their jobs or their positions of responsibility, or become outcasts in their communities. The impairment of the ability to defend oneself may become acute because of delays in the pre-indictment stage. Those delays may result in the loss of alibi witnesses, the destruction of material evidence, and the blurring of memories. At least when a person has been accused of a specific crime, he can devote his powers of recall to the events surrounding the alleged occurrences. When there is no formal accusation, however, the State may proceed methodically to build its case while the prospective defendant proceeds to lose his.[3] The duty which the Sixth Amendment places on Government officials to proceed expeditiously with criminal *332 prosecutions would have little meaning if those officials could determine when that duty was to commence. To be sure, "[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances." But it is precisely because this right is relative that we should draw the line so as not to condone illegitimate delays whether at the pre- or the post- indictment stage.[4] Our decisions do not support the limitations of the right to a speedy trial adopted in the majority's |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | the right to a speedy trial adopted in the majority's conclusion that "the [Sixth] amendment [does not extend] to *333 the period prior to arrest." Ante, at 321. In we held that it was necessary for the police to advise of the right to counsel in the pre-indictment situation where "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." That case, like the present one, dealt with one of the rights enumerated in the Sixth Amendment to which an "accused" was entitled. We were not then concerned with whether an "arrest" or an "indictment" was necessary for a person to be an "accused" and thus entitled to Sixth Amendment protections. We looked instead to the nature of the event and its effect on the rights involved. We applied the Miranda rule even though there was no "arrest," but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him "in custody." We should follow the same approach here and hold that the right to a speedy trial is denied if there were years of unexplained and inexcusable pre-indictment delay. similarly demonstrates the wisdom of avoiding today's mechanical approach to the application of basic constitutional guarantees. While he was in custody on an unrelated federal charge, the petitioner was identified by a witness to the robbery. Petitioner remained in federal custody, but the State did not seek to prosecute him until September 1, 1967, when he moved to dismiss the detainer warrant which had been lodged against him. An information was then filed on December 15, 1967, and petitioner was tried on February 13, 1968. Although the trial took place less than two months after the filing of the information, we held that there had been a denial of the right to a speedy trial because of the delay of more than seven years between the crime and the information. *334 In a concurring opinion, MR. JUSTICE BRENNAN discussed the broader questions raised by that case: "When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is `purposeful or oppressive,' is unjustifiable. The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is |
Justice White | 1,971 | 6 | majority | United States v. Marion | https://www.courtlistener.com/opinion/108420/united-states-v-marion/ | negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect." -52. In the present case, two to three years elapsed between the time the District Court found that the charges could and should have been brought and the actual return of the indictment. The justifications offered were that the United States Attorney's office was "not sufficiently staffed to proceed as expeditiously" as desirable[5] and *335 that priority had been given to other cases. Appellees say that the present indictment embraces counts such as an allegedly fraudulent telephone conversation made on December 16, 1965. They argue that there is a great likelihood that the recollection of such events will be blurred or erased by the frailties of the human memory. If this were a simpler crime, I think the British precedent which I have cited would warrant dismissal of the indictment because of the speedy trial guarantee of the Sixth Amendment. But we know from experience that the nature of the crime charged here often has vast interstate aspects, the victims are often widely scattered and hard to locate, and the reconstruction of the total scheme of the fraudulent plan takes time. If we applied the simpler rule that was applied in simpler days, we would be giving extraordinary advantages to organized crime as well as others who use a farflung complicated network to perform their illegal activities. I think a three-year delay even in that kind of case goes to the edge of a permissible delay. But on the bare bones of this record I hesitate to say that the guarantee of a speedy trial has been violated. Unless appellees on remand demonstrate actual prejudice, I would agree that the prosecution might go forward. Hence I concur in the result. |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | This suit, brought by and in the name of respondent railroad and its wholly owned subsidiary, seeks to recover damages for the conversion and misappropriation of corporate assets allegedly committed by petitioners, Bangor Punta and its wholly owned subsidiary, during a period when the latter was the majority shareholder of the railroad. Ordinarily, of course, a corporation may seek legal redress against those who have defrauded it of its assets. And when it does so: "A corporation and its stockholders are generally to be treated as separate entities. Only under exceptional circumstances can the difference be disregarded." See also New Colonial Ice The Court finds such exceptional circumstances here because, in its view, any recovery had by the corporation will be a windfall to Amoskeag, the present owner of approximately 99% of the corporation's stock, which purchased most of that stock from the petitioners, the alleged wrongdoers. The Court therefore concludes that this suit must be barred under the equitable principles set forth in Home Fire Insurance I cannot agree. Having read the precedents relied upon by the majority, I respectfully submit that they not only do not support, but indeed directly contradict the result reached today. While purporting to rely on settled principles of equity, the Court sadly mistakes the facts of this case and the established powers of an equity court. In my view, no windfall recovery to Amoskeag is inevitable, or even likely, on the facts of this case. But even if recovery by respondents would in fact be a windfall *720 to Amoskeag, the Court disregards the interests of the railroad's creditors, as well as the substantial public interest in the continued financial viability of the Nation's railroads which have been so heavily plagued by corporate mismanagement, and ignores the powers of the court to impose equitable conditions on a corporation's recovery so as to insure that these interests are protected. The Court's decision is also inconsistent with prior decisions of this Court limiting the application of equitable defenses when they impede the vindication, through private damage actions, of the important policies of the federal antitrust laws. I The majority places primary reliance on Dean Pound's decision in Home Fire Insurance In that case, all of the shares of the plaintiff corporation had been acquired from the alleged wrongdoers after the transactions giving rise to the causes of action stated in the complaint. Since none of the corporation's shareholders held stock at the time of the alleged wrongful transactions, none had been injured thereby. Dean Pound therefore held that equity barred the corporation from pursuing a |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | therefore held that equity barred the corporation from pursuing a claim where none of its shareholders could complain of injury. Dean Pound thought it clear, however, that the opposite result would obtain if any of the present shareholders "are entitled to complain of the acts of the defendant and of his past management of the company; for if any of them are so entitled, there can be no doubt of the right and duty of the corporation to maintain this suit. It would be maintainable in such a case even though the wrong-doers continued to be stockholders and would share in the proceeds." Cf. Capitol Wine & Spirit Corp. v. Pokrass, App. Div. *721 184, 186, 98 N. Y. S. 2d 291, 293 (1950), aff'd, The rationale for the distinction drawn by Dean Pound is simple enough. The sole shareholder who defrauds or mismanages his own corporation hurts only himself. For the corporation to sue him for his wrongs is simply to take money out of his right pocket and put it in his left. It is therefore appropriate for equity to intervene to pierce the corporate veil. But where there are minority shareholders, misappropriation and conversion of corporate assets injure their interests as well as the interest of the majority shareholder. The law imposes upon the directors of a corporation a fiduciary obligation to all of the corporation's shareholders, and part of that obligation is to use due care to ensure that the corporation seek redress where a majority shareholder has drained the corporation's resources for his own benefit and to the detriment of minority shareholders.[1] Indeed, minority shareholders would be entitled to bring a derivative action, on behalf of the corporation, to enforce the corporation's right to recover for the injury done to it, if the directors turned down a request to seek relief.[2] And any recovery *722 obtained in such an action would belong to the corporation, not to the minority shareholders as individuals, for the shareholder in a derivative action enforces not his own individual rights, but rights which the corporation has. See ; ; These elementary principles of corporate law should control this case. Although first Bangor Punta and then Amoskeag owned the great majority of the shares of respondent railroad, the record shows that there are many minority shareholders who owned BAR stock during the period from 1960 through 1967 when the transactions underlying the railroad's complaint took place, and who still owned that stock in 1971 when the complaint was filed.[3] Any one of these minority shareholders would have had the right, during |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | of these minority shareholders would have had the right, during the 1960-1967 period, as well as thereafter, to bring a derivative action on behalf of the corporation against the majority shareholder for misappropriation of corporate assets. As Dean Pound states, such an action could be brought, "even though the wrongdoers continued to be stockholders and would share in the proceeds." It is ironic, then, to see the Court adopt a result which bars the corporation itself from bringing a suit which a minority shareholder could have brought in the corporation's behalf. And it is peculiar, to say the least, that the law should prevent the directors of BAR from fulfilling the fiduciary obligation to minority shareholders which the law devolves upon them. Such a result not only cannot be derived from Home Fire, but is directly in conflict with its holding. *723 II Even assuming, however, that the equitable principles of Home Fire should be extended to the situation where the present majority shareholder does not own all the outstanding shares, there are other features distinguishing this case from Home Fire and calling for the recognition of the railroad's right to maintain this action. To begin with, it is not at all clear from the record that any recovery had by the railroad will in fact be a windfall to Amoskeag, its present majority shareholder. The Court relies principally on its own observation that Amoskeag was not defrauded or deceived in its transaction with petitioners, that it received full value for its money, and that it has received no injury whatsoever. See ante, at 711. The record, in my view, simply will not support these "findings." That there is no specific allegation in the complaint that Amoskeag was deceived or otherwise injured by petitioners is understandable, since this lawsuit is not brought by Amoskeag, but rather by respondent railroad in its own name. Furthermore, a fair reading of the complaint indicates that Amoskeag most likely has suffered injury. The causes of action relate primarily to transactions involving the railroad and its former majority stockholder between 1960 and 1967. Amoskeag purchased its shares from petitioners on October 2, 1969, after these events. But nowhere in the record is there any concession that, at the time of its purchase, Amoskeag was fully aware of the misuses of corporate assets alleged in the complaint. To the contrary, the complaint asserts that at the time of Amoskeag's purchase, the Interstate Commerce Commission's Bureau of Accounts was in the middle of an investigation into the relationship between the railroad and its majority shareholder. Its report, |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | relationship between the railroad and its majority shareholder. Its report, not made public until July 1971, laid bare for the first time the wrongful *724 intercorporate transactions that are the subject of the present suit and recommended that legal remedies be explored to require petitioners to pay back to the carrier assets taken without compensation and charges made where no services were performed. The plain import of the complaint is that Amoskeag did not know of these wrongful transactions prior to public disclosure of this report. In fact, an introductory paragraph of the complaint alleges: "All wrongs hereinafter complained of were discovered by BAR's new management's investigation of all facets of the inter-corporate relationships and were not previously known to the new BAR management." App. 6. At this stage in the litigation, such allegations must be accepted as true, the District Court having dismissed the suit without inquiring into the truth of any of its claims. There is accordingly no basis in the record for presuming that Amoskeag was not the victim of any deception. But even assuming that Amoskeag received close to full value for its money, it is by no means inevitable that any recovery obtained by the railroad will inure to Amoskeag's benefit, rather than to the benefit of the corporation, its creditors, and the public it aims to serve. The Court makes much of the supposed lack of power of a court of equity to impose limitations on the use BAR might make of the recovery. Ante, at 715. "Traditionally," however, "equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." "A court of equity may in its discretion in the exercise of the jurisdiction committed to it grant or deny relief upon performance of a condition which will safeguard the public interest."[4] Indeed, if there be any doubt as to the power of a court of equity, BAR informed the District Court that the railroad would voluntarily enter into a stipulation to ensure that any recovery would be reinvested in the railroad, for upgrading the right-of-way and for new equipment, and that Amoskeag would voluntarily join the stipulation if requested. Brief for Respondents 30. Improved equipment and rights-of-way, of course, might benefit Amoskeag indirectly by increasing to some extent the value of its equity. But such expenditures would hardly bring a dollar-for-dollar increase in the price Amoskeag would receive if it were to sell its stock. The value of a solvent railroad's stock is determined by many factorsearning capacity; historical income, |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | railroad's stock is determined by many factorsearning capacity; historical income, excluding nonrecurring items; balance sheet strength; dividend history; and condition of plant and equipment. Under an appropriate decree, only the last of these factors would be enhanced by the railroad's recovery. It is therefore not inevitable that any recovery had by the railroad would benefit its current majority shareholder and there is no basis, in any event, for deeming such a benefit a windfall. III But let us assume that the majority is correct in finding some windfall recovery to Amoskeag inevitable in this case. This is still but one of several factors which a court of equity should consider in determining whether *726 the public interest would best be served by piercing the corporate veil in order to bar this action. The public interest against windfall recoveries is no doubt a significant factor which a court of equity should consider. But in this case it is clearly outweighed by other considerations, equally deserving the recognition of a court of equity, supporting the maintenance of the railroad's action against those who have defrauded it of its assets. Equity should take into account, for example, the railroad's relationships with its creditors. BAR owes a debt of approximately $23 million, indicating almost 90% debt ownership of the enterprise. App. 7. If the allegations of the complaint are true, the conversion and misappropriation of corporate assets committed by petitioners placed the railroad close to the brink of bankruptcy, to the certain detriment of its creditors. The complaint alleges that net revenue in was a loss of approximately $1.3 million. And one of the specific causes of action in the complaint is that Bangor Punta procured the declaration by BAR of a dividend which was unlawful under a mortgage bond indenture due to insufficient working capital. Surely the corporation, as an entity independent of its shareholders, has an interest of its own in assuring that it can meet its responsibility to its creditors. And I do not see how it can do so unless it remains free to bring suit against those who have defrauded it of its assets. The Court's result, I fear, only gives added incentive to abuses of the corporate form which equity has long sought to discourage allowing a majority shareholder to take advantage of the protections of the corporate form while bleeding the corporation to the detriment of its creditors, and then permitting the majority shareholder to sell the corporation and remain free from any liability for its wrongdoing. *727 More importantly, equity should take into account the public |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | *727 More importantly, equity should take into account the public interest at stake in this litigation. As the Court of Appeals indicated: "The public's interest, unlike the private interest of stockholder or creditor, is not easily defined or quantified, yet it is real and cannot, we think, be overlooked in determining whether the corporation, suing in its own right, should be estopped by equitable defenses pertaining only to its controlling stockholder." The public's interest in the financial health of railroads has long been recognized by this Court: "[R]ailways are public corporations organized for public purposes, granted valuable franchises and privileges, among which the right to take the private property of the citizen in invitum is not the least, many of them are the donees of large tracts of public lands and of gifts of money by municipal corporations, and they all primarily owe duties to the public of a higher nature even than that of earning large dividends for their shareholders. The business which the railroads do is of a public nature, closely affecting almost all classes in the community" United The same public interest has been recognized in a wide variety of legislative enactments. As early as the Transportation Act of 1920, "Congress undertook to develop and maintain, for the people of the United States, an adequate railway system. It recognized that preservation of the earning capacity, and conservation of the financial resources, of individual carriers is a matter of national concern" Texas & Pacific R. Later, *728 Congress added 77 to Chapter VIII of the Bankruptcy Act, providing that financial reorganization of ailing railroads should be achieved for the benefit of the public, and not simply in the interests of creditors of stockholders. See New Haven Inclusion Cases, The significance of the public interest in the financial well-being of railroads should be self-evident in these times, with many of our Nation's railroads in dire financial straits and with some of the most important lines thrown into reorganization proceedings. Indeed, the prospect of large-scale railroad insolvency in the Northeast United States was deemed by Congress to present a national emergency, prompting enactment of the Regional Rail Reorganization Act of Stat. 985 (1974), in which the Federal Government, for the first time, committed tax dollars to a long-term commitment to preserve adequate railroad service for the Nation. As the Court of Appeals held, given this background, "it would be unrealistic to treat a railroad's attempt to secure the reparation of misappropriated assets as of concern only to its controlling stockholder." "[T]he public has a real, if inchoate, interest" in this |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | "[T]he public has a real, if inchoate, interest" in this action. The Court gives short shrift, however, to the public interest. While recognizing that respondents' complaint is based primarily on federal antitrust and securities statutes designed to benefit the public, and while conceding that the statutorily designated plaintiffs are respondent corporations, the Court nevertheless holds that these plaintiffs cannot maintain this action because any recovery by Amoskeag would violate established principles of equity. Ante, at 716-717, n. 13. I cannot agree, for the public interest and the legislative purpose should always be heavily weighed by a court of equity. As this Court *729 has frequently recognized, equity should pierce the corporate veil only when necessary to serve some paramount public interest, see Schenley ; or "where it otherwise would present an obstacle to the due protection or enforcement of public or private rights." New Colonial Ice 292 U. S., at Here, however, it is the failure to recognize the railroad's own right to maintain this suit which undercuts the public interest. The Court's result substantially impairs enforcement of the state and federal statutes upon which the railroad bases many of its claims. For example, 10 of the Clayton Act, 15 U.S. C. 20, relied on in two substantial counts of the complaint, provides: "No common carrier engaged in commerce shall have any dealings in securities, supplies, or other articles of commerce to the amount of more than $50,000, in the aggregate, in any one year, with another corporation when the said common carrier shall have upon its board of directors or as its president any person who is at the same time a director [or] manager of such other corporation. unless such dealings shall be with, the bidder whose bid is the most favorable to such common carrier, to be ascertained by competitive bidding" As we have earlier had occasion to note, 10 is not an ordinary corporate conflict-of-interest statute, but is part of our Nation's antitrust laws, specifically designed to protect common carriers such as railroads. See United ; Minneapolis & St. Louis R. The purpose of 10 "was to prohibit a *730 corporation from abusing a carrier through overreaching by, or other misfeasance of, common directors, to the financial injury of the carrier and the consequent impairment of its ability to serve the public interest." 361 U.S., at The private causes of action brought by respondent railroad under 10 serve to vindicate this important congressional policy. See And by barring this suit, notwithstanding the plain allegations in the complaint that the carrier as well as the public interest |
Justice Marshall | 1,974 | 15 | dissenting | Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co. | https://www.courtlistener.com/opinion/109076/bangor-punta-operations-inc-v-bangor-aroostook-r-co/ | complaint that the carrier as well as the public interest it serves were injured through violations of this section committed by petitioners,[5] the Court directly frustrates the ends of Congress. Indeed, the Court encourages the very kind of abuses 10 was designed to prohibit. The majority shareholder of a carrier can convert and misappropriate its assets through improper intercorporate transactions, with the "consequent impairment of its ability to serve the public interest," and then wash its hands of and remain free from any legal liability for its statutory violation by selling off its interest.[6] *731 I would find counsel instead in this Court's opinion in Perma Life The Court took note in that case that "[w]e have often indicated the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes." As we recognized, "the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement." These principles have even greater force here, since Amoskeag, "whatever its own lack of equity, is neither a *732 wrongdoer nor a participant in any wrong." -871. In the final analysis, the Court's holding does a disservice to one of the most settled of equitable doctrines, reflected in the maxim that "[e]quity will not suffer a wrong without a remedy." Independent Wireless Tel. Because I would follow that maxim here and permit respondent railroad to maintain this action to seek redress for the wrongs allegedly done to it and to the public interest it serves, I respectfully dissent. |
Justice Marshall | 1,976 | 15 | concurring | Garner v. United States | https://www.courtlistener.com/opinion/109400/garner-v-united-states/ | I agree with the Court that petitioner, having made incriminating disclosures on his income tax returns rather than having claimed the privilege against self-incrimination, cannot thereafter assert the privilege to bar the introduction of his returns in a criminal prosecution. I disagree, however, with the Court's rationale, which is far broader than is either necessary or appropriate to dispose of this case. This case ultimately turns on a simple question whether the possibility of being prosecuted under 26 U.S. C. 7203 for failure to make a return compels a taxpayer to make an incriminating disclosure rather than claim the privilege against self-incrimination on his return. In discussing this question, the Court notes that only a "willful" failure to make a return is punishable under 7203, and that "a defendant could not properly be convicted for an erroneous claim of privilege asserted in good faith." Ante, at 663 n. 18. Since a good-faith erroneous assertion of the privilege does not expose a taxpayer to criminal liability, I would hold that the threat of prosecution does not compel incriminating disclosures in violation of the Fifth Amendment. The protection accorded a good-faith assertion of the privilege effectively preserves the taxpayer's freedom to choose between making incriminating disclosures and claiming his Fifth Amendment privilege, and I would affirm the judgment of the Court of Appeals for that reason. Not content to rest its decision on that ground, the Court decides that even if a good-faith erroneous assertion of the privilege could form the basis for criminal *667 liability, the threat of prosecution does not amount to compulsion. It is constitutionally sufficient, according to the Court, that a valid claim of privilege is a defense to a 7203 prosecution. Ante, at 662-665. In so holding, the Court answers a question that by its own admission is not presented by the facts of this case. And, contrary to the implication contained in the Court's opinion, the question is one of first impression in this Court. Citing United the Court observes that a taxpayer who claims the privilege on his return can be convicted of a 7203 violation without having been given a preliminary ruling on the validity of his claim and a "second chance" to complete his return after his claim is rejected. The Court then leaps to the conclusion that the Fifth Amendment is satisfied as long as a valid claim of privilege is a defense to a 7203 prosecution. I accept the proposition that a preliminary ruling is not a prerequisite to a 7203 prosecution. But cf. But it does not follow, and Murdock |
Justice Marshall | 1,976 | 15 | concurring | Garner v. United States | https://www.courtlistener.com/opinion/109400/garner-v-united-states/ | prosecution. But cf. But it does not follow, and Murdock I does not hold, that the absence of a preliminary ruling is of no import in considering whether a defense of good-faith assertion of the privilege is constitutionally required.[*] It is one thing to deny a good-faith defense to a witness who is given a prompt ruling on the validity of his claim of privilege and an opportunity to reconsider his refusal to testify before subjecting himself to possible punishment for contempt. See, e. g., It would be quite another to deny a good-faith defense to someone like petitioner, who may *668 be denied a ruling on the validity of his claim of privilege until his criminal prosecution, when it is too late to reconsider. If, contrary to the undisputed fact, a taxpayer had no assurance of either a preliminary ruling or a defense of good-faith assertion of the privilege, he could claim the privilege only at the risk that an erroneous assessment of the law of self-incrimination would subject him to criminal liability. In that event, I would consider the taxpayer to have been denied the free choice to claim the privilege, and would view any incriminating disclosures on his tax return as "compelled" within the meaning of the Fifth Amendment. Only because a good-faith erroneous claim of privilege entitles a taxpayer to acquittal under 7203 can I conclude that petitioner's disclosures are admissible against him. |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | Last Term in we upheld the validity of federal Medicaid regulations that permit "deeming" of income between spouses in those States that have exercised the so-called 09(b) option" provided for in the Social Security Act, as amended, 4 U.S. C. 1396 et seq. (1976 ed. and Supp. III). "Deeming," in the parlance of the Social Security laws and regulations, means that a State determines eligibility by assuming that a portion of the spouse's income is "available" to the applicant. Because an individual's eligibility for Medicaid benefits depends in part on the financial resources that are "available" to him, "[d]eeming has the effect of reducing both the number of eligible individuals and the amount of assistance paid to those who qualify." We rejected contentions that these regulations were arbitrary or capricious and that the regulations were inconsistent with 190(a)(17) of the Social Security Act, 4 U.S. C. 1396a(a)(17).[1] In *68 the present case, we are called upon to decide to what extent the State of Iowa, an "SSI State," may consider the income of the institutionalized Medicaid applicant's noninstitutionalized spouse in determining eligibility for Medicaid. As we explained in greater detail in Gray Medicaid as originally enacted "required participating States to provide medical assistance to `categorically needy' individuals who received cash payments under one of four welfare programs established elsewhere in the [Social Security] Act." This program was restructured in 197 by Congress, when it replaced three of the four categorical programs with Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 4 U.S. C. 1381 et seq. (1976 ed. and Supp. III). Fearing that some States might withdraw from the Medicaid program rather than bear the increased costs imposed by the restructuring, Congress offered the States the 09(b) option." 4 U.S. C. 1396a(f). Under the 09(b) option, the States may elect to provide Medicaid assistance only to those individuals who would have been eligible under the State's Medicaid plan in effect on January 1, 197. In other words, the 09(b) option allows the States to avoid the effect of the link between the SSI and Medicaid programs: States may become either 09(b) States" or "SSI States." If a State participates in the Medicaid program without exercising the 09(b) option, the State is required to make Medicaid assistance available to all recipients of SSI benefits. 4 U.S. C. 1396a(a)(10)(A); 4 CFR 435.10[] SSI States, however, are not limited to providing Medicaid benefits to SSI recipients. The Medicaid program offers participating States the option of providing Medicaid assistance *69 to certain other groups of individuals, see 4 U.S. C. 1396(a)(10)(C), one |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | other groups of individuals, see 4 U.S. C. 1396(a)(10)(C), one of which is the "optional categorically needy." See 4 CFR 435.00-435.31[3] Included among the "optional categorically needy," are (1) individuals who would be eligible for, but for some reason are not receiving, SSI benefits and () individuals who would be eligible for SSI benefits but for their institutionalized status. 4 CFR 435.10-435.11 With regard to the "optional categorically needy," the Secretary's regulations require the States to "deem" the income and resources of spouses who share the same 4 CFR 435.73(b) Where both spouses are eligible for Medicaid, the States must "deem" income for the first six months after the spouses cease to live together. After this 6-month period, the States may consider only the income and resources actually contributed by one spouse to the other. 435.73(c). If only one spouse is eligible for Medicaid, a similar rule applies but the time period is one month instead of six. 435.73(d).[4] In effect, 435.73 places time limitations *70 on the States' ability to consider the spouse's income as "available" to the applicant after the spouses cease to live together. The question addressed by the lower courts, and now presented for our decision, is whether this regulation is a permissible exercise of the Secretary's authority under the Act to define what income is "available." I Petitioner Elvina Herweg has been in a comatose state since August 1976 as a result of two cerebral hemorrhages. When she was placed in a long-term care facility, her husband, petitioner Darrell Herweg, applied for Medicaid assistance on Elvina's behalf. Elvina does not receive SSI benefits, although the parties and the United States as amicus curiae agree that she is eligible to receive such benefits.[5] Iowa applied its own formula to determine Elvina's eligibility for Medicaid and to ascertain the amount Darrell would be required to contribute toward his wife's care. This formula was based on the income Darrell earned as a butcher and on standard living allowances allowed Darrell and his three children living at home. In other words, Iowa was "deeming," or attributing, income earned by one spouse to the other. Iowa, however, was deeming in a manner inconsistent with the Secretary's regulations, which place time limitations upon the States' ability to consider as available to the applicant his spouse's income where the spouses do not share the same and this page, and n. 4. Because Elvina was institutionalized and because Darrell is not *71 eligible for Medicaid, the Secretary's regulations prohibit Iowa from considering Darrell's income after one month from the time the couple ceased |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | income after one month from the time the couple ceased to live together. See 4 CFR 435.73(d) Petitioners filed the instant suit in the United States District Court for the Southern District of Iowa challenging Iowa's "deeming" of the income of a Medicaid applicant's spouse.[6] After certifying a class of plaintiffs,[7] the District Court held that 190(a)(17) of the Social Security Act, 4 U.S. C. 1396a(a)(17), required Iowa's procedures to "provide for a factual determination in each instance of the amount of the spouses income which is in fact reasonably available for the support of the institutionalized spouse. Such determination must give due consideration to the individual obligations and the particular needs of each spouse and family." In interpreting 190(a)(17), the District Court concluded that " `deeming' is contrary to congressional intent whether income of the noninstitutionalized spouse is deemed available or unavailable." The District Court noted that the predecessor to 4 CFR 435.73 [8] was inconsistent with its interpretation of 190(a)(17). In the District Court's view, therefore, the Secretary's regulation was inconsistent with *7 190(a)(17) because the regulation disabled the States in certain instances from considering the spouses income as available to the applicant. In response to this order, Iowa adopted a procedure for making individualized factual determinations of the amount of income available to an institutionalized spouse. The District Court approved this plan and petitioners appealed. The Court of Appeals for the Eighth Circuit affirmed by an equally divided Court. We reverse. II Although Elvina Herweg does not receive SSI benefits, the class certified without objection by the District Court includes SSI recipients. We therefore construe the order entered by the District Court, and the plan adopted by Iowa in response, as applying both to SSI recipients and to the optional categorically needy. A With regard to recipients of SSI benefits, the District Court's order clearly conflicts with 190(a)(10)(A) of the Social Security Act, 4 U.S. C. 1396a(a)(10)(A), which requires States not having exercised the 09(b) option to provide Medicaid assistance to all SSI recipients.[9] 4 CFR 435.10 See The SSI program, contained in Title XVI of the Social Security Act, 4 U.S. C. 138 et seq. (1976 ed. and Supp. III), contains its own eligibility provisions. See, e. g., 4 U.S. C. 138(a)(1), 138c(b), (f)(1). Pursuant to the District Court's order, however, Iowa is permitted to deny *73 Medicaid benefits to institutionalized SSI recipients if, after making an individualized factual determination, Iowa concludes that the income of the SSI recipient's spouse should be considered available even though it was not actually contributed. Because Congress has clearly spoken |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | it was not actually contributed. Because Congress has clearly spoken in this regard, to the extent it permits Iowa to deny Medicaid assistance to SSI recipients, the District Court's order cannot stand.[10] In requiring individualized determinations of income available to the Medicaid applicant, the District Court held that the Secretary has exceeded his authority in permitting any "deeming" whatsoever. In however, we held that Congress intended to permit a state Medicaid plan to deem the income from the applicant's spouse as part of the available income which the state plan may consider in determining eligibility. Thus, to the extent that the District Court's order forbids deeming under any circumstances, the order conflicts with our decision in Gray B The issue that remains, therefore, is whether 190(a)(17) precludes the Secretary from promulgating regulations that impose time limitations upon the States' ability to consider the income of the institutionalized applicant's spouse. *74 Relying on 190(a)(17)(D),[11] respondents argue that the Secretary has exceeded his authority in placing time limitations upon the States' authority to consider the financial responsibility of spouses. Subsection (17)(D), respondents argue, evidences Congress' intent to permit the States to consider the financial responsibility of spouses and parents. Nothing in the statute or the legislative history,[1] respondents contend, suggests that Congress intended to prevent the States from enforcing their financial responsibility policies simply because the Medicaid applicant is institutionalized. We think, however, that respondents overemphasize the effect of subsection (17)(D). That provision may not be read independently of subsection (17)(B). Subsection (17)(B) provides that participating States must grant benefits to eligible individuals "taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant." 4 U.S. C. 1396a(a)(17)(B) (emphasis added). In Gray we recognized that subsection (17)(B) delegates to the Secretary broad authority to prescribe standards setting eligibility requirements for state Medicaid plans. In view of Congress' explicit delegation of authority to give substance to the meaning of "available," the Secretary's definition of the term is " `entitled to more than mere deference or weight.' " *75 quoting Because Congress has entrusted the primary responsibility of interpreting a statutory term to the Secretary rather than to the courts, his definition is entitled to " `legislative effect.' " ; Batterton, v. at As in Gray and Batterton, our review is limited to determining whether the Secretary has exceeded his statutory authority and whether the regulation is arbitrary and capricious. Although Congress has approved of some deeming of income between Medicaid applicants and their spouses, we cannot agree with respondents that |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | applicants and their spouses, we cannot agree with respondents that Congress intended the States to enforce their spousal responsibility policies wholly unimpeded by the Secretary's congressionally authorized power to give substance to the term "available." In placing time limitations upon the States' ability to consider the spouses income where the Medicaid applicant and his spouse no longer live together, the Secretary has done nothing more than define what income is "available." Although Congress intended that a spouses income could be part of the income which the Secretary may determine should be considered by the States as available to the Medicaid applicant, we see nothing in subsection (17)(D) that precludes the Secretary from imposing upon the States the time limits at issue in the instant case. We find nothing in subsection (17)(D) either that disables the Secretary from defining the term "available" in such circumstances, or that gives the States authority to "deem" income unimpeded by the Secretary's authority under subsection (17)(B).[13] Subsection (17)(D) cannot *76 be read to require the Secretary to permit the States to consider the income of a spouse no longer living with the applicant as available to the applicant for an unlimited duration. Although we do not agree with the contention of the United States, and apparently that of petitioners, that the time limitations in 4 CFR 435.73 are compelled by the relationship between the Medicaid and SSI programs, we do agree that the Secretary may acknowledge this relationship in defining "availability" of income with regard to Medicaid applicants within the optional categories. As we have explained, the optional categorically needy consists in part of those individuals who are eligible for, but are not receiving, SSI benefits and those individuals who, but for their institutionalization, would be eligible for SSI benefits. Since these groups are defined in part with regard to SSI income limitations, it is reasonable that the Secretary should determine that States electing to provide medicaid assistance to the optional categorically needy should apply a similar method for calculating income as that employed in the SSI program. The 1-month and 6-month limitations in 4 CFR 435.73 are virtually identical to the SSI requirements. See 4 U.S. C. 138(a)(1), 138c(b), (f)(1). We cannot say that it is either arbitrary or capricious for the Secretary to conclude that SSI recipients and the optional categorically needy should be treated similarly with respect to the method used for calculating income in determining whether the State is entitled to receive federal financial assistance under the Medicaid program. In upholding the Secretary's limitation on deeming, we do not thereby render |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | the Secretary's limitation on deeming, we do not thereby render subsection (17)(D) meaningless. That provision, however, may not be read in isolation from the other provisions of the Social Security Act. We have no doubt that some tension exists between the Secretary's congressionally authorized power under subsection (17)(B) to determine what income is "available" to the applicant and Congress' intent in subsection (17)(D) to permit the States to *77 enforce their spousal responsibility policies.[14] Because Congress in subsection (17)(B) has delegated broad authority to the Secretary to set eligibility standards for the Medicaid program, however, we cannot say that the Secretary's regulations placing time limitations on the States' ability to deem income between spouses who do not share the same household are unreasonable or contrary to law. A reviewing court may not set aside the Secretary's regulations "simply because it would have interpreted the statute in a different manner." A fortiori, Iowa may not ignore federal regulations simply because it interprets 190(a)(17) in a manner it considers preferable to the Secretary's interpretation. This would be a different case, and respondents' arguments more compelling, if the Secretary had sought to use his authority under subsection (17)(B) to foreclose entirely the States' ability to consider the income of the institutionalized applicant's spouse. Such a reading of the statute could well render subsection (17)(D) superfluous. See The Secretary's regulations, however, impose no such across-the-board limitation on the States' ability to implement their spousal responsibility policies. The challenged regulation applies only to those SSI States that have decided to extend Medicaid benefits to the optional categorically needy, and it prohibits deeming only after the spouses have ceased to live together for prescribed periods of time. On the contrary, 4 CFR 435.73 is simply an exception to the general rule that the spouses income may be considered available to the applicant. With regard to the optional categorically needy, SSI States are required to deem *78 the income and resources of spouses living in the same 435.73(b). States exercising the 09(b) option are required to deem income to the extent required in SSI States and may deem to the full extent they did before 197. 435.734. See[15] Finally, the SSI applicant is considered to a similar extent to have available to him his spouses income and financial resources. See n. We conclude that the Secretary need not interpret 190 (a)(17) to require an individualized factual determination in each instance as to the amount of income of an applicant's spouse that may reasonably be considered available to the applicant. With regard to SSI recipients in SSI States, |
Justice Rehnquist | 1,983 | 19 | majority | Herweg v. Ray | https://www.courtlistener.com/opinion/110648/herweg-v-ray/ | the applicant. With regard to SSI recipients in SSI States, such an interpretation would be contrary to 190(a)(10)(A), 4 U.S. C. 1396a(a)(10)(A). With regard to the optional categorically needy, we find that the Secretary has not exceeded his authority in promulgating 4 CFR 435.73 and that this regulation is neither arbitrary nor capricious. Accordingly, we reverse the judgment of the Court of Appeals for the Eight Circuit and remand for proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part. The Court speculates that subsection 17(D) might well be superfluous if subsection 17(B) were read to permit the Secretary to foreclose entirely the States' ability to consider the income of the spouse of an institutionalized applicant. Ante, *79 at 77. This speculation apparently is predicated on the belief that subsection 17(D) requires the States to deem certain income of an applicant's spouse to be available to the applicant.[1] The Court's observation is both unnecessary and misleading.[] Subsection 17(D), like subsection 17(B), places a limit on the extent to which an applicant's income may be deemed to include contributions from other sources. Nothing in the language of either subsection requires that any spousal income be deemed to be available to an applicant. Apart from the Court's speculation concerning a regulation that does not exist, I join its opinion. |
Justice Ginsburg | 1,999 | 5 | concurring | Reno v. American-Arab Anti-Discrimination Comm. | https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/ | I agree with Justice Scalia that 8 U.S. C. 1252(g) (1994 ed., Supp. III) applies to this case and deprives the federal courts of jurisdiction over respondents' pre-final-order suit. Under 1252, respondents may obtain circuit court review of final orders of removal pursuant to the Hobbs Act, 28 U.S. C. 2341 et seq. (1994 ed. and Supp. II). See 8 U.S. C. 1252(a)(1) (1994 ed., Supp. III). I would not prejudge the question whether respondents may assert a selective enforcement objection when and if they pursue such review. It suffices to inquire whether the First Amendment necessitates immediate judicial consideration of their selective enforcement plea. I conclude that it does not. I Respondents argue that they are suffering irreparable injury to their First Amendment rights and therefore require instant review of their selective enforcement claims. We have not previously determined the circumstances under which the Constitution requires immediate judicial intervention in federal administrative proceedings of this order. Respondents point to our cases addressing federal injunctions *493 that stop state proceedings, in order to secure constitutional rights. They feature in this regard as interpreted in Respondents also refer to Those cases provide a helpful framework. In Younger, this Court declared that federal restraint of state prosecutions is permissible only if the state defendant establishes "great and immediate" irreparable injury, beyond "that incidental to every criminal proceeding brought lawfully and in good faith." 47 A chilling effect, the Court cautioned, does not "by itself justify federal intervention." Younger recognized, however, the prospect of extraordinary circumstances in which immediate federal injunctive relief might be obtained. The Court referred, initially, to bad faith, harassing police and prosecutorial actions pursued without "any expectation of securing valid convictions."[1] Further, the Court observed that there may be other "extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment," for example, where a statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." *494 In Oestereich, the Selective Service Board had withdrawn a ministry student's statutory exemption from the draft after he engaged in an act of protest. See The student brought suit to restrain his induction, and this Court allowed the suit to go forward, notwithstanding a statutory bar of preinduction judicial review. Finding the Board's action "blatantly lawless," the Court concluded that to require the student to raise his claim through habeas corpus or as a defense to a criminal prosecution |
Justice Ginsburg | 1,999 | 5 | concurring | Reno v. American-Arab Anti-Discrimination Comm. | https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/ | habeas corpus or as a defense to a criminal prosecution would be "to construe the Act with unnecessary harshness." The precedent in point suggests that interlocutory intervention in Immigration and Naturalization Service (INS) proceedings would be in order, notwithstanding a statutory bar, if the INS acts in bad faith, lawlessly, or in patent violation of constitutional rights. Resembling, but more stringent than, the evaluation made when a preliminary injunction is sought, see, e. g., this test would demand, as an essential element, demonstration of a strong likelihood of success on the merits. The merits of respondents' objection are too uncertain to establish that likelihood. The Attorney General argued in the court below and in the petition for certiorari that the INS may select for deportation aliens who it has reason to believe have carried out fundraising for a foreign terrorist organization. See App. to Pet. for Cert. 20a; Pet. for Cert. 21-25. Whether the INS may do so presents a complex question in an uncharted area of the law, which we should not rush to resolve here. Relying on Middlesex County Ethics respondents argue that their inability to raise their selective enforcement claims *495 during the administrative proceedings, see ante, at 476, makes immediate judicial intervention necessary. As we explained in Middlesex County, Younger abstention is appropriate only when there is "an adequate opportunity in the state proceedings to raise constitutional challenges." ; see Ohio Civil Rights Here, Congress has established an integrated scheme for deportation proceedings, channeling judicial review to the final order, and deferring issues outside the agency's authority until that point. Given Congress' strong interest in avoiding delay of deportation proceedings, see ante, at 490, I find the opportunity to raise a claim during the judicial review phase sufficient. If a court of appeals reviewing final orders of removal against respondents could not consider their selective enforcement claims, the equation would be different. See (a "serious constitutional question would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim" ). Respondents argue that that is the case, because their claims require factfinding beyond the administrative record. Section 1252(a)(1) authorizes judicial review of "final order[s] of removal." We have previously construed such "final order" language to authorize judicial review of "all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." Whether there is here a need for factfinding beyond the administrative record is a matter properly postponed. I note, however, the Attorney General's *496 position that the reviewing court |
Justice Ginsburg | 1,999 | 5 | concurring | Reno v. American-Arab Anti-Discrimination Comm. | https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/ | however, the Attorney General's *496 position that the reviewing court of appeals may transfer a case to a district court for resolution of pertinent issues of material fact, see Brief for Petitioners 44, 48-49, and n. 23,[2] and counsel's assurance at oral argument that petitioners will adhere to that position, see Tr. of Oral Arg. 5-6.[3] *497 II The petition for certiorari asked this Court to review the merits of respondents' selective enforcement objection, but we declined to do so, granting certiorari on the jurisdictional question only. See Pet. for Cert. I, 20-30; We thus lack full briefing on respondents' selective enforcement plea and on the viability of such objections generally. I would therefore leave the question an open one. I note, however, that there is more to "the other side of the ledger," ante, at 491, than the Court allows. It is well settled that "[f]reedom of speech and of press is accorded aliens residing in this country." Under our selective prosecution doctrine, "the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." I am not persuaded that selective enforcement of deportation laws should be exempt from that prescription. If the Government decides to deport an alien "for reasons forbidden by the Constitution," United it does not seem to me that redress for the constitutional violation should turn on the gravity of the governmental sanction. Deportation, in any event, is a grave sanction. As this Court has long recognized, "[t]hat deportation is a penalty at times a most serious onecannot be doubted." ; see also ; G. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 162 ("Deportation has a far harsher impact on most resident aliens than many conceded `punishment[s]' Uprooting the alien from home, friends, family, and work would be severe regardless of the country to which the alien was being returned; breaking these attachments inflicts more pain than preventing them from being made."). * * * In sum, were respondents to demonstrate strong likelihood of ultimate success on the merits and a chilling effect on current speech, and were we to find the agency's action flagrantly improper, precedent and sense would counsel immediate judicial intervention. But respondents have made no such demonstration. Further, were respondents to assert a colorable First Amendment claim as a now or never matter were that claim not cognizable upon judicial review of a final orderagain precedent and sense would counsel immediate resort to a judicial forum. In common with the |
Justice Ginsburg | 1,999 | 5 | concurring | Reno v. American-Arab Anti-Discrimination Comm. | https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/ | immediate resort to a judicial forum. In common with the Attorney General, however, I conclude that in the final judicial episode, factfinding, to the extent necessary to fairly address respondents' claims, is not beyond the federal judiciary's ken. For the reasons stated, I join in Parts I and II of the Court's opinion and concur in the judgment. Justice Stevens, concurring in the judgment. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or Act) is a part of an omnibus enactment that occupies 750 pages in the Statutes at Large. Stat. 3009-546. It is not surprising that it contains a scrivener's error. See Despite that error, Congress' intended disposition of cases like this is plain. It must be dismissed. The textual difficulty that is debated by my colleagues concerns the impact of IIRIRA on proceedings that were pending on the effective date of the Act. Putting those cases to one side for the moment, the meaning of 8 U.S. C. 1252(b)(9) and (g) (1994 ed., Supp. III) is perfectly clear. The former postpones judicial review of removal proceedings until the entry of a final order[1] and the latter deprives federal courts of jurisdiction over collateral challenges to ongoing administrative proceedings.[2] Thus, if 1252 applies to these respondents, the deportation proceedings pending before the Immigration and Naturalization Service (INS) are not yet ripe for review, and this collateral attack on those proceedings must be dismissed. If we substitute the word "Act" for the word "section" in the introductory clause of 1252(g), the impact of this provision on pending proceedings is equally clear. That substitution would remove any obstacle to giving effect to the plain meaning of IIRIRA 306(c)(1) and 309(c)(1). The former defines the effective date of the Act and makes 1252(g)'s *500 prohibition against collateral attacks effective immediately;[3] the latter makes the new rules inapplicable to aliens in exclusion or deportation proceedings pending before the INS on the effective date of the Act.[4] Judicial review of those administrative proceedings remains available in the courts of appeal under the old statutory regime. See 8 U.S. C. 1105a. Admittedly, there is a slight ambiguity in the text of 309 because it refers to the "case of an alien who is in exclusion or deportation proceedings" before the effective date of the new Act. Respondents are such aliens, and therefore the word "case" arguably could be read to include their present collateral attack on the INS proceedings as well as to an eventual challenge to the final order of deportation. Because that reading would be inconsistent with 306, however, it |
Justice Ginsburg | 1,999 | 5 | concurring | Reno v. American-Arab Anti-Discrimination Comm. | https://www.courtlistener.com/opinion/118264/reno-v-american-arab-anti-discrimination-comm/ | Because that reading would be inconsistent with 306, however, it is clear that Congress intended 309 to apply only to the INS "exclusion or deportation" proceedings that it expressly mentions. To summarize, I think a fair reading of all relevant provisions in the statute makes it clear that Congress intended its prohibition of collateral attacks on ongoing INS proceedings *501 to become effective immediately while providing that pending administrative proceedings should be completed under the scheme of judicial review in effect when they were commenced. I should add that I agree with Justice Souter 2122s explanation of why 1252(g) applies broadly to removal proceedings rather than to only three discrete parts of such proceedings. See post, 5-507 (dissenting opinion). I do not, however, share his constitutional doubt concerning the prohibition of collateral proceedings such as this one. Of course, Congress could not authorize punishment of innocent persons because they happen to be members of an organization that engaged in terrorism. For the reasons stated in Part III of the Court's opinion, however, I have no doubt that the Attorney General may give priority to the removal of deportable aliens who are members of such an organization. See ante, 7-492. Accordingly, I agree that the judgment of the District Court must be vacated. |
Justice Powell | 1,972 | 17 | dissenting | Pennsylvania v. New York | https://www.courtlistener.com/opinion/108576/pennsylvania-v-new-york/ | The majority opinion today purports to apply the rule laid down in to a fact situation not contemplated when that case was decided. In applying that rule to these new facts, it seems to me that the Court exalts the rule but derogates the reasons supporting it. I a case decided within the Court's original jurisdiction, is a unique precedent. Disposition of that case necessarily required a departure from the Court's usual mode of decisionmaking. Our role in this country's scheme of government is ordinarily a restricted one, limited in large measure to the resolution of conflicts calling for the interpretation and application either of statutory acts or of provisions of the Federal Constitution. In the performance of this function, an individual Justice's views as to what he might consider "fair" or "equitable" or "expeditious" are largely immaterial. Infrequently, however, we are called on to resolve disputes arising under the original jurisdiction of the Court (Art. III, 2) in which our judgment is unaided by statutory or constitutional directives. In approaching such cases, we may find, as did the *217 Court in that fairness and expeditiousness provide the guideposts for our decision: "[T]he issue here is not controlled by statutory or constitutional provisions or by past decisions, nor is it entirely one of logic. It is fundamentally a question of ease of administration and of equity." The case before us today requires the application of similar principles, and I agree that Mr. Justice Black's opinion in points the way to the most desirable result. In my view, however, the majority's application of that precedent to the facts of this case offends both the "fairness" and "ease of administration" bases of that opinion. The Court in was asked to decide which States could take title to escheatable intangible personal property in the form of debts owed by Sun Oil Co. to a large number of individual creditors. After rejecting several alternatives offered by the parties, the Court adopted the rule proposed by the State of Florida and approved by the Special Master. Under that rule the power to escheat the debts in question, in the first instance, was to be accorded "to the State of the creditor's last known address as shown by the debtor's books and records." In the "infrequent" case in which no record of last address was available or in which the appropriate State's laws did not provide for the escheat of abandoned intangibles, the property was to go to the State of the debtor's corporate domicile. This disposition recommended itself to the Court for several reasons. The |
Justice Powell | 1,972 | 17 | dissenting | Pennsylvania v. New York | https://www.courtlistener.com/opinion/108576/pennsylvania-v-new-york/ | disposition recommended itself to the Court for several reasons. The rule was generally consistent with the common-law maxim "mobilia sequuntur personam"[*]*218 under which intangible personal property may be found to follow the domicile of its ownerhere the creditor. n. 10. In looking to the residence of the creditor, the rule adopted by the Court recognized that the Company's unclaimed debts were assets of the individual creditors rather than assets of the debtor. Also, in distributing the property among the creditors' States, the rule had the advantage of dividing the property in a manner roughly proportionate to the commercial activities of each State's residents. In using the last-known address as the sole indicator of domicile, the rule would be easy to administer and apply. The Court recognized, of course, that this approach might lead to the escheat of property to a State from which the creditor had removed himself in the period since the debt arose. Yet it concluded that these instances would "tend to a large extent to cancel each other out," and would not disrupt the basic fairness and expeditiousness of the result. Paradoxically, the mechanistic application of the rule to the present case leads ultimately to the defeat of each of the beneficial justifications for that rule. Unlike the records of the numerous debts owed by Sun Oil, Western Union's records may reflect the creditors' addresses for only a relatively small percentage of the transactions. As a consequence, the greater portion of the entire Western Union fund will go to the State of New Yorkthe State of corporate domicile. Effectively then, the obligation of the debtor will be converted into an asset of the debtor's State of domicile to the exclusion of the creditors' States. The Court in specifically repudiated this result on the ground that it was inconsistent with "principles of fairness." It would have "exalt[ed] a minor factor to permit escheat of obligations incurred all over the country by the State in which the debtor happened *219 to incorporate itself." The fact that the Court was willing to permit this result in the few cases in which no record of address was available or in which no law of escheat governed, does not diminish the clear view of the Court that this result would be impermissible as a basis for disposing of more than a small minority of the debts. Yet the decision today ignores the Court's unwillingness to "exalt" the largely coincidental domicile of the corporate debtor. It also disregards the Court's clearly expressed intent that the escheatable property be distributed in proportions roughly comparable |
Justice Powell | 1,972 | 17 | dissenting | Pennsylvania v. New York | https://www.courtlistener.com/opinion/108576/pennsylvania-v-new-york/ | that the escheatable property be distributed in proportions roughly comparable to the volume of transactions conducted in each State. Furthermore, the rule today is incompatible with the Court's view in that an easily and inexpensively discernible mode of allocation be utilized. The majority's rule will require the examination of every available money order application to determine whether the applicant filled out the address blank for his own address, or in the case of money order drafts received but not cashed, whether the holder's address had been preserved. Western Union estimated in the stipulated statement of facts that such an item-by-item examination could be undertaken at a cost of approximately $175,000. Report of the Special Master 16. In sum, the invocation of the rule in the manner contemplated by the majority will lead to a result that is neither expeditious nor equitable. II The reasons underlying could best be effectuated by a relatively minor but logical deviation in the manner in which that rule is implemented in this case. Rather than embarking upon a potentially fruitless search for the creditor's last-known address as a rough indicator of domicile, reliance should be placed upon the State where the debtor-creditor relationship was *220 established. In most cases that State is likely also to be the site of the creditor's domicile. In other words, in the case of money orders sent and then returned to the initiating Western Union office because the sendee failed to claim the money, the State in which the money order was purchased may be presumed to be the State of the purchaser-creditor's domicile. And, where the draft has been received by either the initiating party or by the recipient but not negotiated, the State in which the draft was issued may be assumed to be the State of that creditor's domicile. This modification is preferable, first, because it preserves the equitable foundation of the rule. The State of the corporate debtor's domicile is denied a "windfall"; the fund is divided in a proportion approximating the volume of transactions occurring in each State; and the integrity of the notion that these amounts represent assets of the individual purchasers or recipients of money orders is maintained. Secondly, the relevant information would be more easily obtainable. The place of purchase and the office of destination are reflected in Western Union's ledger books and it would, therefore, be unnecessary to examine the innumerable application forms themselves. Since the ledgers are more readily available, the allocation of the fund would be effected at less expense than would be required by the majority's resolution. Despite |
Justice Powell | 1,972 | 17 | dissenting | Pennsylvania v. New York | https://www.courtlistener.com/opinion/108576/pennsylvania-v-new-york/ | expense than would be required by the majority's resolution. Despite these advantages, the Special Master rejected this alternative. He reasoned that an undetermined number of these transactions must have taken place outside the creditors' State of domicile. Specifically, he cited the cases in which a New Jersey or Connecticut resident might purchase a money order in New York, or cases in which a resident of Virginia or Maryland might make his purchase in the District of Columbia. Report of the Special Master 18. While such cases *221 certainly exist, they are merely exceptions to a generally reliable rule that money order purchases are likely to have occurred within the State of the purchaser's domicile. That perfection is not achieved is no reason to reject this alternative. The Court recognized that absolute fairness was not obtainable and that the most that could be expected was a rule providing a reasonable approximation. n. 11. Certainly this objection should not be allowed to frustrate the better alternative in favor of one that is less fair and more difficult to administer. III The majority opinion intimates, as I think it must, that the ultimate consequence of its decision today is inconsistent (ante, at 214) with the result in While the opinion appears to recognize that New York will reap the very "windfall" that sought to avoid, its refusal to bend in the face of this consequence goes largely unexplained. Apparently, the basis for its decision is the conviction that the Court's prior precedent was designed to settle the question of escheat of intangible personal property "once and for all." The majority adheres to the existing rule because of some apprehension that flexibility in this case will deprive the Court of a satisfactory test for the resolution of future cases. The opinion anticipates that departure from will leave other cases to be decided on an ad hoc basis, depending in each case on the "adequacy of the debtor's records." Ante, at 215. Although the factual circumstances of future cases cannot be predicted, it is likely that most of such cases can be resolved within the principles of The factual range is limited. The debtor either will or will not maintain creditors' addresses in the ordinary course of business. *222 In some categories of transactions, such as those involving money orders and traveler's checks, adequate address records may not be available. In the case of ordinary corporate debts, however, it is more likely that records will be available. Moreover, as the majority points out, any State is free to require corporations doing business in that State |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | These cases involve the interaction of three federal statutes with respect to the proposed sale of the rail line of the Pittsburgh and Lake Erie Railroad Co. (P&LE). The statutes are the Railway Labor Act (RLA), as amended, 45 U.S. C. 151 et seq.; the Interstate Commerce Act (ICA), 49 U.S. C. 10101 et seq. (1982 ed. and Supp. V); and the Norris-LaGuardia Act (NLGA), 29 U.S. C. 101 et seq. I Petitioner, P&LE, is a small rail carrier owning and operating 182 miles of rail line serving points in Ohio and western Pennsylvania and possessing trackage rights over other lines extending into New York. P&LE has experienced financial problems of increasing severity, having lost $60 million during the five years preceding the onset of these cases. After other efforts to improve its condition failed, notably work force reductions, concessions from its employees, and market expansion, P&LE decided that in order to recoup for its owners any part of their investments it must sell its assets.[1] On July 8, P&LE agreed to sell its assets for *495 approximately $70 million to a newly formed subsidiary, P&LE Rail Co., Inc. (Railco), of Chicago West Pullman Transportation Corporation (CWP).[2] Railco intended to operate the railroad as P&LE had except that Railco would not assume P&LE's collective-bargaining contracts with its various unions and would need only about 250 employees rather than the 750 then working for P&LE.[3] When the unions representing P&LE's employees were notified of the proposed sale, they asserted that the sale would have an effect on the working conditions of the carrier's employees and therefore was subject to the requirements of the RLA, 45 U.S. C. 152 Seventh and 156, which provide: " 152 Seventh. Change in pay, rules, or working conditions contrary to agreement or to section 156 forbidden "No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title." " 156. Procedure in changing rates of pay, rules, and working conditions "Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are *496 being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board."[4] The unions advised that they stood ready to negotiate all aspects of the matter, including the decision to sell the railroad assets. P&LE responded that it was willing to discuss the matter but that 156 notice and bargaining were not required since the transaction was subject to the jurisdiction of the Interstate Commerce Commission (ICC or Commission) *497 under the ICA and since the requirements of 155 and 156 would intrude on that regime as well as upon management's prerogatives to conduct the affairs of the company with respect to the sales transaction. Most of the unions then responded by themselves filing 156 notices proposing changes in existing agreements to ameliorate the adverse impacts of the proposed sale upon P&LE's employees. The unions sought guarantees that the sale would not cause any employee to be deprived of employment or to be placed in any worse position with respect to pay or working conditions and that P&LE would require that the purchaser of its rail line assume P&LE's collective-bargaining agreements.[5] P&LE again declined to bargain, asserting that the transaction was within the exclusive jurisdiction of the ICC. On August 19, respondent, Railway Labor Executives' Association (RLEA), on behalf of P&LE's unions, filed suit in the United States District Court for the Western District of Pennsylvania, seeking a declaratory judgment with respect to P&LE's obligations under the RLA *498 and an injunction against the sale pending completion of RLA bargaining obligations. On September 15, the unions went on strike. P&LE's request for a restraining order against the strike was denied by the District Court on the ground that the NLGA forbade such an order.[6] The proposed sale of assets could not be carried out without compliance with the terms of the ICA, 49 U.S. C. 10901, which requires that noncarriers seeking to acquire a rail line first obtain a certificate of public convenience and necessity from the ICC. Section 10901(e) specifies the procedures for this |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | from the ICC. Section 10901(e) specifies the procedures for this purpose and provides that the ICC "may" require the acquiring company "to provide a fair and equitable arrangement for the protection of railroad employees who may be affected thereby no less protective of and beneficial to the interests of such employees than those established pursuant to section 11347 of this title."[7] Section 10505, however, *499 authorizes the Commission to grant exemptions from the requirements of the Act when not necessary to carry out the national transportation policy.[8] Based on its experience with acquisitions under 10901, the ICC had issued what is known as the Ex Parte No. 392 Class Exemption, see Ex Parte No. 392 (Sub. No. 1), Class Exemption for the Acquisition and Operation of Rail s Under 49 U.S. C. 10901, *500 1 I. C. C. 2d 810 (1985) (Ex Parte 392), review denied sub nom. Illinois Commerce[9] which provides abbreviated procedures for seeking approval for acquisitions by non-carriers such as Railco of an operating railroad or its assets. The regulatory procedure, see 49 CFR 1150.32(b) involved the filing of an application for exemption which would become effective seven days after filing absent contrary notice from the Commission.[10] An interested party could oppose *501 the exemption by filing a petition to revoke at any time, after consideration of which the ICC could revoke the exemption in whole or in part or impose labor protective provisions. The ICC had indicated, however, that only in exceptional situations would such protective provisions be imposed. Accordingly, Railco on September 19, filed a notice of exemption pursuant to Ex Parte 392. After denying various requests by the unions to reject the notice of exemption and stay the sale, the Commission allowed the exemption to become effective on September 26. A petition to revoke filed by RLEA on October 2 is still pending before the Commission. At no time did RLEA request imposition of labor protective provisions pursuant to the Commission's authority under 10901.[11] On October 5, P&LE reapplied to the District Court for an order restraining the strike. The District Court granted the request on October 8, ruling that the authorization of the sale by the ICC negated any duty that P&LE had to bargain over the effects of the sale on its employees, and that the NLGA did not forbid issuance of an injunction under such circumstances.[12] On October 26, however, the Court of Appeals summarily reversed, holding that the ICA did not require accommodation of the NLGA's restrictions on the District Court's powers. A remand was ordered to determine whether the |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | Court's powers. A remand was ordered to determine whether the sale or strike violated the RLA. The unions did not resume their strike when the Court of Appeals reversed the District Court's injunction, but threatened to do so if P&LE attempted to consummate the sale to Railco.[13] *502 The case in the District Court then went forward. Addressing the unions' request for an injunction, the District Court held that although P&LE did not have a duty to bargain over its decision to sell, P&LE was required by the RLA to bargain over the effects of the sale on employees, and that the status quo provision of 156 required that its bargaining obligations under the RLA must be satisfied before the sale could be consummated despite approval of the transaction by the ICC acting pursuant to the ICA. A divided Court of Appeals affirmed the judgment of the District Court. We granted P&LE's petition in No. 87-1888, challenging the Court of Appeals' affirmance of the injunction against the sale issued by the District Court, as well as P&LE's petition in No. 87-1589, asking for reversal of the judgment of the Court of Appeals setting aside the strike injunction issued by the District Court. II In No. 87-1888, the issue is whether the RLA, properly construed, required or authorized an injunction against closing the sale of P&LE's assets to Railco because of an unsatisfied duty to bargain about the effects of the sale on P&LE's employees. We first address whether the RLA required P&LE to give notice of its decision to sell and to bargain about the effects of the sale. We then consider whether the unions' own notices and the status quo provision of 156 justified the injunction. *503 A P&LE submits that neither its decision to sell nor the impact that sale of the company might have had on its employees was a "change in agreements affecting rates of pay, rules, or working conditions" (emphasis added) within the meaning of the RLA, 45 U.S. C. 156, and that P&LE therefore had no duty to give notice or to bargain with respect to these matters. The Court of Appeals rejected this submission, focusing on the effects the sale would have on employees and concluding that the "loss of jobs by possibly two-thirds of the employees clearly would require a `change in agreements affecting rates of pay, rules, or working conditions.' " The court did not point out how the proposed sale would require changing any specific provision of any of P&LE's collective-bargaining agreements. It did not suggest that any of those |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | collective-bargaining agreements. It did not suggest that any of those agreements dealt with the possibility of the sale of the company, sought to confer any rights on P&LE's employees in the event of the sale, or guaranteed that jobs would continue to be available indefinitely.[14] What P&LE proposed to do would remove it from the railroad business and terminate its position as a railroad employer; and like the Court of Appeals, RLEA does not explain how such action would violate or require changing any of the provisions of the unions' written contracts with P&LE. Of course, not all working conditions to which parties may have agreed are to be found in written contracts. Detroit & Toledo Shore R. It may be that *504 "in the context of the relationship between the principals, taken as a whole, there is a basis for implying an understanding on the particular practice involved." But the Court of Appeals did not purport to find an implied agreement that P&LE would not go out of business, would not sell its assets, or if it did, would protect its employees from the adverse consequences of such action. Neither does RLEA. We therefore see no basis for holding that P&LE should have given a 156 notice of a proposed "change" in its express or implied agreements with the unions when it contracted to sell its assets to Railco. Nor was it, based on its own decision to sell, obligated to bargain about the impending sale or to delay its implementation. We find RLEA's arguments to the contrary quite unconvincing. B There is more substance to the Court of Appeals' holding, and to RLEA's submission, that the unions' 156 notices proposed far-reaching changes in the existing agreements over which P&LE was required to bargain and that the status quo provision of 156 prohibited P&LE from going forward with the sale pending completion of the "purposely long and drawn out" procedures which the Act requires to be followed in order to settle a "major" dispute. Railway Section 156 provides that when a notice of change in agreements has been given, "rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155." Relying on Shore RLEA argues, and the Court of Appeals held, that when a rail labor union files a 156 notice to change the terms of an agreement, the "working conditions" that the carrier may not change pending conclusion of the bargaining process are not limited to those contained in express or implied |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | are not limited to those contained in express or implied agreements but include, as Shore held, "those actual, objective working conditions and practices, broadly conceived, *505 which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." RLEA submits that the relationship of employer-employee and the state of being employed are among those working conditions that may not be changed until the RLA procedures are satisfied. We are unconvinced, for several reasons, that this is the case. The facts of Shore briefly stated, were these: Shore operated 50 miles of rail line between Lang Yard in Toledo, Ohio, and Dearoad Yard near Detroit, Michigan. For many years, all train and engine crews reported for duty and finished the day at Lang Yard. When it was necessary to perform switching and other operations at other points, crews were transported at railroad expense to those outlying points. The company proposed to establish outlying work assignments at Trenton, Michigan, some 35 miles north of Lang Yard. Crews assigned there would have to report there. The proposed change was not forbidden by, and would not have violated, the parties' collective-bargaining agreement. The union filed a 156 notice seeking to amend the agreement to forbid the railroad to make outlying assignments. The issue was not settled by the parties and the union called for mediation. While the Mediation Board proceedings were pending, the railroad posted a bulletin creating the disputed assignment at Trenton. The union threatened a strike, the company sued to restrain the strike, and the union counterclaimed for an injunction relying on the status quo provision of 156. The District Court and the Court of Appeals held for the union, and we affirmed over a dissent by Justice Harlan, joined by Chief Justice Burger. We held that even though Shore did not propose to change any of its agreements, the status quo provision of 156 "rates of pay, rules, or working conditions shall not be altered" pending exhaustion of the required procedure forbade any change by Shore in the "objective working conditions" then We noted that had it been *506 the practice to make outlying work assignments, the company would have been within its rights to make the Trenton assignment; but the prior practice, the objective working condition, was to have crews report for work and come back to Lang Yard. That working condition could not be changed pending resolution of the dispute without violating the status quo provision of 156 even though there was nothing in the agreement between |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | 156 even though there was nothing in the agreement between the parties to prevent outlying assignments. Shore in our view, does not control these cases. In the first place, our conclusion in that case that the status quo provision required adherence not only to working conditions contained in express or implied agreements between the railroad and its union but also to conditions "objectively" in existence when the union's notice was served, and that otherwise could be changed without violating any agreement, extended the relevant language of 156 to its outer limits, and we should proceed with care before applying that decision to the facts of these cases.[15] Second, reporting at Lang Yard, we thought, had been the unquestioned practice for many years, and we considered it reasonable for employees to deem it sufficiently established that it would not be changed without bargaining and compliance with the status quo provisions of the RLA. *507 Third, and more fundamentally, the decision did not involve a proposal by the railroad to terminate its business. Here, it may be said that the working condition existing prior to the 156 notice was that P&LE was operating a railroad through the agency of its employees, but there was no reason to expect, simply from the railroad's long existence, that it would stay in business, especially in view of its losses, or that rail labor would have a substantial role in the decision to sell or in negotiating the terms of the sale. Whatever else Shore might reach, it did not involve the decision of a carrier to quit the railroad business, sell its assets, and cease to be a railroad employer at all, a decision that we think should have been accorded more legal significance than it received in the courts below. Our cases indicate as much. In Textile an employer closed its textile mill when a union won a representation election. The National Labor Relations Board concluded that this action was an unfair labor practice under 8(a)(1) and (3) of the National Labor Relations Act (NLRA). The Court of Appeals disagreed, holding that the complete or partial liquidation of an employer's business even though motivated by antiunion animus was not an unfair practice. We affirmed in part,[16] ruling that insofar as the NLRA is concerned, an employer "has an absolute right to terminate his entire business for any reason he pleases." Whatever may be the limits of 8(a)(1), we said, an employer's decision to terminate its business is one of those decisions "so peculiarly matters of management prerogative that they would never constitute violations" of |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | of management prerogative that they would never constitute violations" of that section. Neither would ceasing business and refusing to bargain about it violate 8(a)(3) or 8(a)(5) even if done with antiunion animus. "A proposition that a single businessman cannot choose to go out of business if he wants to would represent *508 such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Relations Act." We found neither.[17] *509 Although Darlington arose under the NLRA, we are convinced that we should be guided by the admonition in that case that the decision to close down a business entirely is so much a management prerogative that only an unmistakable expression of congressional intent will suffice to require the employer to postpone a sale of its assets pending the fulfillment of any duty it may have to bargain over the subject matter of union notices such as were served in this litigation. Absent statutory direction to the contrary, the decision of a railroad employer to go out of business and consequently to reduce to zero the number of available jobs is not a change in the conditions of employment forbidden by the status quo provision of 156. In these cases, P&LE concluded that it must sell its assets, and its agreement to sell to Railco, if implemented, would have removed it from the railroad business; no longer would it be a railroad employer. No longer would it need the services of members of the rail unions. The RLEA concedes that had the collective-bargaining agreements expressly waived bargaining concerning sale of P&LE's assets, the unions' 156 notices to change the agreements could not trump the terms of the agreements and could not delay the sale. Brief for Respondent RLEA 44. We think the same result follows where the agreement is silent on the matter and the railroad employer has proceeded in accordance with the ICA. In these circumstances, there is little or no basis for the unions to expect that a 156 notice would be effective to delay the company's departure from the railroad business. Congress clearly requires that sales transactions like P&LE's proposal must satisfy the requirements of the ICA, but we find nothing in the RLA to prevent the immediate consummation of P&LE's contract to sell. When the ICC approved the sale by permitting the Ex Parte 392 exemption to become effective, P&LE was free to close the transaction and should not have been enjoined from doing so. *510 This construction of the RLA also responds to |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | so. *510 This construction of the RLA also responds to our obligation to avoid conflicts between two statutory regimes, namely, the RLA and ICA, that in some respects overlap. As the Court has said, we "are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." We should read federal statutes "to give effect to each if we can do so while preserving their sense and purpose." ; see also United We act accordingly in this litigation. Congress has exercised its Commerce Clause authority to regulate rail transportation for over a century. See Act to regulate commerce of 1887 (the ICA), ch. 104, In doing so, Congress has assigned to the ICC plenary authority over rail transactions, ranging from line extensions, consolidations, and abandonments, to acquisitions. In particular, the ICA in 49 U.S. C. 10901(a) permits noncarriers to acquire a rail line only if the ICC determines that "the present or future public convenience and necessity require or permit" the rail acquisition and operation. The ICC may approve certification on satisfaction of various conditions. Specifically, it has authority to impose labor protection provisions though it is not obligated to do so. 10901(e). Acting pursuant to 10505, the ICC, in its Ex Parte 392 exemption proceedings, declared all noncarrier acquisitions presumptively exempt from 10901 regulation. Such transactions would be deemed approved seven days after a notice filed by the acquiring entities. 49 CFR 1150.32(b) And absent a showing of exceptional circumstances, which rail labor was entitled to demonstrate, labor protection provisions would not be imposed. The Ex Parte 392 procedures, and the ICA, 10505 exemption authority generally, like amendments to ICA in the last two *511 decades, see, e. g., the Railroad Revitalization and Regulatory Reform Act of 1976, Stat. 31; the Staggers Rail Act of 1980, Stat. 1895, aimed at reversing the rail industry's decline through deregulatory efforts, above all by streamlining procedures to effectuate economically efficient transactions. Here P&LE agreed to sell its assets to Railco. The transaction was presented to the ICC and an Ex Parte 392 exemption was requested. The ICC rejected the unions' applications to stay or reject the exemption, which became effective seven days after it was requested. The unions then successfully sought an injunction delaying the closing of the transaction based on their 156 notices. The Court of Appeals several times noted the tension between the two regimes, but concluded that the provisions of the |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | the two regimes, but concluded that the provisions of the RLA left no room for a construction easing those tensions. This was the case even though the injunction that was affirmed would likely result in cancellation of P&LE's sale and the frustration of Congress' intent through ICA amendments to deregulate the rail and air industries generally and more specifically to assist small rail lines with financial problems. We disagree with that conclusion, for as we have said, we are confident that the RLA is reasonably subject to a construction that would, at least to a degree, harmonize the two statutes.[18] The injunction, which effectively prevented the sale from going forward, should not have been granted. *512 C Our holding in these cases, which rests on our construction of the RLA and not on the pre-emptive force of the ICA, is that petitioner was not obligated to serve its own 156 notice on the unions in connection with the proposed sale. We also conclude that the unions' notices did not obligate P&LE to maintain the status quo and postpone the sale beyond the time the sale was approved by the Commission and was scheduled to be consummated. We do not hold, however, that P&LE had no duty at all to bargain in response to the unions' 156 motions. The courts below held, and RLEA agrees, that P&LE's decision to sell, as such, was not a bargainable subject. The disputed issue is whether P&LE was required to bargain about the effects that the sale would or might have upon its employees. P&LE, in our view, was not entirely free to disregard the unions' demand that it bargain about such effects. When the unions' notices were served, however, the terms of P&LE's agreement with Railco were more or less settled, and P&LE's decision to sell on those terms had been made. To the extent that the unions' demands could be satisfied only by the assent of the buyers, they sought to change or dictate the terms of the sale, and in effect challenged the decision to sell itself. At that time, P&LE was under no obligation to bargain about the terms it had already negotiated. To the extent that the unions' proposals could be satisfied by P&LE itself, those matters were bargainable but only until the date for closing the sale arrived, which, of course, could not occur until the Ex Parte 392 exemption became effective.[19] We are therefore constrained to reverse the Court of Appeals in No. 87-1888. *513 III In No. 87-1589, the issue is whether the Court of Appeals was |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | 87-1589, the issue is whether the Court of Appeals was correct in setting aside the injunction against the strike issued on October 8, At that time, the Ex Parte 392 exemption had become effective, and the District Court held that because the ICC had in effect authorized the sale and had ruled that delay would be prejudicial to the parties and the public interests, the NLGA prohibition against issuing injunctions in labor dispute cases must be accommodated to the ICC's decision that the sale of assets should go forward. It was this decision, based on the legal significance of the ICA and its impact on the NLGA, that the Court of Appeals summarily reversed. We agree with that decision. We have held that the NLGA 4 general limitation on district courts' power to issue injunctions in labor disputes must be accommodated to the more specific provisions of the RLA: "[T]he District Court has jurisdiction and power to issue necessary injunctive orders" to enforce compliance with the requirements of the RLA "notwithstanding the provisions of the Norris-LaGuardia Act." Thus, a union may be enjoined from striking when the dispute concerns the interpretation or application of its contract and is therefore subject to compulsory arbitration. "[T]he specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act." The same accommodation of the NLGA to the specific provisions of the NLRA must be made. A union that has agreed to arbitrate contractual disputes and is subject to a no-strike clause may be enjoined from striking despite the NLGA. Boys Markets, Petitioner contends that the NLGA must likewise be accommodated to the procedures mandated by Congress in 49 U.S. C. 10901 specifically the authority of the ICC to impose labor protective provisions, the right of rail *514 labor to seek such provisions from the ICC, and its right to judicial review if dissatisfied. It is urged that the ICA provides a comprehensive scheme for the resolution of labor protection issues arising out of ICC-regulated transactions and that rail labor must take advantage of those procedures rather than strike. We are unpersuaded that this is the case. The prohibition of the NLGA must give way when necessary to enforce a duty specifically imposed by another statute. But no applicable provision has been called to our attention that imposes any duty on rail unions to participate in ICC proceedings and to seek ICC protections with which they must be satisfied. Furthermore, labor protection provisions run against the acquiring railroad rather than the seller. Yet here it is with the |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | rather than the seller. Yet here it is with the seller, P&LE, that the unions wanted to bargain, seeking to ease the adverse consequences of the sale. To that end, the unions served 156 notices, which at least to some extent obligated P&LE to bargain until its transaction was closed. We find nothing in the ICA that relieved P&LE of that duty, nor anything in that Act that empowers the ICC to intrude into the relationship between the selling carrier and its railroad unions. We are thus quite sure that the NLGA forbade an injunction against that strike unless the strike was contrary to the unions' duties under the RLA. As to that issue, the Court of Appeals stated: "We intimate no view as to whether the provisions of the Railway Labor Act are applicable to this dispute so that the district court would be entitled to enjoin the strike while that Act's dispute resolution mechanisms are underway. RLEA's complaint seeking a declaration that the Railway Labor Act is applicable to this dispute is the merits issue before the district court." On remand, the District Court held that the RLA was indeed applicable to the dispute and on that basis issued an injunction against P&LE. It did not, however, ever address the question whether the unions' *515 strike, which occurred after their suit was filed, was enjoinable under the RLA. Neither did the Court of Appeals deal with that issue in affirming the District Court. P&LE perfunctorily asserts in its briefs in this Court that the strike injunction was proper because the unions were obligated to bargain rather than strike after their 156 notices were served. RLEA did not respond to this assertion. With the case in this position, we shall not pursue the issue. Instead, we vacate the judgment of the Court of Appeals, and leave the matter, if it is a live issue, to be dealt with on remand. IV The judgment of the Court of Appeals in No. 87-1888 is reversed and the judgment in No. 87-1589 is vacated, and the cases are remanded for further proceedings consistent with this opinion. So ordered. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part and dissenting in part. Regulated utilities do not have the same freedom to respond to market pressures that unregulated firms have.[1] They may not raise rates or cut services, for example, without permission from a regulatory agency. Most significantly for these cases, they may neither enter nor leave the market without agency approval. Ignoring this principle, the Court in |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | market without agency approval. Ignoring this principle, the Court in Part II of its opinion arrives at a result that, while perhaps preferable as a matter of policy, contradicts our previous interpretations of the relevant statute.[2] *516 The railroad industry long has been the subject of governmental regulation.[3] A year after this Court held that individual States were powerless to regulate rail lines extending beyond their boundaries, Wabash, S. L. & P. R. Congress established the Interstate Commerce Commission (ICC) to regulate economic aspects of the rail industry. Interstate Commerce Act, 49 U.S. C. 10101 et seq. (1982 ed. and Supp. V). Regulation of employment relationships within the rail industry followed,[4] and in 1926, Congress enacted the Railway Labor Act (RLA), 45 U.S. C. 151 et seq. The intervening six decades were marked by relatively peaceful coexistence between the two statutes. During the course of the employment relationship, the RLA provided the means for resolving disputes. See ante, at 496, n. 4; Consolidated Rail Corporation v. Railway Labor Executives' Assn., ante, at 302-304. If a railroad sought to end that relationship by sale, consolidation, or abandonment, the ICC routinely conditioned approval on the railroad's acceptance of either job protection or some form of severance pay for employees who would be affected by the change. See United[5] Cf. ante, at 498. *517 This symbiosis ended in 1985, when the ICC announced that it no longer would impose labor protective conditions on sales of short-line railroads unless exceptional circumstances were shown. Ex Parte No. 392 (Sub. No. 1), Class Exemption for the Acquisition and Operation of Rail s Under 49 U.S. C. 10901, 1 I. C. C. 2d 810, 815 (1985), review denied sub nom. Illinois Commerce ; see ante, at 498-501. Suddenly it became important for railroad unions to obtain such labor protections through collective bargaining. Unlike other employment contracts, however, rail labor agreements are altered not by periodic renegotiation but by notification, pursuant to 6 of the RLA, 45 U.S. C. 156, of a desire to change terms in the agreements. See Tr. of Oral Arg. 66-67. Thus it is not surprising that the unions in this litigation did not seek labor protective provisions until just 18 months after the ICC abdicated its traditional protective role plans to sell the railroad surfaced.[6] There is no disagreement that labor protective provisions related to the effects of an abandonment or sale may be the subject of collective bargaining. It follows, I believe, that when railway labor unions request the inclusion of such provisions *518 in their collective-bargaining agreements by proper |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | of such provisions *518 in their collective-bargaining agreements by proper statutory notice, see ante, at 496-497, and n. 5, the employer must maintain the status quo during the statutorily mandated negotiating process or risk a strike as a consequence of its breach of that duty. See 2 First, Seventh of the RLA, 45 U.S. C. 152 First, Seventh. The Court admits the force of this proposition and acknowledges that an employer has some duty to bargain when a sale is announced. Ante, at 504, 512. Nevertheless, it indicates that this particular dispute did not obligate the railroad to preserve the status quo, for the Court would prohibit any bargaining that "in effect challenged the decision to sell," and would allow negotiations to cease as soon as the sale is closed. Ante, at 512.[7] This diminution of the employer's duty contravenes two of our decisions interpreting the RLA. In Railroad a railroad had decided, with the approval of state regulatory commissions, to abandon a large number of its local stations and thus remove several hundred station attendants from the payroll. This Court held that because the RLA "command[s] that employees as well as railroads exert every reasonable effort to settle all disputes `concerning rates of pay, rules, and working conditions,' " the union had a right to strike to prevent the railroad from implementing the partial abandonment without bargaining over effects. (quoting 2 First of the RLA, 45 U.S. C. 152 First). The Court continued: *519 "It would stretch credulity too far to say that the Railway Labor Act, designed to protect railroad workers, was somehow violated by the union acting precisely in accordance with that Act's purpose to obtain stability and permanence in employment for workers. There is no express provision of law, and certainly we can infer none from the Interstate Commerce Act, making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority and stability of railroad jobs." 362 U.S., -340. Telegraphers thus holds that if management decides to abandon a significant part of a railroad's business, the impact of that decision on employees' job security is a proper subject for bargaining under the RLA. Detroit & Toledo Shore R. concerned a railroad's proposal to make new work assignments, a change neither authorized nor prohibited by the collective-bargaining agreement. The Court held that once the union had served notice of its desire to bargain, the railroad was obligated to maintain the status quo until completion of the RLA's " `purposely long and drawn out' " bargaining process. ). |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | " `purposely long and drawn out' " bargaining process. ). It further rejected the railroad's argument that the "status quo" encompassed only working conditions expressed in an agreement between the parties: "[T]he language of 6 simply does not say what the railroad would have it say. Instead, the section speaks plainly of `rates of pay, rules, or working conditions' without any limitation to those obligations already embodied in collective agreements. More important, we are persuaded that the railroad's interpretation of this section is sharply at variance with the overall design and purpose of the Railway Labor Act." *520 The Court therefore construed "status quo" to mean "those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." Today the Court proffers three reasons why Shore does not control these cases. First, it asserts that the Shore holding that "status quo" includes "conditions `objectively' in existence when the union's notice was served" stretched the language of the statute "to its outer limits," ante, at 506. I am not at all sure that is true; even if it is, the holding is unambiguous and has the force of law. Second, the Court suggests that the fact that the work assignment changed in Shore had been in effect for many years justified an expectation "that it would not be changed without bargaining and compliance with the status quo provisions of the RLA." Ante, at 506. This effectively restates Justice Harlan's argument in dissent that while not limited to the terms of written agreements, the status quo obligation is limited to a change in settled practice. See Shore -160. The Court's emphasis on those dissenting remarks avails it nothing, because the instant controversy also arose out of a change in established procedure. By either a subjective or objective measure, therefore, it is reasonable to conclude that these employees' jobs are among the "working conditions" that must be preserved throughout the bargaining process. Third, and most importantly, the Court points out that in contrast with these cases, the railroad in Shore had not proposed "to quit the railroad business, sell its assets, and cease to be a railroad employer at all," ante, at 507. The simple reply is that, in spite of claims of " `managerial prerogative' " much like those advanced here,[8] the Court in Telegraphers *521 held that the effects of a railroad's decision to terminate a part of its business constituted a proper subject of bargaining. There is no relevant difference between |
Justice White | 1,989 | 6 | majority | Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn. | https://www.courtlistener.com/opinion/112306/pittsburgh-lake-erie-r-co-v-railway-labor-executives-assn/ | proper subject of bargaining. There is no relevant difference between the partial abandonment in Telegraphers and the transfer of ownership proposed in these cases: in both, rail service would continue as before, but many employees would lose their jobs. Management's motive in Telegraphers, to cut costs by eliminating a large number of dispensable jobs, was of course perfectly reasonable. Thus when the Court held that the RLA required the railroad to bargain over the effects of the change, Justice Clark wrote: "Today the Court tells the railroad that it must bargain with the union or suffer a strike. The latter would be the death knell of the railroad. Hence, for all practical purposes, the Court is telling the railroad that it must secure the union's approval before severing the hundreds of surplus employees now carried on its payroll. Everyone knows what the answer of the union will be. It is like the suitor who, when seeking the hand of a young lady, was told by her to `go to father.' But, as the parody goes, `She knew that he knew that her father was dead; she knew that he knew what a life he had led; and she knew that he knew what she meant when she said "go to father." ' " -344 Had the sale in these cases proceeded, the railroad would have operated the same service with a work force of 250 as compared to 750 employees. Ante, at 495. The economic benefits of that reduction are as obvious as those that would have been achieved by closing obsolete stations on the railroad system in Telegraphers. It is just as obvious, I believe, that *522 the RLA again commands bargaining. As Judge Becker noted in his opinion for the Court of Appeals: "We are fully aware of the unfortunate ramifications and irony of our decision. A bargaining order, and a status quo injunction, designed to foster conciliation, promote labor peace, and ultimately keep the rails running, may ultimately have the perverse effect of destroying the only chance P & LE has for survival and perhaps even the very jobs that the unions are now trying to protect. Although we are not happy with this result, we feel constrained to reach it, because the Supreme Court has appropriately admonished the judiciary not to apply its own brand of `common sense' in the face of a contrary statutory mandate." To evade the natural result of adherence to Shore and Telegraphers, the Court relies on two later opinions declaring that "an employer has the absolute right to terminate his entire |
Justice Blackmun | 1,993 | 11 | dissenting | Zobrest v. Catalina Foothills School Dist. | https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/ | Today, the Court unnecessarily addresses an important constitutional issue, disregarding longstanding principles of constitutional adjudication. In so doing, the Court holds that placement in a parochial school classroom of a public employee whose duty consists of relaying religious messages does not violate the Establishment Clause of the First Amendment. I disagree both with the Court's decision to reach this question and with its disposition on the merits. I therefore dissent. I "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality unless such adjudication is unavoidable." Spector Motor Service, See ; ; Liverpool, New York & Philadelphia S. S. This is a "fundamental rule of judicial restraint," Three Affiliated Tribes of Fort Berthold which has received the sanction of time and experience. It has been described as a "corollary" to the Article III case or controversy requirement, see Rescue and is grounded in basic *15 principles regarding the institution of judicial review and this Court's proper role in our federal system, Respondent School District makes two arguments that could provide grounds for affirmance, rendering consideration of the constitutional question unnecessary. First, respondent maintains that the Individuals with Disabilities Education Act (IDEA), 20 U.S. C. 1400 et seq., does not require it to furnish James Zobrest with an interpreter at any private school so long as special education services are made available at a public school. The United States endorses this interpretation of the statute, explaining that "the IDEA itself does not establish an individual entitlement to services for students placed in private schools at their parents' option." Brief for United States as Amicus Curiae 13. And several courts have reached the same conclusion. See, e. g., (CA4), cert. denied, ; aff'd sub nom. ; Second, respondent contends that 34 CFR 76.532(a)(1) a regulation promulgated under the IDEA, which forbids the use of federal funds to pay for "[r]eligious worship, instruction, or proselytization," prohibits provision of a signlanguage interpreter at a sectarian school. The United States asserts that this regulation does not preclude the relief petitioners seek, Brief for United States as Amicus Curiae 23, but at least one federal court has concluded otherwise. See This Court could easily refrain from deciding the constitutional claim by vacating and remanding the case for consideration of the statutory and regulatory issues. Indeed, the majority's decision does not eliminate the need to resolve these remaining questions. For, regardless of the Court's views on the Establishment Clause, petitioners will not obtain what they seek if the |
Justice Blackmun | 1,993 | 11 | dissenting | Zobrest v. Catalina Foothills School Dist. | https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/ | Clause, petitioners will not obtain what they seek if the federal statute *16 does not require or the federal regulations prohibit provision of a sign-language interpreter in a sectarian school.[1] The majority does not deny the existence of these alternative grounds, nor does it dispute the venerable principle that constitutional questions should be avoided when there are nonconstitutional grounds for a decision in the case. Instead, in its zeal to address the constitutional question, the majority casts aside this "time-honored canon of constitutional adjudication," Spector Motor Service, 323 U. S., at with the cursory observation that "the prudential rule of avoiding constitutional questions has no application" in light of the "posture" of this case, ante, at 8. Because the parties chose not to litigate the federal statutory issues in the District Court and in the Court of Appeals, the majority blithely proceeds to the merits of their constitutional claim. But the majority's statements are a non sequitur. From the rule against deciding issues not raised or considered below, it does not follow that the Court should consider constitutional issues needlessly. The obligation to avoid unnecessary adjudication of constitutional questions does not depend upon the parties' litigation strategy, but rather is a "self-imposed limitation on the exercise of this Court's jurisdiction [that] has an importance to the institution that transcends the significance of particular controversies." City of It is a rule whose aim is to protect not parties but the law and the adjudicatory process. Indeed, just a few days ago, we expressed concern that "litigants, by agreeing on the legal issue presented, [could] extract the opinion of a court *17 on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory." United States Nat. Bank of 508 U.S. 4, See United That the federal statutory and regulatory issues have not been properly briefed or argued does not justify the Court's decision to reach the constitutional claim. The very posture of this case should have alerted the courts that the parties were seeking what amounts to an advisory opinion. After the Arizona attorney general concluded that provision of a sign-language interpreter would violate the Federal and State Constitutions, the parties bypassed the federal statutes and regulations and proceeded directly to litigate the constitutional issue. Under such circumstances, the weighty nonconstitutional questions that were left unresolved are hardly to be described as "buried in the record." Ante, at 8. When federal- and state-law questions similarly remained open in this Court refused to pass upon the scope or constitutionality of a federal statute |
Justice Blackmun | 1,993 | 11 | dissenting | Zobrest v. Catalina Foothills School Dist. | https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/ | pass upon the scope or constitutionality of a federal statute that might have required publicly employed teachers to provide remedial instruction on the premises of sectarian schools. Prudence counsels that the Court follow a similar practice here by vacating and remanding this case for consideration of the nonconstitutional questions, rather than proceeding directly to the merits of the constitutional claim. See ; Escambia ; Edward J. DeBartolo -158 *18 II Despite my disagreement with the majority's decision to reach the constitutional question, its arguments on the merits deserve a response. Until now, the Court never has authorized a public employee to participate directly in religious indoctrination. Yet that is the consequence of today's decision. Let us be clear about exactly what is going on here. The parties have stipulated to the following facts. James Zobrest requested the State to supply him with a sign-language interpreter at Salpointe High School, a private Roman Catholic school operated by the Carmelite Order of the Catholic Church. App. 90. Salpointe is a "pervasively religious" institution where "[t]he two functions of secular education and advancement of religious values or beliefs are inextricably intertwined." Salpointe's overriding "objective" is to "instill a sense of Christian values." Its "distinguishing purpose" is "the inculcation in its students of the faith and morals of the Roman Catholic Church." Religion is a required subject at Salpointe, and Catholic students are "strongly encouraged" to attend daily Mass each morning. Salpointe's teachers must sign a Faculty Employment Agreement which requires them to promote the relationship among the religious, the academic, and the extracurricular.[2] They are encouraged to do so by "assist[ing] students in experiencing how the presence of God is manifest in nature, human history, in the struggles for economic and political justice, and other secular areas of the curriculum." The agreement also sets forth detailed rules of *19 conduct teachers must follow in order to advance the school's Christian mission.[3] At Salpointe, where the secular and the sectarian are "inextricably intertwined," governmental assistance to the educational function of the school necessarily entails governmental participation in the school's inculcation of religion. A state-employed sign-language interpreter would be required to communicate the material covered in religion class, the nominally secular subjects that are taught from a religious perspective, and the daily Masses at which Salpointe encourages attendance for Catholic students. In an environment so pervaded by discussions of the divine, the interpreter's every gesture would be infused with religious significance. Indeed, petitioners willingly concede this point: "That the interpreter conveys religious messages is a given in the case." Brief for Petitioners 22. By this |
Justice Blackmun | 1,993 | 11 | dissenting | Zobrest v. Catalina Foothills School Dist. | https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/ | given in the case." Brief for Petitioners 22. By this concession, petitioners would seem to surrender their constitutional claim. The majority attempts to elude the impact of the record by offering three reasons why this sort of aid to petitioners survives Establishment Clause scrutiny. First, the majority observes that provision of a sign-language interpreter *20 occurs as "part of a general government program that distributes benefits neutrally to any child qualifying as `disabled' under the IDEA, without regard to the `sectariannonsectarian, or public-nonpublic nature' of the school the child attends." Ante, at 10. Second, the majority finds significant the fact that aid is provided to pupils and their parents, rather than directly to sectarian schools. As a result, "`[a]ny aid that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.'" Ante, at 9, quoting And, finally, the majority opines that "the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor." Ante, at 13. But the majority's arguments are unavailing. As to the first two, even a general welfare program may have specific applications that are constitutionally forbidden under the Establishment Clause. See U.S. 589 For example, a general program granting remedial assistance to disadvantaged schoolchildren attending public and private, secular and sectarian schools alike would clearly offend the Establishment Clause insofar as it authorized the provision of teachers. See ; School Dist. of Grand ; Such a program would not be saved simply because it supplied teachers to secular as well as sectarian schools. Nor would the fact that teachers were furnished to pupils and their parents, rather than directly to sectarian schools, immunize such a program from Establishment Clause scrutiny. See 474 U. S., at ; ; 473 U. S., at 5 The majority's decision must turn, then, upon the distinction between a teacher and a signlanguage interpreter. "Although Establishment Clause jurisprudence is characterized by few absolutes," at a minimum "the Clause does absolutely prohibit government-financed or governmentsponsored indoctrination into the beliefs of a particular religious faith." at See U. S., at 623 ("[A]ny use of public funds to promote religious doctrines violates the Establishment Clause") (emphasis in original); 421 U. S., at ); In keeping with this restriction, our cases consistently have rejected the provision by government of any resource capable of advancing a school's religious mission. Although the Court generally has permitted the provision of "secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school," it has always proscribed the provision |
Justice Blackmun | 1,993 | 11 | dissenting | Zobrest v. Catalina Foothills School Dist. | https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/ | of the sectarian school," it has always proscribed the provision of benefits that afford even the "opportunity for the transmission of sectarian views," Thus, the Court has upheld the use of public school buses to transport children to and from school, while striking down the *22 employment of publicly funded buses for field trips controlled by parochial school teachers, Similarly, the Court has permitted the provision of secular textbooks whose content is immutable and can be ascertained in advance, Board of Ed. of Central School Dist. No. 2 U.S. 236 while prohibiting the provision of any instructional materials or equipment that could be used to convey a religious message, such as slide projectors, tape recorders, record players, and the like, State-paid speech and hearing therapists have been allowed to administer diagnostic testing on the premises of parochial schools, whereas state-paid remedial teachers and counselors have not been authorized to offer their services because of the risk that they may inculcate religious beliefs, 421 U. S., at These distinctions perhaps are somewhat fine, but "`lines must be drawn.'" 473 U. S., at 8 And our cases make clear that government crosses the boundary when it furnishes the medium for communication of a religious message. If petitioners receive the relief they seek, it is beyond question that a state-employed signlanguage interpreter would serve as the conduit for James' religious education, thereby assisting Salpointe in its mission of religious indoctrination. But the Establishment Clause is violated when a sectarian school enlists "the machinery of the State to enforce a religious orthodoxy." and are not to the contrary. Those cases dealt with the payment of cash or a tax deduction, where governmental involvement ended with the disbursement of funds or lessening of tax. This case, on the other hand, involves ongoing, daily, and intimate governmental participation in the teaching and propagation of religious doctrine. When government dispenses public funds to individuals who employ them to finance private choices, it is difficult to argue that government *23 is actually endorsing religion. But the graphic symbol of the concert of church and state that results when a public employee or instrumentality mouths a religious message is likely to "enlis[t]at least in the eyes of impressionable youngstersthe powers of government to the support of the religious denomination operating the school." 473 U. S., at And the union of church and state in pursuit of a common enterprise is likely to place the imprimatur of governmental approval upon the favored religion, conveying a message of exclusion to all those who do not adhere to its tenets. Moreover, this |
Justice Blackmun | 1,993 | 11 | dissenting | Zobrest v. Catalina Foothills School Dist. | https://www.courtlistener.com/opinion/112887/zobrest-v-catalina-foothills-school-dist/ | those who do not adhere to its tenets. Moreover, this distinction between the provision of funds and the provision of a human being is not merely one of form. It goes to the heart of the principles animating the Establishment Clause. As amicus Council on Religious Freedom points out, the provision of a state-paid sign-language interpreter may pose serious problems for the church as well as for the state. Many sectarian schools impose religiously based rules of conduct, as Salpointe has in this case. A traditional Hindu school would be likely to instruct its students and staff to dress modestly, avoiding any display of their bodies. And an orthodox Jewish yeshiva might well forbid all but kosher food upon its premises. To require public employees to obey such rules would impermissibly threaten individual liberty, but to fail to do so might endanger religious autonomy. For such reasons, it long has been feared that "a union of government and religion tends to destroy government and to degrade religion." The Establishment Clause was designed to avert exactly this sort of conflict. III The Establishment Clause "rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." Illinois ex rel. To this end, our cases have strived to "chart a course that preserve[s] the autonomy and freedom of religious bodies while avoiding any semblance of established religion." 7 U.S. 664, I would not stray, as the Court does today, from the course set by nearly five decades of Establishment Clause jurisprudence. Accordingly, I dissent. |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | Indiana’s “Voter ID Law”1 threatens to impose nontriv- ial burdens on the voting right of tens of thousands of the State’s citizens, see ante, at 1– (lead opinion), and a significant percentage of those individuals are likely to be deterred from voting, see ante, at –1. The statute is unconstitutional under the balancing standard of v. Takushi, : a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–1, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried. I therefore respectfully dissent from the Court’s judgment —————— 1 Senate Enrolled Act No. 8, 2005 Ind. Acts p. 2005. 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting sustaining the statute.2 I Voting-rights cases raise two competing interests, the one side being the fundamental right to vote. See ); see also ; ; Reynolds v. Sims, 77 U.S. 5, 51–52 (19); Yick Wo v. Hopkins, 118 U.S. 5, 70 (188). The Judiciary is obliged to train a skepti- cal eye on any qualification of that right. See Reynolds, (“Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged in- fringement of the right of citizens to vote must be carefully and meticulously scrutinized”). As against the unfettered right, however, lies the “[c]ommon sense, as well as constitutional law that government must play an active role in structuring elec- tions; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” ); see also (“Election laws will invariably impose some burden upon individual voters”). Given the legitimacy of interests on both sides, we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue. And whatever the claim, the —————— 2 I agree with the lead opinion that the petitioners in No. 07–25 have standing and that we therefore need not determine whether the re- maining petitioners also have standing. See ante, at 5, n. 7. Cite as: 55 U. S. (2008) SOUTER, J., dissenting Court has long made a careful, ground-level appraisal both of the practical burdens on the right to vote and |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | of the practical burdens on the right to vote and of the State’s reasons for imposing those precise burdens. Thus, in : “A court considering [such] a challenge must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Four- teenth Amendments that the plaintiff seeks to vindi- cate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plain- tiff’s rights.’ ” ). The lead opinion does not disavow these basic principles. See ante, at –7 (discussing ); see also ante, at 7 (“However slight [the] burden may appear, it must be justified by relevant and legitimate state interests suffi- ciently weighty to justify the limitation” (internal quota- tion marks omitted)). But I think it does not insist enough on the hard facts that our standard of review demands. II Under “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Four- teenth Amendment rights,” upon an assessment of the “character and magnitude of the as- serted [threatened] injury,” (quoting Anderson, su- pra, at ), and an estimate of the number of voters likely to be affected. A The first set of burdens shown in these cases is the travel costs and fees necessary to get one of the limited variety of federal or state photo identifications needed to CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting cast a regular ballot under the Voter ID Law. The travel is required for the personal visit to a license branch of the Indiana Bureau of Motor Vehicles (BMV), which is de- manded of anyone applying for a driver’s license or non- driver photo identification. See Indiana Democratic Party v. Rokita, The need to travel to a BMV branch will affect voters according to their circumstances, with the average person probably viewing it as nothing more than an inconvenience. Poor, old, and disabled voters who do not drive a car, however, may find the trip prohibitive, witness the fact that the —————— Under Indiana’s law, an ID does not qualify as proof of identification unless it “satisfies all [of] the following”: “(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record. “(2) The document shows a photograph of the individual to whom the document was issued. “() The |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | the individual to whom the document was issued. “() The document includes an expiration date, and the document: “(A) is not expired; or “(B) expired after the date of the most recent general election. “() The document was issued by the United States or the state of Indiana.” –5–2–0.5 The State asserts that the elderly and disabled are adequately ac- commodated through their option to cast absentee ballots, and so any burdens on them are irrelevant. See Brief for Respondents in No. 07– 25, p. 1. But as petitioners’ amici AARP and the National Senior Citizens Law Center point out, there are crucial differences between the absentee and regular ballot. Brief for AARP et al. as Amici Curiae 12–1. Voting by absentee ballot leaves an individual without the possibility of receiving assistance from poll workers, and thus increases the likelihood of confusion and error. More seriously, as the Supreme Court of Indiana has recognized, Indiana law “treats absentee voters differently from the way it treats Election Day voters,” in the important sense that “an absentee ballot may not be recounted in situations where clerical error by an election officer rendered it invalid.” Horse- The State itself notes that “election officials routinely reject absentee ballots on suspicion of forgery.” Brief for Respondents in No. 07–25, p. 2. The record indi- cates that voters in Indiana are not unaware of these risks. One Cite as: 55 U. S. (2008) 5 SOUTER, J., dissenting BMV has far fewer license branches in each county than there are voting precincts.5 Marion County, for example, has over 900 active voting precincts, see Brief for Respon- dents in No. 07–21, p. yet only 12 BMV license branches;7 in Lake County, there are 55 active voting precincts, see n. to match up with only 8 BMV locations;8 and Allen County, with 09 active voting pre- cincts, see has only BMV license branches.9 The same pattern holds in counties with smaller populations. Brown County has 12 active voter precincts, see and only one BMV office;10 while there were 18 polling places available in Fayette County’s municipal primary,11 —————— elderly affiant in the District Court testified: “I don’t trust [the absen- tee] system. Because a lot of soldiers vote like that and their votes wasn’t counted in the last election according to what I read, absentee.” App. 209 (deposition of David Harrison). It is one thing (and a commendable thing) for the State to make absentee voting available to the elderly and disabled; but it is quite another to suggest that, because the more convenient but less reliable absentee ballot |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | that, because the more convenient but less reliable absentee ballot is available, the State may freely deprive the elderly and disabled of the option of voting in person. 5 Under Indiana law, county executives must locate a polling place within five miles of the closest boundary of each voting precinct, and, with limited exceptions, no precinct may cover more than 1,200 active voters at the time it is established. See Brief for Respondents in No. 07–21, p. (citing –11–8–(b), –11–1.5–). The result is that the number of polling places tends to track the number of voting precincts in a county. In Henry County, for example, there are 2 active precincts, see n. infra, and 2 polling places have been approved for the 2008 elections, see n. 1, infra. See also Count of Active Precincts by County, online at http://www.in.gov/sos/pdfs/Precincts_by_County_and_State_020.pdf (all Internet materials as visited Apr. 21, 2008, and available in Clerk of Court’s case file). 7 See Marion County License Branches, http://www.in.gov/bmv/ 1.htm. 8 See Lake County, http://www.in.gov/bmv/0.htm. 9 See Allen County, http://www.in.gov/bmv/295.htm. 10 See Brown County, http://www.in.gov/bmv/02.htm. 11 See http://www.co.fayette.in.us/%20polling_locations_munic. CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting there was only 1 BMV license branch;12 and Henry County, with 2 polling places approved for 2008 elec- tions,1 has only 1 BMV office. The burden of traveling to a more distant BMV office rather than a conveniently located polling place is proba- bly serious for many of the individuals who lack photo identification.1 They almost certainly will not own cars, see Brief for Current and Former State Secretaries of State as Amici Curiae 11, and public transportation in Indiana is fairly limited. According to a report published by Indiana’s Department of Transportation in August 21 of Indiana’s 92 counties have no public transpor- tation system at all, and as of 2000, nearly 1 in every 10 —————— htm. 12 See Fayette County, http://www.in.gov/bmv/2.htm. 1 See News Release, Henry County, Indiana, Polling Places Approved for the 2008 Elections, http://www.henryco.net/cm/node/52. 1 The travel burdens might, in the future, be reduced to some extent by Indiana’s commendable “BMV2You” mobile license branch, which will travel across the State for an average of three days a week, and provide BMV services (including ID services). See http:// www.in.gov/bmv/55.htm. The program does not count in my analy- sis, however, because the program was only recently opened in August see Indiana BMV Opens License Branch at State Fair, http://www.in.gov/newsroom.htm?detailContent=9_1000.htm, and its long-term service schedule has yet to be determined. Indiana Public Transit: Annual Report p. 29, http:// www.in.gov/indot/files/INDOT_.pdf (hereinafter Annual Report). The 21 counties with no public |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | www.in.gov/indot/files/INDOT_.pdf (hereinafter Annual Report). The 21 counties with no public transportation, according to the study, are: Adams, Blackford, Brown, Carroll, Clay, De Kalb, Gibson, Jennings, Lagrange, Parke, Perry, Posey, Putnam, Rush, Spencer, Steuben, Tipton, Vermillion, Warren, Warrick, and Whitley Counties. See A Website of the American Public Transportation Association, which compiles public transit information across the States, confirms that each of those 21 counties lacks any public transportation offerings, and in fact adds another 1 counties to this category: Boone, Decatur, Fayette, Fulton, Hancock, Hendricks, Huntington, Miami, Morgan, Noble, Pike, Shelby, and Wells. See Transit Systems in Indiana, http://www.publictransportation.org/systems/state.asp?state=IN#A. Cite as: 55 U. S. (2008) 7 SOUTER, J., dissenting voters lived within 1 of these 21 counties.1 Among the counties with some public system, 21 provide service only within certain cities, and 2 others restrict public trans- portation to regional county service, leaving only 18 that offer countywide public transportation, see n. State officials recognize the effect that travel costs can have on voter turnout, as in Marion County, for example, where efforts have been made to “establis[h] most polling places in locations even more convenient than the statu- tory minimum,” in order to “provid[e] for neighborhood voting.” Brief for Respondents in No. 07–21, pp. Although making voters travel farther than what is convenient for most and possible for some does not amount to a “severe” burden under that is no reason to ignore the burden altogether. It translates into an obvious economic cost (whether in work time lost, or getting and paying for transportation) that an Indiana voter must bear to obtain an For those voters who can afford the roundtrip, a second financial hurdle appears: in order to get photo identifica- tion for the first time, they need to present “ ‘a birth cer- tificate, a certificate of naturalization, U. S. veterans photo identification, U. S. military photo identification, or a U. S. passport.’ ” Ante, at 1, n. 1 (lead opinion) (quot- ing Ind. Admin. Code, tit. 10, (2008)). As the lead opinion says, the two most common of these documents come at a price: Indiana counties charge anywhere from $ to $12 for a birth certificate (and in some other States the fee is significantly higher), see ante, at 1, n. 1, and —————— The discrepancy appears to arise, in part, from the fact that the Ameri- can Public Transportation Association has not counted demand re- sponse systems that have been established in at least of these 1 counties. See Annual Report 50, 5, 9, 110, 1. 1 In 2000, approximately 9% of Indiana’s population lived |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | 1. 1 In 2000, approximately 9% of Indiana’s population lived within 1 of these 21 counties. See County and City Extra: Special Decennial Census Edition 19, 17 (D. Gaquin & K. DeBrandt eds. 2002). 8 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting that same price must usually be paid for a first-time pass- port, since a birth certificate is required to prove U. S. citizenship by birth. The total fees for a passport, more- over, are up to about $100.17 So most voters must pay at least one fee to get the ID necessary to cast a regular ballot.18 As with the travel costs, these fees are far from shocking on their face, but in the analysis it matters that both the travel costs and the fees are dispro- portionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile. B To be sure, Indiana has a provisional-ballot exception to the ID requirement for individuals the State considers “indigent”19 as well as those with religious objections to being photographed, see ante, at (lead opinion), and this sort of exception could in theory provide a way around the costs of procuring an But Indiana’s chosen excep- tion does not amount to much relief. —————— 17 See Department of State, How to Apply in Person for a Passport, http://travel.state.gov/passport/get/first/first_80.html; Department of State, Passport Fees (Feb. 1, 2008), http://travel.state.gov/passport/ get/fees/fees_87.html (total fees of $100 for a passport book and $5 for a passport card for individuals 1 and older). 18 The lead opinion notes that “the record does not provide even a rough estimate of how many indigent voters lack copies of their birth certificates.” Ante, at 19, n. 20. But the record discloses no reason to think that any appreciable number of poor voters would need birth certificates absent the Voter ID Law, and no reason to believe that poor people would spend money to get them if they did not need them. 19 To vote by provisional ballot, an individual must (at the circuit court clerk’s office) sign an affidavit affirming that she is “indigent” and “unable to obtain proof of identification without payment of a fee.” Ind. Code Ann. Indiana law does not define the key terms “indigent” or “unable,” but I will assume for present purposes that the Indiana Supreme Court will eventually construe these terms broadly, so that the income threshold for indigency is at least at the federal poverty level, and so that the exception covers even individuals who are facing only short-term financial difficulties. Cite as: 55 U. S. |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | facing only short-term financial difficulties. Cite as: 55 U. S. (2008) 9 SOUTER, J., dissenting The law allows these voters who lack the necessary ID to sign the poll book and cast a provisional ballot. See 58 F. Supp. 2d, at 78 ). As the lead opinion recognizes, though, ante, at that is only the first step; to have the provisional ballot counted, a voter must then appear in person before the circuit court clerk or county election board within 10 days of the election, to sign an affidavit attesting to indigency or religious objection to being pho- tographed (or to present an ID at that point),20 see 58 F. Supp. 2d, at 78. Unlike the trip to the BMV (which, assuming things go smoothly, needs to be made only once every four years for renewal of nondriver photo identifica- tion, see id.), this one must be taken every time a poor person or religious objector wishes to vote, because the State does not allow an affidavit to count in successive elections. And unlike the trip to the BMV (which at least has a handful of license branches in the more populous counties), a county has only one county seat. Forcing these people to travel to the county seat every time they try to vote is particularly onerous for the reason noted already, that most counties in Indiana either lack public transportation or offer only limited coverage. See at –7. That the need to travel to the county seat each election amounts to a high hurdle is shown in the results of the municipal elections in Marion County, to which Indiana’s Voter ID Law applied. Thirty-four provisional ballots were cast, but only two provisional voters made it —————— 20 Indiana law allows voters to cast a provisional ballot at the county clerk’s office starting 29 days prior to election day until noon of the day prior to election day, see –11.7–5–2.5, and this might enable some voters to make only one burdensome trip to the county seat. But for the voters who show up at the polls to vote and are there told that they lack the photo identification needed to cast a regular ballot, the Voter ID Law effectively forces them to make two trips. 10 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting to the County Clerk’s Office within the 10 days. See Brief for Respondents in No. 07–21, pp. 8–9. All of these aspiring voters appeared at the appropriate precinct; of them provided a signature, and every signature matched the one on file; and 2 of |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | every signature matched the one on file; and 2 of the 2 voters whose ballots were not counted had a history of voting in Marion County elections. See All of this suggests that provisional ballots do not obvi- ate the burdens of getting photo identification. And even if that were not so, the provisional-ballot option would be inadequate for a further reason: the indigency exception by definition offers no relief to those voters who do not consider themselves (or would not be considered) indigent but as a practical matter would find it hard, for nonfinan- cial reasons, to get the required ID (most obviously the disabled). C Indiana’s Voter ID Law thus threatens to impose serious burdens on the voting right, even if not “severe” ones, and the next question under is whether the number of individuals likely to be affected is significant as well. Record evidence and facts open to judicial notice answer yes. Although the District Court found that petitioners failed to offer any reliable empirical study of numbers of voters affected, see ante, at 17 (lead opinion),21 we may accept that court’s rough calculation that000 voting-age residents lack the kind of identification card required by Indiana’s law. See The District —————— 21 Much like petitioners’ statistician, the BMV “has not been able to determine the approximate number of Indiana residents of voting age who are without an Indiana driver’s license or identification card,” 58 F. Supp. 2d 775, but the BMV does acknowledge “that there are persons who do not currently have [the required ID] and who are, or who will be, eligible to vote at the next election,” Cite as: 55 U. S. (2008) 11 SOUTER, J., dissenting Court made that estimate by comparing BMV records reproduced in petitioners’ statistician’s report with U. S. Census Bureau figures for Indiana’s voting-age population in 200, see and the State does not argue that these raw data are unreliable. The State, in fact, shows no discomfort with the District Court’s finding that an “estimated000 individuals” (about 1% of the State’s voting-age population) lack a qualifying Brief for Respondents in No. 07–25, p. 25. If the State’s willingness to take that number is surpris- ing, it may be less so in light of the District Court’s obser- vation that “several factors suggest the percentage of Indiana’s voting age population with photo identification is actually lower than 99%,” n.22 a suggestion in line with national surveys showing —————— 22 The District Court explained: “[O]ur simple comparison of raw numbers does not take into account: individuals who have died but whose Indiana |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | take into account: individuals who have died but whose Indiana driver’s license or identi- fication cards have not expired; individuals who have moved outside the state and no longer consider themselves Indiana residents but who still retain a valid Indiana license or identification card; individuals who have moved into Indiana and now consider themselves Indiana residents but have not yet obtained an Indiana license or identification; and individuals, such as students, who are residing in Indiana tempo- rarily, are registered to vote in another state, but have obtained an Indiana license or identification.” The District Court also identified three factors that, in its view, might require deductions of the000 figure. First, the District Court noted that BMV records do not cover all forms of identification that may be used to vote under the Voter ID Law (e.g., federal photo identi- fication, such as a passport). This is a valid consideration, but is unlikely to overcome the additions that must be made for the various factors listed above. Second, the court noted that the BMV records do not account for the exceptions to the photo identification requirement (such as the indigency and absentee-ballot exceptions). This factor does not warrant a deduction of the000 number because, as I have argued, the indigency exception imposes serious burdens of its own, see at 8–10, and the absentee-ballot exception is not a wholly adequate substitute for voting in person, see n. Finally, the 12 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting roughly –10% of voting-age Americans without a state- issued photo-identification card. See Brief for Petitioners in No. 07–21, pp. 9–0, n. 17 (citing National Commis- sion on Election Reform, To Assure Pride and Confidence: Task Force Reports, ch. VI: Verification of Identity, p. (Aug. 2001), http://webstorage.mcpa.virginia.edu/com- misions/comm_2001_taskforce.pdf). We have been offered no reason to think that Indiana does a substantially better job of distributing IDs than other States.2 So a fair reading of the data supports the District Court’s finding that around000 Indiana residents lack the needed identification, and will bear the burdens the law imposes. To be sure, the000 figure has to be dis- counted to some extent, residents of certain nursing homes being exempted from the photo identification requirement. 58 F. Supp. 2d, at 78. But the State does not suggest that this narrow exception could possibly reduce000 to an insubstantial number.2 —————— District Court noted that many individuals are not registered to vote. For reasons I lay out in note 2, infra, I am not convinced that this fact is relevant at all. 2 Although the lead opinion expresses |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | is relevant at all. 2 Although the lead opinion expresses confidence that the percentage of voters without the necessary photo ID will steadily decrease, see ante, at n. and suggests that the number may already have dropped, see ante, at 18, n. 20, there is reason to be less sanguine. See ACLU Sues To Halt License Revocation, Fort Wayne J. Gazette, Feb. 9, 2008, p. C (“The American Civil Liberties Union is suing the state to prevent the possible revocation of up to 5,000 driver’s licenses that don’t match information in a Social Security database. Many of the mismatches were created by typographical errors or by people getting married and changing their last names, the [BMV] said last week when it announced it had sent warning letters to about 20,000 people in Indiana”); see also Dits, Court Date Set for Bid To Stop BMV, South Bend Tribune, Feb. 21, 2008; Who To Blame in Name Game? Many Caught in Name Game; Merging BMV, Social Security Databases Forcing Many To Hire Lawyers, The Post-Tribune, Jan. 8, 2008, p. A5; Snelling, Name Issue Blocks License, Merrillville Post-Tribune, Jan. 7, 2008, p. A. 2 The State does imply that we should further discount the000 Cite as: 55 U. S. (2008) 1 SOUTER, J., dissenting The upshot is this. Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economi- cally, see 72 F.d 99, (“No doubt most people who don’t have photo ID are low on the economic ladder”); 05 U.S. 1, 1 (“[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters accord- ing to their economic status”).25 The Voter ID Law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs. There is accordingly no reason to doubt that a sig- nificant number of state residents will be discouraged or —————— estimate to exclude citizens who are not registered to vote, or who are registered but not planning to vote. See Brief for Respondents in No. 07–25, p. 25; see also ante, at 17 (lead opinion) (“[T]he evidence in the record does not provide us with the number of registered voters without photo identification”). But that argument is flatly contradicted by this Court’s settled precedent. As our cases have recognized, disfranchise- ment is disfranchisement, whether or not the disfranchised voter would have voted if given the choice. That is why in Dunn v. Blumstein, 05 U.S. 0 the Court |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | why in Dunn v. Blumstein, 05 U.S. 0 the Court did not ask whether any significant number of individuals deprived of the right to vote by durational residence requirements would actually have chosen to vote. And in Harper v. Virginia Bd. of Elections, 8 U.S. (19), the Court did not pause to consider whether any of the qualified voters deterred by the $1.50 poll tax would have opted to vote if there had been no fee. Our cases make clear that the Constitution protects an individual’s ability to vote, not merely his decision to do so. 25 Studies in other States suggest that the burdens of an ID require- ment may also fall disproportionately upon racial minorities. See Overton, Voter Identification, 105 Mich. L. Rev. 1, 59 (“In 199, the U. S. Department of found that African-Americans in Louisiana were four to five times less likely than white residents to have government-sanctioned photo identification”); at 59–0 (describing June 2005 study by the Employment and Training Institute at the University of Wisconsin-Milwaukee, which found that while 17% of voting-age whites lacked a valid driver’s license, 55% of black males and 9% of black females were unlicensed, and % of Latino males and 59% of Latino females were similarly unlicensed). 1 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting disabled from voting. 58 F. Supp. 2d, at 82 (“We do not doubt that such individuals exist somewhere, even though Plaintiffs were unable to locate them”); 72 F. d, 52 (“No doubt there are at least a few [whom the law will deter from voting] in Indiana”); see also ante, at (lead opinion). Petitioners, to be sure, failed to nail down precisely how great the cohort of discouraged and totally deterred voters will be, but empirical precision beyond the foregoing num- bers has never been demanded for raising a voting-rights claim. Washington State Grange v. Washington State Republican Party, 552 U.S. (2008) (ROBERTS, C. J., concurring) (slip op., at ) (“Nothing in my analysis requires the parties to produce studies regarding voter perceptions on this score”); Dunn v. Blumstein, 05 U.S. 0, 5, n. 5 (“[I]t would be difficult to determine precisely how many would-be voters throughout the coun- try cannot vote because of durational residence require- ments”); at 1 (taking account of “the obvious likelihood” that candidate filing fees would “fall more heavily on the less affluent segment of the commu- nity, whose favorites may be unable to pay the large costs”). While of course it would greatly aid a plaintiff to establish his claims beyond mathematical doubt, he does enough |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | to establish his claims beyond mathematical doubt, he does enough to show that serious burdens are likely. Thus, petitioners’ case is clearly strong enough to prompt more than a cursory examination of the State’s asserted interests. And the fact that Indiana’s photo identification requirement is one of the most restrictive in the country, see Brief for Current and Former State Secre- taries of State as Amici Curiae –0 (compiling state voter-identification statutes); see also Brief for Texas et al. as Amici Curiae 10–1 (same),2 makes a critical examina- —————— 2 Unlike the Help America Vote Act of 2002, 11 Stat. 1, 2 U.S. C. et seq. (2000 ed., Supp. V), which generally requires Cite as: 55 U. S. (2008) SOUTER, J., dissenting tion of the State’s claims all the more in order. Ran- —————— proof of identification but allows for a variety of documents to qualify, see ante, at 8–9 (lead opinion), Indiana accepts only limited forms of federally issued or state-issued photo identification, see n. and does not allow individuals lacking the required identification to cast a regular ballot at the polls. Only one other State, Georgia, currently restricts voters to the narrow forms of government-issued photo identi- fication. See –2–17 But a birth certificate is not needed to get a Georgia voter identification card. See –2–17.1 ; Ga. Comp. Rules & Regs., Rule 18–1–20.01 Missouri’s Legislature passed a restrictive photo identification law comparable to Indiana’s, but the Missouri Supreme Court struck it down as violative of the state constitution. Weinschenk v. State, 20 S.W.d 201 Florida requires photo identification, but permits the use of several forms, including a debit or credit card; military identification; student identification; retirement center identi- fication; neighborhood center identification; and public assistance identification. See Fla. Stat. Ann. §101.0(1) (West Supp. 2008). Moreover, a Florida voter who lacks photo identification may cast a provisional ballot, and that ballot will be counted so long as the signa- ture on the ballot matches the one on the voter’s registration. §§101.0(2), 101.08. All other States that require identification at the polls either allow voters to identify themselves using a variety of documents, see Ala. Code §17–9–0 ; Alaska Stat. §.225 ; Ariz. Rev. Stat. Ann. 579 ; –5–05(a)(8) ; Colo. Rev. Stat. §1–10(19.5), 1–7–110 ; Ky. Rev. Stat. Ann. (Lexis 200); Mont. Code Ann. 1–11 ; N. M. Stat. Ann. §1–2, 1–12–7.1, as amended by 2008 N. M. Laws ch. 59; 12–8 ; Ohio Rev. Code Ann. §§50.1(B)(1), 505.18 ; S. C. Code Ann. 7–1–710 ; –7–112 (200); Texas Elec. Code Ann. §§.001–.009 ; §.0101 ; Wash. Rev. |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | Texas Elec. Code Ann. §§.001–.009 ; §.0101 ; Wash. Rev. Code §29A.205 or allow voters lacking identification to cast a regular ballot upon signing an affidavit (or providing additional identifying information), see – 21 ; Del. Code Ann., Tit. §97 ; – 1 ( Cum. Supp.); La. Rev. Stat. Ann. §18:52 (West Supp. 2008); Mich. Comp. Laws Ann. §18.52(1) ; N. D. Cent. Code Ann. §1.1–05–07 ; S. D. Codified Laws 18–.1, 12–18–.2 (200); Va. Code Ann. §2.2– 1 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting 58 U.S. 20, 25 (citing as a “danger sig[n]” that “contribution limits are substantially lower than comparable limits in other States,” and concluding that “[w]e consequently must examine the record independently and carefully to deter- mine whether [the] limits are ‘closely drawn’ to match the State’s interests”); at 28, 288 (finding that deference was appropriate on the reasoning that limits were “consistent with limits set by the legisla- tures of many other States, all of them with populations larger than Vermont’s,” and that “[t]he Legislature of Vermont evidently tried to account for the realities of campaigning in Vermont”). III Because the lead opinion finds only “limited” burdens on the right to vote, see ante, at 18, it avoids a hard look at the State’s claimed interests. See ante, at 7–1. But having found the Voter ID Law burdens far from trivial, I have to make a rigorous assessment of “ ‘the precise inter- ests put forward by the State as justifications for the burden imposed by its rule,’ [and] ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” (quoting Anderson, 0 U. S., at ). As this quotation from indicates, the interests claimed to justify the regulatory scheme are subject to discount in two distinct ways. First, the generalities raised by the State have to be shaved down to the precise “aspect[s of claimed interests] addressed by the law at issue.” California Democratic Party v. Jones, 50 U.S. 57, 58 (emphasis omitted); see (scrutiny of state interests “is not to be made in the abstract, by ask- ing whether [the interests] are highly significant values; but rather by asking whether the aspect of [those inter- ests] addressed by the law at issue is highly significant” Cite as: 55 U. S. (2008) 17 SOUTER, J., dissenting (emphasis in original)). And even if the State can show particularized interests addressed by the law, those inter- ests are subject to further discount depending on “the extent to which [they] make it necessary to burden the plaintiff’s rights.” at (internal |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | make it necessary to burden the plaintiff’s rights.” at (internal quota- tion marks omitted). As the lead opinion sees it, the State has offered four related concerns that suffice to justify the Voter ID Law: modernizing election procedures, combating voter fraud, addressing the consequences of the State’s bloated voter rolls, and protecting public confidence in the integrity of the electoral process. See ante, at 7–1. On closer look, however, it appears that the first two (which are really just one) can claim modest weight at best, and the latter two if anything weaken the State’s case. A The lead opinion’s discussion of the State’s reasons begins with the State’s asserted interests in “election modernization,” ante, at 8–10, and in combating voter fraud, see ante, at 11–1. Although these are given sepa- rate headings, any line drawn between them is unconvinc- ing; as I understand it, the “effort to modernize elections,” Brief for Respondents in No. 07–25, p. 12, is not for mod- ernity’s sake, but to reach certain practical (or political) objectives. In any event, if a proposed modernization were in fact aimless, if it were put forward as change for change’s sake, a State could not justify any appreciable burden on the right to vote that might ensue; useless technology has no constitutional value. And in fact that is not the case here. The State says that it adopted the ID law principally to combat voter fraud, and it is this claim, —————— See generally R. Saltman, The History and Politics of Voting Tech- nology: In Quest of Integrity and Public Confidence (tracing the history of changes in methods of voting in the United States, and the social and political considerations behind them). 18 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting not the slogan of “election modernization,” that warrants attention. 1 There is no denying the abstract importance, the com- pelling nature, of combating voter fraud. See Purcell, 59 U. S., at (acknowledging “the State’s compelling interest in preventing voter fraud”); 89 U.S. 21, 21 (“A State indisputably has a compelling interest in preserving the integrity of its election process”). But it takes several steps to get beyond the level of abstraction here. To begin with, requiring a voter to show photo identifi- cation before casting a regular ballot addresses only one form of voter fraud: in-person voter impersonation. The photo ID requirement leaves untouched the problems of absentee-ballot fraud, which (unlike in-person voter im- personation) is a documented problem in Indiana, see 58 F. Supp. 2d, at 79; of registered voters voting more than once (but |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | at 79; of registered voters voting more than once (but maintaining their own identities) in different counties or in different States; of felons and other disquali- fied individuals voting in their own names; of vote buying; or, for that matter, of ballot-stuffing, ballot miscounting, voter intimidation, or any other type of corruption on the part of officials administering elections. See Brief for Brennan Center for et al. as Amici Curiae 7. And even the State’s interest in deterring a voter from showing up at the polls and claiming to be someone he is not must, in turn, be discounted for the fact that the State has not come across a single instance of in-person voter impersonation fraud in all of Indiana’s history. See 58 F. Supp. 2d, at 792–79; see also ante, at 11–1 (lead opinion). Neither the District Court nor the Indiana Gen- eral Assembly that passed the Voter ID Law was given any evidence whatsoever of in-person voter impersonation fraud in the State. See 58 F. Supp. 2d, at 79. This Cite as: 55 U. S. (2008) 19 SOUTER, J., dissenting absence of support is consistent with the experience of several veteran poll watchers in Indiana, each of whom submitted testimony in the District Court that he had never witnessed an instance of attempted voter imper- sonation fraud at the polls. It is also consistent with the dearth of evidence of in-person voter impersonation in any other part of the country. See ante, at 11, n. 11 (lead opinion) (conceding that there are at most “scattered instances of in-person voter fraud”); see also Brief for Brennan Center for at 11–25, 25 (demon- strating that “the national evidence—including the very evidence relied on by the courts below—suggests that the type of voting fraud that may be remedied by a photo ID requirement is virtually nonexistent: the ‘problem’ of voter impersonation is not a real problem at all”).28 The State responds to the want of evidence with the assertion that in-person voter impersonation fraud is hard to detect. But this is like saying the “man who wasn’t there” is hard to spot,29 and to know whether difficulty in detection accounts for the lack of evidence one at least has to ask whether in-person voter impersonation is (or would be) relatively harder to ferret out than other kinds of fraud (e.g., by absentee ballot) which the State has had no trou- ble documenting. The answer seems to be no; there is reason to think that “impersonation of voters is the most likely type of fraud to be discovered.” U. S. Election |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | likely type of fraud to be discovered.” U. S. Election Assistance Commission, Election Crimes: An Initial Re- —————— 28 The lack of evidence of in-person voter impersonation fraud is not for failure to search. See, e.g., Lipton & Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, N. Y. Times, Apr. 12, p. A1 (“Five years after the Bush Administration began a crackdown on voter fraud, the Department has turned up virtually no evidence of any organ- ized effort to skew federal elections, according to court records and interviews”). 29 “As I was going up the stair / I met a man who wasn’t there.” H. Mearns, Antigonish, reprinted in Best Remembered Poems 107 20 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting view and Recommendations for Future Study 9 http://www.eac.gov/clearinghouse/docs/reports-and- surveys-electioncrimes.pdf/attachment_download/file (hereinafter EAC Report). This is in part because an individual who impersonates another at the polls commits his fraud in the open, under the scrutiny of local poll workers who may well recognize a fraudulent voter when they hear who he claims to be. See Brief for Respondents in No. 07–21, p. )). The relative ease of discovering in-person voter imper- sonation is also owing to the odds that any such fraud will be committed by “organized groups such as campaigns or political parties” rather than by individuals acting alone. L. Minnite & D. Securing the Vote: An Analysis of Election Fraud 1 (200). It simply is not worth it for individuals acting alone to commit in-person voter imper- sonation, which is relatively ineffectual for the foolish few who may commit it. If an imposter gets caught, he is subject to severe criminal penalties. See, e.g., Ind. Code Ann. §–1–2–9 (making it a felony “knowingly [to] vot[e] or offe[r] to vote at an election when the person is not registered or authorized to vote”); §–1–2–11 (with cer- tain exceptions, “a person who knowingly votes or offers to vote in a precinct except the one in which the person is registered and resides” commits a felony); §–1–2–12(1) (making it a felony “knowingly [to] vot[e] or mak[e] appli- cation to vote in an election in a name other than the person’s own”); §–1–2–12(2) (a person who, “having voted once at an election, knowingly applies to vote at the same election in the person’s own name or any other name” commits a felony); see also 2 U.S. C. §197i(e)(1) Cite as: 55 U. S. (2008) 21 SOUTER, J., dissenting (any individual who “votes more than once” in certain federal elections “shall be fined not more than $10,000 or imprisoned not |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | “shall be fined not more than $10,000 or imprisoned not more than five years, or both”). And even if he succeeds, the imposter gains nothing more than one additional vote for his candidate. See EAC Report 9 (in- person voter impersonation “is an inefficient method of influencing an election”); J. Levitt, The Truth about Voter Fraud 7 (“[F]raud by individual voters is a singu- larly foolish and ineffective way to attempt to win an election. Each act of voter fraud in connection with a federal election risks five years in prison and a $10,000 fine, in addition to any state penalties. In return, it yields at most one incremental vote. That single extra vote is simply not worth the price” (footnote omitted)); 72 F. d, 51 (“[A] vote in a political election rarely has any instrumental value, since elections for political office at the state or federal level are never decided by just one vote” (emphasis in original)). In sum, fraud by individuals acting alone, however difficult to detect, is unlikely. And while there may be greater incentives for organized groups to engage in broad- gauged in-person voter impersonation fraud, see Minnite & it is also far more difficult to conceal larger enterprises of this sort. The State’s argu- ment about the difficulty of detecting the fraud lacks real force. 2 Nothing else the State has to say does much to bolster its case. The State argues, for example, that even without evidence of in-person voter impersonation in Indiana, it is enough for the State to show that “opportunities [for such fraud] are transparently obvious in elections without identification checks,” Brief for Respondents in No. 07–25, p. 5. Of course they are, but Indiana elections before the Voter ID Law were not run “without identification checks”; 22 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting on the contrary, as the Marion County Election Board informs us, “[t]ime-tested systems were in place to detect in-person voter impersonation fraud before the challenged statute was enacted,” Brief for Respondents in No. 07–21, p. These included hiring poll workers who were pre- cinct residents familiar with the neighborhood, and mak- ing signature comparisons, each effort being supported by the criminal provisions mentioned before. at –8. For that matter, the deterrence argument can do only so much work, since photo identification is itself hardly a failsafe against impersonation. Indiana knows this, and that is why in the State began to issue redesigned driver’s licenses with digital watermarking.0 The State has made this shift precisely because, in the words of its BMV, “visual inspection is |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | because, in the words of its BMV, “visual inspection is not adequate to determine the authenticity” of driver’s licenses. See Indiana BMV, su- pra, n. 0. Indeed, the BMV explains that the digital watermarks (which can be scanned using equipment that, so far, Indiana does not use at polling places) is needed to “tak[e] the guesswork out of inspection.” 1 So, at least until polling places have the machines and special software to scan the new driver’s licenses, and until all the licenses with the older designs expire (the licenses issued after but before the redesigning are good until 2012, see 58 F. Supp. 2d, at ), Indiana’s law does no more than assure that any in-person voter fraud will take place with fake IDs, not attempted signature forgery. —————— 0 See Indiana BMV, Digital Drivers License: Frequently Asked Ques- tions, “What is a digital watermark and why is Indiana incorporating it into their driver license?”, http://www.in.gov/bmv/82.htm. 1 In the words of Indiana’s Governor, Mitch Daniels: “ ‘Not very long ago, Indiana driver’s licenses were a late-night talk show joke [because of] the ease of their fraudulent issuance and also their duplication [The new design] will make particularly their duplication dramatically more difficult.’ ” Udell, Digital Driver’s Licenses Designed To Stem ID Theft, Evansville Courier, June 7, p. B. Cite as: 55 U. S. (2008) 2 SOUTER, J., dissenting Despite all this, I will readily stipulate that a State has an interest in responding to the risk (however small) of in- person voter impersonation. See ante, at 12 (lead opinion). I reach this conclusion, like others accepted by the Court, because “ ‘[w]here a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empiri- cal legislative judgments.’ ” 58 U. S., at 285 (BREYER, J., concurring)). Weight is owed to the legislative judgment as such. But the ultimate valuation of the particular interest a State asserts has to take account of evidence against it as well as legislative judgments for it (certainly when the law is one of the most restrictive of its kind, see n. 2, and on this record it would be unreasonable to accord this assumed state interest more than very modest significance.2 The antifraud rationale is open to skepticism on one further ground, what spoke of as an assessment of the degree of necessity for the State’s particular course of action. Two points deserve attention, the first being that —————— 2 On such flimsy evidence of fraud, it would also ignore the lessons of |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | evidence of fraud, it would also ignore the lessons of history to grant the State’s interest more than modest weight, as the interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules. See F. Ogden, The Poll Tax in the South 9 (1958) (“In Arkansas and Texas, the argument was fre- quently presented that a poll tax payment prerequisite would purify elections by preventing repeaters and floaters from voting”); see also Brief for Historians and Other Scholars as Amici Curiae – (detailing abuses); R. Hayduk, Gatekeepers to the Franchise: Shaping Election Administration in New York (2005) (“In both historical and contem- porary contexts certain groups have had an interest in alleging fraud and thereby shaping electoral rules and practices in a restrictive direction, and other groups have had an opposite interest”). 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting the State has not even tried to justify its decision to im- plement the photo identification requirement immediately on passage of the new law. A phase-in period would have given the State time to distribute its newly designed li- censes, and to make a genuine effort to get them to indi- viduals in need, and a period for transition is exactly what the Commission on Federal Election Reform, headed by former President Carter and former Secretary of State Baker, recommended in its report. See Building Confi- dence in U. S. Elections (Sept. 2005), App. 1, 10 (hereinafter Carter-Baker Report) (“For the next two federal elections, until January 1, 2010, in states that require voters to present ID at the polls, voters who fail to do so should nonetheless be allowed to cast a provisional ballot, and their ballot would count if their signature is verified”). During this phase-in period, the report said, States would need to make “efforts to ensure that all voters are provided convenient opportunities to obtain” the required identification. at 11. The former President and former Secretary of State explained this recommenda- tion in an op-ed essay: “Yes, we are concerned about the approximately 12 percent of citizens who lack a driver’s license. So we proposed that states finally assume the responsibility to seek out citizens to both register voters and provide them with free ID’s that meet federal standards. States should open new offices, use social service agencies and deploy mobile offices to register voters. By connecting ID’s to registration, voting participa- tion will be expanded.” Carter & Baker, Voting Re- form is in the Cards, N. Y. Times, Sept. 2, 2005, p. A19. Although Indiana claims to |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | Times, Sept. 2, 2005, p. A19. Although Indiana claims to have adopted its ID require- ment relying partly on the Carter-Baker Report, see Brief for Respondents in No. 07–25, pp. 5, 1, 9; see also ante, Cite as: 55 U. S. (2008) 25 SOUTER, J., dissenting at 10 (lead opinion), the State conspicuously rejected the Report’s phase-in recommendation aimed at reducing the burdens on the right to vote, and just as conspicuously fails even to try to explain why. What is left of the State’s claim must be downgraded further for one final reason: regardless of the interest the State may have in adopting a photo identification re- quirement as a general matter, that interest in no way necessitates the particular burdens the Voter ID Law imposes on poor people and religious objectors. Individu- als unable to get photo identification are forced to travel to the county seat every time they wish to exercise the fran- chise, and they have to get there within 10 days of the election. See at 8–10. Nothing about the State’s interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places. In briefing this Court, the State responds by pointing to an interest in keeping lines at polling places short. See Brief for Respondents in No. 07–25, p. 58. It warns that “[i]f election workers—a scarce resource in any election— must attend to the details of validating provisional ballots, voters may have to wait longer to vote,” and it assures us that “[n]othing deters voting so much as long lines at the polls.” But this argument fails on its own terms, for whatever might be the number of individuals casting a provisional ballot, the State could simply allow voters to sign the indigency affidavit at the polls subject to review there after the election. After all, the Voter ID Law already requires voters lacking photo identification to —————— Florida has accommodated voters in this manner. In Florida a voter who casts a provisional ballot may have that vote counted if the voter’s signature on the provisional-ballot certification matches the signature on the voter’s registration. See Fla. Stat. Ann. §§101.0, 101.08. The voter is not required to make a second trip to have her provisional ballot counted. 2 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting sign, at the polling site, an affidavit attesting to proper registration. See 58 F. Supp. 2d, at 78. Indeed, the State’s argument more than fails; it back- fires, in implicitly conceding that a not-insignificant |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | fails; it back- fires, in implicitly conceding that a not-insignificant num- ber of individuals will need to rely on the burdensome provisional-ballot mechanism. What is more, as the Dis- trict Court found, the Voter ID Law itself actually in- creases the likelihood of delay at the polls. Since any minor discrepancy between a voter’s photo identification card and the registration information may lead to a chal- lenge, “the opportunities for presenting challenges ha[ve] increased as a result of the photo identification require- ments.” at ; 72 F. d, 55 (Evans, J., dis- senting) (“The potential for mischief with this law is obvi- ous. Does the name on the ID ‘conform’ to the name on the voter registration list? If the last name of a newly married woman is on the ID but her maiden name is on the registration list, does it conform? If a name is mis- spelled on one—Schmit versus Schmitt—does it conform? If a ‘Terence’ appears on one and a shortened ‘Terry’ on the other, does it conform?”). B The State’s asserted interests in modernizing elections and combating fraud are decidedly modest; at best, they fail to offset the clear inference that thousands of Indiana citizens will be discouraged from voting. The two remain- ing justifications, meanwhile, actually weaken the State’s case. The lead opinion agrees with the State that “the infla- tion of its voter rolls is further support for its enactment of” the Voter ID Law. Ante, at 12. This is a puzzling conclusion, given the fact, which the lead opinion notes, that the National Government filed a complaint against Indiana, containing this allegation: “Indiana has failed to conduct a general program that Cite as: 55 U. S. (2008) SOUTER, J., dissenting makes a reasonable effort to identify and remove in- eligible voters from the State’s registration list; has failed to remove such ineligible voters; and has failed to engage in oversight actions sufficient to ensure that local election jurisdictions identify and remove such ineligible voters.” App. 09, 12. The Federal Government and the State agreed to settle the case, and a consent decree and order have been en- tered, see ante, at 12–1, requiring Indiana to fulfill its list-maintenance obligations under of the National Voter Registration Act of 199, 2 U.S. C. §197gg–. How any of this can justify restrictions on the right to vote is difficult to say. The State is simply trying to take advantage of its own wrong: if it is true that the State’s fear of in-person voter impersonation fraud arises from its bloated voter checklist, the answer to the |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | arises from its bloated voter checklist, the answer to the problem is in the State’s own hands. The claim that the State has an inter- est in addressing a symptom of the problem (alleged im- personation) rather than the problem itself (the negli- gently maintained bloated rolls) is thus self-defeating; it shows that the State has no justifiable need to burden the right to vote as it does, and it suggests that the State is not as serious about combating fraud as it claims to be. The State’s final justification, its interest in safeguard- ing voter confidence, similarly collapses. The problem with claiming this interest lies in its connection to the bloated voter rolls; the State has come up with nothing to suggest that its citizens doubt the integrity of the State’s —————— The voting-rolls argument also suggests that it would not be so difficult to detect in-person voter fraud after all. If it is true that practitioners of fraud are most likely to vote in the name of registered voters whom they know to have died or left the jurisdiction, then Indiana could simply audit its voting records to examine whether, and how often, in-person votes were cast using these invalid registrations. 28 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting electoral process, except its own failure to maintain its rolls. The answer to this problem is not to burden the right to vote, but to end the official negligence. It should go without saying that none of this is to deny States’ legitimate interest in safeguarding public confi- dence. The Court has, for example, recognized that fight- ing perceptions of political corruption stemming from large political contributions is a legitimate and substantial state interest, underlying not only campaign finance laws, but bribery and antigratuity statutes as well. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 77, 90 But the force of the interest depends on the facts (or plausibility of the assumptions) said to justify invoking it. See at 91 (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”). While we found in Nixon that “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters,” at 95, there is plenty of reason to be doubtful here, both about the reality and the perception. It is simply not plausible to assume here, with no evidence of in-person |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | not plausible to assume here, with no evidence of in-person voter imper- sonation fraud in a State, and very little of it nationwide, that a public perception of such fraud is nevertheless “inherent” in an election system providing severe criminal penalties for fraud and mandating signature checks at the polls. at 90 (“[T]he perception of corruption [is] ‘inherent in a regime of large individual financial contri- butions’ to candidates for public office” (quoting Buckley v. Valeo, 2 U.S. 1, (197) ). C Without a shred of evidence that in-person voter imper- sonation is a problem in the State, much less a crisis, Cite as: 55 U. S. (2008) 29 SOUTER, J., dissenting Indiana has adopted one of the most restrictive photo identification requirements in the country. The State recognizes that tens of thousands of qualified voters lack the necessary federally issued or state-issued identifica- tion, but it insists on implementing the requirement im- mediately, without allowing a transition period for tar- geted efforts to distribute the required identification to individuals who need it. The State hardly even tries to explain its decision to force indigents or religious objectors to travel all the way to their county seats every time they wish to vote, and if there is any waning of confidence in the administration of elections it probably owes more to the State’s violation of federal election law than to any imposters at the polling places. It is impossible to say, on this record, that the State’s interest in adopting its sig- nally inhibiting photo identification requirement has been shown to outweigh the serious burdens it imposes on the right to vote. If more were needed to condemn this law, our own precedent would provide it, for the calculation revealed in the Indiana statute crosses a line when it targets the poor and the weak. 79 (“[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a par- ticular viewpoint, associational preference, or economic status”). If the Court’s decision in 8 U.S. (19), stands for anything, it is that being poor has nothing to do with being qualified to vote. Harper made clear that “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” at 8. The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified |
Justice Souter | 2,008 | 20 | dissenting | Crawford v. Marion County Election Bd. | https://www.courtlistener.com/opinion/145813/crawford-v-marion-county-election-bd/ | within 10 days of every election, likewise translate into unjustified economic 0 CRAWFORD v. MARION COUNTY ELECTION BD. SOUTER, J., dissenting burdens uncomfortably close to the outright $1.50 fee we struck down 2 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deter- ring poorer residents from exercising the franchise. * * * The Indiana Voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unrea- sonable and irrelevant burden on voters who are poor and old. I would vacate the judgment of the Seventh Circuit, and remand for further proceedings. Cite as: 55 U. S. (2008) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 07–21 and 07–25 WILLIAM CRAWFORD, ET AL., PETITIONERS 07–21 v. MARION COUNTY ELECTION BOARD ET AL. INDIANA DEMOCRATIC PARTY, ET AL., PETITIONERS 07–25 v. TODD ROKITA, INDIANA SECRETARY OF STATE, ET AL. |
Justice Ginsburg | 2,009 | 5 | majority | Rivera v. Illinois | https://www.courtlistener.com/opinion/145895/rivera-v-illinois/ | This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory chal lenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction? Following a jury trial in an Illinois state court, defen dant-petitioner Michael Rivera was convicted of first degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge to venire member Deloris Go mez. Gomez sat on Rivera’s jury and indeed served as the jury’s foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court. The right to exercise peremptory challenges in state 2 court is determined by state law. This Court has “long recognized” that “peremptory challenges are not of federal constitutional dimension.” United States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.” Just as state law controls the existence and exercise of peremp tory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court’s determination that, in the circumstances Rivera’s case presents, the trial court’s error did not warrant reversal of his conviction. I Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a -year-old African-American, after mistaking Lee for a member of a rival gang. During jury selection, Rivera’s counsel questioned pro spective juror Deloris Gomez, a business office supervisor at Cook County Hospital’s outpatient orthopedic clinic. App. 32–33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowl edged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experi ence would not affect her ability to be impartial. After questioning Gomez, Rivera’s counsel sought to use a per emptory challenge to excuse her. At that point in the jury’s selection, Rivera had already used three peremptory challenges. Two of the three were exercised against |
Justice Ginsburg | 2,009 | 5 | majority | Rivera v. Illinois | https://www.courtlistener.com/opinion/145895/rivera-v-illinois/ | three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West Cite as: 556 U. S. (2009) 3 Opinion of the Court ). Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34–36. Under and later decisions building upon parties are constitution ally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. With out specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera’s counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was “pulled in two different ways” because Gomez had “some kind of Hispanic connection given her name.” App. 34. At that point, the judge interjected that Gomez “appears to be an African American”—the second “African American female” the defense had struck. 4–35. Dissatisfied with counsel’s proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further. After asking Gomez additional questions about her work at the hospital, Rivera’s counsel renewed his challenge. Counsel observed, outside the jury’s presence, that most of the jurors already seated were women. Counsel said he hoped to “get some impact from possibly other men in the case.” The court reaffirmed its earlier ruling, and Gomez was seated on the jury. Rivera’s case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree mur der. A divided panel of the Appellate Court of Illinois rejected Rivera’s challenge to the trial judge’s ruling and affirmed his conviction. The Supreme Court of Illinois accepted Rivera’s petition for leave to appeal and remanded for further proceedings. 4 A trial judge, the court held, may raise a issue sua sponte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his ruling and, in particu lar, to clarify whether the alleged discrimination was on the basis of race, sex, or –5, 852 N. E. 2d, at 791. On remand, the trial judge stated that prima facie evidence of sex discrimination—namely, counsel’s two prior challenges to women and “the nature of [counsel’s] questions”—had prompted him to raise the issue. App. |
Subsets and Splits