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Justice Stewart | 1,974 | 18 | majority | American Pipe & Constr. Co. v. Utah | https://www.courtlistener.com/opinion/108909/american-pipe-constr-co-v-utah/ | which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties precisely the multiplicity of activity which Rule 23 was designed to avoid in those cases where a class action is found "superior to other available methods for the fair and efficient adjudication of the controversy." Rule 23 (b) (3). We think no different a standard should apply to those members of the class who did not rely upon the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit.[21] Rule *552 23 is not designed to afford class action representation only to those who are active participants in or even aware of the proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action. During the pendency of the District Court's determination in this regard, which is to be made "as soon as practicable after the commencement of an action," potential class members are mere passive beneficiaries of the action brought in their behalf. Not until the existence and limits of the class have been established and notice of membership has been sent does a class member have any duty to take note of the suit or to exercise any responsibility with respect to it in order to profit from the eventual outcome of the case. It follows that even as to asserted class members who were unaware of the proceedings brought in their interest or who demonstrably did not rely on the institution of those proceedings, the later running of the applicable statute of limitations does not bar participation in the class action and in its ultimate judgment. II In the present case the District Court ordered that the suit could not continue as a class action, and the participation denied to the respondents because of the running of the limitation period was not membership in the class, but rather the privilege of intervening in an individual suit pursuant to Rule 24 (b) (2).[22] We hold that in this posture, at least where class action status has been denied *553 solely because of failure to demonstrate that "the class is so numerous that joinder of all members is impracticable," the commencement of |
Justice Stewart | 1,974 | 18 | majority | American Pipe & Constr. Co. v. Utah | https://www.courtlistener.com/opinion/108909/american-pipe-constr-co-v-utah/ | that joinder of all members is impracticable," the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. As the Court of Appeals was careful to note in the present case, "[m]aintenance of the class action was denied not for failure of the complaint to state a claim on behalf of the members of the class (the court recognized the probability of common issues of law and fact respecting the underlying conspiracy) [,] not for lack of standing of the representative, or for reasons of bad faith or frivolity." 473 F.2d, (Footnote omitted.) A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. In cases such as this one, where the determination to disallow the class action was made upon considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court's docket,[23] a rule requiring successful *554 anticipation of the determination of the viability of the class would breed needless duplication of motions. We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.[24] This rule is in no way inconsistent with the functional operation of a statute of limitations. As the Court stated in Order of Railroad statutory limitation periods are "designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." The policies of ensuring essential fairness to defendants and of barring a plaintiff who "has slept on his rights," are satisfied when, |
Justice Stewart | 1,974 | 18 | majority | American Pipe & Constr. Co. v. Utah | https://www.courtlistener.com/opinion/108909/american-pipe-constr-co-v-utah/ | plaintiff who "has slept on his rights," are satisfied when, as here, a named plaintiff who is found *555 to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.[25] Since the imposition of a time bar would not in this circumstance promote the purposes of the statute of limitations, the tolling rule we establish here is consistent both with the procedures of Rule 23 and with the proper function of the limitations statute. While criticisms of Rule 23 and its impact on the federal courts have been both numerous and trenchant, see, e. g., American College of Trial Lawyers, Report and Recommendations of the Special Committee on Rule 23 of the Federal Rules of Civil Procedure (1972); H. Friendly, Federal Jurisdiction: A General View 118-120 (1973); Handler, The Shift from Substantive to Procedural Innovations in Antitrust SuitsThe Twenty-Third Annual Antitrust Review, 71 Colo. L. Rev. 1, 5-12 (1971); Handler, Twenty-Fourth Annual Antitrust Review, 72 Colo. L. Rev. 1, 34-42 (1972), this interpretation of the Rule *556 is nonetheless necessary to insure effectuation of the purposes of litigative efficiency and economy that the Rule in its present form was designed to serve. III The petitioners contend, however, that irrespective of the policies inherent in Rule 23 and in statutes of limitations, the federal courts are powerless to extend the limitation period beyond the period set by Congress because that period is a "substantive" element of the right conferred on antitrust plaintiffs and cannot be extended or restricted by judicial decision or by court rule.[26] Unlike the situation where Congress has been silent as to the period within which federal rights must be asserted,[27] in the antitrust field Congress has specified a precise limitation period, and further has provided for a tolling period in the event that Government litigation is instituted. The inclusion of the limitation and the tolling period, the petitioners assert, makes the "substantive" statute immune from extension by "procedural" rules. They rely in large part on the Court's decision in The Harrisburg, *557 in which it was stated, with respect to state wrongful-death statutes, |
Justice Stewart | 1,974 | 18 | majority | American Pipe & Constr. Co. v. Utah | https://www.courtlistener.com/opinion/108909/american-pipe-constr-co-v-utah/ | which it was stated, with respect to state wrongful-death statutes, "The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all." In The Harrisburg, however, the Court dealt with a situation where a plaintiff who was invoking the maritime jurisdiction of a federal court sought relief under a state statute providing for substantive liability.[28] The Court held that when a litigant in a federal court asserted a cause of action based upon a state statute he was bound by the limitation period contained within that statute rather than by a federal time limit. Cf. Guaranty Trust But the Court in The Harrisburg did not purport to define or restrict federal judicial power to delineate circumstances where the applicable statute of limitations would be tolled. As we said in "[w]hile the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled." n. 2. The proper test is not whether a time *558 limitation is "substantive" or "procedural," but whether tolling the limitation in a given context is consonant with the legislative scheme.[29] In recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new ground. In a railroad employee claiming rights under the Federal Employers' Liability Act, 45 U.S. C. 51 et seq., initially brought suit in a state court within the three-year time limitation specifically imposed by 6 of the Act, 45 U.S. C. 56. The state proceeding was subsequently dismissed because of improper venue. Immediately after the dismissal, but also after the running of the limitation period, the employee attempted to bring suit in federal court. Reversing determinations of the District Court and the Court of Appeals that the federal suit was time barred, the Court held that the commencement of the state suit fulfilled the policies of repose and certainty inherent in the limitation provisions and tolled the running of the period. See also *559 Similarly, in cases where the plaintiff |
Justice Stewart | 1,974 | 18 | majority | American Pipe & Constr. Co. v. Utah | https://www.courtlistener.com/opinion/108909/american-pipe-constr-co-v-utah/ | period. See also *559 Similarly, in cases where the plaintiff has refrained from commencing suit during the period of limitation because of inducement by the defendant, or because of fraudulent concealment, this Court has not hesitated to find the statutory period tolled or suspended by the conduct of the defendant. In the Court specifically rejected a contention by the defendant that when "the time limitation is an integral part of a new cause of action that cause is irretrievably lost at the end of the statutory period." To the contrary, the Court found that the strict command of the limitation period provided in the federal statute was to be suspended by considerations "[d]eeply rooted in our jurisprudence." These cases fully support the conclusion that the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose. IV Finally, the petitioners urge that the Court of Appeals' reversal of the District Court for failure to permit intervention under Rule 24 (b) (2) was nonetheless improper because the District Court in denying such permission was doing no more than exercising a legal discretion which the Court of Appeals did not find to be abused.[30] They point out that Rule 24 (b) explicitly refers to a district judge's permission to intervene as an exercise of *560 discretion,[31] and that this Court has held that "[t]he exercise of discretion in a matter of this sort is not reviewable by an appellate court unless clear abuse is shown" Allen Calculators, ; see also Brotherhood of Railroad In denying permission to intervene in this case, however, Judge Pence did not purport to weigh the competing considerations in favor of and against intervention, but simply found that the prospective intervenors were absolutely barred by the statute of limitations. This determination was not an exercise of discretion, but rather a conclusion of law which the Court of Appeals correctly found to be erroneous. The judgment of the Court of Appeals reversing the District Court's order directed that the case be remanded "for further proceedings upon the motions [to intervene]." 473 F.2d, Rather than reviewing an exercise of discretion, the Court of Appeals merely directed that discretion be exercised.[32] V It remains to determine the precise effect the commencement of the class action had on the relevant *561 limitation period. Section 5 (b) of the Clayton Act provides that the running of the |
Justice Marshall | 1,977 | 15 | concurring | Milliken v. Bradley | https://www.courtlistener.com/opinion/109723/milliken-v-bradley/ | I wholeheartedly join THE CHIEF JUSTICE'S opinion for the Court. My Brother POWELL's opinion prompts these additional comments. What is, to me, most tragic about this case is that in all relevant respects it is in no way unique. That a northern school board has been found guilty of intentionally discriminatory acts is, unfortunately, not unusual. That the academic development of black children has been impaired by this wrongdoing is to be expected. And, therefore, that a program *9 of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable. It is of course true, as MR. JUSTICE POWELL notes, that the Detroit School Board has belatedly recognized its responsibility for the injuries that Negroes have suffered, and has joined in the effort to remedy them. He may be right although I hope notthat this makes the case "wholly different from any prior case," post, this page. But I think it worth noting that the legal issues would be no different if the Detroit School Board came to this Court on the other side. The question before us still would be the one posed by the State: Is the remedy tailored to fit the scope of the violation? And, as THE CHIEF JUSTICE convincingly demonstrates, that question would have to be answered in the affirmative in light of the findings of the District Court, supported by abundant evidence. Cf. Dayton Board of Education v. Brinkman, post, at 414. MR. JUSTICE POWELL, concurring in the judgment. The Court's opinion addresses this case as if it were conventional desegregation litigation. The wide-ranging opinion reiterates the familiar general principles drawn from the line of precedents commencing with and including today's decision in Dayton Board of Education v. Brinkman, post, p. 406. One has to read the opinion closely to understand that the case, as it finally reaches us, is wholly different from any prior case. I write to emphasize its uniqueness, and the consequent limited precedential effect of much of the Court's opinion. Normally, the plaintiffs in this type of litigation are students, parents, and supporting organizations that desire to desegregate a school system alleged to be the product, in whole or in part, of de jure segregative action by the public school authorities. The principal defendant is usually the *93 local board of education or school board. Occasionally the state board of education and state officials are joined as defendants. This protracted litigation commenced in 1970 in this conventional mold. In the intervening years, however, the posture of the litigation has changed so drastically as to leave it largely |
Justice Marshall | 1,977 | 15 | concurring | Milliken v. Bradley | https://www.courtlistener.com/opinion/109723/milliken-v-bradley/ | litigation has changed so drastically as to leave it largely a friendly suit between the plaintiffs (respondents Bradley et al.) and the original principal defendant, the Detroit School Board. These parties, antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury. As between the original principal partiesthe plaintiffs and the Detroit School Boardno case or controversy remains on the issues now before us. The Board enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers. Indeed, the present School Board proposed most of the educational components included in the District Court's decree. The plaintiffs originally favored a desegregation plan that would have required more extensive transportation of pupils, and they did not initially propose or endorse the educational components. In this Court, however, the plaintiffs also support the decree of the District Court as affirmed by the Court of Appeals.[1] Thus the only complaining party is the State of Michigan (acting through state officials) and its basic complaint concerns money, not desegregation. It has been ordered to pay about $5,800,000 to the Detroit School Board. This is one-half the estimated "excess cost" of 4 of the 11 educational components *94 included in the desegregation decree: remedial reading, in-service training of teachers, testing, and counseling.[] The State, understandably anxious to preserve the state budget from federal-court control or interference, now contests the decree on two grounds. *95 First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court's order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio School ; National League of But here, in a finding no longer subject to review, the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate. The State's second argument is one that normally would be advanced vigorously by the school board. Relying on the established principle that the scope of the remedy in a desegregation case is determined and limited by the extent of the identified constitutional violations, Dayton Board of Education, post, at 419-40; ; ; Austin Independent School the State argues that the District Court erred in ordering the systemwide expansion of the four educational components mentioned above. It contends that there has been no finding of a constitutional violation with respect to the past operation of any of these programs, and it insists that without more |
Justice Marshall | 1,977 | 15 | concurring | Milliken v. Bradley | https://www.courtlistener.com/opinion/109723/milliken-v-bradley/ | any of these programs, and it insists that without more specifically focused findings of this sort, the decree exceeded the court's powers. This argument is by no means a frivolous one. But the context in which it is presented is so unusual that it would be appropriate to dismiss the writ as improvidently granted. The argument is advanced by the State and not by the party primarily concerned. The educational programs at issue are standard and widely approved in public education. The State Board normally would be enthusiastic over enhancement of these programs so long as the local school board could *96 fund them without requiring financial aid from the State. It is equally evident that the State probably would resist a federal-court order requiring it to pay unappropriated state funds to the local school board regardless of whether violations by the local board justified the remedy. The State's interest in protecting its own budgetlimited by legislative appropriationsis a genuine one. But it is not an interest that is related, except fortuitously, to a claim that the desegregation remedy may have exceeded the extent of the violations. The State's reliance on the remedy issue contains a further weakness, emphasizing the unusual character of this case. There is no indication that the State objectedcertainly, it does not object hereto the inclusion in the District Court's decree of the seven other educational components. See n. Indeed, the State expressly agreed to one of the most expensive components, the establishment of vocational education centers, in a stipulation obligating it to share the cost of construction equally with the Detroit Board. See App. to Pet. for Cert. 139a-144a. Furthermore, the District Court's decree largely embodies the original recommendation of the Detroit Board. Since local school boards "have the primary responsibility for elucidating, assessing, and solving [the] problems" generated by "[f]ull implementation of constitutional principles" in the local setting, 349 U.S. 94, 99 the State's limited challenge here is particularly lacking in force. Moreover, the District Court was faced with a school district in exceptional disarray. It found the structure of the Detroit school system "chaotic and incapable of effective administration." App. to Pet. for Cert. 14a. The "general superintendent has little direct authority." Each of the eight regional boards may be preoccupied with "distribut[ing] local board patronage." at 15a. The "local boards have diverted resources that would otherwise have been *97 available for educational purposes to build new offices and other facilities to house this administrative overload." The District Court continued: "In addition to the administrative chaos, we know of no other school system |
Justice Marshall | 1,977 | 15 | concurring | Milliken v. Bradley | https://www.courtlistener.com/opinion/109723/milliken-v-bradley/ | the administrative chaos, we know of no other school system that is so enmeshed in politics. ". Rather than devoting themselves to the educational system and the desegregative process, board members are busily engaged in politics not only to assure their own re-election but also to defeat others with whom they disagree." at 15a-16a (footnote omitted). Referring again to the "political paralysis" and "inefficient bureaucracy" of the system, the court also noteddiscouraginglythat the election then approaching "may well [result in] a board of education consisting of members possessing no experience in education." at 16a. In this quite remarkable situation, it is perhaps not surprising that the District Court virtually assumed the role of school superintendent and school board.[3] *98 Given the foregoing unique circumstances, it seems to me that the proper disposition of this case is to dismiss the writ of certiorari as improvidently granted. But as the Court has chosen to decide the case here, I join in the judgment as a result less likely to prolong the disruption of education in Detroit than a reversal or remand. Despite wide-ranging dicta in the Court's opinion, the only issue decided is that the District Court's findings as to specific constitutional violations justified the four remedial educational components included in the desegregation decree. In my view, it is at least arguable that the findings in this respect were too generalized to meet the standards prescribed by this Court. See Dayton Board of Education, post, p. 406. But the majority views the record as justifying the conclusion that "the need for educational components flowed directly from constitutional violations by both state and local officials." Ante, at 8.[4] On that view of the record, our settled doctrine requiring that the remedy be carefully tailored to fit identified constitutional violations is reaffirmed by today's result. I therefore concur in the judgment. |
Justice Stevens | 1,988 | 16 | dissenting | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | This is the kind of case that reasonable judges may decide differently. The issues have been narrowed by the Government's abandonment of the two principal arguments that it advanced in the District Court and in the Court of Appeals.[1] But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there is room for disagreement between conscientious and reasonable judges. The question, however, is one that district judges are in a much better position to answer wisely than are appellate judges. A judge who has personally participated in the series of events that culminates in an order of dismissal has a much better understanding, not only of what actually happened, but also of the significance of certain events, than does a judge who must reconstruct that history from a confusing sequence of written orders and motions. Moreover, the trial judge is privy to certain information not always reflected in the appellate record, such as her impression of the demeanor and attitude[2] of the parties, her intentions in handling the future course of the proceedings, and her understanding of how *347 the limited issue faced on appeal fits within the larger factual and procedural context. I am convinced that in this case the District Judge made the sort of reasoned judgment that we as appellate judges would do well not to second-guess. This is not a case in which dismissal with prejudice resulted in a dangerous criminal promptly returning to society without suffering substantial punishment for his wrongs. Rather, the District Court only dismissed the charges dealing with narcotics violations, while denying the motion to dismiss the failure-to-appear charge.[3] On that count, after respondent entered a guilty plea, the judge sentenced respondent to five years' imprisonment, the maximum permissible sentence. That sentence was more severe than the 3-year sentence she imposed on respondent's original codefendant who was found guilty on charges that paralleled the two dismissed counts. The majority, however, declines to consider this important fact, concluding that it would have been improper for the District Judge to have given any weight to the presence of the remaining charge. I strongly disagree. Even though respondent was entitled to a presumption of innocence on the failure-to-appear charge, I believe it would be entirely proper to consider the strong possibility of conviction given the fact that respondent's flight occurred shortly before his case was to be tried, the fact that a failure-to-appear prosecution generally does not involve even moderately complicated *348 issues of proof, and the further fact |
Justice Stevens | 1,988 | 16 | dissenting | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | moderately complicated *348 issues of proof, and the further fact that the circumstances of his subsequent arrest and detention had been fully explored in connection with the motion to dismiss the narcotics charges and to conclude that even if respondent was guilty of the narcotics charges, a dismissal with prejudice would not mean that he would return to society unpunished. Although "at the time the District Court decided to dismiss the drug charges against respondent, the court could not be certain that any opportunity would arise to take the drug violations into account in sentencing," ante, at 338, the judge undoubtedly could have assumed that there was a high probability that the Government could prove its case. Nor would such an assumption have interfered with the presumption of innocence. The presumption is, after all, for the benefit of the accused and not the Government. The majority further posits that it would have been "highly improper" for the judge in sentencing respondent on the failure-to-appear charge to consider the dismissed narcotics charges. In my view, just the contrary holds the facts of the dismissed narcotics charges were highly relevant and should properly have been considered. The statute respondent was charged under defined two classes of violations, each carrying a different sentencing range. Under that statute, a defendant who failed to appear to face felony charges could be sentenced to up to five years' imprisonment, while a defendant who failed to appear to face misdemeanor charges could not be sentenced to more than one year's imprisonment. See 18 U.S. C. 3150. For the same reason that the statute differentiated between those who fail to appear to face felony and misdemeanor charges, I would think that the severity of the pending charge would be relevant to the determination of where within the 5-year range to fix sentence. While flight to avoid a relatively minor felony charge would not generally merit a 5-year sentence (particularly in cases in which the possible sentence for the underlying charge is substantially less than five years), flight to avoid a murder trial *349 might well warrant the maximum sentence. In fact, the current statute now imposes four rather than two possible sentencing ranges, varying more acutely with the severity of the underlying alleged offense. See 18 U.S. C. 3146 (1982 ed., Supp. IV). In addition, the majority appears to assume that the District Judge intended to impose a higher sentence for the failure-to-appear charge based on her "untested and unsubstantiated assumption of what the facts might have been shown to be with regard to |
Justice Stevens | 1,988 | 16 | dissenting | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | facts might have been shown to be with regard to the drug charges." Ante, at 338, n. 9. Yet, there is no basis for Court's assumption that the judge planned to take into account the narcotics charge without informing the parties of her intention to do so and without permitting them the opportunity to proffer relevant evidence. Indeed, the concern the Court expresses today did not come to fruition in this case. Not only has respondent not complained of unfair treatment, his attorney informs us that respondent requested to be sentenced "for [his] total conduct." Tr. of Oral Arg. 32. The greater risk of unfair treatment is presented by the possibility that respondent will now be sentenced twice for the same misconduct. Nor can I agree with the Court's conclusion that the District Court did not offer any "indication of the foundation for its conclusion" that the Government's conduct leading to the Speedy Trial violation was "lackadaisical." Ante, at 338. Of particular importance, the District Judge found that the clock ran, in part, as a result of the Marshals Service's failure to comply with a court order from a San Mateo County judge requiring that respondent be produced in state court. See App. to Pet. for Cert. 28a, 30a. Failure to comply with a court order is certainly a serious matter, and, if anything, the District Court's characterization of such a violation as "lackadaisical" appears understated. Although the dissenting judge on the Court of Appeals expressed the view that a state court judge cannot order that the United States Marshal produce a defendant and that the respondent could have *350 been transferred to state custody at any time the local authorities arrived at the San Francisco County jail with the required papers, the important issue is not whether the Marshals Service was technically in contempt, but whether the Service acted carelessly or without regard for respondent's and the public's interest in seeing justice administered swiftly. This is precisely the sort of issue that is more difficult for an appellate court than for a district court to address. On the record before us, I do not know whether I would have dismissed counts I and II with prejudice had I been confronted with the issue as a district judge. As a district judge, I would know that a dismissal without prejudice would be a rather meaningless sanction unless, of course, the statutes of limitations had run, in which event the choice between dismissal with and without prejudice would itself be meaningless. I would also know especially if I had foreknowledge |
Justice Stevens | 1,988 | 16 | dissenting | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | I would also know especially if I had foreknowledge of the opinion announced today that I could best avoid reversal by adopting a consistent practice of dismissing without prejudice, even though such a practice would undermine the years of labor that have gone into enacting and construing the Speedy Trial Act. I would have assumed, however, that the choice of remedy was one that was committed to my discretion and that if I set forth a sensible explanation for my choice that it would withstand appellate review. Although the Court's opinion today boils down to a criticism of the adequacy of the District Judge's explanation for her ruling, see ante, at 342-343, her opinion identifies the correct statutory criteria and, in my view, proceeds to apply them in a clear and sensible fashion. After explaining why she found the Government's legal arguments to be without merit, she wrote: "To summarize the above discussion, the conclusion is inescapable that the government did violate the [Speedy Trial Act (STA)]. The court rules that, even allowing the government a full ten days to effectuate the defendant's *351 return to this district, there elapsed at least fourteen days of nonexcludable time in excess of the 70-day requirement set forth in 3161(c)(1) prior to April 24, 1985, the date on which the government filed the superseding indictment against defendant. Therefore, pursuant to 3162(2), Counts I and II of the indictment must be dismissed. The real question is whether this dismissal should be with or without prejudice. On this point, the STA, 3162(2), provides as follows: " `In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.' "Regarding the first factor as applied to the instant case, there is no question that the drug violations with which the defendant is charged are serious. However, the second factor, the circumstances of the case leading to the dismissal, tends strongly to support the conclusion that the dismissal must be with prejudice. There is simply no excuse for the government's lackadaisical behavior in this case. Despite the government's insistence on the temporary nature of the federal custody from February 7 until February 28, 1985, the [United States Marshals Service (USMS)] did not return defendant to state authorities after the purported reason for that temporary custody had ended on February 22, |
Justice Stevens | 1,988 | 16 | dissenting | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | reason for that temporary custody had ended on February 22, 1985. Even more telling is the failure of the USMS to produce defendant on February 28, 1985 pursuant to a specific court order from a San Mateo County judge. "After the state hold was dropped, it took the government six more days to arrange for defendant's initial appearance before a magistrate despite the fact that he had been in federal custody in the district for almost a *352 month. Nor did the order of removal issued on April 3 prompt any particular show of concern on the government's part. Instead of responding with dispatch, the government apparently placed more value on accommodating the convenience of the USMS than on complying with the plain language of the STA. Pursuant to the third factor, the court concludes that the administration of the STA and of justice would be seriously impaired if the court were not to respond sternly to the instant violation. If the government's behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the STA would become a hollow guarantee. Counts I and II of the indictment must be dismissed with prejudice." App. to Pet. for Cert. 29a-31a (footnote omitted). Congress enacted the Speedy Trial Act because of its concern that this Court's previous interpretations of the Sixth Amendment right to a speedy trial had drained the constitutional right of any "real meaning."[4] The Judiciary Committees in both the Senate and the House of Representatives recognized that unless violations of the Act generally required dismissals with prejudice as was the rule in several States the Act would be unlikely to accomplish its purposes.[5] As the Court correctly notes, this view was compromised *353 by amendments during the floor debates. See ante, at 334-335. The compromise, however, was one that was intended to give district judges discretion to choose the proper remedy based on factors identified in Judge Rothstein's opinion in this case. See 120 Cong. Rec. 41777-41778 (1974) (remarks of Reps. Cohen and Dennis). If that discretion is not broad enough to sustain her decision, as the Court now concludes, the statute is surely nothing more than the "hollow guarantee" that she described. I respectfully dissent. |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | We decide whether, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et *747 seq. an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. I Summary judgment was granted for the employer, so we must take the facts alleged by the employee to be true. United The employer is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March until May Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. In the hierarchy of Burlington's management structure, Slowik was a midlevel manager. Burlington has eight divisions, employing more than 22,000 people in some 50 plants around the United States. Slowik was a vice president in one of five business units within one of the divisions. He had authority to make hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. See According to Slowik's supervisor, his position was "not considered an upper-level management position," and he was "not amongst the decision-making or policy-making hierarchy." Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered to Slowik in New York. Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her *748 tangible job benefits. In the summer of while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "you know, Kim, I could make your life very hard or very easy at Burlington." at 156. In March when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." at 159. The comment was followed by his reaching over and rubbing her knee. Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." at 159-160. In |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | they certainly like women with pretty butts/legs." at 159-160. In May Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Kim unless you want to tell me what you're wearing." at 78. Ellerth told Slowik she had to go and ended the call. A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." at 79. A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior. During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. *749 In fact, she chose not to inform her immediate supervisor (not Slowik) because "`it would be his duty as my supervisor to report any incidents of sexual harassment.' " On one occasion, she told Slowik a comment he made was inappropriate. In October after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. The District Court granted summary judgment to Burlington. The court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. There was no triable issue of fact on the latter point, and the court noted Ellerth had not used Burlington's internal complaint procedures. at 1118. Although Ellerth's claim was framed as a hostile work environment complaint, the District Court observed there was a quid pro quo "component" to the hostile environment. at 11. Proceeding from the premise that an employer faces vicarious liability for quid pro quo harassment, the District Court thought it necessary to apply a negligence standard because the quid pro quo merely contributed to the hostile work environment. See at The District Court also dismissed Ellerth's constructive discharge claim. The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | which produced eight separate opinions and no consensus for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious liability, not failure to comply with a duty of care, was the essence of Ellerth's case against Burlington on appeal. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. With the exception of Judges Coffey and Easterbrook, the judges also agreed Ellerth's claim could be categorized as one of quid pro quo harassment, even though she had received the promotion and had suffered no other tangible retaliation. The consensus disintegrated on the standard for an employer's liability for such a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious liability, and so Ellerth could recover even though Burlington was not negligent. They had different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a claim involves a quid pro quo determines whether vicarious liability applies; and they in turn defined quid pro quo to include a supervisor's threat to inflict a tangible job injury whether or not it was completed. at 499. Judges Wood and Rovner interpreted agency principles to impose vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid pro quo. at 565. Although Judge Easterbrook did not think Ellerth had stated a quid pro quo claim, he would have followed the law of the controlling State to determine the employer's liability, and by this standard, the employer would be liable here. at 552. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. at 505. Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth could not recover against Burlington despite having stated a quid pro quo claim. According to Chief Judge Posner, an employer is subject to vicarious liability for "act[s] that significantly alte[r] the terms or conditions of employment," or "company act[s]." at 515. In the emergent terminology, an unfulfilled quid pro quo is a *751 mere threat to do a company act rather than the act itself, and in these circumstances, an employer can be found liable for its negligence only. Chief Judge Posner also found Ellerth failed to create a triable issue of fact as to Burlington's negligence. at 517. Judge Coffey rejected all of the above approaches because he favored a uniform |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | all of the above approaches because he favored a uniform standard of negligence in almost all sexual harassment cases. at 518. The disagreement revealed in the careful opinions of the judges of the Court of Appeals reflects the fact that Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law. We granted certiorari to assist in defining the relevant standards of employer liability. II At the outset, we assume an important proposition yet to be established before a trier of fact. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. The premise is: A trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled. Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility. Section 703(a) of Title VII forbids "an employer "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or *752 privileges of employment, because of such individual's. sex." 42 U.S. C. 2000e2(a)(1). "Quid pro quo " and "hostile work environment" do not appear in the statutory text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e. g., ; and were mentioned in this Court's decision in Savings Bank, See generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, Harv. J. L. & Pub. Policy 307 In the terms served a specific and limited purpose. There we considered whether the conduct in question constituted discrimination in the terms or conditions of employment in violation of Title VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer's sexually demeaning behavior altered terms or conditions |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | whether an employer's sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims, see and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. The distinction was not discussed for its bearing upon an employer's liability for an employee's discrimination. On this question held, with no further specifics, that agency principles controlled. Nevertheless, as use of the terms grew in the wake of they acquired their own significance. The standard of employer responsibility turned on which type of harassment *753 occurred. If the plaintiff established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious liability. See ; ; ; ; (CA6), cert. denied, ; The rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated by this case. The question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. The question presented for certiorari asks: "Whether a claim of quid pro quo sexual harassment may be stated under Title VII where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?" Pet. for Cert. i. We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the *754 employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct. See ; For purposes of this case, we accept the District Court's finding that the alleged conduct was severe or pervasive. See The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. When we assume discrimination can be proved, however, the factors we discuss below, and not the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability. That is the question we must resolve. III We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VII to include "agents." 42 U.S. C. 2000e(b); see In express terms, Congress has directed federal courts to interpret Title VII based on agency Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these *755 terms." Community for Creative The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction. This is not federal common law in "the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute but, rather, to the judicial `creation' of a special federal rule of decision." 519 U.S. 3, 8 State-court decisions, applying state employment discrimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state law rely in large part on federal-court decisions under Title VII. E. g., ; ; As acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement) is a useful beginning point for a discussion of general agency 4 U.S., Since our decision in federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." The EEOC has issued Guidelines governing sexual harassment claims under Title VII, but they provide little guidance on the issue of employer liability for supervisor harassment. See 29 CFR 1604.11(c) A Section 9(1) of the Restatement sets out a central principle of agency law: *756 "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. While early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's "purpose, however misguided, is wholly or in part to further the master's business." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 70, p. 505 (hereinafter Prosser and Keeton on Torts). In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." F. Outlines of the Law of Agency 394, p. 266 (P. 4th ed. 1952). The Restatement defines conduct, including an intentional tort, to be within the scope of employment when "actuated, at least in part, by a purpose to serve the [employer]," even if it is forbidden by the employer. Restatement 228(1)(c), 230. For example, when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies. See Prosser and Keeton on Torts 70, at 505-506. As Courts of Appeals have recognized, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer. See, e. g., vacated on other grounds, post, p. 947; But see 970 F. 2d, at 184-185 (holding harassing supervisor acted within scope of employment, *757 but employer was not liable because of its quick and effective remediation). The harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer. Cf. 368 ("[F]or the time being [the supervisor] is conspicuously and unmistakably seeking a personal |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | being [the supervisor] is conspicuously and unmistakably seeking a personal end"); see also Restatement 235, Illustration 2 (tort committed while "[a]cting purely from personal ill will" not within the scope of employment); Illustration 3 (tort committed in retaliation for failing to pay the employee a bribe not within the scope of employment). There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer. E. g., The concept of scope of employment has not always been construed to require a motive to serve the employer. E. g., Ira S. Bushey & Sons, Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. 28 U.S. C. 1346(b); see, e. g., ; (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims 9.07[4], p. 9-1 The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. *758 B Scope of employment does not define the only basis for employer liability under agency In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited 9(2) of the Restatement: "(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: "(a) the master intended the conduct or the consequences, or "(b) the master was negligent or reckless, or "(c) the conduct violated a non-delegable duty of the master, or "(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." See also 9, Comment e (Section 9(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment"). Subsection (a) addresses direct liability, where the employer acts with tortious intent, and indirect liability, where the agent's high rank in the company makes him or her the employer's alter ego. None of the parties contend Slowik's rank imputes liability under this principle. There is no contention, furthermore, that a nondelegable duty is involved. See 9(2)(c). So, for our purposes here, subsections (a) and (c) |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | 9(2)(c). So, for our purposes here, subsections (a) and (c) can be put aside. Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. Under subsection (b), an employer is liable when the tort is attributable to the employer's own negligence. *759 9(2)(b). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 9(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority (the apparent authority standard), or when the employee "was aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). As other federal decisions have done in discussing vicarious liability for supervisor harassment, e. g., we begin with 9(2)(d). C As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power. Compare Restatement 6 (defining "power") with 8 (defining "apparent authority"). In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. Restatement 8, Comment c ("Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). When a party seeks to impose vicarious liability *760 based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. D We turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Were this to satisfy the aided in the agency relation |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e. g., cert. denied, ; ; ; see also 29 CFR 1604.11(d) The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself. At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e. g., *761 In we acknowledged this consensus. See -71 Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard. In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Compare ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation"), with and When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted *7 absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | contact with an employee can inflict psychological injuries by his or her offensive conduct. See at ; Henson, 682 F. 2d, at 910; But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E. g., The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. See For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action *763 against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as itself appeared to acknowledge. See Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor harassment. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. See ("[I]t is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates"). On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status makes little difference. It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VII cases. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. In particular, we are bound by our holding in that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. See ("Congress' decision to define `employer' to include any `agent' of an employer, 42 U.S. C. 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible"). Congress has not altered Mer- *764 itor `s rule even though it has made significant amendments to Title VII in the interim. See Illinois Brick Although suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. See 4 U.S., For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see and the EEOC's policy of encouraging the development of grievance procedures. See 29 CFR 1604.11(f) ; EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual :6699 To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII's deterrent purpose. See As we have observed, Title VII borrows from tort law the avoidable consequences doctrine, see Ford Motor 458 U.S. 9, and the considerations which animate that doctrine would also support the limitation of employer liability in certain circumstances. In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, p. 5, also decided today. *765 An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed |
Justice Kennedy | 1,998 | 4 | majority | Burlington Industries, Inc. v. Ellerth | https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/ | harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. IV Relying on existing case law which held out the promise of vicarious liability for all quid pro quo claims, see Ellerth focused all her attention in the Court of Appeals on proving her claim fit within that category. Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, see Ellerth *766 should have an adequate opportunity to prove she has a claim for which Burlington is liable. Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Ginsburg, concurring in the judgment. |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | The question presented in this case is whether the Federal Magistrates Act, 28 U.S. C. 631 et seq., permits a United States district court to refer all Social Security benefit cases to United States magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determinationall subject to an independent decision, on the record, by the district judge who may, in his discretion, hear the whole matter anew. (1) Respondent Weber brought this action in the United States District Court for the Central District of California to challenge the final determination of the Secretary of Health, Education, and Welfare that he was not entitled to reimbursement under the Medicare provisions of the Social Security Act, as added, and amended, 42 U.S. C. 1395 et seq., for medical payments he made on behalf of his wife. Such a suit for judicial review is authorized by 205 (g) of the Federal Magistrates Act, as added, and amended, 42 U.S. C. 405 (g), and governed by its standards. The court may consider only the pleadings and administrative record, and must accept the Secretary's findings of fact so long as they are supported by substantial evidence. When respondent's complaint was filed, the Clerk of the court pursuant to court rule assigned the case to a named District Judge, and simultaneously referred it to a United States Magistrate with directions "to notice and conduct such factual hearings and legal argument as may be appropriate" and to "prepare a proposed written order or decision, together with proposed findings of fact and *264 conclusions of law where necessary or appropriate" for consideration by the District Judge. The Clerk took these steps pursuant to General Order No. 104-D of the District Court, which requires initial reference to a magistrate in seven categories of review of administrative cases,[1] including actions filed under 42 U.S. C. 405 (g). *265 The parties may object to the magistrate's recommendations. After acting on any objections the magistrate is to forward the entire file to the district judge to whom the case is assigned for decision; the district judge "will calendar the matter for oral argument before him if he deems it necessary or appropriate." The Secretary moved to vacate the order of reference, arguing (1) that referral under a general order of this type violated Fed. Rule Civ. Proc. 53 (b) and (2) that such referral was not authorized by the Federal Magistrates Act. The Secretary also argued that the reference was of doubtful constitutionality and |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | also argued that the reference was of doubtful constitutionality and in contravention of the judicial review provisions of the Social Security Act, arguments that he has expressly declined to make in this Court. The District Court refused to vacate the order of reference, but certified the reference question for appeal under 28 U.S. C. 1292 (b). The Court of Appeals affirmed. That court stressed the limited and preliminary nature of the inquiry in review actions brought under 42 U.S. C. 405 (g), the limited scope of the Magistrate's role on reference, and the fact that final authority for decision remained with the District Judge. "Were the broad provisions of General Order No. 104-D before us, the Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted." The Court of Appeals thus reached a decision squarely in conflict with the decision of the Court of Appeals for the Sixth Circuit in We granted certiorari,[2] and we affirm. *266 (2) After several years of study, the Congress in 1968 enacted the Federal Magistrates Act, 28 U.S. C. 631 et seq. The Act abolished the office of United States commissioner, and sought to "reform the first echelon of the Federal judiciary into an effective component of a modern scheme of justice by establishing a system of U. S. magistrates." S. Rep. No. 371, 90th Cong., 1st Sess., 8 (1967) (hereafter Senate Report). In order to improve the former system and to attract the most competent men and women to the office, the Act in essence made the position analogous to the career service, replacing the fee system of compensation with substantial salaries; the Act also gave both full- and part-time magistrates a definite term of office, and required that wherever possible the district courts appoint only members of the bar to serve as magistrates. Magistrates took over most of the duties of the commissioners, and the Act gave them new authority to try a broad range of misdemeanors with the consent of the parties. Title 28 U.S. C. 636 (b) outlines a procedure by which the district courts may call upon magistrates to perform other functions, in both civil and criminal cases. It provides: "Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to *267 "(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts; "(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and "(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." The three examples 636 (b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings: "The Magistrate[s] Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate's services. We did not limit the courts to the areas mentioned. Nor did we require that they use the magistrates for additional functions at all. "We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U. S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts." Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968) (hereafter House Hearings). See also Hearings on the Federal Magistrates Act before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th *268 Cong., 2d Sess., and 90th Cong., 1st Sess., 14, 27 (1966 and 1967) (hereafter Senate Hearings). Section 636 (b) was included to "permit the U. S. district courts to assign magistrates, as officers of the courts, a variety of functions presently performable only by the judges themselves." Senate Report 12. In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by "increasing the scope of the responsibilities that can be discharged by that office, to establish a system capable of increasing the overall efficiency of the Federal judiciary" The Act grew from Congress' recognition that a multitude of new statutes and regulations had created an avalanche of additional work for the district courts which could |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | avalanche of additional work for the district courts which could be performed only by multiplying the number of judges or giving judges additional assistance. The Secretary argues that Congress intended the transfer to magistrates of simply the irksome, ministerial tasks; respondent[3] urges that Congress intended magistrates to take on a wide range of substantive judicial duties and advisory functions. We need not accept the characterization of the federal magistrate as either a "para-judge," as respondent would have it, or a "supernotary," as the Secretary argues, in order to resolve this case; finding the best analogy to this new office is not particularly important. Congress had a number of precedents for this new officer before it: British masters, justices of peace, and magistrates; our own traditional special masters in equity; and pretrial examiners.[4] The *269 office Congress created drew on all prior experience. What is important is that the congressional anticipation is becoming a reality; in fiscal 1975, for example, the 500 full- or part-time United States magistrates disposed of 255,061 matters, most of which would otherwise have occupied district judges. These included 36,766 civil proceedings, 537 of which were Social Security review cases. Annual Report of the Director, Administrative Office of the United States Courts VIII-4 See also Sussman, The Fourth Tier in the Federal Judicial System: The United States Magistrate, 56 Chicago Bar Record 134 ; Geffen, Practice Before the United States Magistrate, 47 L. A. Bar Bull. 462 ; Doyle, Implementing the Federal Magistrates Act, 39 J. Kan. Bar Assn. 25 (1970). Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128.[5] The hearings and committee *270 reports indicate that in 636 (b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is "not inconsistent with the Constitution and laws of the United States" Second, Congress limited the magistrate's role in cases referred to him under 636 (b). The Act's sponsors made it quite clear that the magistrate acts "under the supervision of the district judges" when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12. "[A] district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | in every instance in which a magistrate might exercise additional duties jurisdiction." House Hearings 73 (testimony of Sen. Tydings). See also (3) We need not define the full reach of a magistrate's authority under the Act, or reach the broad provisions of General Order No. 104-D, in order to decide this case. Under the part of the order at issue the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record closed because under 205 (g) of the Social Security Act, 42 U.S. C. 405 (g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary's decision?[6] The magistrate may do no more than propose *271 a recommendation, and neither 636 (b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authorityand the responsibilityto make an informed, final determination, we emphasize, remains with the judge. The magistrate's limited role in this type of case nonetheless substantially assists the district judge in the performance of his judicial function, and benefits both him and the parties. A magistrate's review helps focus the court's attention on the relevant portions of what may be a voluminous record, from a point of view as neutral as that of an Article III judge. Review also helps the court move directly to those legal arguments made by the parties that find some support in the record. Finally, the magistrate's report puts before the district judge a preliminary evaluation of the cumulative effect of the evidence in the record, to which the parties may address argument, and in this way narrows the dispute. Each step of the process takes place with the full participation of the parties. They know precisely what recommendations the judge is receiving and may frame their arguments accordingly. We conclude that in the context of this case the preliminary-review function assigned to the magistrate, and *272 at issue here, is one of the "additional duties" that the statute contemplates magistrates are to perform.[7] (4) The Secretary argues that the magistrate, in taking this reference, functions as a special master. From this premise, the Secretary asks us to hold that |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | From this premise, the Secretary asks us to hold that a general rule requiring automatic reference in a category of cases does not comply with the mandate of Fed. Rule Civ. Proc. 53 (b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." He also argues that, for similar reasons, the reference here is *273 not permissible under our decision in La[8] Section 636 (b) expressly provides that a district court may, in an appropriate case and in accordance with Fed. Rule Civ. Proc. 53, call upon a magistrate to act as a special master. But the statute also is clear that not every reference, for whatever purpose, is to be characterized as a reference to a special master. It treats references to the magistrate acting as master quite separately in subsection (1), indicating by its structure that other references are of a different sort. Moreover, Rule 53 (e) provides that, in nonjury cases referred to a master, the court shall accept any finding of fact that is not clearly erroneous. Under the reference in this case, however, the judge remains free to give the magistrate's recommendation whatever weight the judge decides it merits. It cannot be said, therefore, that the magistrate acts as a special master in the sense that either Rule 53 or the Federal Magistrates Act uses that term. The order of reference at issue does not constitute the magistrate a special master. The Secretary argues that the magistrate will be a master in fact because the judge will accept automatically the recommendation made in every case. Nothing *274 in the record or within the scope of permissible judicial notice supports this argument; nor does common observation of the performance of United States judges remotely lend the slightest credence to such an extravagant assertion. We express no opinion with respect to either the wisdom or the validity of automatic referral in other types of cases; only the narrow portion of General Order No. 104-D that led to reference of this particular case is before us today. In this narrow range of cases, reference promotes more focused, and so more careful, decisionmaking by the district judge. We categorically reject the suggestion that judges will accept, uncritically, recommendations of magistrates. Our decision in La does not call for a different result. In La Buy, the District Judge on his own motion referred to a special master two complex, protracted antitrust cases on the eve of trial. The cases had been pending |
Justice Burger | 1,976 | 12 | majority | Mathews v. Weber | https://www.courtlistener.com/opinion/109343/mathews-v-weber/ | on the eve of trial. The cases had been pending before him for several years, he had heard pretrial motions, and he was familiar with the issues involved. The master, a member of the bar, was to hear and decide the entire case, subject to review by the District Judge under the "clearly erroneous" test. The judge cited the problems attendant to docket congestion to satisfy Rule 53's requirement that a reference to a special master be justified by "exceptional circumstances." The Court held that on these facts reference was not permissible and affirmed the Court of Appeals' supervisory prohibition. La Buy, although nearly two decades past, is the most recent of our cases dealing with special masters, and our decision today does not erode it.[9] The Magistrate here acted in his capacity as magistrate, not as a special *275 master, under a reference authorized by an Act passed 10 years after La Buy was decided. Other factors distinguish this case from La Buy as well. The issues here are as simple as they were complex in La Buy, and the District Judge had not yet invested any time in familiarizing himself with the case. The reference in this case will result in a recommendation that carries only such weight as its merit commands and the sound discretion of the judge warrants. We are persuaded that the important premises from which the La Buy decision proceeded are not threatened here. Finally, our decision in does not bear on this case. The Secretary has abandoned any claim that the statute giving the District Court jurisdiction of the case in the first instance, 42 U.S. C. 405 (g), precludes reference to a magistrate. It was the Court's reading of the habeas corpus statute, 28 U.S. C. 2243, that formed the basis for the holding in Affirmed. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. |
Justice Blackmun | 1,980 | 11 | majority | Ohio v. Kentucky | https://www.courtlistener.com/opinion/110172/ohio-v-kentucky/ | The State of Ohio, in 1966, instituted this action, under the Court's original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is "the low water mark on the *336 northerly side of the Ohio River in the year 1792." Leave to file the bill of complaint was granted. In due course, Kentucky filed its answer and a Special Master was appointed. In its answer, Kentucky alleged that the boundary line is the current low-water mark on the northerly side of the Ohio River. Ohio later moved for leave to file an amended complaint that would assert, primarily, that the boundary between Ohio and Kentucky is the middle of the Ohio River, and, only alternatively, is the 1792 low-water mark on the northerly shore. That motion was referred to the Special Master. The Special Master held a hearing and in due course filed his report recommending that Ohio's petition for leave to amend be denied. Upon the filing of Ohio's exceptions and Kentucky's reply, the matter was set for hearing. After argument, the Special Master's recommendation was adopted, Ohio's motion for leave to amend was denied, and the case was remanded. The Honorable Robert Van Pelt, who by then had been appointed Special Master following the resignation of his predecessor, thereafter filed his report on the case as shaped by the original pleadings. That report was received and ordered filed. Kentucky lodged exceptions to the report, and Ohio filed its reply. Oral argument followed. The Special Master recommends that this Court determine that the boundary between Ohio and Kentucky "is the low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; that the boundary "is not the low-water mark on the northerly side of the Ohio River as it exists today"; and that such boundary, "as nearly as it can now be ascertained, be determined either a) by agreement of the parties, if reasonably possible, or b) by joint survey agreed upon by the parties," or, in the absence of such an agreement or *337 survey, after hearings conducted by the Special Master and the submission by him to this Court of proposed findings and conclusions. Report of Special Master 16. We agree with the Special Master. Much of the history concerning Virginia's cession to the United States of lands "northwest of the river Ohio" was reviewed and set forth in the Court's opinion concerning Ohio's motion for leave to amend its |
Justice Blackmun | 1,980 | 11 | majority | Ohio v. Kentucky | https://www.courtlistener.com/opinion/110172/ohio-v-kentucky/ | Court's opinion concerning Ohio's motion for leave to amend its 1966 -648. Upon the denial of Ohio's motion, the case was left in the posture that the boundary between the two States was the river's northerly low-water mark. The litigation, thus, presently centers on where that northerly low-water mark isis it the mark of 1792 when Kentucky was admitted to the Union, ch. IV, or is it a still more northerly mark due to the later damming of the river and the consequent rise of its waters? It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., or the Mississippi River between Arkansas and Mississippi. See and See also ; ; ; New ; In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application. A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary *338 is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States ("the lands northwest of the river Ohio"), 10 W. Hening, Laws of Virginia 564 (1822); the Virginia Act of 1783 ("the territory. to the north-west of the river Ohio"), 11 W. Hening, Laws of Virginia 326, 327 (1823); and the deed from Virginia to the United States ("the territory to the northwest of the river Ohio") accepted by the Continental Congress on March 1, 1784, 1 Laws of the United States 472, 474 (B. & D. ed. 1815). The Court acknowledged this through Mr. Chief Justice Marshall's familiar pronouncement with respect to the Ohio River in Handly's : "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. |
Justice Blackmun | 1,980 | 11 | majority | Ohio v. Kentucky | https://www.courtlistener.com/opinion/110172/ohio-v-kentucky/ | domain, and the newly-created State extends to the river only. The river, however, is its boundary." The dissent concedes as much. Post, 42. The dissent then, however, would be persuaded by whatever is "the current low-water mark on the northern shore." Post, 43. But it is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio, antecedents that fix the boundary not as the river itself, but as its northerly bank. Handly's Lessee, in our view, supports Ohio's position, not the dissent's. If there could be any doubt about this, it surely was dispelled completely when the Court decided *339 There Mr. Justice Field, speaking for a unanimous Court, said: "[Kentucky] succeeded to the ancient right and possession of Virginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its water might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river. "Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filed." The fact that concerned a portion of the Ohio River in its Indiana-Kentucky segment, rather than a portion in its Ohio-Kentucky segment, is of no possible legal consequence; the applicable principles are the same, and the holding in has pertinent application and is controlling precedent here. The Court's flat pronouncements in are not to be rationalized away so readily as the dissent, post, 43-345, would have *340 them cast aside. Kentucky's present contentions, |
Justice Blackmun | 1,980 | 11 | majority | Ohio v. Kentucky | https://www.courtlistener.com/opinion/110172/ohio-v-kentucky/ | 43-345, would have *340 them cast aside. Kentucky's present contentions, and those of the dissent, were rejected by this Court 90 years ago. We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. See, e. g., and ; New and The dissent's concern about the possibility, surely extremely remote, that the comparatively stable Ohio River might "pass completely out of Kentucky's borders," post, 43, is of little weight. Situations where land of one State comes to be on the "wrong" side of its boundary river are not uncommon. See ; Owen Equipment & Erection ; Finally, it is of no little interest that Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary. Informational Bulletin No. 93 issued by the Legislative Research Commission of the Kentucky General Assembly, states: "Kentucky's North and West boundary, to-wit, the low water mark on the North shore of the Ohio River as of 1792, has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia." See also the opinion of the Attorney General of Kentucky, OAG 63-847, contained in Kentucky Attorney General Opinions 1960-1964. See also where the court stated that the question in the case was "where was the low water mark at the time Kentucky became a State." The exceptions of the Commonwealth of Kentucky to the report of the Special Master are overruled. The report is hereby adopted, and the case is remanded to the Special Master so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree. MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE and MR. |
Justice Thomas | 1,993 | 1 | majority | Rake v. Wade | https://www.courtlistener.com/opinion/112878/rake-v-wade/ | This case requires us to decide whether Chapter 13 debtors who cure a default on an oversecured home mortgage *466 pursuant to 1322(b)(5) of the Bankruptcy Code, 11 U.S. C. 1322(b)(5), must pay postpetition interest on the arrearages. We conclude that the holder of the mortgage is entitled to such interest under 506(b) and 1325(a)(5) of the Code. I Petitioners Donald and Linda Rake, petitioners Earnest and Mary Yell, and respondents Ronnie and Rosetta Hannon [1] initiated three separate Chapter 13 bankruptcy proceedings in the Northern District of Oklahoma. In each case the debtors were in arrears on a long-term promissory note assigned to respondent William J. Wade, trustee (hereinafter respondent). The notes allowed a $5 charge for each missed payment but did not provide for interest on arrearages. Payment on the notes was secured by a first mortgage on the principal residence owned by each pair of debtors. The mortgage instruments provided that in the event of a default by the debtors, the holder of the note (now respondent as assignee) had the right to declare the remainder of indebtedness due and payable and to foreclose on the property. Because the value of the residence owned by each pair of debtors exceeded the outstanding balance on the corresponding notes, respondent was an oversecured creditor. In their Chapter 13 plans the debtors proposed to pay directly to respondent all future payments of principal and interest due on the notes. The plans also provided that the debtors would cure the default on the mortgages by paying off the arrearages, without interest, over the terms of the plans. Respondent objected to each plan, on the ground that he was entitled to attorney's fees and interest on the arrearages. The Bankruptcy Court overruled respondent's objections, and respondent appealed to the District Court for the Northern District of Oklahoma, which consolidated the *467 cases and affirmed. The District Court held that the Chapter 13 provisions relating to the "curing of defaults"11 U.S. C. 1322(b)(2) and 1322(b)(5)"do not alter the contract between the parties governing such matters as interest, if any, to be paid on arrearage," and that allowing interest on arrearages would be "improper," since the notes did not provide for it. App. to Pet. for Cert. A-24. The United States Court of Appeals for the Tenth Circuit reversed. The court held that 506(b) of the Bankruptcy Code, as interpreted in United entitles an oversecured creditor to postpetition interest on arrearages and other charges paid off under a Chapter 13 plan, "even if the mortgage instruments are silent on the subject and state law |
Justice Thomas | 1,993 | 1 | majority | Rake v. Wade | https://www.courtlistener.com/opinion/112878/rake-v-wade/ | mortgage instruments are silent on the subject and state law would not require interest to be paid." The Tenth Circuit relied in part on the Sixth Circuit's decision in In re Colgrove, which reached the same result but rested its decision on 1325(a)(5) as well as 506(b) of the Bankruptcy Code. Four other Courts of Appeals have held that under the "cure" and "modification" provisions of 1322(b) a mortgagee is not entitled to interest on home mortgage arrearages.[2] We granted certiorari to resolve the conflict. II Petitioners' Chapter 13 plans proposed to "cure" the defaults on respondent's oversecured home mortgages[3] by establishing repayment schedules for the arrearages. Three interrelated provisions of the Bankruptcy Code determine *468 whether respondent is entitled to interest on those arrearages: 506(b), 1322(b), and 1325(a)(5). Section 506(b), which applies to Chapter 13 proceedings pursuant to 11 U.S. C. 103(a), provides that holders of oversecured claims are "allowed" postpetition interest on their claims.[4] In Ron we held that the right to postpetition interest under 506(b) is "unqualified" and exists regardless of whether the agreement giving rise to the claim provides for It is generally recognized that the interest allowed by 506(b) will accrue until payment of the secured claim or until the effective date of the plan. See 3 Collier on Bankruptcy ¶ 506.05, p. 506-43, and n. 5c (15th ed. 1993) (hereinafter Collier). Respondent concedes, and his amicus the United States agrees, that because 506(b) "has the effect of allowing a claim to the creditor, the rights granted under Section 506(b) are relevant only until confirmation of the plan." Brief for United States as Amicus Curiae 11, n. 7. Accord, Tr. of Oral Arg. 24, 34. Petitioners also agree that 506(b) applies only from the date of filing through the confirmation date. Brief for Petitioners 10, 13. Two paragraphs of 1322(b) are relevant here: 1322(b) (2) and 1322(b)(5). Section 1322(b)(2) authorizes debtors to modify the rights of secured claim holders, but it provides protection for home mortgage lenders by creating a specific "no modification" exception for holders of claims secured only *469 by a lien on the debtor's principal residence.[5] Section 1322(b)(5) expressly authorizes debtors to cure any defaults on a long-term debt, such as a mortgage, and to maintain payments on the debt during the life of the plan.[6] Under 1322(b)(5), a plan may provide for the curing of any defaults and the maintenance of payments on a long-term debt "notwithstanding" 1322(b)(2)'s prohibition against modifications of the rights of home mortgage lenders. The final provision bearing on this case 1325(a)(5) states that "with respect to |
Justice Thomas | 1,993 | 1 | majority | Rake v. Wade | https://www.courtlistener.com/opinion/112878/rake-v-wade/ | bearing on this case 1325(a)(5) states that "with respect to each allowed secured claim provided for by the plan," one of three requirements must be satisfied before the plan may be confirmed: (1) the holder of the claim has accepted the plan, 1325(b)(5)(A); (2) the debtor surrenders the property securing such claim to the secured creditor, 1325(a)(5)(C); or (3) the holder of the secured claim retains the lien securing such claim, 1325(a)(5)(B)(i), and "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim," 1325(a)(5)(B)(ii). Thus, unless the creditor accepts the plan or the debtor surrenders the collateral to the creditor, 1325(a)(5)(B)(ii) guarantees that property distributed under a plan on account of a claim, including deferred cash payments in satisfaction of the claim, see 5 Collier ¶ 1325.06[4][b][ii], must equal the present dollar value of such claim as of the confirmation date. Petitioners, respondent, and the United States agree that "[s]ection 1325(a)(5)(B) *470 requires all holders of allowed secured claims to be paid the present value of such claims, which implies the payment of " Reply Brief for Petitioners 5. Accord, Brief for Respondent 16-17; Brief for United States as Amicus Curiae 11-12, and n. 8. III Although petitioners and respondent generally agree as to the requirements of 506(b) and 1325(a)(5), petitioners argue that those provisions do not apply when the debtor cures a default on a home mortgage under 1322(b)(5). Some courts have construed the "cure" and "modification" provisions of 1322(b) so broadly as to render 506(b) and 1325(a)(5) inapplicable to the curing of defaults on home mortgages. E. g., Landmark Financial Petitioners contend that this is precisely what 1322(b) requires. A Turning first to 506(b), petitioners concede that respondent holds an oversecured claim, which includes arrearages[7] and that "`an oversecured creditor is ordinarily entitled to an allowance for postpetition interest on its secured claim under Chapter 13.'" Reply Brief for Petitioners 2 cert. denied, ). They argue, however, that 1322(b)(5) "operate[s] to the exclusion of the provisions of 506(b)," Brief for Petitioners 9, and that 506(b) thus "does not require the payment of preconfirmation interest on home mortgage arrearages in Chapter 13 bankruptcy proceedings," Reply Brief for Petitioners 1. Because 1322(b)(5) does not expressly negate 506(b), petitioners suggest that "`[d]espite some broad language in Ron *471. 506(b) is inapplicable in the context of [Chapter 13] mortgage cures.'" Brief for Petitioners 13 (quoting ). Petitioners' interpretation of 506(b) and 1322(b)(5) does not comport with the terms of |
Justice Thomas | 1,993 | 1 | majority | Rake v. Wade | https://www.courtlistener.com/opinion/112878/rake-v-wade/ | 506(b) and 1322(b)(5) does not comport with the terms of those provisions. Under 506(b) the holder of an oversecured claim is allowed interest on his claim to the extent of the value of the collateral. Section 506(b) "directs that postpetition interest be paid on all oversecured claims," Ron and, as the parties acknowledge, such interest accrues as part of the allowed claim from the petition date until the confirmation or effective date of the plan. See The arrearages owed on the mortgages held by respondent are plainly part of respondent's oversecured claims. Under the unqualified terms of 506(b), therefore, respondent is entitled to preconfirmation interest on these arrearages. Where the statutory language is clear, our "`sole function is to enforce it according to its terms.'" Ron ). Accord, Connecticut Nat. Section 1322(b)(5), on the other hand, states that a Chapter 13 plan may "provide for the curing of any default and the maintenance of payments" on certain claims. While 1322(b)(5) authorizes a Chapter 13 plan to provide for payments on arrearages to effectuate a cure after the effective date of the plan, nothing in that provision dictates the terms of the cure. In particular, 1322(b)(5) provides no indication that the allowed amount of the arrearages cured under the plan may not include interest otherwise available as part of the oversecured claim under 506(b). We generally avoid construing one provision in a statute so as to suspend or supersede another provision. To avoid "deny[ing] effect to a part of a statute," we accord "`significance and effect to every word.'" Ex parte Public Nat. Bank of New York, Construing 506(b) and 1322(b)(5) together, and giving effect to both, we conclude that 1322(b)(5) authorizes a debtor to cure a default on a home mortgage by making payments on arrearages under a Chapter 13 plan, and that where the mortgagee's claim isoversecured, 506(b) entitles the mortgagee to preconfirmation interest on such arrearages. B Petitioners make virtually the same argument with respect to postconfirmation interest under 1325(a)(5). Petitioners concede that under 1325(a)(5)(B)(ii) secured creditors are entitled to the "present value of [their] claims, which implies the payment of " Reply Brief for Petitioners 5.[8] Petitioners contend, however, that 1325(a)(5)(B)(ii) "applies only to secured claims which have been modified in the Chapter 13 plan, and which, by reason of Section 1322(b)(2), may not include home mortgages." Since nothing in the Code states that 1325(a)(5) applies only to "modified" claims, petitioners turn to those Court of Appeals decisions that have held that "the legislative history indicates that 1322(b) was intended to create a special exception to 1325(a)(5)(B)." |
Justice Thomas | 1,993 | 1 | majority | Rake v. Wade | https://www.courtlistener.com/opinion/112878/rake-v-wade/ | 1322(b) was intended to create a special exception to 1325(a)(5)(B)." In re Terry, Accord, In re at -545; 918 F. 2d, -5; Appeal of Capps, *473 Petitioners' interpretation of 1322(b) and 1325(a)(5) is refuted by the plain language of the Code. Section 1325(a)(5) applies by its terms to "each allowed secured claim provided for by the plan." The most natural reading of the phrase to "provid[e] for by the plan" is to "make a provision for" or "stipulate to" something in a plan. See, e. g., American Heritage Dictionary 1053 (10th ed. 1981) ("provide for" defined as "to make a stipulation or condition"). Petitioners' plans clearly "provided for" respondent's home mortgage claims by establishing repayment schedules for the satisfaction of the arrearages portion of those claims. As authorized by 1322(b)(5), the plans essentially split each of respondent's secured claims into two separate claimsthe underlying debt and the arrearages. While payments of principal and interest on the underlying debts were simply "maintained" according to the terms of the mortgage documents during the pendency of petitioners' cases, each plan treated the arrearages as a distinct claim to be paid off within the life of the plan pursuant to repayment schedules established by the plans. Thus, the arrearages, which are a part of respondent's home mortgage claims, were "provided for" by the plans, and respondent is entitled to interest on them under 1325(a)(5)(B)(ii).[9] *474 Other provisions of Chapter 13 containing the phrase "provided for by the plan" make clear that petitioners' plans provided for respondent's home mortgage claim. See United Savings Assn. of (statutory terms are often "clarified by the remainder of the statutory schemebecause the same terminology is used elsewhere in a context that makes [their] meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law") (citation omitted). Title 11 U.S. C. 1328(a) (1988 ed., Supp. III), for example, utilizes the phrase "provided for by the plan" in dealing with the discharge of debts under Chapter 13.[10] As used in 1328(a), that phrase is commonly understood to mean that a plan "makes a provision" for, "deals with," or even "refers to" a claim. See 5 Collier ¶ 1328.01, at 1328-9. In addition, 1328(a) unmistakably contemplates that a plan "provides for" a claim when the plan cures a default and allows for the maintenance of regular payments on that claim, as authorized by 1322(b)(5). Section 1328(a) states that "all debts provided for by the plan" are dischargeable, and then lists three exceptions.[11] One type of claim that is "provided for |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | The Court holds that The Nation's quotation of 300 words from the unpublished 200,000-word manuscript of President Gerald R. Ford infringed the copyright in that manuscript, even though the quotations related to a historical event of undoubted significance the resignation and pardon of President Richard M. Nixo Although the Court pursues the laudable goal of protecting "the economic incentive to create and disseminate ideas," ante, at 558, this zealous defense of the copyright owner's prerogative will, I fear, stifle the broad dissemination of ideas and information copyright is intended to nurture. Protection of the copyright owner's economic interest is achieved in this case through an exceedingly narrow definition of the scope of fair use. The progress of arts and sciences and the robust public debate essential to an enlightened citizenry are ill served by this constricted reading of the fair use doctrine. See 17 U.S. C. 107. I therefore respectfully dissent. I A This case presents two issues. First, did The Nation's use of material from the Ford manuscript in forms other than direct quotation from that manuscript infringe Harper & Row's copyright. Second, did the quotation of approximately 300 words from the manuscript infringe the copyright because this quotation did not constitute "fair use" within the meaning *580 of 107 of the Copyright Act. 17 U.S. C. 107. The Court finds no need to resolve the threshold copyrightability issue. The use of 300 words of quotation was, the Court finds, beyond the scope of fair use and thus a copyright infringement.[1] Because I disagree with the Court's fair use holding, it is necessary for me to decide the threshold copyrightability questio B "The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress thus seeks to define the rights included in copyright so as to serve the public welfare and not necessarily so as to maximize an author's control over his or her product. The challenge of copyright is to strike the "difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand." Sony Corp. |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | ideas, information, and commerce on the other hand." Sony Corp. of The "originality" requirement now embodied in 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests.[2] Properly interpreted *581 in the light of the legislative history, this section extends copyright protection to an author's literary form but permits free use by others of the ideas and information the author communicates. See S. Rep. No. 93-983, pp. 107-108 (1974) ("Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary form in which the author expressed intellectual concepts"); H. R. Rep. No. 94-1476, pp. 56-57 (1976) (same); New York Times ("[T]he copyright laws, of course, protect only the form of expression and not the ideas expressed"). This limitation of protection to literary form precludes any claim of copyright in facts, including historical narratio "It is not to be supposed that the framers of the Constitution, when they empowered Congress `to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' (Const., Art I, 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it." International News Accord, Rosemont Enterprises, cert. denied, See 1 Nimmer 2.11[A], at 2-158.[3] *582 The "promotion of science and the useful arts" requires this limit on the scope of an author's control. Were an author able to prevent subsequent authors from using concepts, ideas, or facts contained in his or her work, the creative process would wither and scholars would be forced into unproductive replication of the research of their predecessors. See This limitation on copyright also ensures consonance with our most important First Amendment values. Cf. 577, 13 Our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times leaves no room for a statutory monopoly over information and ideas. "The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher his treatises and thus obtain a monopoly on the ideas they contained." A broad dissemination of principles, ideas, and factual information is crucial to the robust public debate and informed citizenry that are "the essence of self-government." And every citizen must be permitted freely to marshal ideas and facts in the advocacy of particular political choices.[4] It follows that infringement of copyright |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | of particular political choices.[4] It follows that infringement of copyright must be based on a taking of literary form, as opposed to the ideas or information contained in a copyrighted work. Deciding whether an infringing appropriation of literary from has occurred is difficult for at least two reasons. First, the distinction between *583 literary form and information or ideas is often elusive in practice. Second, infringement must be based on a substantial appropriation of literary form. This determination is equally challenging. Not surprisingly, the test for infringement has defied precise formulatio[5] In general, though, the inquiry proceeds along two axes: how closely has the second author tracked the first author's particular language and structure of presentation; and how much of the first author's language and structure has the second author appropriated.[6] In the present case the infringement analysis must be applied to a historical biography in which the author has chronicled the events of his White House tenure and commented on those events from his unique perspective. Apart from the quotations, virtually all of the material in The Nation's article indirectly recounted Mr. Ford's factual narrative of the Nixon resignation and pardon, his latter-day reflections on some events of his Presidency, and his perceptions of the personalities at the center of those events. See ante, at 570-579. No copyright can be claimed in this information qua informatio Infringement would thus have to be based *584 on too close and substantial a tracking of Mr. Ford's expression of this informatio[7] The Language. Much of the information The Nation conveyed was not in the form of paraphrase at all, but took the form of synopsis of lengthy discussions in the Ford manuscript.[8] In the course of this summary presentation, The *585 Nation did use occasional sentences that closely resembled language in the original Ford manuscript.[9] But these linguistic similarities are insufficient to constitute an infringement for three reasons. First, some leeway must be given to subsequent authors seeking to convey facts because those "wishing to express the ideas contained in a factual work *586 often can choose from only a narrow range of expressio" Second, much of what The Nation paraphrased was material in which Harper & Row could claim no copyright.[10] Third, The Nation paraphrased nothing approximating the totality of a single paragraph, much less a chapter or the work as a whole. At most The Nation paraphrased disparate isolated sentences from the original. A finding of infringement based on paraphrase generally requires far more close and substantial a tracking of the original language than occurred in this See, e. g., |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | the original language than occurred in this See, e. g., Wainwright Securities The Structure of Presentatio The article does not mimic Mr. Ford's structure. The information The Nation presents is drawn from scattered sections of the Ford work and does not appear in the sequence in which Mr. Ford presented it.[11] Some of The Nation's discussion of the pardon does roughly track the order in which the Ford manuscript presents information about the pardo With respect to this similarity, however, Mr. Ford has done no more than present the facts *587 chronologically and cannot claim infringement when a subsequent author similarly presents the facts of history in a chronological manner. Also, it is difficult to suggest that a 2,000-word article could bodily appropriate the structure of a 200,000-word book. Most of what Mr. Ford created, and most of the history he recounted, were simply not represented in The Nation's article.[12] When The Nation was not quoting Mr. Ford, therefore, its efforts to convey the historical information in the Ford manuscript did not so closely and substantially track Mr. Ford's language and structure as to constitute an appropriation of literary form. II The Nation is thus liable in copyright only if the quotation of 300 words infringed any of Harper & Row's exclusive rights under 106 of the Act. Section 106 explicitly makes the grant of exclusive rights "[s]ubject to section 107 through 118." 17 U.S. C. 106. Section 107 states: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright." The question here is whether The Nation's *588 quotation was a noninfringing fair use within the meaning of 107. Congress "eschewed a rigid, bright-line approach to fair use." Sony Corp. of 31. A court is to apply an "equitable rule of reason" analysis, guided by four statutorily prescribed factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; "(2) the nature of the copyright work; "(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and "(4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S. C. 107. These factors are not necessarily the exclusive determinants of the fair use inquiry and do not mechanistically resolve fair use issues; "no generally applicable definition is possible, and each case raising the question must |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | definition is possible, and each case raising the question must be decided on its own facts." H. R. Rep. No. 94-1476, at 65. See also ; S. Rep. No. 94-473, p. 62 (1975). The statutory factors do, however, provide substantial guidance to courts undertaking the proper fact-specific inquiry. With respect to a work of history, particularly the memoirs of a public official, the statutorily prescribed analysis cannot properly be conducted without constant attention to copyright's crucial distinction between protected literary form and unprotected information or ideas. The question must always be: Was the subsequent author's use of literary form a fair use within the meaning of 107, in light of the purpose for the use, the nature of the copyrighted work, the amount of literary form used, and the effect of this use of literary form on the value of or market for the original? *589 Limiting the inquiry to the propriety of a subsequent author's use of the copyright owner's literary form is not easy in the case of a work of history. Protection against only substantial appropriation of literary form does not ensure historians a return commensurate with the full value of their labors. The literary form contained in works like "A Time to Heal" reflects only a part of the labor that goes into the book. It is the labor of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one. The value this labor produces lies primarily in the information and ideas revealed, and not in the particular collocation of words through which the information and ideas are expressed. Copyright thus does not protect that which is often of most value in a work of history, and courts must resist the tendency to reject the fair use defense on the basis of their feeling that an author of history has been deprived of the full value of his or her labor. A subsequent author's taking of information and ideas is in no sense piratical because copyright law simply does not create any property interest in information and ideas. The urge to compensate for subsequent use of information and ideas is perhaps understandable. An inequity seems to lurk in the idea that much of the fruit of the historian's labor may be used without compensatio This, however, is not some unforeseen byproduct of a statutory scheme intended primarily to ensure a return for works of the imaginatio Congress made the affirmative choice that the copyright laws should apply in this way: "Copyright does not preclude others from using the |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | this way: "Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary form in which the author expressed intellectual concepts." H. R. Rep. No. 94-1476, at 56-57. This distinction is at the essence of copyright. The copyright laws serve as the "engine of free expression," ante, at 558, only when the statutory monopoly does not choke off multifarious indirect uses and consequent broad dissemination of information and ideas. To ensure the progress of arts and sciences and the integrity *590 of First Amendment values, ideas and information must not be freighted with claims of proprietary right.[13] In my judgment, the Court's fair use analysis has fallen to the temptation to find copyright violation based on a minimal use of literary form in order to provide compensation for the appropriation of information from a work of history. The failure to distinguish between information and literary form permeates every aspect of the Court's fair use analysis and leads the Court to the wrong result in this Application of the statutorily prescribed analysis with attention to the distinction between information and literary form leads to a straightforward finding of fair use within the meaning of 107. The Purpose of the Use. The Nation's purpose in quoting 300 words of the Ford manuscript was, as the Court acknowledges, news reporting. See ante, at 561. The Ford work contained information about important events of recent history. Two principals, Mr. Ford and General Alexander Haig, were at the time of The Nation's publication in 1 widely thought to be candidates for the Presidency. That The Nation objectively reported the information in the Ford manuscript without independent commentary in no way diminishes the conclusion that it was reporting news. A typical newsstory differs from an editorial precisely in that it presents newsworthy information in a straightforward and unelaborated manner. Nor does the source of the information render The Nation's article any less a news report. Often books and manuscripts, solicited and unsolicited, are *591 the subject matter of news reports. E. g., New York Times Frequently the manuscripts are unpublished at the time of the news report.[14] Section 107 lists news reporting as a prime example of fair use of another's expressio Like criticism and all other purposes Congress explicitly approved in 107, news reporting informs the public; the language of 107 makes clear that Congress saw the spread of knowledge and information as the strongest justification for a properly limited appropriation of expressio The Court of Appeals was therefore correct to conclude that the purpose |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | of Appeals was therefore correct to conclude that the purpose of The Nation's use dissemination of the information contained in the quotations of Mr. Ford's work furthered the public interest. In light of the explicit congressional endorsement in 107, the purpose for which Ford's literary form was borrowed strongly favors a finding of fair use. The Court concedes the validity of the news reporting purpose[15] but then quickly offsets it against three purportedly countervailing considerations. First, the Court asserts that because The Nation publishes for profit, its publication of *592 the Ford quotes is a presumptively unfair commercial use. Second, the Court claims that The Nation's stated desire to create a "news event" signaled an illegitimate purpose of supplanting the copyright owner's right of first publicatio Ante, at 562-563. Third, The Nation acted in bad faith, the Court claims, because its editor "knowingly exploited a purloined manuscript." Ante, at 563. The Court's reliance on the commercial nature of The Nation's use as "a separate factor that tends to weigh against a finding of fair use," ante, at 562, is inappropriate in the present context. Many uses 107 lists as paradigmatic examples of fair use, including criticism, comment, and news reporting, are generally conducted for profit in this country, a fact of which Congress was obviously aware when it enacted 107. To negate any argument favoring fair use based on news reporting or criticism because that reporting or criticism was published for profit is to render meaningless the congressional imprimatur placed on such uses.[16] Nor should The Nation's intent to create a "news event" weigh against a finding of fair use. Such a rule, like the *593 Court's automatic presumption against news reporting for profit, would undermine the congressional validation of the news reporting purpose. A news business earns its reputation, and therefore its readership, through consistent prompt publication of news and often through "scooping" rivals. More importantly, the Court's failure to maintain the distinction between information and literary form colors the analysis of this point. Because Harper & Row had no legitimate copyright interest in the information and ideas in the Ford manuscript, The Nation had every right to seek to be the first to disclose these facts and ideas to the public. The record suggests only that The Nation sought to be the first to reveal the information in the Ford manuscript. The Nation's stated purpose of scooping the competition should under those circumstances have no negative bearing on the claim of fair use. Indeed the Court's reliance on this factor would seem to amount to |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | Court's reliance on this factor would seem to amount to little more than distaste for the standard journalistic practice of seeking to be the first to publish news. The Court's reliance on The Nation's putative bad faith is equally unwarranted. No court has found that The Nation possessed the Ford manuscript illegally or in violation of any common-law interest of Harper & Row; all common-law causes of action have been abandoned or dismissed in this -201. Even if the manuscript had been "purloined" by someone, nothing in this record imputes culpability to The Natio[17] On the basis of the record in this case, the most that can be said is that The Nation made use of the contents of the manuscript knowing the copyright owner would not sanction the use. *594 At several points the Court brands this conduct thievery. See, e. g., ante, at 556, 563. This judgment is unsupportable, and is perhaps influenced by the Court's unspoken tendency in this case to find infringement based on the taking of information and ideas. With respect to the appropriation of information and ideas other than the quoted words, The Nation's use was perfectly legitimate despite the copyright owner's objection because no copyright can be claimed in ideas or informatio Whether the quotation of 300 words was an infringement or a fair use within the meaning of 107 is a close question that has produced sharp division in both this Court and the Court of Appeals. If the Copyright Act were held not to prohibit the use, then the copyright owner would have had no basis in law for objecting. The Nation's awareness of an objection that has a significant chance of being adjudged unfounded cannot amount to bad faith. Imputing bad faith on the basis of no more than knowledge of such an objection, the Court impermissibly prejudices the inquiry and impedes arrival at the proper conclusion that the "purpose" factor of the statutorily prescribed analysis strongly favors a finding of fair use in this The Nature of the Copyrighted Work. In Sony Corp. of we stated that "not. all copyrights are fungible" and that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture." 40. These statements reflect the principle, suggested in 107(2) of the Act, that the scope of fair use is generally broader when the source of borrowed expression is a factual or historical work. See 3 Nimmer 13.05[A][2], at 13-73 13-74. "[I]nformational works," like the Ford manuscript, "that readily lend themselves to productive use by others, are less |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | readily lend themselves to productive use by others, are less protected." Sony Corp. of -497 Thus the second statutory factor also favors a finding of fair use in this *595 The Court acknowledges that "[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy," ante, at 563, and that "[s]ome of the briefer quotations from the memoir are arguably necessary to convey the facts," But the Court discounts the force of this consideration, primarily on the ground that "[t]he fact that a work is unpublished is a crucial element of its `nature.' " Ante, at 564.[18] At this point the Court introduces into analysis of this case a categorical presumption against prepublication fair use. See ante, at 555 ("Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use"). This categorical presumption is unwarranted on its own terms and unfaithful to congressional intent.[19] Whether a *596 particular prepublication use will impair any interest the Court identifies as encompassed within the right of first publication, see ante, at 552-555,[20] will depend on the nature of the copyrighted work, the timing of prepublication use, the amount of expression used, and the medium in which the second author communicates. Also, certain uses might be tolerable for some purposes but not for others. See Sony Corp. of at 490, 40. The Court is ambiguous as to whether it relies on the force of the presumption against prepublication fair use or an analysis of the purpose and effect of this particular use. Compare ante, at 552-555, with ante, at 564. To the extent the Court relies on the presumption, it presumes intolerable *597 injury in particular the usurpation of the economic interest[21] based on no more than a quick litmus test for prepublication timing. Because "Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests," we held last Term that the fair use inquiry could never be resolved on the basis of such a "two dimensional" categorical approach. See Sony Corp. of 40 To the extent the Court purports to evaluate the facts of this case, its analysis relies on sheer speculatio The quotation of 300 words from the manuscript infringed no privacy interest of Mr. Ford. This author intended the words in the manuscript to be a public statement about his Presidency. Lacking, therefore, is the "deliberate choice on the part of the copyright owner" to keep expression confidential, a consideration that the Senate Report in |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | expression confidential, a consideration that the Senate Report in the passage on which the Court places great reliance, see ante, at 553 recognized as the impetus behind narrowing fair use for unpublished works. See S. Rep. No. 94-473, at 64. See also 3 Nimmer 13.05[A], at 13-73 ("[T]he scope of the fair use doctrine is considerably narrower with respect to unpublished works which are held confidential by their copyright owners") (emphasis added). What the Court depicts as the copyright owner's "confidentiality" interest, see ante, at 564, is not a privacy interest at all. Rather, it is no more than an economic interest in capturing the full value of initial release of information to *598 the public, and is properly analyzed as such. See infra, at 602-603. Lacking too is any suggestion that The Nation's use interfered with the copyright owner's interest in editorial control of the manuscript. The Nation made use of the Ford quotes on the eve of official publicatio Thus the only interest The Nation's prepublication use might have infringed is the copyright owner's interest in capturing the full economic value of initial release. By considering this interest as a component of the "nature" of the copyrighted work, the Court's analysis deflates The Nation's claim that the informational nature of the work supports fair use without any inquiry into the actual or potential economic harm of The Nation's particular prepublication use. For this reason, the question of economic harm is properly considered under the fourth statutory factor the effect on the value of or market for the copyrighted work, 17 U.S. C. 107(4) and not as a presumed element of the "nature" of the copyright. The Amount and Substantiality of the Portion Used. More difficult questions arise with respect to judgments about the importance to this case of the amount and substantiality of the quotations used. The Nation quoted only approximately 300 words from a manuscript of more than 200,000 words, and the quotes are drawn from isolated passages in disparate sections of the work. The judgment that this taking was quantitatively "infinitesimal," does not dispose of the inquiry, however. An evaluation of substantiality in qualitative terms is also required. Much of the quoted material was Mr. Ford's matter-of-fact representation of the words of others in conversations with him; such quotations are "arguably necessary adequately to convey the facts," ante, at 563, and are not rich in expressive content. Beyond these quotations a portion of the quoted material was drawn from the most poignant expression in the Ford manuscript; in particular The Nation made |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | expression in the Ford manuscript; in particular The Nation made use of six examples of Mr. Ford's expression of his reflections on *599 events or perceptions about President Nixo[22] The fair use inquiry turns on the propriety of the use of these quotations with admittedly strong expressive content. The Court holds that "in view of the expressive value of the excerpts and their key role in the infringing work," this third statutory factor disfavors a finding of fair use.[23] To support *600 this conclusion, the Court purports to rely on the District Court factual findings that The Nation had taken "the heart of the book." This reliance is misplaced, and would appear to be another result of the Court's failure to distinguish between information and literary form. When the District Court made this finding, it was evaluating not the quoted words at issue here but the "totality" of the information and reflective commentary in the Ford work. The vast majority of what the District Court considered the heart of the Ford work, therefore, consisted of ideas and information The Nation was free to use. It may well be that, as a qualitative matter, most of the value of the manuscript did lie in the information and ideas The Nation used. But appropriation of the "heart" of the manuscript in this sense is irrelevant to copyright analysis because copyright does not preclude a second author's use of information and ideas. Perhaps tacitly recognizing that reliance on the District Court finding is unjustifiable, the Court goes on to evaluate independently the quality of the expression appearing in The Nation's article. The Court states that "[t]he portions actually quoted were selected by Mr. Navasky as among the most powerful passages." Ante, at 565. On the basis of no more than this observation, and perhaps also inference from the fact that the quotes were important to The Nation's article,[24] the Court adheres to its conclusion that The Nation appropriated the heart of the Ford manuscript. *601 At least with respect to the six particular quotes of Mr. Ford's observations and reflections about President Nixon, I agree with the Court's conclusion that The Nation appropriated some literary form of substantial quality. I do not agree, however, that the substantiality of the expression taken was clearly excessive or inappropriate to The Nation's news reporting purpose. Had these quotations been used in the context of a critical book review of the Ford work, there is little question that such a use would be fair use within the meaning of 107 of the Act. The amount and substantiality |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | meaning of 107 of the Act. The amount and substantiality of the use in both quantitative and qualitative terms would have certainly been appropriate to the purpose of such a use. It is difficult to see how the use of these quoted words in a news report is less appropriate. The Court acknowledges as much: "[E]ven substantial quotations might qualify as a fair use in a review of a published work or a news account of a speech that had been delivered to the public." See ante, at 564. With respect to the motivation for the pardon and the insights into the psyche of the fallen President, for example, Mr. Ford's reflections and perceptions are so laden with emotion and deeply personal value judgments that full understanding is immeasurably enhanced by reproducing a limited portion of Mr. Ford's own words. The importance of the work, after all, lies not only in revelation of previously unknown fact but also in revelation of the thoughts, ideas, motivations, and fears of two Presidents at a critical moment in our national history. Thus, while the question is not easily resolved, it is difficult to say that the use of the six quotations was gratuitous in relation to the news reporting purpose. Conceding that even substantial quotation is appropriate in a news report of a published work, the Court would seem to agree that this quotation was not clearly inappropriate in relation to The Nation's news reporting purpose. For the Court, the determinative factor is again that the substantiality of the use was inappropriate in relation to the prepublication *602 timing of that use. That is really an objection to the effect of this use on the market for the copyrighted work, and is properly evaluated as such. The Effect on the Market. The Court correctly notes that the effect on the market "is undoubtedly the single most important element of fair use." Ante, at 566, citing 3 Nimmer 13.05[A], at 13-76, and the Court properly focuses on whether The Nation's use adversely affected Harper & Row's serialization potential and not merely the market for sales of the Ford work itself. Ante, at 566-567. Unfortunately, the Court's failure to distinguish between the use of information and the appropriation of literary form badly skews its analysis of this factor. For purposes of fair use analysis, the Court holds, it is sufficient that the entire article containing the quotes eroded the serialization market potential of Mr. Ford's work. Ante, at 567. On the basis of Time's cancellation of its serialization agreement, the Court finds that |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | Time's cancellation of its serialization agreement, the Court finds that "[r]arely will a case of copyright infringement present such clear-cut evidence of actual damage." In essence, the Court finds that by using some quotes in a story about the Nixon pardon, The Nation "competed for a share of the market of prepublication excerpts" ante, at 568, because Time planned to excerpt from the chapters about the pardo The Nation's publication indisputably precipitated Time's eventual cancellatio But that does not mean that The Nation's use of the 300 quoted words caused this injury to Harper & Row. Wholly apart from these quoted words, The Nation published significant information and ideas from the Ford manuscript. If it was this publication of information, and not the publication of the few quotations, that caused Time to abrogate its serialization agreement, then whatever the negative effect on the serialization market, that effect was the product of wholly legitimate activity. The Court of Appeals specifically held that "the evidence does not support a finding that it was the very limited use of expression per se which led to Time's decision not to print excerpts." *603 723 F. 2d, at 208. I fully agree with this holding. If The Nation competed with Time, the competition was not for a share of the market in excerpts of literary form but for a share of the market in the new information in the Ford work. That the information, and not the literary form, represents most of the real value of the work in this case is perhaps best revealed by the following provision in the contract between Harper & Row and Mr. Ford: "Author acknowledges that the value of the rights granted to publisher hereunder would be substantially diminished by Author's public discussion of the unique information not previously disclosed about Author's career and personal life which will be included in the Work, and Author agrees that Author will endeavor not to disseminate any such information in any media, including television, radio and newspaper and magazine interviews prior to the first publication of the work hereunder." App. 484. The contract thus makes clear that Harper & Row sought to benefit substantially from monopolizing the initial revelation of information known only to Ford. Because The Nation was the first to convey the information in this case, it did perhaps take from Harper & Row some of the value that publisher sought to garner for itself through the contractual arrangement with Ford and the license to Time. Harper & Row had every right to seek to monopolize revenue from that potential |
Justice Brennan | 1,985 | 13 | dissenting | Harper & Row, Publishers, Inc. v. Nation Enterprises | https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/ | every right to seek to monopolize revenue from that potential market through contractual arrangements but it has no right to set up copyright as a shield from competition in that market because copyright does not protect informatio The Nation had every right to seek to be the first to publish that informatio[25] *604 Balancing the Interests. Once the distinction between information and literary form is made clear, the statutorily prescribed process of weighing the four statutory fair use factors discussed above leads naturally to a conclusion that The Nation's limited use of literary form was not an infringement. Both the purpose of the use and the nature of the copyrighted work strongly favor the fair use defense here. The Nation appropriated Mr. Ford's expression for a purpose Congress expressly authorized in 107 and borrowed from a work whose nature justifies some appropriation to facilitate the spread of informatio The factor that is perhaps least favorable to the claim of fair use is the amount and substantiality of the expression used. Without question, a portion of the expression appropriated was among the most poignant in the Ford manuscript. But it is difficult to conclude that this taking was excessive in relation to the news reporting purpose. In any event, because the appropriation of literary form as opposed to the use of information was not shown to injure Harper & Row's economic interest, any uncertainty with respect to the propriety of the amount of expression borrowed should be resolved in favor of a finding of fair use.[26] In light of the circumscribed scope of the quotation in The Nation's article and the undoubted validity of the purpose *605 motivating that quotation, I must conclude that the Court has simply adopted an exceedingly narrow view of fair use in order to impose liability for what was in essence a taking of unprotected informatio III The Court's exceedingly narrow approach to fair use permits Harper & Row to monopolize informatio This holding "effect[s] an important extension of property rights and a corresponding curtailment in the free use of knowledge and of ideas." International News The Court has perhaps advanced the ability of the historian or at least the public official who has recently left office to capture the full economic value of information in his or her possessio But the Court does so only by risking the robust debate of public issues that is the "essence of self-government." 379 U. S., at The Nation was providing the grist for that robust debate. The Court imposes liability upon The Nation for |
Justice White | 1,984 | 6 | second_dissenting | Woodard v. Hutchins | https://www.courtlistener.com/opinion/111059/woodard-v-hutchins/ | We would not vacate the stay because the District Court did not pass on the merits of the habeas corpus petition and the stay was entered by a Court of Appeals Judge until the District Court performs its duty and acts on the habeas petition. Until the merits of the petition are addressed below or it is there held that there has been abuse of the writ, we would leave the stay in effect. That is the orderly procedure it seems to us. It also seems to us that the Court's opaque per curiam opinion vacating the stay comes very close to a holding that a second petition for habeas corpus should be considered as an abuse of the writ and for that reason need not be otherwise addressed on the merits. We are not now prepared to accept such a per se rule. JUSTICE MARSHALL, dissenting. At 12:05 a. m. today, Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit granted respondent Hutchins' application for a stay of execution. Less than an hour after the stay was issued, attorneys from the North Carolina Attorney General's Office filed in this Court a 3 1/2-page, handwritten application to vacate Judge Phillips' stay. Without taking time to consider the basis of Judge Phillips' stay indeed without waiting to receive the final draft of Judge Phillips' memorandum opinion the Court has granted the application, apparently so that North Carolina can proceed with Hutchins' execution before his death warrant expires at 6 o'clock this evening. Given the posture *384 of this application and the dire consequences of error, I find the Court's haste outrageous. Without any explanation, the Court takes the position that Judge Phillips somehow erred in granting a stay of Hutchins' execution.[1] As JUSTICE BRENNAN has shown, ante, at 382, Judge Phillips' decision to grant the stay was a prudent exercise of authority taken by a federal judge under serious time constraints and dealing with considerable uncertainty. What is incredible about this Court's decision is that five Members of the Court have voted to vacate Judge Phillips' stay without even reading his opinion[2] or fully considering respondent's defense of the stay. Indeed, at the present time, the Court does not even have before it a full record of the case.[3] In all candor, if there is abuse of federal power in this matter, it is to be found in our own Chambers. Ironically, the Court's zealous efforts to authorize Hutchins' execution at the last minute may be futile. The North Carolina death penalty statute |
Justice Powell | 1,982 | 17 | concurring | Havens Realty Corp. v. Coleman | https://www.courtlistener.com/opinion/110654/havens-realty-corp-v-coleman/ | In claiming standing based on a deprivation of the benefits of an integrated community, the individual respondents alleged generally that they lived in the city of Richmond or in Henrico County. This is an area of roughly 269 square miles, inhabited in 1978 by about 390,000 persons. Accordingly, as the Court holds, it is at best implausible that discrimination within two adjacent apartment complexes could give rise to "distinct and palpable injury," throughout this vast area. See ante, at 377. This, to me, is the constitutional core of the Court's decision. "Distinct and palpable" injury remains the minimal constitutional requirement for standing in a federal court. Although I join the opinion of the Court, I write separately to emphasize my concern that the Art. III requirement of a genuine case or controversy not be deprived of all substance by meaningless pleading. Our prior cases have upheld standing, in cases of this kind, where the effects of discrimination were alleged to have occurred only within "a relatively compact neighborhood." Gladstone, By implication *383 we today reaffirm that limitation. See ante, at 377. I therefore am troubled, not by the opinion of the Court, but by the record on which that opinion is based. After nearly four years of litigation we know only what the individual respondents chose to plead in their complaint that they live or lived within a territory of 269 square miles, within which petitioners allegedly committed discrete acts of housing discrimination. The allegation would have been equally informative if the area assigned had been the Commonwealth of Virginia. In at -502, we noted that a district court properly could deal with a vague averment as to standing by requiring amendment: "[I]t is within the trial court's power to allow or require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." The Federal Rules of Civil Procedure also permit a defendant to move for a more definite statement of the claims against him: "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after |
Justice Powell | 1,982 | 17 | concurring | Havens Realty Corp. v. Coleman | https://www.courtlistener.com/opinion/110654/havens-realty-corp-v-coleman/ | of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just." Fed. Rule. Civ. Proc. 12(e). *384 See United In this case neither the District Court not apparently counsel for the parties took appropriate action to prevent the case from reaching an appellate court with only meaningless averments concerning the disputed question of standing. One can well understand the impatience of the District Court that dismissed the complaint. Yet our cases have established the preconditions to dismissal because of excessive vagueness, e. g., Gladstone, with regard to standing, and those conditions were not observed. The result is more than a little absurd: Both the Court of Appeals and this Court have been called upon to parse pleadings devoid of any hint of support or nonsupport for an allegation essential to jurisdiction. Liberal pleading rules have both their merit and their price. This is a textbook case of a high price in terms of a severe imposition on already overburdened federal courts as well as unjustified expense to the litigants. This also is a particularly disturbing example of lax pleading, for it threatens to trivialize what we repeatedly have recognized as a constitutional requirement of Art. III standing. See, e. g., Valley Forge Christian ; In any event, in the context of this case, as it reaches us after some four years of confusing and profitless litigation, it is not within our province to order a dismissal. I therefore join the opinion of the Court. |
Justice Scalia | 1,997 | 9 | concurring | California Div. of Labor Standards Enforcement v. Dillingham Constr., NA, Inc. | https://www.courtlistener.com/opinion/118081/california-div-of-labor-standards-enforcement-v-dillingham-constr-na/ | Since ERISA was enacted in 1974, this Court has accepted certiorari in, and decided, no less than 14 cases to resolve conflicts in the Courts of Appeals regarding ERISA preemption of various sorts of state law.[1] The rate of acceptance, *335 moreover, has not diminished (we have taken two more ERISA pre-emption cases so far this Term),[2] suggesting that our prior decisions have not succeeded in bringing clarity to the law. I join the Court's opinion today because it is a fair description of our prior case law, and a fair application of the more recent of that case law. Today's opinion is no more likely than our earlier ones, however, to bring clarity to this field precisely because it does obeisance to all our prior cases, instead of acknowledging that the criteria set forth in some of them have in effect been abandoned. Our earlier cases sought to apply faithfully the statutory prescription that state laws are pre-empted "insofar as they relate to any employee benefit plan." Hence the many statements, repeated today, to the effect that the ERISA pre-emption provision has a "broad scope," an "expansive sweep," is "broadly worded," "deliberately expansive," and "conspicuous for its breadth." Ante, at 324. But applying the "relate to" provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else. Accord, New York State Conference of Blue Cross & Blue Shield The statutory text provides an illusory test, unless the Court is willing to decree a *336 degree of pre-emption that no sensible person could have intendedwhich it is not. I think it would greatly assist our function of clarifying the law if we simply acknowledged that our first take on this statute was wrong; that the "relate to" clause of the pre-emption provision is meant, not to set forth a test for pre-emption, but rather to identify the field in which ordinary field pre-emption appliesnamely, the field of laws regulating "employee benefit plan[s] described in section 1003(a) of this title and not exempt under section 1003(b) of this title," 29 U.S. C. 1144(a). Our new approach to ERISA pre-emption is set forth in John Hancock Mut. Life Ins. : "[W]e discern no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre-emption analysis." I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre-emption, and, of course, ordinary conflict preemption. See generally ; ; Florida Lime & Avocado Growers, Nothing more mysterious than that; and |
per_curiam | 1,971 | 200 | per_curiam | Doherty v. United States | https://www.courtlistener.com/opinion/108396/doherty-v-united-states/ | Applicant Doherty was convicted in federal court of smuggling marihuana. The Court of Appeals for the Ninth Circuit affirmed. Doherty's retained counsel, who had represented him both at trial and on appeal, withdrew after the appellate decision because Doherty was without funds to pay for legal services. Without opinion the Court of Appeals denied Doherty's pro se motion for appointment of counsel to assist in preparing a petition for writ of certiorari. Doherty has now filed a motion in this Court seeking appointment of counsel for that purpose. We treat the motion for appointment of counsel as a petition for writ of certiorari seeking review of the Court of Appeals' order denying the appointment. The Court of Appeals has a rule that counsel appointed for indigent appellants must, after adverse decision in the Court of Appeals, inform his client of the right to seek review in this Court and, if the client so desires, prepare a petition for certiorari.[*] In denying Doherty's *29 motion for counsel, the Court of Appeals apparently determined that its rule was of no help to Doherty, whose counsel had been retained rather than appointed. We defer to that court's construction of its own rule. However, it is not clear that the court also considered Doherty's motion in the light of the provisions of the Criminal Justice Act of 1964 insofar as they may be relevant to a federal prisoner's right to have counsel's help in seeking certiorari in this Court. 18 U.S. C. 3006A (c), 3006A (d) (6), 3006A (g). See also H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); Report of the Proceedings of a Special Session of the Judicial Conference of the United States, 36 F. R. D. 282, 291 (1965); Fed. Rule Crim. Proc. 44 (a). In order that the Court of Appeals may give further consideration to the request for counsel, Doherty's motion for leave to proceed in forma pauperis is granted, the petition for certiorari is granted, the judgment of the Court of Appeals affirming Doherty's conviction and its order denying appointment of counsel are vacated, and the case is remanded to that court for further proceedings consistent with this opinion, including re-entry of its judgment of affirmance and appropriate reconsideration of the motion for appointment of counsel. So ordered. MR. |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | An Act of Congress providing for distribution of funds to certain Delaware Indians, pursuant to an award by the Indian Claims Commission to redress a breach by the United States of an 18 treaty, is challenged in this action by a group of excluded from the distribution. The question presented by this litigation is whether their exclusion denies them equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment.[1] I A brief history of the migrations of the Delaware Indians will serve as a helpful backdrop to the litigation.[2] The originally resided in the Northeastern United States, in what are now southern New York, New Jersey, part of Pennsylvania, *76 and part of Delaware. The Munsee Indians, related to the resided in the northern part of that area. Under pressure from new settlers, both the and the Munsees were gradually forced to move westward, and by 1820 they were geographically scattered. During the trek westward the main branch of the stopped for varying lengths of time in what are now Ohio, Indiana, and Missouri, while others went to Arkansas, Oklahoma, and Texas. In 1818, the in Indiana ceded their lands in that State to the United States in return for a promise of land west of the Mississippi River.[3] The then moved to Missouri for a short time, but under an 1829 "supplementary article" to the 1818 treaty, were again moved to what they were told would be their permanent residence on a reservation in Kansas.[4] The establishment of this reservation was purportedly the fulfillment of the promise made in the 1818 treaty to provide western land in return for their agreement to leave their Indiana lands. Some however, never joined the main body of the on the Kansas reservation. Among these was a small group that migrated to Oklahoma and settled with the Wichita and Caddo Indians. For a time during the 1850's and 1860's the in Kansas expected this group to rejoin the main body of the tribe there, but these Indians, called the "Absentee " in this suit, stayed with the Wichitas and Caddos.[5] Their descendants *77 have remained in Oklahoma through the present day, and are a federally recognized Indian tribe.[6] By the 1850's, the main body of the Delaware Nation, together with a small number of Munsees, had assembled on the "permanent" reservation in Kansas at the confluence of the Kansas and Missouri Rivers. But the hope that the Kansas reservation would be the ' last stopping place was short-lived. In 1866, the living on the reservation signed a |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | short-lived. In 1866, the living on the reservation signed a treaty, under which they were to move to "Indian Country" in Oklahoma to live with the Cherokees.[7] Each Delaware moving to Indian Country and enrolling on the proper register was to receive a life estate of 160 acres of Cherokee land and the right to become a member of the Cherokee Nation. Most of the on the Kansas reservation accepted these conditions and moved to Oklahoma, where they were gradually assimilated for most purposes into the Cherokee Nation, and were permitted to share equally with the Cherokees in the general funds of that tribe. See, e. g., Delaware ; Cherokee Despite their association with the Cherokees, these Indians, called "Cherokee " in this suit, have over the years maintained a distinct group identity, and they are today a federally recognized tribe.[8] *78 The 1866 treaty did not require all on the Kansas reservation to move to Oklahoma. Rather, the treaty provided that any who agreed to "dissolve their relations with their tribe" and become citizens of the United States might elect to remain in Kansas. Such would receive 80 acres of land in Kansas in fee simple and a "just proportion" of the tribe's credits "then held in trust by the United States." but thereafter could not "further participate in their [tribal] councils, nor share in their property or annuities."[9] Twenty-one adult chose to accept these conditions and remain in Kansas.[10] Their descendants, called "Kansas " in this suit, are not a federally recognized tribe.[11] In 18, while they still lived on the Kansas reservation, the main body of the signed a treaty with the *79 United States under which the United States was to sell certain reservation tribal "trust" lands at public auction. In 1856 and 1857, the United States breached the treaty by selling the lands privately and not at public auction. Approximately 100 years later, the Cherokee and Absentee brought separate but identical claims before the Indian Claims Commission arising out of this breach of the 18 treaty. The Commission found that the two groups were "entitled jointly to represent the entire Delaware Tribe," Absentee Delaware Tribe of citing Delaware aff'd as to parties, and determined that the private sales of the trust lands had realized $1,385,617.81 less than would have been realized for the tribe at public auction. The Commission awarded the tribe that sum plus interest, or a total of $9,168,171.13.[12] -370. Congress appropriated funds to pay the award and later enacted providing for its distribution.[13]*80 The statute limited distribution to the Cherokee and Absentee |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | distribution.[13]*80 The statute limited distribution to the Cherokee and Absentee with amounts payable determined under a formula provided in 25 U.S. C. 1294. Ten percent of the *81 total sum was to be set aside for the two tribal bodies, and was to be retained by the United States to the credit of the tribes, to be used in ways approved by the Secretary *82 of the Interior. The remaining 90% was to be divided among Cherokee whose names appeared on a "per capita payroll" described in 1292 (c) (1), and among Absentee whose names appeared on a "constructed base census roll" described in 1292 (c) (2).[14] Appellee Weeks, on behalf of all the Kansas instituted this action against the United States, the Cherokee the Absentee and the Secretary of the Interior in the District Court for the Western District of Oklahoma, alleging that the exclusion of the Kansas from the distribution of the award constituted a denial of the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. A three-judge court was convened.[15] The court declared, one judge dissenting, that Congress' failure to include the Kansas among those entitled to share in the award under violated the Due Process Clause. The court also enjoined the Secretary of the Interior from distributing any of the appropriated funds pending amendment of the distribution provisions of the statute, or enactment of further legislation providing for distribution of the funds. Each defendant separately appealed to this Court, the Secretary of the Interior in No. 75-1495, the Cherokee in No. 75-1301, and the Absentee in No. 75-1335. We *83 noted probable jurisdiction of the three appeals, We reverse.[16] II Appellants differ on the issue of whether this suit presents a nonjusticiable political question because of Congress' pervasive authority, rooted in the Constitution, to control tribal property. Stated in other words, they differ on the issue of whether congressional exercise of control over tribal property is final and not subject to judicial scrutiny, since the power over distribution of tribal property has "been committed by the Constitution" to the Congress, and since "[t]he nonjusticiability of a political question is primarily a function of the separation of powers," Appellants Cherokee and Absentee citing Lone argue that Congress' distribution plan reflects a congressional determination not subject to scrutiny by the Judicial Branch, and that the District Court therefore erred in reaching the merits of this action. Appellant Secretary of the Interior, on the other hand, submits that the plenary power *84 of Congress in matters of Indian affairs "does not mean |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | of Congress in matters of Indian affairs "does not mean that all federal legislation concerning Indians is immune from judicial scrutiny or that claims, such as those presented by [appellees], are not justiciable." Brief for Appellants in No. 75-1495, p. 19 n. 19. We agree with the Secretary of the Interior. The statement in Lone that the power of Congress "has always been deemed a political one, not subject to be controlled by the judicial department of the government," however pertinent to the question then before the Court of congressional power to abrogate treaties, see generally has not deterred this Court, particularly in this day, from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment. See, e. g., "The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." United ; see also United ; cf. United The question is therefore what judicial review of is appropriate in light of the broad congressional power to prescribe the distribution of property of Indian tribes. The general rule emerging from our decisions ordinarily requires the judiciary to defer to congressional determination of what is the best or most efficient use for which tribal funds should be employed. Thus, Congress may choose to differentiate among groups of Indians in the same tribe in making a distribution, aff'g or on the other hand to expand a class of tribal beneficiaries entitled to share in royalties from tribal lands, United *85 or to devote to tribal use mineral rights under allotments that otherwise would have gone to individual allottees, Northern Cheyenne The standard of review most recently expressed is that the legislative judgment should not be disturbed "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians." III We are persuaded on the record before us that Congress' omission of the appellee Kansas from the distribution under was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." First, the Kansas are not a recognized tribal entity, but are simply individual Indians with no vested rights in any tribal property. distributes tribal rather than individually owned property, for the funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity, the Delaware Nation. It was that tribal entity, represented jointly in the suit before the Indian Claims Commission by the appellants Cherokee and Absentee that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it. Indeed, the Indian Claims Commission is not empowered to hear individuals' claims, but may only adjudicate claims held by an "Indian tribe, band, or other identifiable group." 25 U.S. C. 70a, 70i; see Minnesota Chippewa As tribal property, the appropriated funds were subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes, an authority "drawn both explicitly and implicitly from the Constitution itself." *86 This authority of Congress to control tribal assets has been termed "one of the most fundamental expressions, if not the major expression, of the constitutional power of Congress over Indian affairs" F. Cohen, Handbook of Federal Indian Law 94, 97 (1942). The ancestors of the Kansas severed their relations with the tribe when they elected under the 1866 treaty to become United States citizens entitled to participate in tribal assets only to the extent of their "just proportion of the cash value of the credits of said tribe then held in trust by the United States." (Emphasis supplied.) We cannot say that the decision of Congress to exclude the descendants of individual Delaware Indians who ended their tribal membership and took their proportionate share of tribal property as constituted more than a century ago, and to distribute the appropriated funds only to members of or persons closely affiliated with the Cherokee and Absentee Delaware Tribes, was not "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Second, the exclusion of the Kansas under was not their first exclusion from participation in a distribution of tribal assets. In Congress appropriated $150,000 to settle claims of the Delaware Tribe of Indians, one of them arising out of another injustice done to the under the 18 treaty, unrelated to the breach which forms the basis for the distribution under[17] See United The Act directed the Secretary of the Treasury to pay the settlement to the tribe known in this suit as the Cherokee "as said tribe shall in council direct," thereby excluding both *87 Absentee and Kansas 222. This distribution was limited to the Cherokee although it was compensation, inter alia, for a wrong to the in 18, before the Kansas split off from the tribe. Some Kansas unsuccessfully sought to participate in the distribution but, as noted by the District Court in this case, "were denied participation on grounds similar to some of those argued in the present case." |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | similar to some of those argued in the present case." n. 15. The Comptroller of the Treasury concluded that "[m]anifestly [the Kansas ] were not entitled to participate in the distribution of annuities or other funds due or belonging to the Delaware tribe" for: "The provision in the [A]ct of April 21, authorizes and directs payment to the `Delaware tribe of Indians residing in the Cherokee Nation, as said tribe shall in council direct' The proviso immediately following the appropriation in the [A]ct emphasizes the clear indication that the appropriation was made for the tribe as distinguished from the Delaware Indians who had severed their tribal relations and become citizens of the United States." 11 Comp. Dec. 496, 500 (1905) (emphasis in original). While this precedent of excluding the Kansas from the distribution does not of itself legitimate their exclusion from the present distribution statute, their earlier exclusion nevertheless indicates that Congress has historically distinguished them from the Cherokee in distributing an award based in part on a breach of the very treaty involved in this litigation. Third, Congress deliberately limited the distribution under to the Cherokee and Absentee because of substantial problems it apprehended might attend a wider distribution. H. R. 5200, the bill originally introduced to distribute the funds, had contained a "catchall" clause authorizing distribution "to include the names of all *88 persons born on or prior to and living on the date of this Act who are lineal descendants of members of the Delaware Tribe as it existed in 18"[18] This catchall would have been analogous to a clause in a 1968 statute distributing funds to compensate the Delaware Tribe for the United States' inadequate payment to them when they were moved off their Indiana lands in 1818.[19] Under the 1968 catchall clause, all lineal descendants of the tribe as it existed in 1818 were permitted to share in the distribution, 25 U.S. C. 1181 (d), and about 300 Kansas were thereby allowed to participate in the distribution of the award redressing the 1818 wrong. The omission of the catchall provision from as finally enacted, followed legislative hearings at which the Cherokee and Absentee testified. At these hearings they directed Congress' attention to problems that had arisen when Munsee Indians, in addition to the Kansas had claimed eligibility under the catchall provision of the 1968 statute.[20] Because of a dispute over the eligibility of the Munsees to participate under the catchall clause, there had been inordinate delays in the distribution of the funds. Indeed, as late as 1972 many of the Munsees' claims *89 were still |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | as 1972 many of the Munsees' claims *89 were still unresolved, and distribution under the 1968 statute was virtually paralyzed. Hearings on H. R. 5200 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 12, 22, 59, 79, 97, 105-106, 113 (unpublished). We recognize, as did the District Court, that Congress omitted the catchall provision from the present statute in order to avoid a repetition of the problems with the Munsees, and that Congress was not "made aware that the limitation of distribution to [the Cherokee and Absentee ] would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas do."[21] But we do not conclude from Congress' ignorance of the effect of the elimination of the catchall on the Kansas that the statute is therefore irrational. Congress chose to limit distribution of the award to the Cherokee and the Absentee in whose names the ' claims had been prosecuted before the Indian Claims Commission, and whom the Commission had found to represent the interests of all the Regardless of Congress' knowledge of the effect of this limitation on the Kansas we cannot say that the congressional choice, though predicated upon the Munsee experience under the 1968 statute, does not rationally support its decision to avoid undue delay, administrative difficulty, and potentially unmeritorious claims by distributing the award only to the Cherokee and Absentee[22] *90 IV Our conclusion that the exclusion of the Kansas from distribution under does not offend the Due Process Clause of the Fifth Amendment of course does not preclude Congress from revising the distribution scheme to include the Kansas The distribution authorized by has not yet occurred, and Congress has the power to revise its original allocation. United -83. Reversed. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the result. I join Parts I and II of the Court's opinion, but otherwise I concur only in the result. For me, the reversal of the District Court's judgment is not a result that is so inevitable and so easily and smoothly reached as a reading of Part III of the Court's opinion makes it appear. The Court's justifications for exclusion of the Kansas are not very persuasive. The first favoritism toward tribal Indiansis undermined by the fact that Absentee who are not members of that tribe nevertheless are entitled to participate. Ante, at 82 n. 14. The secondexclusion from a prior distributionis troublesome because it is difficult for me |
Justice Brennan | 1,977 | 13 | majority | Delaware Tribal Business Comm. v. Weeks | https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/ | a prior distributionis troublesome because it is difficult for me to see how perceived prior unfair treatment buttresses further unfairness. And I wonder about the statement, ante, at 87, that Congress "has historically *91 distinguished" the Kansas from the Cherokee in distributing tribal awards, when in fact both participated in the 1968 allocation that Congress authorized for the The third justificationadministrative convenience in eliminating the catchall clause may have some weight. But, as the opinion acknowledges, ante, at 88-89, there was no problem with the Kansas in the distribution of the 1968 award; the administrative difficulty was only with the Munsees. Nevertheless, having said all this, I am not persuaded that the Court errs in its conclusion. For me, the case is one of that rare type in which the argument on each side is not at all strong. With the litigation in this lukewarm posture, I conclude that we must acknowledge that there necessarily is a large measure of arbitrariness in distributing an award for a century-old wrong. One could regard the distribution as a windfall for whichever beneficiaries are now favored. In light of the difficulty in determining appropriate standards for the selection of those who are to receive the benefits, I cannot say that the distribution directed by the Congress is unreasonable and constitutionally impermissible. Congress must have a large measure of flexibility in allocating Indian awards, and what it has done here is not beyond the constitutional pale. MR. |
Justice Marshall | 1,980 | 15 | concurring | Consolidated Edison Co. v. Public Serv. Comm'n | https://www.courtlistener.com/opinion/110311/consolidated-edison-co-v-public-serv-commn/ | I join the Court's opinion. I write separately to emphasize that our decision today in no way address the question whether the Commission may exclude the costs of bill inserts from the rate base, nor does it intimate any view on the appropriateness of any allocation of such costs the Commission might choose to make. Ante, at 543. The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management's view in issuing its order, and we therefore are precluded from sustaining the order on that ground. Cf. ; ; MR. JUSTICE STEVENS, concurring in the judgment. Any student of history who has been reprimanded for talking about the World Series during a class discussion of the *545 First Amendment knows that it is incorrect to state that a "time, place, or manner restriction may not be based upon either the content or subject matter of speech." Ante, at 536. And every lawyer who has read our Rules,[1] or our case upholding various restrictions on speech with specific reference to subject matter[2] must recognize the hyperbola in the dictum: "But, above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Police Department of quoted in part, ante, at 537. Indeed, if that were the law, there would be no need for the Court's detailed rejection of the justifications put forward by the State for the restriction involved in this case. See ante, Part III-C. There are, in fact, many situations in which the subject matter, or, indeed, even the point of view of the speaker, may provide a justification for a time, place, and manner regulation. Perhaps the most obvious example is the regulation of oral argument in this Court; the appellant's lawyer precedes his *546 adversary solely because he seeks reversal of a judgment.[3] As is true of many other aspects of liberty, some forms of orderly regulation actually promote freedom more than would a state of total anarchy.[4] Instead of trying to justify our conclusion by reasoning from honeycombed premises, I prefer to identify the basis of decision in more simple terms. See A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a "law abridging the freedom of speech, or of the press."[5] A regulation that denies one group of persons the right to address a selected |
Justice Marshall | 1,980 | 15 | concurring | Consolidated Edison Co. v. Public Serv. Comm'n | https://www.courtlistener.com/opinion/110311/consolidated-edison-co-v-public-serv-commn/ | one group of persons the right to address a selected audience on "controversial issues of public policy" is plainly such a regulation. The only justification for the regulation relied on by the New York Court of Appeals is that the utilities' bill inserts may be "offensive" to some of their customers.[6] But a communication *547 may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensiveperhaps because it is too loud[7] or too ugly in a particular setting.[8] Other *548 speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message. The fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression. Since the Public Service Commission has candidly put forward this impermissible justification for its censorial regulation, it plainly violates the First Amendment.[9] Accordingly, I concur in the judgment of the Court. MR. JUSTICE BLACKMUN, with whom MR. |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | Today the Court holds that the Eighth Amendment prohibits a State from structuring its capital sentencing scheme to channel jury discretion by requiring that mitigating circumstances be found unanimously. Because I believe that holding is without support in either the Eighth Amendment or our previous decisions, I dissent. I Under North Carolina's capital sentencing scheme, once a defendant is found guilty of capital murder, a separate sentencing hearing is held at which the State is permitted to introduce evidence of aggravating circumstances, and the defendant evidence of mitigating circumstances. Specific aggravating and mitigating circumstances are defined by statute, but the defendant is permitted to put forward any other mitigating circumstance he wishes. The State must prove the existence of the specified aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating factors by a preponderance of the evidence. For any aggravating or mitigating circumstance to be given operative effect, it must be found unanimously by the jury. Absent unanimity, the proponent of the circumstance has failed to meet his burden of persuasion, and the circumstance will be considered not proved. In this case, the jury was given a special verdict form on which it was asked to answer four questions. First, whether it unanimously found beyond a reasonable doubt one or more specified statutory aggravating circumstances. The jury answered "Yes" with respect to two aggravating circumstances. Second, whether it unanimously found by a preponderance *458 of the evidence any statutory or nonstatutory mitigating circumstances. The jury answered "Yes" with respect to one statutory, and one nonstatutory, mitigating circumstance. Third, whether it unanimously found beyond a reasonable doubt that the mitigating circumstances it found were insufficient to outweigh the aggravating circumstances it found. The jury answered "Yes." Fourth, whether it unanimously found beyond a reasonable doubt that the aggravating circumstances it found were sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances it found. The jury answered "Yes." I think this scheme, taken as a whole, satisfies the due process and Eighth Amendment concerns enunciated by this Court. By requiring that the jury find at least one statutory aggravating circumstance, North Carolina has adequately narrowed the class of death-eligible murderers. See On the other hand, by permitting the jury to consider evidence of, and find, any mitigating circumstance offered by the defendant, North Carolina has ensured that the jury will "be able to consider and give effect to that evidence in imposing sentence." By requiring both aggravating circumstances to be found unanimously (beyond a reasonable doubt) and mitigating |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | to be found unanimously (beyond a reasonable doubt) and mitigating circumstances to be found unanimously (by only a preponderance of the evidence), North Carolina has "reduc[ed] the likelihood that [the jury] will impose a sentence that fairly can be called capricious or arbitrary." Finally, by requiring the jury unanimously to find beyond a reasonable doubt not only that the aggravating circumstances outweigh the mitigating circumstances, but also that they are sufficiently substantial in light of the mitigating circumstances to justify the death penalty. North Carolina has *459 provided even an extra measure of assurance that death will not be lightly or mechanically imposed. II Before discussing the constitutional issue petitioner raises, I wish to address briefly the Court's assertion that we have already addressed and resolved this very issue in the past that "our decision [in ] clearly governs this case." Ante, at 439. Although there is language in suggesting that a unanimity requirement would contravene this Court's decisions in and that issue plainly was not presented in and can therefore not have been decided. The Court's opinion in begins by recounting that the Maryland Court of Appeals "did not dispute that if the statute and [verdict] form were read as petitioner suggested [i. e., to require mitigating factors to be found unanimously], jurors would be improperly prevented from giving due consideration to mitigating evidence." The State itself made the same concession in its brief before this Court. ("Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence." Brief for Respondent in O. T. 1987, No. 87-5367, p. 19.)[1]*460 Accordingly, no controversy regarding the question that the Court today holds to have been decided by was even before the Court for the very simple reason that no statute *461 raising that question was before the Court. The Maryland court had adopted what it regarded as a saving construction of the statute (i. e., permitting a single juror's view to preclude rejection of a mitigating circumstance) and had said that the verdict form should be understood in that fashion. Before this Court, "[t]he critical question," and the only question disputed by the parties, was "whether petitioner's interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case." -376.[2] On the answer to that question, the Court was divided. Five Justices found a substantial risk that the jury |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | divided. Five Justices found a substantial risk that the jury would have understood its instructions *462 as requiring it to reject all mitigating circumstances that it failed to find unanimously, and (as the State understood would be the necessary consequence of such a finding) vacated the judgment and remanded for further proceedings. The four dissenting Justices thought the risk that a reasonable jury would have misunderstood the instructions was negligible, and thus would have affirmed. The Court's characterization of as "holding that the instructions, if [interpreted to require unanimity], were unconstitutional," ante, at 444, n. 8, and "strik[ing] down the Maryland scheme," ante, at 439, is pure revisionism. No Maryland scheme existed except the one authoritatively described by the Maryland Court of Appeals, see which did not require a unanimous finding of mitigation for the defendant to receive a life sentence. To be sure, contains language suggesting that a unanimity requirement would contravene and See -375. But, under the circumstances, these suggestions were plainly dicta. Any doubt is resolved by JUSTICE WHITE'S separate concurrence, which states in its entirety: "The issue in this case is how reasonable jurors would have understood and applied their instructions. That is the issue the Court's opinion addresses, and I am persuaded that the Court reaches the correct solution. Hence, I join the Court's opinion."[3] *463 Because JUSTICE WHITE provided the fifth vote to remand in it is impossible to regard as resolving an issue he did not believe to have been before the Court. III The constitutional issue conceded in is both presented and contested in the present case. North Carolina's capital sentencing statute unambiguously provides that mitigating circumstances must be found by the jury unanimously. The Court finds this scheme constitutionally defective because it prevents individual jurors "from giving effect to evidence that they believe calls for a sentence less than death." Ante, at 439 (citing and ) (internal quotations omitted). This is so because each juror's answers to the ultimately dispositive Issues Three and Four can take account of only those mitigating circumstances found by the jury unanimously under Issue Two. Thus, any juror who concludes that the defendant has proved additional mitigating circumstances is precluded by his colleagues' disagreement from giving that conclusion effect. The Court several times refers to the prospect that one " `holdout' juror" will prevent the other 11 from reaching the decision they wish, ante, at 438, but the reader should not be misled: The constitutional principle appealed to is not majority rule but just the opposite. According to the Court, North Carolina's system in which |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | opposite. According to the Court, North Carolina's system in which one juror can prevent the others from giving effect to a mitigating circumstance is invalid only because the Constitution requires, in the context *464 of the North Carolina statute, a system in which one juror can prevent the others from denying effect to a mitigating circumstance. The " `holdout' juror" scenario provides attractive atmosphere, but the alleged constitutional principle upon which the decision rests is that "each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death," ante, at 442 (emphasis added), and "may not be foreclosed by one or more jurors' failure," ante, at 443 (emphasis added), to find that those mitigating facts existed, or that those existing facts were mitigating. Such a scheme, under which (at least where the statute requires the jury's recommendation of death to be unanimous) a single juror's finding regarding the existence of mitigation must control, is asserted to be demanded by "the principle established in that a sentencer may not be precluded from giving effect to all mitigating evidence." Ante, at 438. With respect, "the principle established in " does not remotely support that conclusion. In the Court vacated a death sentence imposed under a statute that limited the sentencing judge's consideration of mitigating factors to three statutory circumstances. A plurality of the Court reasoned that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (emphasis omitted; footnotes omitted). Similarly, in also relied upon by the Court, we vacated a death sentence because the sentencing judge refused to consider evidence proffered by the defendant of his unhappy upbringing. We reasoned: "Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse *465 to consider, as a matter of law, any relevant mitigating evidence." -114 Accord, (failure to instruct Texas jury that it could consider and give effect to mitigating evidence beyond the scope of three statutory special issues inconsistent with and ); (trial judge's belief that Florida law prohibited consideration of nonstatutory mitigating circumstances and corresponding instruction to the jury contravened ); (trial judge's failure to permit jury to consider evidence of defendant's good behavior in prison inconsistent with and ). |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | of defendant's good behavior in prison inconsistent with and ). The principle established by these cases is that a State may not preclude the sentencer from considering and giving effect to evidence of any relevant mitigating circumstance proffered by the defendant. See at (emphasis added); (internal quotations omitted; citations omitted; emphasis added); (emphasis added); (emphasis added); (emphasis added; footnote omitted). The sentencer in this case was the North Carolina jury, which has not been precluded from considering and giving effect to all mitigating circumstances. What petitioner complains of here is not a limitation upon what the sentencer was allowed to give effect to, but rather a limitation upon the manner in which it was allowed to do so *466 viz., only unanimously. As the Court observes today, that is a crucial distinction. "There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making the sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle v. Parks, post, at 490 (emphasis added). In holding that a rule invalidating an antisympathy instruction would be a new rule under we concluded that and "do not speak directly, if at all, to" "how [the jury] must consider the mitigating evidence," as opposed to "what mitigating evidence the jury must be permitted to consider in making its sentencing decision." Saffle, post, at 490. Accord, Franklin v. ("[W]e have never suggested that jury consideration of mitigating evidence must be undirected or unfocused"). In short, and are quite simply irrelevant to the question before us, and cannot be pressed into service by describing them as establishing that "a sentencer [by which the reader is invited to understand an individual member of the jury] may not be precluded from giving effect to all mitigating evidence." Ante, at 438 (emphasis added). IV Nothing in our prior cases, then, supports the rule the Court has announced; and since the Court does not even purport to rely upon constitutional text or traditional practice, nothing remains to support the result. There are, moreover, some affirmative indications in prior cases that what North Carolina has done is constitutional. Those indications are not compelling for the perverse reason that the less support exists for a constitutional claim, the less likely it is that the claim has been raised or taken seriously before, and hence the less likely that this Court has previously rejected it. If petitioner should seek reversal of his sentence because *467 two jurors were |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | seek reversal of his sentence because *467 two jurors were wearing green shirts, it would be impossible to say anything against the claim except that there is nothing to be said for it neither in text, tradition, nor jurisprudence. That is the point I have already made here, and that alone suffices. With the caution, however, that it is entirely superfluous, I may mention several aspects of our jurisprudence that appear to contradict the Court's result. To begin with, not only have we never before invalidated a jury-unanimity requirement, but we have approved schemes imposing such a requirement in contexts of great importance to the criminal defendant for example, as a condition to establishing the defense of self-defense in a capital murder case, see ; 2929.02 ; Ohio Rule Crim. Proc. 31(A), as a condition to establishing the defense of extreme emotional disturbance in a second-degree murder case, see ; N. Y. Crim. Proc. Law 310.80 (McKinney 1971), and as a condition to establishing the defense of insanity in a second-degree murder case, see ; Del. Super. Ct. Crim. Rule 31(a), Del. Code Ann., vol. 17, p. 227[4] *468 Of course the Court's holding today and its underlying thesis that each individual juror must be empowered to "give effect" to his own view invalidates not just a requirement of unanimity for the defendant to benefit from a mitigating factor, but a requirement of any number of jurors more than one. Thus it is also in tension with which upheld, in a capital case, a requirement that the defense of insanity be proved (beyond a reasonable doubt) to the satisfaction of at least 10 of the 12-member jury. Even with respect to proof of the substantive offense, as opposed to an affirmative defense, we have approved verdicts by less than a unanimous jury. See We have, to be sure, found that a criminal verdict by less than all of a six-person jury is unconstitutional not, however, because of any inherent vice in nonunanimity, but because a 5-to-1 verdict, no less than a 5-to-0 verdict, see "presents a threat to preservation of the substance of the jury trial guarantee." The Court discusses briefly one of the above cases (Patterson), in which we said that if a State "chooses to recognize a factor that mitigates the degree of criminality or punishment,. the State may assure itself that the fact has been established with reasonable certainty," It distinguishes that case, and presumably would distinguish the rest I have cited, as follows: "The Constitution requires States to allow consideration of |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | as follows: "The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall." Ante, at 442. But surely the Constitution also requires States to allow consideration of all evidence bearing *469 upon the substantive criminal offense and consideration of all evidence bearing upon affirmative defenses. If, in those contexts, it is not regarded as a "barrier" to such consideration to require unanimity before any single juror's evaluation of the evidence can be "given effect" to the defendant's advantage, I do not understand why a comparable requirement constitutes a "barrier" to consideration of mitigation. Or why, in the latter context, assuring "reasonable certainty" is no longer a legitimate objective. Likewise incompatible with the Court's theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. States, we have said, "must channel the sentencer's discretion by `clear and objective standards' that provide `specific and detailed guidance' and that `make rationally reviewable the process for imposing a sentence of death.' " (footnotes omitted). There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement. Until today, I would have thought that North Carolina's scheme was a model of guided discretion. The requirement that the jury determine four specific issues operates like a special verdict a device long recognized as enhancing the reliability and rationality of jury determinations. See, e. g., Sunderland, Verdicts, General and Special, 29 Yale L. J. 261 (1920). Moreover, by enabling the reviewing court to examine the specific findings underlying the verdict it facilitates appellate review, which we have described as "an important additional safeguard against arbitrariness and caprice." U. S., at 198 "Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or *470 in a freakish manner." Accord, ; U.S. 242, The Court strikes down this eminently reasonable scheme. The quality of what it substitutes is conveniently evaluated by considering how future North Carolina juries will behave under the Court's own doomsday hypothetical, in which all jurors believe the defendant has proved one mitigating circumstance, but each believes a different one. Ante, at 439-440. A jury, of course, is not a collection of individuals who are asked separately about their independent views, but a body designed to |
Justice Scalia | 1,990 | 9 | dissenting | McKoy v. North Carolina | https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/ | separately about their independent views, but a body designed to deliberate and decide collectively. See ; ; (small juries impede group deliberation). But after today's decision, in the hypothetical the Court has posed, it will be quite impossible for North Carolina sentencing juries to "deliberate" on the dispositive questions (Issues Three and Four whether the aggravating circumstances outweigh the mitigating circumstances, and whether in light of the mitigating circumstances the aggravating circumstances justify death), because no two jurors agree on the identity of the "mitigating circumstances." Each juror must presumably decide in splendid isolation, on the basis of his uniquely determined mitigating circumstance, whether death should be imposed. What was supposed to be jury trial has degenerated into a poll. It seems to me inconceivable that such a system should be not just tolerated under the Constitution but constitutionally prescribed.[5] *471 In sum, the constitutional prohibition asserted by the petitioner was not decided in and is not supported by and Since nothing else is adduced to support it, there is no basis for believing that it exists. It is, moreover, contrary to the constitutional principles governing jury trial in other contexts, contrary to the principle of guided discretion that launched our modern incursion into the field of capital sentencing, and destructive of sound jury deliberation. When we abandon text and tradition, and in addition do not restrict prior cases to their holdings, knowing and observing the law of the land becomes impossible. State officials sworn to uphold the Constitution we expound rush to comply with one of our newly designed precepts, only to be told that by complying they have violated another one that points in the opposite direction. Compare Furman v. with U.S. 280 I dissent from today's decision, and from the unpredictable jurisprudence of capital sentencing that it represents. |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | We here consider whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution. We hold that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is "justified by an essential state interest" such as the interest in courtroom security specific to the defendant on trial. ; see also I In July 1996, petitioner Carman Deck robbed, shot, and killed an elderly couple. In 1998, the State of Missouri tried Deck for the murders and the robbery. At trial, state authorities required Deck to wear leg braces that apparently were not visible to the jury. App. 5; Tr. of Oral Arg. 21, 25, *625 29. Deck was convicted and sentenced to death. The State Supreme Court upheld Deck's conviction but set aside the sentence. The State then held a new sentencing proceeding. From the first day of the new proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain. App. 58. Before the jury voir dire began, Deck's counsel objected to the shackles. The objection was overruled. ; see also During the voir dire, Deck's counsel renewed the objection. The objection was again overruled, the court stating that Deck "has been convicted and will remain in legirons and a belly chain." After the voir dire, Deck's counsel once again objected, moving to strike the jury panel "because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is violent today." -59. The objection was again overruled, the court stating that his "being shackled takes any fear out of their minds." The penalty phase then proceeded with Deck in shackles. Deck was again sentenced to death. On appeal, Deck claimed that his shackling violated both Missouri law and the Federal Constitution. The Missouri Supreme Court rejected these claims, writing that there was "no record of the extent of the jury's awareness of the restraints"; there was no "claim that the restraints impeded" Deck "from participating in the proceedings"; and there was "evidence" of "a risk" that Deck "might flee in that he was a repeat offender" who may have "killed his two victims to avoid being returned to custody." Thus, there was "sufficient evidence in the record to support the trial court's exercise of its discretion" to require shackles, and in any event Deck "has not demonstrated that the outcome of his trial was prejudiced. Neither being viewed in shackles by the venire panel prior to trial, |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | viewed in shackles by the venire panel prior to trial, nor being viewed while restrained throughout the entire trial, alone, is proof of prejudice." *626 The court rejected Deck's other claims of error and affirmed the sentence. We granted certiorari to review Deck's claim that his shackling violated the Federal Constitution. II We first consider whether, as a general matter, the Constitution permits a State to use visible shackles routinely in the guilt phase of a criminal trial. The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need. This rule has deep roots in the common law. In the 18th century, Blackstone wrote that "it is laid down in our antient books, that, though under an indictment of the highest nature," a defendant "must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape." 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 ("If felons come in judgement to answer, they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will"). Blackstone and other English authorities recognized that the rule did not apply at "the time of arraignment," or like proceedings before the judge. Blackstone, ; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K. B. 1). It was meant to protect defendants appearing at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K. B. 1743) ("[B]eing put upon his trial, the Court immediately ordered [the defendant's] fetters to be knocked off"). American courts have traditionally followed Blackstone's "ancient" English rule, while making clear that "in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles *627 may be retained." 1 J. Bishop, New Criminal Procedure 955, p. 573 ; see also ; ; ; ; ; ; ; ; ; ; Rainey v. State, 20 Tex. App. 455, 472-473 (1886) (opinion of White, P. J.); ; ; ; ; see also F. Wharton, Criminal Pleading and Practice 540a, p. 369 (8th ed. 1880); 12 Cyclopedia of Law and Procedure 529 While these earlier courts disagreed about the degree of discretion |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | While these earlier courts disagreed about the degree of discretion to be afforded trial judges, see post, at 643-648 they settled virtually without exception on a basic rule embodying notions of fundamental fairness: Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so. More recently, this Court has suggested that a version of this rule forms part of the Fifth and Fourteenth Amendments' due process guarantee. Thirty-five years ago, when considering the trial of an unusually obstreperous criminal defendant, the Court held that the Constitution sometimes permitted special measures, including physical restraints. 397 U. S., at The Court wrote that "binding *628 and gagging might possibly be the fairest and most reasonable way to handle" such a defendant. But the Court immediately added that "even to contemplate such a technique arouses a feeling that no person should be tried while shackled and gagged except as a last resort." Sixteen years later, the Court considered a special courtroom security arrangement that involved having uniformed security personnel sit in the first row of the courtroom's spectator section. The Court held that the Constitution allowed the arrangement, stating that the deployment of security personnel during trial is not "the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial." 475 U. S., at See also Lower courts have treated these statements as setting forth a constitutional standard that embodies Blackstone's rule. Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum. See, e. g., ; ; ; ; ; ; -645, ; ; ; ; ; 1-1364 ; ; see also 21A Am. Jur. 2d, Criminal Law 1016, 1019 ; see generally Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U. L. J. 351 (1970-1971); ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-3.2, pp. 188-191 (3d ed. 1996). Lower courts have disagreed about the specific procedural steps a trial court must take prior to shackling, about the amount and type of evidence needed to justify restraints, and about what forms of prejudice might warrant a new trial, but they have not questioned the basic principle. They have emphasized the importance of |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | questioned the basic principle. They have emphasized the importance of preserving trial court discretion (reversing only in cases of clear abuse), but they have applied the limits on that discretion described in and the early English cases. In light of this precedent, and of a lower court consensus disapproving routine shackling dating back to the 19th century, it is clear that this Court's prior statements gave voice to a principle deeply embedded in the law. We now conclude that those statements identify a basic element of the "due process of law" protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial. *630 III We here consider shackling not during the guilt phase of an ordinary criminal trial, but during the punishment phase of a capital case. And we must decide whether that change of circumstance makes a constitutional difference. To do so, we examine the reasons that motivate the guilt-phase constitutional rule and determine whether they apply with similar force in this context. A Judicial hostility to shackling may once primarily have reflected concern for the suffering the "tortures" and "torments"that "very painful" chains could cause. ; see also (citing English cases curbing the use of restraints). More recently, this Court's opinions have not stressed the need to prevent physical suffering (for not all modern physical restraints are painful). Instead they have emphasized the importance of giving effect to three fundamental legal principles. First, the criminal process presumes that the defendant is innocent until proved guilty. 156 U.S. Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process. It suggests to the jury that the justice system itself sees a "need to separate a defendant from the community at large." ; cf. State v. Roberts, 86 N. J. Super., at ("[A] defendant `ought not be brought to the Bar in a contumelious Manner; as with his Hands tied together, or any other Mark of Ignominy and Reproach unless there be some Danger of a Rescous [rescue] or Escape'" (quoting 2 W. Hawkins, Pleas *631 of the Crown, ch. 28, 1, p. 308 (1716-1721) (section on arraignments))). Second, the Constitution, in order to help the accused secure a meaningful defense, provides |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | order to help the accused secure a meaningful defense, provides him with a right to counsel. See, e. g., Amdt. 6; The use of physical restraints diminishes that right. Shackles can interfere with the accused's "ability to communicate" with his lawyer. 397 U. S., Indeed, they can interfere with a defendant's ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf. Cranburne's Case, 13 How. St. Tr. 222 (K. B. 1696) ("Look you, keeper, you should take off the prisoners irons when they are at the bar, for they should stand at their ease when they are tried" (footnote omitted)); Third, judges must seek to maintain a judicial process that is a dignified process. The courtroom's formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual's liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system's power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has said, the use of shackles at trial "affront[s]" the "dignity and decorum of judicial proceedings that the judge is seeking to uphold." ; see also Trial of Christopher Layer, 16 How. St. Tr., at 99 (statement of Mr. Hungerford) ("[T]o have a man plead for his life" in shackles before *632 "a court of justice, the highest in the kingdom for criminal matters, where the king himself is supposed to be personally present," undermines the "dignity of the Court"). There will be cases, of course, where these perils of shackling are unavoidable. See We do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations. We are mindful of the tragedy that can result if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case. B The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant's conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury's effort to apply that presumption. Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the "`severity'" and "`finality'" of the sanction, is no less important than the decision about guilt. ). Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue. at *633 (plurality opinion)). The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. Brief for Respondent 25-27. It also almost inevitably affects adversely the jury's perception of the character of the defendant. See (character and propensities of the defendant are part of a "unique, individualized judgment regarding the punishment that a particular person deserves"). And it thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations considerations that are often unquantifiable and elusive when it determines whether a defendant deserves death. In these ways, the use of shackles can be a "thumb [on] death's side of the scale." ; see also (through control of a defendant's appearance, the State can exert a "powerful influence on the outcome of the trial"). Given the presence of similarly weighty considerations, we must conclude that courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial. *634 IV Missouri claims that the decision of its high court meets |
Justice Breyer | 2,005 | 2 | majority | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | Missouri claims that the decision of its high court meets the Constitution's requirements in this case. It argues that the Missouri Supreme Court properly found: (1) that the record lacks evidence that the jury saw the restraints; (2) that the trial court acted within its discretion; and, in any event, (3) that the defendant suffered no prejudice. We find these arguments unconvincing. The first argument is inconsistent with the record in this case, which makes clear that the jury was aware of the shackles. See App. 58-59 (Deck's attorney stated on the record that "Mr. Deck [was] shackled in front of the jury" ); The argument also overstates the Missouri Supreme Court's holding. The court said: "Trial counsel made no record of the extent of the jury's awareness of the restraints throughout the penalty phase, and Appellant does not claim that the restraints impeded him from participating in the proceedings." 136 S.W.3d, at This statement does not suggest that the jury was unaware of the restraints. Rather, it refers to the degree of the jury's awareness, and hence to the kinds of prejudice that might have occurred. The second argument that the trial court acted within its discretion founders on the record's failure to indicate that the trial judge saw the matter as one calling for discretion. The record contains no formal or informal findings. The judge did not refer to a risk of escape a risk the State has raised in this Court, see Tr. of Oral Arg. 36-37 or a threat to courtroom security. Rather, he gave as his reason for imposing the shackles the fact that Deck already "has been convicted." App. 58. While he also said that the shackles would "tak[e] any fear out of" the juror's "minds," he nowhere explained any special reason for fear. Nor did he explain why, if shackles were necessary, he chose * not to provide for shackles that the jury could not see apparently the arrangement used at trial. If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for shackling, it is not this one. The third argument fails to take account of this Court's statement in that shackling is "inherently prejudicial." That statement is rooted in our belief that the practice will often have negative effects, but like "the consequences of compelling a defendant to wear prison clothing" or of forcing him to stand trial while medicated those effects "cannot be shown from a trial transcript." Thus, where a court, without adequate justification, |
Justice White | 1,972 | 6 | majority | Lego v. Twomey | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | In 1964 this Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids. While our decision made plain that only voluntary confessions may be admitted at the trial of guilt or innocence, we did not then announce, or even suggest, that the factfinder at a coercion hearing need judge voluntariness with reference to an especially severe standard of proof. Nevertheless, *479 since Jackson, state and federal courts have addressed themselves to the issue with a considerable variety of opinions.[1] We granted certiorari in this case to resolve the question. *480 Petitioner Lego was convicted of armed robbery in 1961 after a jury trial in Superior Court, Cook County, Illinois. The court sentenced him to prison for 25 to 50 years. The evidence introduced against Lego at trial included a confession he had made to police after arrest and while in custody at the station house. Prior to trial Lego sought to have the confession suppressed. He did not deny making it but did challenge that he had done so voluntarily. The trial judge conducted a hearing, out of the presence of the jury, at which Lego testified that police had beaten him about the head and neck with a gun butt. His explanation of this treatment was that the local police chief, a neighbor and former classmate of the robbery victim, had sought revenge upon him. Lego introduced into evidence a photograph that had been taken of him at the county jail on the day after his arrest. The photograph showed that petitioner's face had been swollen and had traces of blood on it. Lego admitted that his face had been scratched in a scuffle with the robbery victim but maintained that the encounter did not explain the condition shown in the photograph. The police chief and four officers also testified. They denied either beating or threatening petitioner and disclaimed knowledge that any other officer had done so. The trial judge resolved this credibility problem in favor of the police and ruled the confession admissible.[2] At trial, Lego testified in his own behalf. Although he did not dispute the truth of the confession directly, he did tell his version of the events that had transpired at the *481 police station. The trial judge instructed the jury as to the prosecution's burden of proving guilt. He did not |
Justice White | 1,972 | 6 | majority | Lego v. Twomey | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | to the prosecution's burden of proving guilt. He did not instruct that the jury was required to find the confession voluntary before it could be used in judging guilt or innocence.[3] On direct appeal the Illinois Supreme Court affirmed the conviction. Four years later petitioner challenged his conviction by seeking a writ of habeas corpus in the United District Court for the Northern District of Illinois. He maintained that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence. Although the judge had made no mention of the standard he used, Illinois law provided that a confession challenged as involuntary could be admitted into evidence if, at a hearing outside the presence of the jury, the judge found it voluntary by a preponderance of the evidence.[4] In the alternative petitioner argued that the voluntariness question should also have been submitted to the jury for its separate consideration. *482 After first denying the writ for failure to exhaust state remedies, the District Court granted a rehearing motion, concluded that Lego had no state remedy then available to him and denied relief on the merits. United ex rel.[5] The Court of Appeals for the Seventh Circuit affirmed.[6] I Petitioner challenges the judgment of the Court of Appeals on three grounds. The first is that he was not proved guilty beyond a reasonable doubt as required by In re Winship, because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Implicit in the claim is an assumption that a voluntariness hearing is designed to enhance the reliability of jury verdicts. To judge whether that is so we must return to In New York prior to Jackson, juries most often determined the voluntariness of confessions and hence whether confessions could be used in deciding guilt or innocence. Trial judges were required to make an initial determination and could exclude a confession, but only if it could not under any circumstances be deemed voluntary.[7] When voluntariness was fairly debatable, either because a dispute of fact existed or because reasonable men could have drawn differing inferences from undisputed facts, the question whether the confession violated due process was for the jury. This meant the confession *483 was introduced at the trial itself. If evidence challenging its voluntariness were adduced, the jury was instructed first to pass upon voluntariness and, if it found the confession involuntary, ignore it in determining guilt. If, on the other hand, the confession were found to be voluntary, the jury was then free to |
Justice White | 1,972 | 6 | majority | Lego v. Twomey | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | found to be voluntary, the jury was then free to consider its truth or falsity and give the confession an appropriate weight in judging guilt or innocence. We concluded that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recognized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that in judging voluntariness itself the jury would be influenced by the reliability of a confession it considered an accurate account of the facts. "It is now axiomatic," we said, "that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction. ; ; Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession *484 and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. "[8] We did not think it necessary, or even appropriate, in Jackson to announce that prosecutors would be required to meet a particular burden of proof in a Jackson hearing held before the trial judge.[9] Indeed, the then-established duty to determine voluntariness had not been framed in terms of a burden of proof,[10] nor has it been since Jackson was decided.[11] We could fairly assume then, as we can now, that a judge would admit into evidence only those confessions that he reliably found, at least by a preponderance of the evidence, had been made voluntarily. We noted in Jackson that there may be a relationship between the involuntariness of a confession and its unreliability.[12] But our decision was not based in the *485 slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the |
Justice White | 1,972 | 6 | majority | Lego v. Twomey | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | or innocence. That case was not aimed at reducing the possibility of convicting innocent men. Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermissibly influence a jury's judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles.[13] The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has *486 been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness.[14] In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief. Since the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts, we cannot accept the charge that judging the admissibility of a confession by a preponderance of the evidence undermines the mandate of In re Winship, Our decision in Winship was not concerned with standards for determining the admissibility of evidence or with the prosecution's burden of proof at a suppression hearing when evidence is challenged on constitutional grounds. Winship went no further than to confirm the fundamental right that protects "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." A high standard of proof is *487 necessary, we said, to ensure against unjust convictions by giving substance to the presumption of innocence. A guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard. Petitioner does not maintain that either his confession or its voluntariness is an element of the crime with which he was charged. He does not challenge the constitutionality of the standard by which the jury was instructed to decide his guilt or innocence; nor does he question the sufficiency of the evidence that reached the jury to satisfy the proper standard of proof. Petitioner's rights under Winship have not been violated.[15] II Even conceding that Winship is |
Justice White | 1,972 | 6 | majority | Lego v. Twomey | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | have not been violated.[15] II Even conceding that Winship is inapplicable because the purpose of a voluntariness hearing is not to implement the presumption of innocence, petitioner presses for reversal on the alternative ground that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values that exclusionary rules are designed to serve. an offspring of requires judicial rulings on voluntariness prior to admitting confessions. excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. and make impermissible the introduction of evidence obtained in violation of a defendant's Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility. The argument is straightforward and has appeal. But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt.[16] Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. The same is true of coerced confessions offered in either federal or state trials. Bram v. United ; But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence *489 before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence. To reiterate what we said in Jackson: when a confession challenged as involuntary is sought |
Justice White | 1,972 | 6 | majority | Lego v. Twomey | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.[17] III We also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge's determination was insufficiently reliable, it is no more persuasive than petitioner's other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it questions the basic assumptions of ; it also ignores *490 that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, which made the Sixth Amendment right to trial by jury applicable to the did not purport to change the normal rule that the admissibility of evidence is a question for the court rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second forum for litigating his claim. The decision of the Court of Appeals is Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United Constitution, Art. I, 6, cl. 1, as well as the reach of official immunity in the legislative context. See ; By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of the organization, *308 management, operation, and administration" of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to "report to the House as soon as practicable the results of its investigation and study together with such recommendations as it deems advisable." On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H. R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S. C. 501 and 701. The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.[1] The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative *309 efforts to rectify the multitudinous problems there," to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.[2] On January 8, 1971, petitioners, under pseudonyms, brought an action in the United District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United of America. Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that "unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students." The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing *310 the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.[3] The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.[4] A divided panel of the United Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in barred any liability on the part of the District of Columbia officials as well as the legislative employees.[5] We granted certiorari, *311 I To "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Art. I, 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process."[6] The Speech |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | directly impinge upon or threaten the legislative process."[6] The Speech or Debate Clause has been read "broadly to effectuate its purposes," United ; and includes within its protections anything "generally done in a session of the House by one of its members in relation to the business before it." ; United ; ; ; United v. Thus "voting by Members and committee reports are protected" and "a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, *312 may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the `sphere of legitimate legislative activity.' " Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were "legislative acts," and, as such, were immune from suit.[7] Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the "legislative sphere," -625, even though their conduct, if performed in other than *313 legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all "integral part[s] of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." As such, the acts were protected by the Speech or Debate Clause. Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. "[T]he Clause has not been extended beyond the legislative sphere," and "[l]egislative acts are not all-encompassing." -625. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct "though generally done, is not protected legislative activity." ; United Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee hearing, although the *314 hearing was unquestionably part of the legislative process. The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect "publications to the public through the facilities of Congress." Public dissemination, it is argued, will serve "the important legislative function of informing the public concerning matters pending before Congress" Brief for Legislative Respondents 27. We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings" with respect to legislative or other matters before the House. A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report.[8] The reason is that republishing a libel under such circumstances *315 is not an essential part of the legislative process and is not part of that deliberative process |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | legislative process and is not part of that deliberative process "by which Members participate in committee and House proceedings." By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity. Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in when, at the direction of the House, he made an arrest that the courts subsequently found to be "without authority."[9] See also ; cf. The Clause does not protect "criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction." Neither, we think, does it immunize those who publish and distribute otherwise actionable materials *316 beyond the reasonable requirements of the legislative function.[10] Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause"to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," at ; at ; United will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws.[11] To hold otherwise *317 would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law. Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | under local law is not protected by the Speech or Debate Clause, will seriously undermine the "informing function" of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is "public" in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the "due functioning of the [legislative] process." United v. That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report "to be distributed to the public," that "distribution of the report continues to the present," and that, "unless restrained, defendants will continue to distribute and publish" damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did *318 anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination. In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the Constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn.[12] II The official immunity doctrine, which "has in large part been of judicial making," 360 U. S., *319 confers |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | part been of judicial making," 360 U. S., *319 confers immunity on Government officials of suitable rank for the reason that "officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those dutiessuits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government."[13] The official-immunity doctrine seeks to reconcile two important considerations "[O]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities." In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. ; see also ; Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. ; But policemen and like officials apparently enjoy a more limited privilege. Also, the Court determined in Barr that the scope of immunity from *320 defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. -574; see also the companion case, The scope of immunity has always been tied to the "scope of authority." In the legislative context, for instance, "[t]his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role." Thus, we have recognized "the immunity of legislators for acts within the legislative role," but have carefully confined that immunity to protect only acts within "the sphere of legitimate legislative activity." ; cf. Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no readymade answer as to whether the remaining federal respondents the Public Printer and the Superintendent of Documentsshould be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech |
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