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Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | in this Court had held that a tribe no longer possessed inherent or sovereign authority to prosecute a "nonmember Indian." But it pointed out that, soon after this Court decided Congress enacted new legislation specifically *198 authorizing a tribe to prosecute Indian members of a different tribe. See Act of Nov. 5, 1990, 8077(b)-(d), -1893 (temporary legislation until September 30, 1991); Act of Oct. 28, 1991, That new statute, in permitting a tribe to bring certain tribal prosecutions against nonmember Indians, does not purport to delegate the Federal Government's own federal power. Rather, it enlarges the tribes' own "`powers of self-government'" to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians," including nonmembers. 25 U.S. C. 1301(2) In the Government's view, given this statute, the Tribe, in prosecuting Lara, had exercised its own inherent tribal authority, not delegated federal authority; hence the "dual sovereignty" doctrine applies, at ; and since the two prosecutions were brought by two different sovereigns, the second, federal, prosecution does not violate the Double Jeopardy Clause. The Federal Magistrate Judge accepted the Government's and rejected Lara's double jeopardy 324 F.3d, at -637. An Eighth Circuit panel agreed with the Magistrate Judge. But the en banc Court of Appeals, by a vote of 7 to 4, reached a different conclusion. It held the Tribal Court, in prosecuting Lara, was exercising a federal prosecutorial power; hence the "dual sovereignty" doctrine does not apply; and the Double Jeopardy Clause bars the second prosecution. The four dissenting judges, agreeing with the Federal Government, concluded that the Tribal Court had exercised inherent tribal power in prosecuting Lara; hence the "dual sovereignty" doctrine applies and allows the second, federal, prosecution. Because the Eighth Circuit and Ninth Circuit have reached different conclusions about the new statute, we *199 granted certiorari. Cf. United cert. denied, We now reverse the Eighth Circuit. We assume, as do the parties, that Lara's double jeopardy claim turns on the answer to the "dual sovereignty" question. What is "the source of [the] power to punish" nonmember Indian offenders, "inherent tribal sovereignty" or delegated federal authority? We also believe that Congress intended the former answer. The statute says that it "recognize[s] and affirm[s]" in each tribe the "inherent" tribal power (not delegated federal power) to prosecute nonmember Indians for misdemeanors. See ; Appendix, infra And the statute's legislative history confirms that such was Congress' intent. See, e. g., H. R. Conf. Rep. No. 102-261, pp. 3-4 (1991) ("The Committee of the Conference notes that this legislation is not a delegation of |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | Conference notes that this legislation is not a delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations"); accord, H. R. Rep. No. 102-61, p. 7 (1991); see also S. Rep. No. 102-168, p. 4 (1991) ("recogniz[ing] and reaffirm[ing] the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians"); 137 Cong. Rec. 9446 (1991) (remarks of Sen. Inouye) (the "premise [of the legislation] is that the Congress affirms the inherent jurisdiction of tribal governments over nonmember Indians" ); (the statute "is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away" and the bill "recognizes an inherent tribal right which always existed"); (the legislation "reaffirms" tribes' power). *200 Thus the statute seeks to adjust the tribes' status. It relaxes the restrictions, recognized in that the political branches had imposed on the tribes' exercise of inherent prosecutorial power. The question before us is whether the Constitution authorizes Congress to do so. Several considerations lead us to the conclusion that Congress does possess the constitutional power to lift the restrictions on the tribes' criminal jurisdiction over nonmember Indians as the statute seeks to do. First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as "plenary and exclusive." E. g., ; ; see ; see also W. Canby, American Indian Law 2 (3d ed. 1998) (hereinafter Canby) ("[T]he independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes"). This Court has traditionally identified the Indian Commerce Clause, U. S. Const., Art. I, 8, cl. 3, and the Treaty Clause, Art. 2, cl. 2, as sources of that power. E. g., ; ; see also Canby 11-12; F. Cohen, Handbook of Federal Indian Law (1982 ed.) (hereinafter Cohen) (also mentioning, inter alia, the Property Clause). The "central function of the Indian Commerce Clause," we have said, "is to provide Congress with plenary power to legislate in the field of Indian affairs." Cotton Petroleum ; see also, e. g., Ramah Navajo School Bd., ; White Mountain Apache (same, and citing -323). *201 The treaty power does not literally authorize Congress to act legislatively, for it is an Article power authorizing the President, not Congress, "to make Treaties." U. S. Const., Art. 2, cl. 2. But, as Justice Holmes pointed out, treaties made pursuant to that power can authorize Congress to deal with "matters" with which otherwise "Congress could not deal." (0); see also L. Foreign Affairs |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | "Congress could not deal." (0); see also L. Foreign Affairs and the U. S. Constitution 72 (2d ed. 1996). And for much of the Nation's history, treaties, and legislation made pursuant to those treaties, governed relations between the Federal Government and the Indian tribes. See, e.g., Cohen 109-111; F. Prucha, American Indian Policy in the Formative Years 44-49 (1962). We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes. 25 U.S. C. 71 (stating that tribes are not entities "with whom the United States may contract by treaty"). But the statute saved existing treaties from being "invalidated or impaired," ib and this Court has explicitly stated that the statute "in no way affected Congress' plenary powers to legislate on problems of Indians," Moreover, "at least during the first century of America's national existence Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law." Cohen 208 (footnotes omitted). Insofar as that is so, Congress' legislative authority would rest in part, not upon "affirmative grants of the Constitution," but upon the Constitution's adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as "necessary concomitants of nationality." United ; ; cf. 2 J. Continental Cong. 4-5 (75) (W. Ford ed. 1905) (creating departments of Indian affairs, appointing Indian commissioners, and noting the great importance of "securing *202 and preserving the friendship of the Indian Nations"); Second, Congress, with this Court's approval, has interpreted the Constitution's "plenary" grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nation's beginning Congress' need for such legislative power would have seemed obvious. After all, the Government's Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. See, e.g., Cohen 48. And Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored "Indian removal," then "assimilation" and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and "termination" of recognized tribes); and it now seeks greater tribal autonomy within the framework of a "government-to-government relationship" with federal agencies. (1994); see also 19 Weekly Comp. of Pres. Doc. 98 (1983) (President Reagan reaffirming the rejection of termination as a |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | (1983) (President Reagan reaffirming the rejection of termination as a policy and announcing the goal of decreasing tribal dependence on the Federal Government); see 25 U.S. C. 450a(b) (congressional commitment to "the development of strong and stable tribal governments"). See generally Cohen 78-202 (describing this history); Canby 13-32 (same). Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a "powe[r] capable of making treaties" to a * "power with whom the United States may [not] contract by treaty." Compare Worcester, with 25 U.S. C. 71. One can readily find examples in congressional decisions to recognize, or to terminate, the existence of individual tribes. See United ; Menominee Indeed, Congress has restored previously extinguished tribal statusby re-recognizing a Tribe whose tribal existence it previously had terminated. 25 U.S. C. 903-903f (restoring the Menominee Tribe); cf. United (CA7) (upholding against double jeopardy challenge successive prosecutions by the restored Menominee Tribe and the Federal Government), cert. denied, Congress has advanced policies of integration by conferring United States citizenship upon all Indians. 8 U.S. C. 1401(b). Congress has also granted tribes greater autonomy in their inherent law enforcement authority (in respect to tribal members) by increasing the maximum criminal penalties tribal courts may impose. 42, -146, codified at 25 U.S. C. 1302(7) (raising the maximum from "a term of six months and a fine of $500" to "a term of one year and a fine of $5,000"). Third, Congress' statutory goalto modify the degree of autonomy enjoyed by a dependent sovereign that is not a Stateis not an unusual legislative objective. The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous status of other such dependent entitiessometimes making far more radical adjustments than those at issue here. See, e.g., Hawaii ; Northern Mariana Islandsnote following 48 U.S. C. 1801 ("in accordance with the [United Nations] trusteeship agreement [establishing] a self-governing commonwealth in political union with and under the sovereignty of the United States"); the Philippines22 U. S. C. 1394 ; Presidential Proclamation No. 2, ; Puerto RicoAct of July 3, 1950, ; P. R. Const., Art. I, 1 ("Estado Libre Asociado de Puerto Rico"); see also Cordova & Simonpietri Ins. Agency Fourth, Lara points to no explicit language in the Constitution suggesting a limitation on Congress' institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches. But cf. Part I, infra. Fifth, the change at issue here is a limited one. It concerns a power similar |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | here is a limited one. It concerns a power similar in some respects to the power to prosecute a tribe's own membersa power that this Court has called "inherent." 435 U. S., -323. In large part it concerns a tribe's authority to control events that occur upon the tribe's own land. See United U.S. 544, ("Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory" ); see also, e.g., S. Rep. No. 102-168, at 21 (remarks of P. Hugen). And the tribes' possession of this additional criminal jurisdiction is consistent with our traditional understanding of the tribes' status as "domestic dependent nations." Cherokee *205 ; see also Consequently, we are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status. In particular, this case involves no interference with the power or authority of any State. Nor do we now consider the question whether the Constitution's Due Process or Equal Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States. See Part I, infra. Sixth, our conclusion that Congress has the power to relax the restrictions imposed by the political branches on the tribes' inherent prosecutorial authority is consistent with our earlier cases. True, the Court held in those cases that the power to prosecute nonmembers was an aspect of the tribes' external relations and hence part of the tribal sovereignty that was divested by treaties and by Congress. ; ; But these holdings reflect the Court's view of the tribes' retained sovereign status as of the time the Court made them. They did not set forth constitutional limits that prohibit Congress from changing the relevant legal circumstances, i. e., from taking actions that modify or adjust the tribes' status. To the contrary, Oliphant and make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches' own determinations. In Oliphant, the Court rested its conclusion about inherent tribal authority to prosecute tribe members in large part upon "the commonly shared presumption of Congress, the Executive Branch, and lower federal courts," a presumption which, "[w]hile not conclusive[,] carries considerable weight." The Court pointed out that *206 "`Indian law' draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress." It added that those "instruments form the backdrop for the intricate web of judicially made Indian law." Similarly, in the Court drew upon a host of different sources in |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | the Court drew upon a host of different sources in order to reach its conclusion that a tribe does not possess the inherent power to prosecute a nonmember. The Court referred to historic practices, the views of experts, the experience of forerunners of modern tribal courts, and the published opinions of the Solicitor of the Department of the Interior. -692. See also, e.g., ; South ("Having concluded that Congress clearly abrogated the Tribe's pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribes to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty" ); National Farmers Union Ins. ; United (16) (characterizing Ex parte Crow Dog, (13), as resting on extant treaties and statutes and recognizing congressional overruling of Crow Dog). Thus, the Court in these cases based its descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions. Congressional legislation constituted one such important source. And that source was subject to change. Indeed itself anticipated *207 change by inviting interested parties to "address the problem [to] Congress." We concede that like several other cases, referred only to the need to obtain a congressional statute that "delegated" power to the tribes. See ; at n. 15; ; U. S., at 556-. But in so stating, (like the other cases) simply did not consider whether a statute, like the present one, could constitutionally achieve the same end by removing restrictions on the tribes' inherent authority. Consequently we do not read any of these cases as holding that the Constitution forbids Congress to change "judicially made" federal Indian law through this kind of legislation. Oliphant, ; cf. County of )); )). Oliphant, and then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes. And that fact makes all the difference. I Lara makes several additional s. First, he points out that the Indian Civil Rights Act of 1968, lacks certain constitutional protections for criminal defendants, in particular the right of an indigent defendant to counsel. See 25 U.S. C. 1302. And he argues that the Due Process Clause forbids Congress to permit a tribe to prosecute a nonmember Indian citizen of the United States *208 in a forum that lacks this protection. See Lara's due process however, suffers from a critical structural defect. To explain the defect, we contrast this with Lara's "lack of constitutional power" discussed in Part Insofar as |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | Lara's "lack of constitutional power" discussed in Part Insofar as that "constitutional power" might help Lara win his double jeopardy claim, it must proceed in four steps: Step One: Congress does not possess the constitutional power to enact a statute that modifies tribal power by "recogniz[ing] and affirm[ing]" the tribes' "inherent" authority to prosecute nonmember Indians. 25 U.S. C. 1301(2). Step Two: Consequently, the word "inherent" in the statute's phrase "inherent power" is void. Step Three: The word "inherent" is severable from the rest of the statute (as are related words). The remainder of the statute is valid without those words, but it then delegates federal power to the tribe to conduct the prosecution. Step Four: Consequently, the Tribe's prosecution of Lara was federal. The current, second, prosecution is also federal. Hence Lara wins his Double Jeopardy Clause claim, the subject of the present proceeding. Although the Eighth Circuit accepted this 324 F.3d, we reject Step One of the Part That rejection, without more, invalidates the Lara's due process however, is significantly different. That (if valid) would show that any prosecution of a nonmember Indian under the statute is invalid; so Lara's tribal prosecution would be invalid, too. Showing Lara's tribal prosecution was invalid, however, does not show that the source of that tribal prosecution was federal power (showing that a state prosecution violated the Due Process Clause does not make that prosecution federal). *209 But without that "federal power" showing, Lara cannot win his double jeopardy claim here. Hence, we need not, and we shall not, consider the merits of Lara's due process Other defendants in tribal proceedings remain free to raise that claim should they wish to do so. See 25 U.S. C. 1303 (vesting district courts with jurisdiction over habeas writs from tribal courts). Second, Lara argues that Congress' use of the words "all Indians," in the statutory phrase "inherent power to exercise criminal jurisdiction over all Indians," violates the Equal Protection Clause. He says that insofar as the words include nonmember Indians within the statute's scope (while excluding all non-Indians) the statute is race-based and without justification. Like the due process however, this equal protection is simply beside the point, therefore we do not address it. At best for Lara, the (if valid) would show, not that Lara's first conviction was federal, but that it was constitutionally defective. And that showing cannot help Lara win his double jeopardy Third, Lara points out that the Court found the absence of certain constitutional safeguards, for example, the guarantee of an indigent's right to counsel, as an important reason |
Justice Breyer | 2,004 | 2 | majority | United States v. Lara | https://www.courtlistener.com/opinion/134732/united-states-v-lara/ | of an indigent's right to counsel, as an important reason for concluding that tribes lacked the "inherent power" to try a "group of citizens" (namely, nonmember Indians) who were not "include[d]" in those "political bodies." -694. In fact, says the following: "We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them." But this simply repeats the due process and equal protection s rejected above in a somewhat different form. Since precisely the same problem would exist were we to treat the congressional statute as delegating federal power, this helps Lara no more than the others. *210 IV For these reasons, we hold, with the reservations set forth in Part I, that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians. We hold that Congress exercised that authority in writing this statute. That being so, the Spirit Lake Tribe's prosecution of Lara did not amount to an exercise of federal power, and the Tribe acted in its capacity of a separate sovereign. Consequently, the Double Jeopardy Clause does not prohibit the Federal Government from proceeding with the present prosecution for a discrete federal offense. 474 U. S., at The contrary judgment of the Eighth Circuit is Reversed. APPENDIX TO OPINION OF THE COURT Title 25 U.S. C. 1301(2), as amended by Act of Oct. 28, 1991, provides: "`[P]owers of self-government' means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." |
Justice Stewart | 1,974 | 18 | majority | Cantrell v. Forest City Publishing Co. | https://www.courtlistener.com/opinion/109120/cantrell-v-forest-city-publishing-co/ | Margaret Cantrell and four of her minor children brought this diversity action in a Federal District Court for invasion of privacy against the Forest City Publishing Co., publisher of a Cleveland newspaper, the Plain Dealer, and against Joseph Eszterhas, a reporter formerly employed by the Plain Dealer, and Richard Conway, a Plain Dealer photographer. The Cantrells alleged that an article published in the Plain Dealer Sunday Magazine unreasonably placed their family in a false light before the public through its many inaccuracies and untruths. The District Judge struck the claims relating to punitive damages as to all the plaintiffs and dismissed the actions of three of the Cantrell children in their entirety, but allowed the case to go to the jury *247 as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs. The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents' motion for a directed verdict as to all the Cantrells' We granted certiorari, I In December 1967, Margaret Cantrell's husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W. Va., collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a "news feature" story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family. Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence. Eszterhas' story appeared as the lead feature in the August 4, 1968, edition of the Plain Dealer Sunday Magazine. The article stressed the family's abject poverty; the children's old, ill-fitting clothes and the deteriorating condition of their home were detailed in both the text and accompanying photographs. As he had done in his original, prize-winning article on the Silver Bridge disaster, Eszterhas used the Cantrell family to *248 illustrate the impact of the bridge collapse on the lives of the people in the Point Pleasant area. It is conceded that the story contained a number of inaccuracies and |
Justice Stewart | 1,974 | 18 | majority | Cantrell v. Forest City Publishing Co. | https://www.courtlistener.com/opinion/109120/cantrell-v-forest-city-publishing-co/ | conceded that the story contained a number of inaccuracies and false statements. Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote, "Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it."[1] Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home. The case went to the jury on a so-called "false light" theory of invasion of privacy. In essence, the theory of the case was that by publishing the false feature story about the Cantrells and thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William by causing them to suffer outrage, mental distress, shame, and humiliation.[2] *249 II In Time, the Court considered a similar false-light, invasion-of-privacy action. The New York Court of Appeals had interpreted New York Civil Rights Law 50-51 to give a "newsworthy person" a right of action when his or her name, picture or portrait was the subject of a "fictitious" report or article. Material and substantial falsification was the test for -386. Under this doctrine the New York courts awarded the plaintiff James compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the family's experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times which recognized constitutional limits on a State's power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." Although the jury could have reasonably concluded from the evidence in the case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that "the story re-enacted" the family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. The |
Justice Stewart | 1,974 | 18 | majority | Cantrell v. Forest City Publishing Co. | https://www.courtlistener.com/opinion/109120/cantrell-v-forest-city-publishing-co/ | a predicate for liability as required by the Constitution. The District Judge in the case before us, in contrast to the trial judge in Time, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature *250 article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth.[3] No objection was made by any of the parties to this knowing-or-reckless-falsehood instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard *251 announced in Time, applies to all false-light cases. Cf. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict. III At the close of the petitioners' case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy "was done maliciously within the legal definition of that term." The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells' The Court of Appeals appears to have assumed that the District Judge's finding of no malice "within the legal definition of that term" was a finding based on the definition of "actual malice" established by this Court in New York Times : "with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not." As so defined, of course, "actual malice" is a term of art, created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers.[4] As *252 such, it is quite different from the common-law standard of "malice" generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malicefrequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rightswould focus on the defendant's attitude |
Justice Stewart | 1,974 | 18 | majority | Cantrell v. Forest City Publishing Co. | https://www.courtlistener.com/opinion/109120/cantrell-v-forest-city-publishing-co/ | disregard of the plaintiff's rightswould focus on the defendant's attitude toward the plaintiff's privacy, not toward the truth or falsity of the material published. See Time, n. 12. See generally W. Prosser, Law of Torts 9-10 (4th ed.). Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common-law standard of malice rather than to the New York Times "actual malice" standard when he dismissed the punitive damages For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents' motion for directed verdicts as to Mrs. Cantrell's and William's claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, meaning of the New York Times "actual malice" standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that in dismissing the punitive damages claims he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge's subsequent denial of the respondents' motion for judgment n. o. v. and alternative motion for a new trial. Moreover, the District Judge was clearly correct in believing that the evidence introduced at trial was sufficient *253 to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells.[5] There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her "wear[ing] the same mask of nonexpression she wore [at her husband's] funeral." These were "calculated falsehoods," and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth. The Court of Appeals concluded that there was no evidence that Forest City Publishing Co. had knowledge of any of the inaccuracies contained in Eszterhas' article. However, there was sufficient evidence for the jury to find that Eszterhas' writing of the feature was within the scope of his employment at the Plain Dealer and that Forest City Publishing |
Justice Stewart | 1,974 | 18 | majority | Cantrell v. Forest City Publishing Co. | https://www.courtlistener.com/opinion/109120/cantrell-v-forest-city-publishing-co/ | employment at the Plain Dealer and that Forest City Publishing Co. was therefore liable under traditional doctrines of respondeat superior.[6] Although Eszterhas was not regularly *254 assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that as a staff writer for the Plain Dealer Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas' story. For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas. It is so ordered. MR. |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | This case presents the question whether a federal dis trict court may entertain a complaint of allegedly dis criminatory state taxation, framed as a request to increase a commercial competitor’s tax burden. Relevant to our inquiry is the Tax Injunction Act (TIA or Act), 28 U.S. C. which prohibits lower federal courts from restrain ing “the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” More embracive than the TIA, the comity doctrine applicable in state taxation cases restrains federal courts from entertaining claims for relief that risk disrupting state tax administration. See Fair in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 (1981). The comity doctrine, we hold, requires that a claim of the kind here presented proceed originally in state court. In so ruling, we distinguish in which the Court held that neither the TIA nor the comity doctrine barred a federal district court from adjudicating an Establishment Clause chal lenge to a state tax credit that allegedly funneled public 2 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court funds to parochial I A Historically, all natural gas consumers in Ohio pur chased gas from the public utility, known as a local distri bution company (LDC), serving their geographic area. In addition to selling gas as a commodity, LDCs own and operate networks of distribution pipelines to transport and deliver gas to consumers. LDCs offer customers a single, bundled product comprising both gas and delivery. Today, consumers in Ohio’s major metropolitan areas can alternatively contract with an independent marketer (IM) that competes with LDCs for retail sales of natural gas. IMs do not own or operate distribution pipelines; they use LDCs’ pipelines. When a customer goes with an IM, therefore, she purchases two “unbundled” products: gas (from the IM) and delivery (from the LDC). Ohio treats LDCs and IMs differently for tax purposes. Relevant here, Ohio affords LDCs three tax exemptions that IMs do not receive. First, LDCs’ natural gas sales are exempt from sales and use taxes. Ohio Rev. Code Ann. (Lexis Supp. 2010);023(G),026(F) ;021(A),022(A),023(A) LDCs owe instead a gross receipts excise tax, which is lower than the sales and use taxes IMs must collect. Second, LDCs are not subject to the commercial activities tax imposed on IMs’ taxable gross receipts.02 (Lexis Supp. 2010). Finally, Ohio law excludes inter-LDC natural gas sales from the gross receipts tax, which IMs must pay when they purchase gas from LDCs. B Plaintiffs-respondents Commerce Energy, Inc., a Cali Cite as: 560 U. |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | Plaintiffs-respondents Commerce Energy, Inc., a Cali Cite as: 560 U. S. (2010) 3 Opinion of the Court fornia corporation, and Interstate Gas Supply, Inc., an Ohio company, are IMs that market and sell natural gas to Ohio consumers. Plaintiff-respondent Gregory Slone is an Ohio citizen who has purchased natural gas from In terstate Gas Supply since 1999. Alleging discriminatory taxation of IMs and their patrons in violation of the Com merce and Equal Protection Clauses, Complaint ¶¶35–39, App. 11–13, respondents sued Richard A. Levin, Tax Commissioner of Ohio (Commissioner), in the U. S. Dis trict Court for the Southern District of Ohio. Invoking that court’s federal-question jurisdiction under 28 U.S. C. Complaint ¶6, App. 3, respondents sought declara tory and injunctive relief invalidating the three tax ex emptions LDCs enjoy and ordering the Commissioner to stop “recognizing and/or enforcing” the exemptions. at 20–21. Respondents named the Commissioner as sole defendant; they did not extend the litigation to include the LDCs whose tax burden their suit aimed to increase.1 The District Court granted the Commissioner’s motion to dismiss the complaint. The TIA did not block the suit, the District Court initially held, because respondents, like the plaintiffs in were “third-parties challenging the constitutionality of [another’s] tax benefit,” and their requested relief “would not disrupt the flow of tax reve nue” to the State. App. to Pet. for Cert. 24a. Nevertheless, the District Court “decline[d] to exercise jurisdiction” as a matter of comity. at 32a. Ohio’s Legislature, the District Court observed, chose to provide the challenged tax exemptions to LDCs. Respondents requested relief that would “requir[e] Ohio to collect taxes which its legislature has not seen fit to impose.” —————— 1 In moving to dismiss the complaint, the Commissioner urged, inter alia, that the LDCs were parties necessary to a just adjudication. See Fed. Rule Civ. Proc. 19. Ruling for the Commissioner on comity grounds, the District Court did not reach the question whether the LDCs were indispensable parties. App. to Pet. for Cert. 21a, 32a–33a. 4 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court Such relief, the court said, would draw federal judges into “a particularly inap propriate involvement in a state’s management of its fiscal operations.” A state court, the District Court recognized, could extend the exemptions to IMs, but the TIA proscribed this revenue reducing relief in federal court. “Where there would be two possible remedies,” the Court concluded, a federal court should not “impose its own judgment on the state legislature mandating which remedy is appropriate.” The U. S. Court of Appeals for the Sixth Circuit re |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | U. S. Court of Appeals for the Sixth Circuit re versed. While agreeing that the TIA did not bar respondents’ suit, the Sixth Circuit re jected the District Court’s comity ruling. A footnote in the Court of Appeals believed, foreclosed the Dis trict Court’s “expansive reading” of this Court’s comity The footnote stated that the Court “has relied upon ‘principles of comity’ to pre clude original federal-court jurisdiction only when plain tiffs have sought district-court aid in order to arrest or countermand state tax collection.” 542 U.S., at 107, n. 9 A broad view of the comity cases, the Sixth Circuit feared, would render the TIA “effectively superfluous,” and would “sub silentio overrule a series of important cases” presenting challenges to state tax 1102 ; Mueller v. Allen, 463 U.S. 3 ); –1100. In so ruling, the Sixth Circuit agreed with the Seventh and Ninth Circuits, which had similarly read to rein in the comity doctrine, see (CA7 2007); and it disagreed with the Fourth Circuit, which had con cluded that left comity doctrine untouched, see DIRECTV, Noting that respondents “challenge[d] only a few limited exemp Cite as: 560 U. S. (2010) 5 Opinion of the Court tions,” and satisfied, therefore, that “[respondents’] suc cess would not significantly intrude upon traditional matters of state taxation,” the Sixth Circuit remanded the case for adjudication of the After unsuccessfully moving for rehearing en banc, App. to Pet. for Cert. 1a–2a, the Commissioner petitioned for certiorari. By then, the First Circuit had joined the Sixth, Seventh, and Ninth Circuits in holding that sharply limited the scope of the comity bar. Coors Brewing Co. v. Méndez-Torres, We granted the Com missioner’s petition, 558 U. S. to resolve the disagreement among the Circuits. II A Comity considerations, the Commissioner dominantly urges, preclude the exercise of lower federal-court adjudi catory authority over this controversy, given that an ade quate state-court forum is available to hear and decide respondents’ constitutional claims. We agree. The comity doctrine counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction. The doctrine reflects “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to per form their separate functions in separate ways.” Fair ). Comity’s constraint has particular force when lower fed eral courts are asked to pass on the constitutionality of state taxation of commercial activity. For “[i]t is |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | constitutionality of state taxation of commercial activity. For “[i]t is upon taxation that the several States chiefly rely to obtain the 6 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible.” 110 (1871). “An examination of [our] decisions,” this Court wrote more than a century ago, “shows that a proper reluctance to interfere by prevention with the fiscal operations of the state governments has caused [us] to refrain from so doing in all cases where the Federal rights of the persons could otherwise be preserved unimpaired.” Boise Artesian Hot & Cold Water Accord 525–526 (1932) (So long as the state remedy was “plain, adequate, and complete,” the “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.”).2 —————— 2 Justice Brennan cogently explained, in practical terms, “the special reasons justifying the policy of federal noninterference with state tax collection”: “The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assess ments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.” Perez v. Cite as: 560 U. S. (2010) 7 Opinion of the Court Statutes conferring federal jurisdiction, we have repeat edly cautioned, should be read with sensitivity to “federal state relations” and “wise judicial administration.” But by 1937, in state tax cases, the federal courts had moved in a different direction: they “had become free and easy with injunc tions.” Fair (Brennan, J., concurring in judgment) (internal quotation marks |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | tions.” Fair (Brennan, J., concurring in judgment) (internal quotation marks omit ted).3 Congress passed the TIA to reverse this trend. at 109–110 (opinion of the Court). Our post-Act decisions, however, confirm the continuing sway of comity considerations, independent of the Act. Plaintiffs in Great Dredge & Dock for example, sought a federal judg ment declaring Louisiana’s unemployment compensation tax unconstitutional. Writing six years after the TIA’s passage, we emphasized the Act’s animating concerns: A “federal court of equity,” we reminded, “may in an appro priate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be preju dicial to the public interest, [and] should stay its hand in the public interest when it reasonably appears that pri vate interests will not suffer.” at (citations omitted). In enacting the TIA, we noted, “Congress recog —————— Ledesma, (opinion concurring in part and dissenting in part). 3 Two features of federal equity practice accounted for the courts’ willingness to grant injunctive relief. First, the Court had held that, although “equity jurisdiction does not lie where there exists an ade quate legal remedy[,] the ‘adequate legal remedy’ must be one cognizable in federal court.” Fair n. 15 (Brennan, J., concurring in judgment) (emphasis in original). Second, federal courts, “construing strictly the requirement that the remedy available at law be ‘plain, adequate and complete,’ had frequently concluded that the procedures provided by the State were not ade quate.” 8 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court nized and gave sanction to this practice.” We could not have thought Congress intended to cabin the comity doctrine, for we went on to instruct dismissal in Great on comity grounds without deciding whether the Act reached declaratory judgment actions. 301–302.4 Decades later, in Fair we ruled, based on comity concerns, th2 U.S. C. does not permit federal courts to award damages in state taxation cases when state law provides an adequate remedy. 454 U.S., 6. We clarified in Fair that “the principle of comity which predated the Act was not restricted by its passage.” And in National Private Truck Council, (1995), we said, explicitly, that “the [TIA] may be best understood as but a partial codification of the federal reluctance to interfere with state taxation.” B Although our precedents affirm that the comity doctrine is more embracive than the TIA, several Courts of Ap peals, including the Sixth Circuit in the instant case, have comprehended to restrict comity’s compass. See –5. however, has a more modest reach. Plaintiffs in were Arizona taxpayers who chal lenged a state law authorizing |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | were Arizona taxpayers who chal lenged a state law authorizing tax credits for payments to organizations that disbursed scholarship grants to chil dren attending private –96. These organizations could fund attendance at institutions that provided religious instruction or gave admissions preference on the basis of religious affiliation. Ranking the credit program as state subsidization of religion, incompatible with the Establishment Clause, —————— 4 We later held that the Act indeed does proscribe suits for declara tory relief that would thwart state tax collection. Cite as: 560 U. S. (2010) 9 Opinion of the Court plaintiffs sought declaratory and injunctive relief and an order requiring the organizations to pay sums still in their possession into the State’s general fund. The Director of Arizona’s Department of Revenue sought to escape suit in federal court by invoking the TIA. We held that the litigation fell outside the TIA’s governance. Our prior decisions holding suits blocked by the TIA, we noted, were tied to the Act’s “state-revenue-protective moorings.” The Act, we explained, “re strain[ed] state taxpayers from instituting federal actions to contest their [own] liability for state taxes,” suits that, if successful, would deplete state coffers. But “third parties” like the plaintiffs, we concluded, were not impeded by the TIA “from pursuing constitu tional challenges to tax benefits in a federal forum.” The case, we stressed, was “not rationally distinguishable” from a procession of pathmarking civil-rights controver sies in which federal courts had entertained challenges to state tax credits without conceiving of the TIA as a juris dictional barrier. 3–94, 110–112. See, e.g., Griffin v. School Bd. of Prince Edward Cty., (involving, inter alia, tax credits for contributions to pri vate segregated schools). Arizona’s Revenue Director also invoked comity as cause for dismissing the action. We dispatched the Director’s comity argument in a spare footnote that moved the Sixth Circuit here to reverse the District Court’s comity-based dismissal. As earlier set out, see the footnote stated: “[T]his Court has relied upon ‘principles of comity’ to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection.” n. 9 (citing Fair 454 U.S., at 107–108; Great –299). Relying heavily on our footnote in respondents urge that “comity should no more bar this action than it 10 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court did the action in” Brief for Respondents 42. As we explain below, however, the two cases differ markedly in ways bearing on the comity calculus. We have had no prior occasion to consider, under the comity doctrine, a taxpayer’s complaint about |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | to consider, under the comity doctrine, a taxpayer’s complaint about allegedly discriminatory state taxation framed as a request to increase a competitor’s tax burden. Now squarely presented with the question, we hold that comity precludes the exercise of original federal court jurisdiction in cases of the kind presented here. III A Respondents complain that they are taxed unevenly in comparison to LDCs and their customers. Under either an equal protection or dormant Commerce Clause theory, respondents’ root objection is the same: State action, respondents contend, “selects [them] out for discrimina tory treatment by subjecting [them] to taxes not imposed on others of the same class.” ; see Dennis v. Higgins, 7–8 (dormant Com merce Clause). When economic legislation does not employ classifica tions subject to heightened scrutiny or impinge on funda mental rights,5 courts generally view constitutional chal lenges with the skepticism due respect for legislative choices demands. See, e.g., Hodel v. Indiana, 452 U.S. 314, 331–332 (1981); And “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Madden v. Kentucky, —————— 5 Cf., e.g., ; United On the federal courts’ role in safeguarding human rights, see, e.g., 245–248 ; Cite as: 560 U. S. (2010) 11 Opinion of the Court Of key importance, when unlawful discrimination in fects tax classifications or other legislative prescriptions, the Constitution simply calls for equal treatment. How equality is accomplished—by extension or invalidation of the unequally distributed benefit or burden, or some other measure—is a matter on which the Constitution is silent. See (“[W]hen the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished” in more than one way. (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247 (1931); internal quotation marks omitted)). On finding unlawful discrimination, we have affirmed, courts may attempt, within the bounds of their institu tional competence, to implement what the legislature would have willed had it been apprised of the constitu tional infirmity. n. 5; Califano v. Westcott, 3 U.S. 76, ; see v. (how State eliminates unconstitutional discrimination “plainly is an issue of state law”); cf. United (“legislative intent” determines cure for constitu tional violation). The relief the complaining party re quests does not circumscribe this inquiry. See Westcott, 3 U.S., n. 2 (Powell, J., concurring in part and dissenting in part) (“This issue should turn on the intent of [the legislature], not the interests of the parties.”). With the State’s legislative prerogative firmly in mind, this Court, upon finding impermissible discrimination in a State’s allocation of |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | Court, upon finding impermissible discrimination in a State’s allocation of benefits or burdens, generally re mands the case, leaving the remedial choice in the hands of state authorities. See, e.g., 6 U.S. 142, ; Orr v. Orr, 0 U.S. 268, 283–284 ; 421 U.S., at ; 12 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court 543 (1942). But see, e.g., (1968). In particular, when this Court—on review of a state high court’s decision—finds a tax measure constitutionally infirm, “it has been our practice,” for reasons of “federal state comity,” “to abstain from deciding the remedial effects of such a holding.” American Trucking Assns., Inc. v. Smith,6 A “State found to have imposed an impermissibly discrimi natory tax retains flexibility in responding to this deter mination.” McKesson Corp. v. Division of Alcoholic Bever ages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 39–40 Our remand leaves the interim solution in state-court hands, subject to subsequent defini tive disposition by the State’s legislature. If lower federal courts were to give audience to the merits of suits alleging uneven state tax burdens, how ever, recourse to state court for the interim remedial determination would be unavailable. That is so because federal tribunals lack authority to remand to the state court system an action initiated in federal court. Federal judges, moreover, are bound by the TIA; absent certain exceptions, see, e.g., Department of the Act precludes relief that would diminish state revenues, even if such relief is the remedy least disruptive of the state legisla ture’s design.7 These limitations on the remedial compe —————— 6 See, e.g., 100–102 (1993); McKesson ; Davis v. Michigan Dept. of Treasury, ; American Trucking Assns., ; Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 252–253 ; Bacchus Imports, 276– 277 ; Exxon 462 U.S. ; Louis K. Liggett 2 U.S. 517, 7 State courts also have greater leeway to avoid constitutional hold Cite as: 560 U. S. (2010) 13 Opinion of the Court tence of lower federal courts counsel that they refrain from taking up cases of this genre, so long as state courts are equipped fairly to adjudicate them.8 B Comity considerations, as the District Court deter mined, warrant dismissal of respondents’ suit. Assuming, arguendo, that respondents could prevail on the merits of the suit,9 the most obvious way to achieve parity would be to reduce respondents’ tax liability. Respondents did not seek such relief, for the TIA stands in the way of any decree that would “enjoin collection of [a] tax under State law.” 28 U.S. C. A |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | of [a] tax under State law.” 28 U.S. C. A more ambitious solu tion would reshape the relevant provisions of Ohio’s tax code. Were a federal court to essay such relief, however, the court would engage in the very interference in state taxation the comity doctrine aims to avoid. Cf. State Railroad Tax Cases, Re spondents’ requested remedy, an order invalidating the exemptions enjoyed by LDCs, App. 20–21, may be far from —————— ings by adopting “narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests.” 2 U.S. 415, 429–430 8 Any substantial federal question, of course, “could be reviewed when the case [comes to this Court] through the hierarchy of state courts.” 9 But see General Motors 279–280 (1997) (determining, at a time IMs could not compete with LDCs for the Ohio residential “captive” market, that IMs and LDCs were not “simi larly situated”; and rejecting industrial IM customer’s dormant Com merce Clause and equal protection challenges to LDCs’ exemption from sales and use taxes). 10 Previous language restricting the district courts’ “jurisdiction” was removed in the 1948 revision of Title 28. Compare 28 U.S. C. (1940 ed.) with This Court and others have con tinued to regard the Act as jurisdictional. See, e.g., post, at 1 (THOMAS, J., concurring in judgment). 14 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court what the Ohio Legislature would have willed. See In short, if the Ohio scheme is indeed unconstitu tional, surely the Ohio courts are better positioned to determine—unless and until the Ohio Legislature weighs in—how to comply with the mandate of equal treatment. See 817–11 As earlier noted, our unelaborated footnote on comity in see led the Sixth Circuit to conclude that we had diminished the force of that doctrine and made it inapplicable here. We intended no such conse quential ruling. was hardly a run-of-the-mine tax case. It was essentially an attack on the allocation of state resources for allegedly unconstitutional purposes. In the charge was state aid in alleged violation of the Establishment Clause; in other cases of the same genre, the attack was on state allocations to maintain racially segregated See 542 U.S., 3–94, 110– 112. The plaintiffs in were outsiders to the tax expenditure, “third parties” whose own tax liability was not a relevant factor. In this case, by contrast, the very premise of respondents’ suit is that they are taxed differ ently from LDCs. Unlike the plaintiffs, respondents do object to their own tax situation, measured by the allegedly more favorable treatment accorded LDCs. held that |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | by the allegedly more favorable treatment accorded LDCs. held that the TIA did not preclude a federal chal lenge by a third party who objected to a tax credit received —————— 11 Respondents note that “[o]nce the district court grants the minimal relief requested—to disallow the exemptions—it will be up to the Ohio General Assembly to balance its own interests and determine how best to recast the tax laws, within constitutional restraints.” Brief for Respondents 41. But the legislature may not be convened on the spot, and the blunt interim relief respondents ask the District Court to decree “may [immediately] derange the operations of government, and thereby cause serious detriment to the public.” 11 Wall. 108, 110 (1871). Cite as: 560 U. S. (2010) 15 Opinion of the Court by others, but in no way objected to her own liability under any revenue-raising tax provision. In context, we clarify, the footnote comment on comity is most sensibly read to affirm that, just as the case was a poor fit under the TIA, so it was a poor fit for comity. The Court, in other words, did not deploy the footnote to recast the comity doctrine; it intended the note to convey only that the Establishment Clause-grounded case cleared both the TIA and comity hurdles. Respondents steadfastly maintain that this case is fit for federal-court adjudication because of the simplicity of the relief they seek, i.e., invalidation of exemptions accorded the LDCs. But as we just explained, even if respondents’ Commerce Clause and equal protection claims had merit, respondents would have no entitlement to their preferred remedy. See In however, if the Dis trict Court found the Arizona tax credit impermissible under the Establishment Clause, only one remedy would redress the plaintiffs’ grievance: invalidation of the credit, which inevitably would increase the State’s tax receipts. Notably, redress in state court similarly would be limited to an order ending the allegedly impermissible state sup port for parochial 12 Because state courts would have no greater leeway than federal courts to cure the alleged violation, nothing would be lost in the currency of comity or state autonomy by permitting the suit to proceed in a federal forum. Comity, in sum, serves to ensure that “the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always en deavors to do so in ways that will not unduly interfere —————— 12 No refund suit (or other taxpayer mechanism) was open to the plaintiffs in who were financially disinterested “third parties”; they did not, therefore, improperly bypass any state |
Justice Ginsburg | 2,010 | 5 | majority | Levin v. Commerce Energy, Inc. | https://www.courtlistener.com/opinion/147528/levin-v-commerce-energy-inc/ | “third parties”; they did not, therefore, improperly bypass any state procedure. Re spondents here, however, could have asserted their federal rights by seeking a reduction in their tax bill in an Ohio refund suit. 16 LEVIN v. COMMERCE ENERGY, INC. Opinion of the Court with the legitimate activities of the States.” Younger, 401 U.S., at A confluence of factors in this case, absent in leads us to conclude that the comity doctrine con trols here. First, respondents seek federal-court review of commercial matters over which Ohio enjoys wide regula tory latitude; their suit does not involve any fundamental right or classification that attracts heightened judicial scrutiny. Second, while respondents portray themselves as third-party challengers to an allegedly unconstitutional tax scheme, they are in fact seeking federal-court aid in an endeavor to improve their competitive position. Third, the Ohio courts are better positioned than their federal coun terparts to correct any violation because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options. Individu ally, these considerations may not compel forbearance on the part of federal district courts; in combination, how ever, they demand deference to the state adjudicative process. C The Sixth Circuit expressed concern that application of the comity doctrine here would render the TIA “effectively superfluous.” ; see 2. This concern overlooks Congress’ point in enacting the TIA. The Act was passed to plug two large loopholes courts had opened in applying the comity doctrine. See and n. 3. By closing these loopholes, Congress secured the doctrine against diminishment. Comity, we further note, is a prudential doctrine. “If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State’s own system.” Ohio Bureau of Employment Servs. v. Hodory, Cite as: 560 U. S. (2010) 17 Opinion of the Court IV Because we conclude that the comity doctrine justifies dismissal of respondents’ federal-court action, we need not decide whether the TIA would itself block the suit. See Great 319 U.S., 301 (reserving judgment on TIA’s application where comity precluded suit). See also Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (federal court has flexibility to choose among threshold grounds for dismissal).13 * * * For the reasons stated, the Sixth Circuit’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 13 The District Court and Court of Appeals concluded that our deci sion in placed the controversy outside the |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | Under the immigration laws, a noncitizen who is author- ized to live permanently in the United States is a lawful permanent resident—also commonly known as a green- card holder. But unlike a U. S. citizen, a lawful permanent resident who commits a serious crime may be removed from the United States. Andre Barton is a Jamaican national and a longtime law- ful permanent resident of the United States. During his time in the United States, Barton has been convicted of state crimes on three separate occasions spanning 12 years. The crimes include a firearms offense, drug offenses, and aggravated assault offenses. By law, the firearms offense and the drug offenses each independently rendered Barton eligible for removal from the United States. In September 2016, the U. S. Government sought to remove Barton, and a U. S. Immigration Judge determined that Barton was removable. Barton applied for cancellation of removal, a form of relief that allows a noncitizen to remain in the United States de- 2 spite being found removable. The immigration laws author- ize an immigration judge to cancel removal, but Congress has established strict eligibility requirements. See 8 U.S. C. (d)(1)(B). For a lawful permanent res- ident such as Barton, the applicant for cancellation of re- moval (1) must have been a lawful permanent resident for at least five years; (2) must have continuously resided in the United States for at least seven years after lawful ad- mission; (3) must not have been convicted of an aggravated felony as defined in the immigration laws; and (4) during the initial seven years of continuous residence, must not have committed certain other offenses listed in 8 U.S. C. If a lawful permanent resident meets those el- igibility requirements, the immigration judge has discre- tion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States. Under the cancellation-of-removal statute, the immigra- tion judge examines the applicant’s prior crimes, as well as the offense that triggered his If a lawful perma- nent resident has ever been convicted of an aggravated fel- ony, or has committed an offense listed in dur- ing the initial seven years of residence, that criminal record will preclude cancellation of 1 In that way, the statute operates like traditional criminal recidivist laws, which ordinarily authorize or impose greater sanctions on offenders who have committed prior crimes. In this case, after finding Barton removable based on his state firearms and drug offenses, the Immigration Judge and the Board of Immigration Appeals (BIA) concluded that —————— 1 As the statute makes |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | Appeals (BIA) concluded that —————— 1 As the statute makes clear, and as we discuss below, committing a offense precludes cancellation of removal only if the offense also “renders” the noncitizen inadmissible. See infra, at 10. Section 1182(a)(2) specifies what that means for each of its enumerated offenses. For the offense at issue in this case, the noncitizen must also have been convicted of or admitted the offense. Cite as: 590 U. S. (2020) 3 Opinion of the Court Barton was not eligible for cancellation of Barton had committed offenses listed in during his ini- tial seven years of residence—namely, his state aggravated assault offenses in 1996. Barton’s 1996 aggravated assault offenses were not the offenses that triggered his But according to the BIA, and contrary to Barton’s argu- ment, the offense that precludes cancellation of removal need not be one of the offenses of In re Jurado- The U. S. Court of Appeals for the Eleventh Circuit agreed with the BIA’s reading of the statute and concluded that Barton was not eligible for cancellation of The Second, Third, and Fifth Circuits have similarly construed the statute; only the Ninth Circuit has disagreed. Barton argues that the BIA and the Eleventh Circuit mis- interpreted the statute. He contends that the offense that precludes cancellation of removal must be one of the offenses of We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit. I Federal immigration law governs the admission of noncitizens to the United States and the deportation of noncitizens previously admitted. See 8 U.S. C. 1227(a), 1229a.2 The umbrella statutory term for being inadmissible or deportable is “removable.” A noncitizen who is authorized to live permanently in the United States is a lawful permanent resident, often known as a green-card holder. When a lawful permanent resident commits a crime and is determined by an immigration judge to be removable because of that crime, the Attorney General (usually acting through an immigration judge) may —————— 2 This opinion uses the term “noncitizen” as equivalent to the statutory term “alien.” See 8 U.S. C. 4 cancel But the comprehensive immi- gration law that Congress passed and President Clinton signed in 1996 tightly cabins eligibility for cancellation of See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, –546, 8 U.S. C. note. For a lawful permanent resident, the cancellation-of- removal statute provides that an immigration judge “may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—(1) has been an |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | from the United States if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated fel- ony.” 3 The statute imposes one other requirement known as the “stop-time rule.” As relevant here, the statute provides that a lawful permanent resident, during the initial seven years of residence, also cannot have committed “an offense re- ferred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Andre Barton is a Jamaican national and a lawful per- manent resident of the United States. In 1996, he was con- victed in a Georgia court of a firearms offense stemming from an incident where Barton and a friend shot up the house of Barton’s ex-girlfriend. In separate proceedings in 2007 and 2008, he was convicted in Georgia courts of state drug offenses. One case involved methamphetamine, and the other involved cocaine and marijuana. —————— 3 The immigration laws impose a similar but even stricter set of eligi- bility requirements for noncitizens who are not lawful permanent resi- dents. Cite as: 590 U. S. (2020) 5 Opinion of the Court In 2016, the U. S. Government charged Barton with de- portability under 8 U.S. C. based on the 1996 firearms offense and the 2007 and 2008 drug crimes. See §(B)(i), (C). Barton conceded that he was remov- able based on his criminal convictions for the firearms of- fense and drug offenses, and an Immigration Judge found him removable. Barton applied for cancellation of All agree that Barton meets two of the eligibility requirements for cancel- lation of He has been a lawful permanent resident for more than five years. And he has not been convicted of an “aggravated felony,” as defined by the immigration laws. The Immigration Judge concluded, however, that Barton had committed an offense listed in during his initial seven years of residence. In 1996, 61⁄2 years after his admission to this country, Barton committed aggravated assault offenses for which he was later convicted in a Geor- gia court. The Immigration Judge concluded that those ag- gravated assault offenses were covered by and that Barton was therefore not eligible for cancellation of The Board of Immigration Appeals and the U. S. Court of Appeals for the Eleventh Circuit likewise concluded that Barton was |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | Appeals for the Eleventh Circuit likewise concluded that Barton was not eligible for cancellation of Barton v. United States Atty. Gen., The key question was whether the offense that precludes cancellation of removal (here, Barton’s 1996 aggravated assault offenses) must also be one of the offenses of 4 The Board of Immigration Appeals has long interpreted the statute to mean that “an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct —————— 4 The term “offense of removal” describes the offense that was the ground on which the immigration judge, at the removal proceeding, found the noncitizen removable. 6 in question to terminate continuous residence in this country” and preclude cancellation of Jurado- 24 I. & N. Dec., at In this case, the Eleventh Circuit likewise indicated that the offense that precludes cancellation of removal need not be one of the offenses of –1300. And the Second, Third, and Fifth Circuits have similarly construed the statute. See (CA2 2017); Ardon v. Attorney General of United States, 449 Fed. Appx. 116, 118 (CA3 2011); 1011 (CA5 2015). But in the Ninth Circuit disagreed with those courts and with the BIA. The Ninth Circuit ruled that a lawful permanent resident’s commission of an offense listed in makes the noncitizen ineligible for cancellation of removal only if that offense was one of the offenses of 1097 Under the Ninth Circuit’s approach, Barton would have been eligible for cancellation of removal because his offenses (his 1996 aggravated assault offenses) were not among the offenses of removal (his 1996 firearms offense and his 2007 and 2008 drug crimes). In light of the division in the Courts of Appeals over how to interpret this statute, we granted certiorari. 587 U. S. (2019). II A Under the immigration laws, when a noncitizen has com- mitted a serious crime, the U. S. Government may seek to remove that noncitizen by initiating removal proceedings before an immigration judge. If the immigration judge de- termines that the noncitizen is removable, the immigration judge nonetheless has discretion to cancel But the immigration laws impose strict eligibility requirements for cancellation of To reiterate, a lawful permanent Cite as: 590 U. S. (2020) 7 Opinion of the Court resident such as Barton who has been found removable be- cause of criminal activity is eligible for cancellation of re- moval “if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” To be eligible for cancellation of removal, the lawful per- manent resident, during the initial seven years of residence after admission, also must not have committed “an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” The law therefore fashions two distinct ways in which a lawful permanent resident’s prior crimes may preclude can- cellation of The law precludes cancellation of removal if the lawful permanent resident has been convicted of an “aggravated felony” at any time. The statutory list of aggravated felo- nies is long: murder, rape, drug trafficking, firearms traf- ficking, obstruction of justice, treason, gambling, human trafficking, and tax evasion, among many other crimes. §(a)(43)(A)–(U). In addition, the law precludes cancellation of removal if the lawful permanent resident committed certain other se- rious crimes during the initial seven years of residence. The law defines those offenses by cross-referencing which specifies the offenses that can render a noncitizen “inadmissible” to the United States. Section 1182(a)(2) in- cludes “crime[s] involving moral turpitude,” which is a gen- eral category that covers a wide variety of crimes. Section 1182(a)(2) also expressly encompasses various violations of drug laws, prostitution, money laundering, and certain DUIs involving personal injury, among other crimes. 8 §(A)(i), (C), (D), (E), (I); see (h). In specifying when cancellation of removal would be pre- cluded because of prior criminal activity, Congress struck a balance that considers both the nature of the prior crime and the length of time that the noncitizen has resided in the United States. If a lawful permanent resident has been convicted at any time of certain crimes (what the immigra- tion laws refer to as an “aggravated felony”), then the noncitizen is not eligible for cancellation of If dur- ing the initial 7-year period of residence, a lawful perma- nent resident committed certain other offenses referred to in then the noncitizen likewise is not eligible for cancellation of In providing that a noncitizen’s prior crimes (in addition to the offense of removal) can render him ineligible for can- cellation of removal, the cancellation-of-removal statute functions like a traditional recidivist sentencing statute. In an ordinary criminal case, a defendant may be convicted of a particular criminal offense. And at sentencing, the de- fendant’s other criminal offenses may be relevant. So too in the |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | other criminal offenses may be relevant. So too in the immigration removal context. A noncitizen may be found removable based on a certain criminal offense. In ap- plying for cancellation of removal, the noncitizen must de- tail his entire criminal record on Form EOIR–42A. An im- migration judge then must determine whether the noncitizen has been convicted of an aggravated felony at any time or has committed a offense during the initial seven years of residence. It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is likewise entirely ordinary to look beyond the of- fense of removal at the cancellation-of-removal stage in im- migration cases.5 —————— 5 If the offense of removal itself was an aggravated felony or was an offense listed in that was committed during the initial seven years of residence, then the offense of removal alone precludes cancella- tion of removal, regardless of whether the noncitizen has an additional Cite as: 590 U. S. (2020) 9 Opinion of the Court It is not surprising, moreover, that Congress required im- migration judges considering cancellation of removal to look in part at whether the noncitizen has committed any offenses listed in The offenses listed in help determine whether a noncitizen should be admitted to the United States. Under the cancellation-of- removal statute, immigration judges must look at that same category of offenses to determine whether, after a pre- viously admitted noncitizen has been determined to be de- portable, the noncitizen should nonetheless be allowed to remain in the United States. If a crime is serious enough to deny admission to a noncitizen, the crime can also be se- rious enough to preclude cancellation of removal, at least if committed during the initial seven years of residence. Importantly, the text of the cancellation-of-removal stat- ute does not simply say that cancellation of removal is pre- cluded when, during the initial seven years of residence, the noncitizen was convicted of an offense referred to in Rather, the text says that cancellation of re- moval is precluded when, during the initial seven years of residence, the noncitizen “committed an offense referred to in section 1182(a)(2) that renders the alien inadmissi- ble.” That language clarifies two points of relevance here. First, cancellation of removal is precluded if a noncitizen committed a offense during the initial seven years of residence, even if (as in Barton’s case) the convic- tion occurred after the seven years elapsed. In other words, as Congress specified in the statute and as the BIA and the Courts of Appeals have recognized, the date |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | BIA and the Courts of Appeals have recognized, the date of commission of the offense is the key date for purposes of calculating whether the noncitizen committed a offense during the initial seven years of residence. See In re Perez, —————— record of prior crimes. 10 22 I. & N. Dec. 9, (date of commis- sion is controlling date); see also – 71 (“the date of the commission of the offense governs the computation of a lawful permanent resident’s continuous residency in the United States”); (“Once he was convicted of the offense” referred to in “he was rendered inadmissible to the United States. His accrual of continuous residence was halted as of the date he committed that offense”). Second, the text of the law requires that the noncitizen be rendered “inadmissible” as a result of the offense. For crimes involving moral turpitude, which is the relevant cat- egory of offenses here, provides that a noncitizen is rendered “inadmissible” when he is con- victed of or admits the offense. (A)(i). As the Eleventh Circuit explained, “while only commission is re- quired at step one, conviction (or admission) is required at step two.” In this case, Barton’s 1996 state aggravated assault of- fenses were crimes involving moral turpitude and therefore “referred to in section 1182(a)(2).” Barton committed those offenses during his initial seven years of residence. He was later convicted of the offenses in a Georgia court and thereby rendered “inadmissible.” Therefore, Barton was in- eligible for cancellation of As a matter of statutory text and structure, that analysis is straightforward. The Board of Immigration Appeals has long interpreted the statute that way. See Jurado-, 24 I. & N. Dec., at And except for the Ninth Circuit, all of the Courts of Appeals to consider the question have in- terpreted the statute that way. B Barton pushes back on that straightforward statutory in- terpretation and the longstanding position of the Board of Cite as: 590 U. S. (2020) 11 Opinion of the Court Immigration Appeals. Barton says that he may not be de- nied cancellation of removal based on his 1996 aggravated assault offenses because those offenses were not among the offenses of removal found by the Immigration Judge in Bar- ton’s removal proceeding. Rather, his 1996 firearms offense and his 2007 and 2008 drug offenses were the offenses of To succinctly summarize the parties’ different positions (with the difference highlighted in italics below): The Gov- ernment would preclude cancellation of removal under this provision if the lawful permanent resident committed a offense during the initial seven years of resi- dence. Barton |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | offense during the initial seven years of resi- dence. Barton would preclude cancellation of removal un- der this provision if the lawful permanent resident commit- ted a offense during the initial seven years of residence and if that offense was one of the of- fenses of removal in the noncitizen’s removal proceeding. To support his “offense of removal” approach, Barton ad- vances three different arguments. A caution to the reader: These arguments are not easy to unpack. First, according to Barton, the statute’s overall structure with respect to removal proceedings demonstrates that a offense may preclude cancellation of removal only if that offense was one of the offenses of We disagree. In removal proceedings, a lawful permanent resident (such as Barton) may be found “deport- able” based on deportability offenses listed in A noncitizen who has not previously been admitted may be found “inadmissible” based on inadmissibility offenses listed in See 1227(a), 1229a(e)(2). Importantly, then, offenses—not of- fenses—are typically the basis for removal of lawful perma- nent residents. Because the offense of removal for lawful permanent res- idents is ordinarily a offense, Barton’s struc- tural argument falls apart. If Barton were correct that this 12 aspect of the cancellation-of-removal statute focused only on the offense of removal, the statute presumably would specify offenses “referred to in section 1182(a)(2) or section 1227(a)(2).” So why does the statute identify only offenses “referred to in section 1182(a)(2)”? Barton has no good an- swer. At oral argument, when directly asked that question, Barton’s able counsel forthrightly acknowledged: “It’s a lit- tle hard to explain.” Tr. of Oral Arg. 27. This point is the Achilles’ heel of Barton’s structural ar- gument. As we see it, Barton cannot explain the omission of offenses in the “referred to” clause for a sim- ple reason: Barton’s interpretation of the statute is incor- rect. Properly read, this is not simply an “offense of re- moval” statute that looks only at whether the offense of removal was committed during the initial seven years of residence. Rather, this is a recidivist statute that uses offenses as a shorthand cross-reference for a category of offenses that will preclude cancellation of re- moval if committed during the initial seven years of residence. By contrast to this cancellation-of-removal provision, some other provisions of the immigration laws do focus only on the offense of removal—for example, provisions govern- ing mandatory detention and jurisdiction. See (c)(1)(A), (B), 1252(a)(2)(C). But the statutory text and con- text of those provisions support that limitation. Those pro- visions use the phrase “inadmissible by reason of ” a offense, “deportable by |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | phrase “inadmissible by reason of ” a offense, “deportable by reason of ” a offense, or “removable by reason of ” a or offense. And the provisions make contextual sense only if the offense justifying detention or denying ju- risdiction is one of the offenses of The cancellation- of-removal statute does not employ similar language. Second, moving from overall structure to precise text, Barton seizes on the statutory phrase “committed an of- fense referred to in section 1182(a)(2) that renders the Cite as: 590 U. S. (2020) 13 Opinion of the Court alien inadmissible to the United States under section 1182(a)(2).” (emphasis added). According to Barton, conviction of an offense listed in —for example, conviction in state court of a crime involving moral turpitude—does not itself render the noncitizen “in- admissible.” He argues that a noncitizen is not rendered “inadmissible” unless and until the noncitizen is actually adjudicated as inadmissible and denied admission to the United States. And he further contends that a lawfully ad- mitted noncitizen usually cannot be removed from the United States on the basis of inadmissibility. As Barton puts it (and the dissent echoes the point), how can a law- fully admitted noncitizen be found inadmissible when he has already been lawfully admitted? As a matter of common parlance alone, that argument would of course carry some force. But the argument fails because it disregards the statutory text, which employs the term “inadmissibility” as a status that can result from, for example, a noncitizen’s (including a lawfully admitted noncitizen’s) commission of certain offenses listed in For example, as relevant here, flatly says that a noncitizen such as Barton who commits a crime involving moral turpitude and is convicted of that offense “is inadmis- sible.” (A)(i). Full stop. Similarly, a noncitizen who has two or more convictions, together resulting in ag- gregate sentences of at least five years, “is inadmissible.” (B). A noncitizen who a consular officer or the Attorney General knows or has reason to believe is a drug trafficker “is inadmissible.” (C)(i). A noncitizen who receives the proceeds of prostitution within 10 years of applying for admission “is inadmissible.” (D)(ii). The list goes on. See, e.g., §(C)(ii)–(E), (G)–(I). Those provisions do not say that a noncitizen will become inadmissible if the noncitizen is found inadmissible in a subsequent immigration removal proceeding. Instead, 14 those provisions say that the noncitizen “is inadmissible.” Congress has in turn made that status—inadmissibility because of conviction or other proof of commission of offenses—relevant in several statutory contexts that apply to lawfully admitted noncitizens such as Barton. Those contexts include adjustment |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | lawfully admitted noncitizens such as Barton. Those contexts include adjustment to permanent resident status; protection from removal because of temporary pro- tected status; termination of temporary resident status; and here cancellation of See, e.g., (a)(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a), (l)(2). In those contexts, the noncitizen faces immigration conse- quences from being convicted of a offense even though the noncitizen is lawfully admitted and is not nec- essarily removable solely because of that offense. Consider how those other proceedings work. A lawfully admitted noncitizen who is convicted of an offense listed in is typically not removable from the United States on that basis (recall that a lawfully admitted noncit- izen is ordinarily removable only for commission of a offense). But the noncitizen is “inadmissible” because of the offense and for that reason may not be able to obtain adjustment to permanent resident sta- tus. (l)(2). So too, a lawfully admitted noncitizen who is convicted of an offense listed in is “inad- missible” and for that reason may not be able to obtain tem- porary protected status. (c)(1)(A)(iii). A lawfully admitted noncitizen who is a temporary resident and is convicted of a offense is “inadmissible” and for that reason may lose temporary resident status. (a)(3)(B)(ii). Those statutory examples pose a major hurdle for Bar- ton’s textual argument. The examples demonstrate that Congress has employed the concept of “inadmissibility” as a status in a variety of statutes similar to the cancellation- of-removal statute, including for lawfully admitted nonciti- zens. Barton has no persuasive answer to those examples. Cite as: 590 U. S. (2020) 15 Opinion of the Court Barton tries to say that some of those other statutes involve a noncitizen who, although already admitted to the United States, is nonetheless seeking “constructive admission.” Reply Brief 12; Tr. of Oral Arg. 11. But that ginned-up label does not avoid the problem. Put simply, those other stat- utes show that lawfully admitted noncitizens who are, for example, convicted of crimes are “inadmissible” and in turn may suffer certain immigration consequences, even though those lawfully admitted noncitizens cannot necessarily be removed solely because of those offenses. The same is true here. A lawfully admitted noncitizen who was convicted of a crime involving moral turpitude dur- ing his initial seven years of residence is “inadmissible” and for that reason is ineligible for cancellation of In advancing his structural and textual arguments, Bar- ton insists that his interpretation of the statute reflects con- gressional intent regarding cancellation of But if Congress intended that only the offense of removal would preclude cancellation of removal under the 7-year residence provision, |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | would preclude cancellation of removal under the 7-year residence provision, it is unlikely that Congress would have employed such a convoluted way to express that intent. Barton can- not explain why, if his view of Congress’ intent is correct, the statute does not simply say something like: “The alien is not eligible for cancellation of removal if the offense of removal was committed during the alien’s initial seven years of residence.” Third, on a different textual tack, Barton argues that the Government’s interpretation cannot be correct because the Government would treat as surplusage the phrase “or re- movable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Recall that the statute, as relevant here, provides that a lawful permanent resident is not eli- gible for cancellation of removal if, during the initial seven years of residence, he committed “an offense referred to in 16 section 1182(a)(2) of this title that renders the alien inad- missible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” (em- phasis added). To begin with, all agree that under either side’s interpre- tation, the reference to distinct from —is redundant surplusage. See Brief for Petitioner 32–33 & n. 7. Under the Government’s interpretation, it is true that the reference to also appears to be redundant surplusage. Any offense that is both referred to in and an offense that would render the noncitizen deportable under would also render the noncitizen inadmissible under But redundancies are common in statutory drafting—some- times in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication. The Court has often recognized: “Some- times the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. (2019) (slip op., at 11); see Wisconsin Cen- tral Ltd. v. United States, 585 U. S. (slip op., at 7); 5 U.S. 371, (2013); (2004). So it is here. Most importantly for present pur- poses, we do not see why the redundant statutory reference to should cause us to entirely rewrite so that a noncitizen’s commission of an offense referred to in would preclude cancellation of removal only if it is also the offense of Redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text, as Barton would have us do. One final point: Barton argues in the alternative that |
Justice Kavanaugh | 2,020 | 23 | majority | Barton v. Barr | https://www.courtlistener.com/opinion/4748672/barton-v-barr/ | do. One final point: Barton argues in the alternative that even if inadmissibility is a status, and even if the offense Cite as: 590 U. S. (2020) 17 Opinion of the Court that precludes cancellation of removal need not be one of the offenses of removal, the noncitizen must at least have been capable of being charged with a inadmis- sibility offense as the basis for The dissent seizes on this argument as well. But as we have explained, this cancellation-of-removal statute is a recidivist statute that precludes cancellation of removal if the noncitizen has com- mitted an offense listed in during the initial seven years of residence. Whether the offense that pre- cludes cancellation of removal was charged or could have been charged as one of the offenses of removal is irrelevant to that analysis. * * * Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the con- sequences for family members. Removal is particularly dif- ficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens— even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for nonciti- zens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Con- gress. Here, as the BIA explained in its Jurado- decision, and as the Second, Third, Fifth, and Elev- enth Circuits have indicated, the immigration laws enacted by Congress do not allow cancellation of removal when a lawful permanent resident has amassed a criminal record of this kind. We affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit. It is so ordered. Cite as: 590 U. S. (2020) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 18–725 ANDRE MARTELLO BARTON, PETITIONER v. WILLIAM P. |
Justice Scalia | 1,994 | 9 | concurring | Mine Workers v. Bagwell | https://www.courtlistener.com/opinion/117872/mine-workers-v-bagwell/ | I join the Court's opinion classifying the $52 million in contempt fines levied against petitioners as criminal. As the Court's opinion demonstrates, our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts. Since all of those tests *840 would yield the same result here, there is no need to decide which is the correct oneand a case so extreme on its facts is not the best case in which to make that decision. I wish to suggest, however, that when we come to making it, a careful examination of historical practice will ultimately yield the answer. That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers. See ante, at 831; ; cf. ; And it is worse still for that person to conduct the adjudication without affording the protections usually given in criminal trials. Only the clearest of historical practice could establish that such a departure from the procedures that the Constitution normally requires is not a denial of due process of law. See ; cf. Honda Motor Co. v. Oberg, ante, at 430-431. At common law, contempts were divided into criminal contempts, in which a litigant was punished for an affront to the court by a fixed fine or period of incarceration; and civil contempts, in which an uncooperative litigant was incarcerated (and, in later cases, fined[*]) until he complied with a specific order of the court. See Incarceration until compliance was a distinctive sanction, and sheds light upon the nature of the decrees enforced by civil contempt. That sanction makes sense only if the order requires performance *841 of an identifiable act (or perhaps cessation of continuing performance of an identifiable act). A general prohibition for the future does not lend itself to enforcement through conditional incarceration, since no single act (or the cessation of no single act) can demonstrate compliance and justify release. One court has expressed the difference between criminal and civil contempts as follows: "Punishment in criminal contempt cannot undo or remedy the thing which has been done, but in civil contempt punishment remedies the disobedience." In re Fox, As one would expect from this, the orders that underlay civil contempt fines or incarceration were usually mandatory rather than prohibitory, see directing litigants to perform acts that would further the litigation (for example, turning over a document), or give effect to the court's judgment (for example, executing a deed of conveyance). |
Justice Scalia | 1,994 | 9 | concurring | Mine Workers v. Bagwell | https://www.courtlistener.com/opinion/117872/mine-workers-v-bagwell/ | the court's judgment (for example, executing a deed of conveyance). The latter category of order was particularly common, since the jurisdiction of equity courts was generally in personam rather than in rem, and the relief they decreed would almost always be a directive to an individual to perform an act with regard to property at issue. See 4 J. Pomeroy, Equity Jurisprudence 1433, pp. 3386-3388 (4th ed. 1919). The mandatory injunctions issued upon termination of litigation usually required "a single simple act." H. Principles of Equity 15, pp. 32-33 (2d ed. 1948). Indeed, there was a "historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act." 61, at 0. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. See, e. g., Marble ; see also 61, at 0-1; 1 J. Story, Commentaries on Equity Jurisprudence 778b, p. 782 Compliance with these "single act" mandates could, in addition to being simple, be *842 quick; and once it was achieved the contemnor's relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant's obligation to the court, and the court's coercive power over the litigant, ceased. See United 330 U.S. 8, The court did not engage in any ongoing supervision of the litigant's conduct, nor did its order continue to regulate his behavior. Even equitable decrees that were prohibitory rather than mandatory were, in earlier times, much less sweeping than their modern counterparts. Prior to the labor injunctions of the late 1800's, injunctions were issued primarily in relatively narrow disputes over property. See, e. g., W. Kerr, Law and Practice of Injunctions *7 (2d Am. Ed. 1880); see also F. Frankfurter & N. Greene, The Labor Injunction 23-24, 87-88 (1930). Contemporary courts have abandoned these earlier limitations upon the scope of their mandatory and injunctive decrees. See G. McDowell, Equity and the Constitution 4, 9 (2). They routinely issue complex decrees which involve them in extended disputes and place them in continuing supervisory roles over parties and institutions. See, e. g., ; 1, the (1971). Professor Chayes has described the extent of transformation: "[The modern decree] differs in almost every relevant characteristic from relief in the traditional model of adjudication, not the least in that it is the centerpiece. It provides for a complex, on-going regime of performance rather than a simple, one-shot, one-way transfer. Finally, it prolongs and deepens, |
Justice Scalia | 1,994 | 9 | concurring | Mine Workers v. Bagwell | https://www.courtlistener.com/opinion/117872/mine-workers-v-bagwell/ | a simple, one-shot, one-way transfer. Finally, it prolongs and deepens, rather than terminates, the court's involvement with the dispute." Chayes, The *843 Role of the Judge in Public Law Litigation, The consequences of this change for the point under discussion here are obvious: When an order governs many aspects of a litigant's activities, rather than just a discrete act, determining compliance becomes much more difficult. Credibility issues arise, for which the factfinding protections of the criminal law (including jury trial) become much more important. And when continuing prohibitions or obligations are imposed, the order cannot be complied with (and the contempt "purged") in a single act; it continues to govern the party's behavior, on pain of punishmentnot unlike the criminal law. The order at issue here provides a relatively tame example of the modern, complex decree. The amended injunction prohibited, inter alia, rock throwing, the puncturing of tires, threatening, following or interfering with respondents' employees, placing pickets in other than specified locations, and roving picketing; and it required, inter alia, that petitioners provide a list of names of designated supervisors. App. to Pet. for Cert. 113a-1a. Although it would seem quite in accord with historical practice to enforce, by conditional incarceration or per diem fines, compliance with the last provisiona discrete command, observance of which is readily ascertainedusing that same means to enforce the remainder of the order would be a novelty. * * * The use of a civil process for contempt sanctions "makes no sense except as a consequence of historical practice." 510 U.S. 3, As the scope of injunctions has expanded, they have lost some of the distinctive features that made enforcement through civil process acceptable. It is not that the times, or our perceptions of fairness, have changed (that is in my view no basis *844 for either tightening or relaxing the traditional demands of due process); but rather that the modern judicial order is in its relevant essentials not the same device that in former times could always be enforced by civil contempt. So adjustments will have to be made. We will have to decide at some point which modern injunctions sufficiently resemble their historical namesakes to warrant the same extraordinary means of enforcement. We need not draw that line in the present case, and so I am content to join the opinion of the Court. Justice Ginsburg, with whom The Chief Justice joins, concurring in part and concurring in the judgment. The issue in this case is whether the contempt proceedings brought against the petitioner unions are to be classified as "civil" or "criminal." |
Justice Scalia | 1,994 | 9 | concurring | Mine Workers v. Bagwell | https://www.courtlistener.com/opinion/117872/mine-workers-v-bagwell/ | petitioner unions are to be classified as "civil" or "criminal." As the Court explains, if those proceedings were "criminal," then the unions were entitled under our precedents to a jury trial, and the disputed fines, imposed in bench proceedings, could not stand. See ante, at 826-827. I as the Court notes, see ante, at 827-828, is a pathmarking case in this area. The civil contempt sanction, instructs, is designed "to coerce the defendant to do the thing required by the order for the benefit of the complainant," rather than "to vindicate the authority of the law." 221 U.S., The sanction operates coercively because it applies continuously until the defendant performs the discrete, "affirmative act" required by the court's order, for example, production of a document or presentation of testimony. The civil contemnor thus "`carries the keys of his prison in his own pocket' ": At any moment, "[h]e can end the sentence and discharge himself by doing what he had previously refused to do." quoting In re Nevitt, *845 The criminal contempt sanction, by contrast, is "punitive, [imposed] to vindicate the authority of the court." Unlike the civil contemnor, who has refused to perform some discrete, affirmative act commanded by the court, explains, the criminal contemnor has "do[ne] that which he has been commanded not to do." The criminal contemnor's disobedience is past, a "completed act," a deed no sanction can undo. See Accordingly, the criminal contempt sanction operates not to coerce a future act from the defendant for the benefit of the complainant, but to uphold the dignity of the law, by punishing the contemnor's disobedience. -443. Because the criminal contempt sanction is determinate and unconditional, the Court said in "the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense." Even as it outlined these civil and criminal contempt prototypes, however, the Court in acknowledged that the categories, when filled by actual cases, are not altogether neat and tidy. Civil contempt proceedings, although primarily remedial, also "vindicat[e] the court's authority"; and criminal contempt proceedings, although designed "to vindicate the authority of the law," may bestow "some incidental benefit" upon the complainant, because "such punishment tends to prevent a repetition of the disobedience." II The classifications described in have come under strong criticism, particularly from scholars. Many have observed, as did the Court in itself, that the categories, "civil" and "criminal" contempt, are unstable in theory and problematic in practice. See ante, at 827, n. 3 (citing scholarly criticism); see also Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to |
Justice Scalia | 1,994 | 9 | concurring | Mine Workers v. Bagwell | https://www.courtlistener.com/opinion/117872/mine-workers-v-bagwell/ | Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 Va. L. Rev. 10, 10, n. 1 (citing additional scholarly criticism). *846 Our cases, however, have consistently resorted to the distinction between criminal and civil contempt to determine whether certain constitutional protections, required in criminal prosecutions, apply in contempt proceedings. See, e. g., United (citing cases). And the Court has repeatedly relied upon ` delineation of the distinction between criminal and civil contempt. See, e. g., (8). The parties, accordingly, have presented their arguments within the framework. Two considerations persuade me that the contempt proceedings in this case should be classified as "criminal" rather than "civil." First, were we to accept the logic of Bagwell's argument that the fines here were civil, because "conditional" and "coercive," no fine would elude that categorization. The fines in this case were "conditional," Bagwell says, because they would not have been imposed if the unions had complied with the injunction. The fines would have been "conditional" in this sense, however, even if the court had not supplemented the injunction with its fines schedule; indeed, any fine is "conditional" upon compliance or noncompliance before its imposition. Cf. ante, at 837 (the unions' ability to avoid imposition of the fines was "indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law"). Furthermore, while the fines were "coercive," in the sense that one of their purposes was to encourage union compliance with the injunction, criminal contempt sanctions may also "coerce" in this same sense, for they, too, "ten[d] to prevent a repetition of the disobedience." 221 U. S., Bagwell's thesis that the fines were civil, because "conditional" *847 and "coercive," would so broaden the compass of those terms that their line-drawing function would be lost.[*] Second, the Virginia courts' refusal to vacate the fines, despite the parties' settlement and joint motion, see ante, at 8-826, is characteristic of criminal, not civil, proceedings. In explaining why the fines outlived the underlying civil dispute, the Supreme Court of Virginia stated: "Courts of the Commonwealth must have the authority to enforce their orders by employing coercive, civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained." The Virginia court's references to upholding public authority and maintaining "the dignity of the law" reflect the very purposes ranked on the criminal contempt side. See Moreover, with the private complainant gone from the scene, and an official appointed by the Commonwealth to collect the fines for the Commonwealth's coffers, |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | The Supreme Court of Kansas vacated the death sen- tences of Sidney Gleason and brothers Reginald and Jona- than Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable ” And second, 2 KANSAS v. CARR Opinion of the Court whether the Constitution required severance of the Carrs’ joint sentencing proceedings. I A Less than one month after Sidney Gleason was paroled from his sentence for attempted voluntary manslaughter, he joined a conspiracy to rob an elderly man at knife- point.1 Gleason and a companion “cut up” the elderly man to get $10 to $35 and a box of cigarettes. 1136, Fearing that their female co-conspirators would snitch, Gleason and his cousin, Damien Thompson, set out to kill co-conspirator Mikiala Martinez. Gleason shot and killed Martinez’s boyfriend, and then Gleason and Thompson drove Mar- tinez to a rural location, where Thompson strangled her for five minutes and then shot her in the chest, Gleason standing by and providing the gun for the final shot. The State ultimately charged Gleason with capital murder for killing Martinez and her boyfriend, first-degree premeditated murder of the boyfriend, aggravating kid- naping of Martinez, attempted first-degree murder and aggravated robbery of the elderly man, and criminal pos- session of a firearm. He was convicted on all counts except the attempted first-degree murder charge. at 1134– 1135, 1120. The jury also found that the State proved beyond a reasonable doubt the existence of four aggravating circumstances and unani- mously agreed to a sentence of death. at –1147, –1121. B In December 2000, brothers Reginald and Jonathan —————— 1 The facts for this portion of the opinion come from the Kansas Su- preme Court, 1134–1147, 1113–1121 and the parties’ briefs. Cite as: 577 U. S. (2016) 3 Opinion of the Court Carr set out on a crime spree culminating in the Wichita Massacre.2 On the night of December 7, Reginald Carr and an unknown man carjacked Andrew Schreiber, held a gun to his head, and forced him to make cash withdrawals at various ATMs. On the night of December 11, the brothers followed Linda Ann Walenta, a cellist for the Wichita symphony, home from orchestra practice. One of them approached her vehicle and said he needed help. When she rolled down her |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | and said he needed help. When she rolled down her window, he pointed a gun at her head. When she shifted into reverse to escape, he shot her three times, ran back to his brother’s car, and fled the scene. One of the gunshots severed Walenta’s spine, and she died one month later as a result of her injuries. On the night of December 14, the brothers burst into a triplex at 12727 Birchwood, where roommates Jason, Brad, and Aaron lived. Jason’s girlfriend, Holly, and Heather, a friend of Aaron’s, were also in the house. Armed with handguns and a golf club, the brothers forced all five into Jason’s bedroom. They demanded that they strip naked and later ordered them into the bedroom closet. They took Holly and Heather from the bedroom, demanded that they perform oral sex and digitally pene- trate each other as the Carrs looked on and barked orders. They forced each of the men to have sex with Holly and then with Heather. They yelled that the men would be shot if they could not have sex with the women, so Holly— fearing for Jason’s life—performed oral sex on him in the closet before he was ordered out by the brothers. Jonathan then snatched Holly from the closet. He ordered that she digitally penetrate herself. He set his —————— 2 The facts for this portion of the opinion come from the Kansas Su- preme Court, and witness testimony. See 21–A Tr. 59–75 (Oct. 7, 2002), 22–B Tr. 39–124 (Oct. 8, 2002), 23–A Tr. 4–118 (Oct. 9, 2002), 23–B Tr. 5–133 (Oct. 9, 2002), and 24–A Tr. 4–93 (Oct. 10, 2002). 4 KANSAS v. CARR Opinion of the Court gun between her knees on the floor. And he raped her. Then he raped Heather. Reginald took Brad, Jason, Holly, and Aaron one-by-one to various ATMs to withdraw cash. When the victims returned to the house, their torture continued. Holly uri- nated in the closet because of fright. Jonathan found an engagement ring hidden in the bedroom that Jason was keeping as a surprise for Holly. Pointing his gun at Jason, he had Jason identify the ring while Holly was sitting nearby in the closet. Then Reginald took Holly from the closet, said he was not going to shoot her yet, and raped her on the dining-room floor strewn with boxes of Christ- mas decorations. He forced her to turn around, ejaculated into her mouth, and forced her to swallow. In a nearby bathroom, Jonathan again raped Heather and then again raped Holly. At 2 a.m.—three hours after |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | and then again raped Holly. At 2 a.m.—three hours after the mayhem began—the brothers decided it was time to leave the house. They attempted to put all five victims in the trunk of Aaron’s Honda Civic. Finding that they would not all fit, they jammed the three young men into the trunk. They di- rected Heather to the front of the car and Holly to Jason’s pickup truck, driven by Reginald. Once the vehicles ar- rived at a snow-covered field, they instructed Jason and Brad, still naked, and Aaron to kneel in the snow. Holly cried, “Oh, my God, they’re going to shoot us.” Holly and Heather were then ordered to kneel in the snow. Holly went to Jason’s side; Heather, to Aaron. Holly heard the first shot, heard Aaron plead with the brothers not to shoot, heard the second shot, heard the screams, heard the third shot, and the fourth. She felt the blow of the fifth shot to her head, but remained kneeling. They kicked her so she would fall face-first into the snow and ran her over in the pickup truck. But she survived, because a hair clip she had fastened to her hair that night deflected the bullet. She went to Jason, took off her Cite as: 577 U. S. (2016) 5 Opinion of the Court sweater, the only scrap of clothing the brothers had let her wear, and tied it around his head to stop the bleeding from his eye. She rushed to Brad, then Aaron, and then Heather. Spotting a house with white Christmas lights in the distance, Holly started running toward it for help—naked, skull shattered, and without shoes, through the snow and over barbed-wire fences. Each time a car passed on the nearby road, she feared it was the brothers returning and camouflaged herself by lying down in the snow. She made it to the house, rang the doorbell, knocked. A man opened the door, and she relayed as quickly as she could the events of the night to him, and minutes later to a 911 dispatcher, fearing that she would not live. Holly lived, and retold this play-by-play of the night’s events to the jury. Investigators also testified that the brothers returned to the Birchwood house after leaving the five friends for dead, where they ransacked the place for valuables and (for good measure) beat Holly’s dog, Nikki, to death with a golf club. The State charged each of the brothers with more than 50 counts, including murder, rape, sodomy, kidnaping, burglary, and robbery, and the jury returned separate guilty verdicts. |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | burglary, and robbery, and the jury returned separate guilty verdicts. It convicted Reginald of one count of kid- naping, aggravated robbery, aggravated battery, and criminal damage to property for the Schreiber carjacking, and one count of first-degree felony murder for the Walenta shooting. Jonathan was acquitted of all counts related to the Schreiber carjacking but convicted of first-degree felony murder for the Walenta shooting. For the Birch- wood murders, the jury convicted each brother of 4 counts of capital murder, 1 count of attempted first-degree mur- der, 5 counts of aggravated kidnaping, 9 counts of aggra- vated robbery, 20 counts of rape or attempted rape, 3 counts of aggravated criminal sodomy, 1 count each of aggravated burglary and burglary, 1 count of theft, and 1 6 KANSAS v. CARR Opinion of the Court count of cruelty to animals. The jury also convicted Reg- inald of three counts of unlawful possession of a firearm. 15–16, The State sought the death penalty for each of the four Birchwood murders, and the brothers were sentenced together. The State relied on the guilt-phase evidence, including Holly’s two days of testimony, as evidence of four aggravating circumstances: that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crimes for the purpose of receiving money or items of monetary value; that they committed the crimes to prevent arrest or pro- secution; and that they committed the crimes in an espe- cially heinous, atrocious, or cruel manner. at 258–259, After hearing each brother’s case for mitigation, the jury issued separate verdicts of death for Reginald and Jonathan. It found unanimously that the State proved the existence of the four aggravating circum- stances beyond a reasonable doubt and that those aggra- vating circumstances outweighed the mitigating circum- stances, justifying four separate verdicts of death for each brother for the murders of Jason, Brad, Aaron, and Heather. App. in No. 14–449 etc., pp. 461–492. C The Kansas Supreme Court vacated the death penalties in both cases. It held that the instructions used in both Gleason’s and the Carrs’ sentencing violated the Eighth Amendment because they “failed to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable ” ; ; 300 Kan. 340, 369–370, (Jonathan Carr). Without that instruction, according to the court, Cite as: 577 U. S. (2016) 7 Opinion of the Court the jury “was left to speculate as to the correct burden of proof for |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable ” This, the court concluded, might have caused jurors to exclude relevant mitigating evidence from their consideration. The Kansas Supreme Court also held that the Carrs’ death sentences had to be vacated because of the trial court’s failure to sever their sentencing proceedings, thereby violating the brothers’ Eighth Amendment right “to an individualized capital sentencing determination.” ; 329 P. 3d, at 1212. According to the court, the joint trial “in- hibited the jury’s individualized consideration of [Jona- than] because of family characteristics tending to demon- strate future dangerousness that he shared with his brother”; and his brother’s visible handcuffs prejudiced the jury’s consideration of his 331 P.3d, at 717. As for Reginald, he was prejudiced, accord- ing to the Kansas Supreme Court, by Jonathan’s portrayal of him as the corrupting older brother. P. 3d, at 717. Moreover, Reginald was prejudiced by his brother’s cross-examination of their sister, who testified that she thought Reginald had admitted to her that he was the shooter. (She later backtracked and testified, “ ‘I don’t remember who was, you know, shot by who[m].’ ” ) The Kansas Supreme Court opined that the presumption that the jury followed its instructions to consider each defendant separately was “defeated by logic.” “[T]he defendants’ joint upbringing in the maelstrom that was their family and their influence on and interactions with one another simply was not amenable to orderly sepa- ration and analysis.” –720. The Kansas Supreme Court found itself unable to “say that the 8 KANSAS v. CARR Opinion of the Court death verdict was unattributable, at least in part, to this error.” We granted certio- rari. 575 U. S. (2015). II We first turn to the Kansas Supreme Court’s contention that the Eighth Amendment required these capital- sentencing courts to instruct the jury that mitigating circumstances need not be proved beyond a reasonable A Before considering the merits of that contention, we consider Gleason’s challenge to our jurisdiction. According to Gleason, the Kansas Supreme Court’s decision rests on adequate and independent state-law grounds. This argu- ment is a familiar one. We rejected it in Like the defendant in that case, Gleason urges that the decision below rests only on a rule of Kansas law announced in —a rule later reiter- ated in ( per curiam). As we stated in “Kleypas, itself, rested on federal law.” 548 U.S., at So too does the relevant passage of which rested on Kleypas’s |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | too does the relevant passage of which rested on Kleypas’s dis- cussion of the constitutional rule that jurors need not agree on mitigating circumstances. See at 106–, –838. The Kansas Supreme Court’s opinion in this case acknowledged as much, saying that “statements from Kleypas implicate the broader Eighth Amendment principle prohibiting barriers that preclude a sentencer’s consideration of all relevant miti- gating evidence.” The Kansas Supreme Court’s opinion leaves no room for doubt that it was relying on the Federal Constitution. It stated that the instruction it required “protects a capital Cite as: 577 U. S. (2016) 9 Opinion of the Court defendant’s Eighth Amendment right to individualized sentencing,” that the absence of the instruction “im- plicat[ed] Gleason’s right to individualized sentencing under the Eighth Amendment,” and that vacatur of Gleason’s death sentence was the “[c]onsequen[ce]” of Eighth Amendment error. at 1196–1197, 329 P. 3d, at 1147–1148 For this reason, the criticism leveled by the dissent is misdirected. It generally would have been “none of our business” had the Kansas Supreme Court vacated Gleason’s and the Carrs’ death sentences on state-law grounds. But it decidedly did not. And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, “review by this Court, far from undermining state autonomy, is the only possible way to vindicate it.” “When we correct a state court’s federal errors, we return power to the State, and to its people.” The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions. See Sutton, San Anto- nio Independent School District v. Rodriguez And Its Aftermath, 1971–1977 But what a state court cannot do is experiment with our Fed- eral Constitution and expect to elude this Court’s review so long as victory goes to the criminal defendant. “Turn- ing a blind eye” in such cases “would change the uniform ‘law of the land’ into a crazy quilt.” And it would enable state courts to blame the unpopular death-sentence reprieve of the most horrible criminals upon the Federal Constitution when it is in fact their own doing. B We turn, then, to the merits of the Kansas Supreme Court’s conclusion that the Eighth Amendment requires 10 KANSAS v. CARR Opinion of the Court capital-sentencing courts in Kansas “to affirmatively inform the jury that mitigating circumstances need not be proven beyond a reasonable ” Approaching the question in the abstract, and without reference to our capital-sentencing case law, we doubt whether it is even possible to apply a standard of proof |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called “selec- tion phase” of a capital-sentencing proceeding). It is pos- sible to do so for the aggravating-factor determination (the so-called “eligibility phase”), because that is a purely factual determination. The facts justifying death set forth in the Kansas statute either did or did not exist—and one can require the finding that they did exist to be made beyond a reasonable Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circum- stances is mostly a question of mercy—the quality of which, as we know, is not strained. It would mean noth- ing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more- likely-than-not deserve it. It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury’s discretion without a standard of proof. If we were to hold that the Constitution requires the mitigating- factor determination to be divided into its factual compo- nent and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion. In the last analysis, jurors will accord mercy if they deem it appropriate, and withhold mercy if they do not, which is Cite as: 577 U. S. (2016) 11 Opinion of the Court what our case law is designed to achieve. In any event, our case law does not require capital sentencing courts “to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable ” In v. Angelone, 522 U.S. 269 (1998), we upheld a death sentence even though the trial court “failed to provide the jury with express guidance on the concept of mitigation.” Like- wise in we reaf- firmed that the Court has “never held that the State must structure in a particular way the manner in which juries consider mitigating evidence” and rejected the contention that it was constitutionally deficient to instruct jurors to “ ‘consider a mitigating circumstance if you find there is evidence to support it,’ ” without additional guidance. at 232–233. Equally unavailing is the contention that even if an instruction that mitigating evidence need not be “proven beyond a reasonable doubt” is not always |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | not be “proven beyond a reasonable doubt” is not always required, it was constitutionally necessary in these cases to avoid confu- sion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if “there is a reasonable likelihood that the jury has applied the challenged in- struction in a way that prevents the consideration of constitutionally relevant evidence.” The alleged confusion stemming from the jury instructions used at the defendants’ sentencings does not clear that bar. A meager “possibility” of confusion is not enough. As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to re- quire the defense to prove mitigating circumstances be- yond a reasonable Assuming without deciding that that is the case, the record belies the defendants’ conten- tion that the instructions caused jurors to apply that standard of proof. The defendants focus upon the follow- 12 KANSAS v. CARR Opinion of the Court ing instruction: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances found to exist.” App. to Pet. for Cert. in No. 14–452, p. 133 (Instr. 8).3 The juxtaposition of aggravating and mitigating circumstances, so goes the argument, caused the jury to speculate that mitigating circumstances must also be proved beyond a reasonable It seems to us quite the opposite. The instruction makes clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt; mitigating circumstances themselves, on the other hand, must merely be “found to exist.” That same description, mitigating circumstances “found to exist,” is contained in three other instructions, App. to Pet. for Cert. in No. 14–452, 3 (Instrs. 7, 9, and 10) —unsurprisingly, since it recites the Kansas statute, see Kan. Stat. Ann. (1995). “Found to exist” certainly does not suggest proof beyond a reasonable The instructions as a whole distinguish clearly between aggravating and mitigating circumstances: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances” and the jury must decide unanimously that the State met that burden. App. to Pet. for Cert. in No. 14–452, 3 (Instrs. 8 and 10) “Mitigating circumstances,” on the other hand, “do not need to be found by all members of the jury” to “be considered by an individual juror in arriving at his or her sentencing decision.” Not once do the instructions say that defense counsel bears the —————— 3 The relevant penalty-phase instructions from the |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | bears the —————— 3 The relevant penalty-phase instructions from the Carrs’ sentencing proceedings are materially indistinguishable. See App. to Pet. for Cert. in No. 14–450, pp. 501–510. Cite as: 577 U. S. (2016) 13 Opinion of the Court burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt—nor would that make much sense, since one of the mitigating circum- stances is (curiously) “mercy,” which simply is not a fac- tual determination. We reject the Kansas Supreme Court’s decision that jurors were “left to speculate as to the correct burden of proof for mitigating circumstances.” For the reasons we have described, no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable The reality is that jurors do not “pars[e] instructions for subtle shades of meaning in the same way that lawyers might.” Boyde, The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitution- ally relevant evidence. III We turn next to the contention that a joint capital- sentencing proceeding in the Carrs’ cases violated the defendants’ Eighth Amendment right to an “individualized sentencing determination.” 300 Kan., P.3d, at 717. The Kansas Supreme Court agreed with the defendants that, because of the joint sentencing proceeding, one de- fendant’s mitigating evidence put a thumb on death’s scale for the other, in violation of the other’s Eighth Amend- ment rights. It accepted Reginald’s contention that he was prejudiced by his brother’s portrayal of him as the corrupting older brother. And it agreed that Reginald was prejudiced by his brother’s cross-examination of their sister, who equivocated about whether Reginald admitted 14 KANSAS v. CARR Opinion of the Court to her that he was the shooter. (Reginald has all but abandoned that implausible theory of prejudice before this Court and contends only that the State “likely would not have introduced any such testimony” had he been sen- tenced alone. Brief for Respondent in No. 14–450, p. 34, n. 3.) Jonathan asserted that he was prejudiced by evi- dence associating him with his dangerous older brother, which caused the jury to perceive him as an incurable sociopath.4 Both speculate that the evidence assertedly prejudicial to them would have been inadmissible in sev- ered proceedings under Kansas law. The Kansas Supreme Court also launched a broader attack on the joint proceed- ings, contending that the joinder rendered it impossible for the jury to consider the Carrs’ relative |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | it impossible for the jury to consider the Carrs’ relative moral culpability and to determine individually whether they were entitled to “mercy.” –719. Whatever the merits of defendants’ procedural objec- tions, we will not shoehorn them into the Eighth Amend- ment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing pro- ceedings.” at 11–12. Rather, it is the Due Process —————— 4 Jonathan also alleges that he was prejudiced by the jury’s witness- ing his brother’s handcuffs, which his brother requested remain visible before the penalty phase commenced. That allegation is mystifying. That his brother’s handcuffs were visible (while his own restraints were not) more likely caused the jury to see Jonathan as the less dangerous of the two. Cite as: 577 U. S. (2016) 15 Opinion of the Court Clause that wards off the introduction of “unduly prejudi- cial” evidence that would “rende[r] the trial fundamentally unfair.” ; see also The test prescribed by for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vaca- tur of a death In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determi- nation, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. To begin with, the court instructed the jury that it “must give separate consideration to each defendant,” that each was “entitled to have his sentence decided on the evidence and law which is applicable to him,” and that any evidence in the penalty phase “limited to only one defendant should not be considered by you as to the other defendant.” App. to Pet. for Cert. in No. 14–450, at 501 (Instr. 3). |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | Pet. for Cert. in No. 14–450, at 501 (Instr. 3). The court gave defendant-specific instructions for aggravating and miti- gating circumstances. at 502–508 (Instrs. 5, 6, 7, and 8). And the court instructed the jury to consider the “indi- vidual” or “particular defendant” by using four separate verdict forms for each defendant, one for each murdered occupant of the Birchwood house. ; App. in No. 14–449 etc., at 461–492. We presume the jury followed these instructions and considered each defendant separately when deciding to impose a sentence of death for each of the brutal murders. 16 KANSAS v. CARR Opinion of the Court The contrary conclusion of the Kansas Supreme Court— that the presumption that jurors followed these instruc- tions was “defeated by logic,” 300 Kan., 331 P.3d, at 719—is untenable. The Carrs implausibly liken the prejudice resulting from the joint sentencing proceeding to the prejudice infecting the joint trial in where the prosecution admit- ted hearsay evidence of a codefendant’s confession impli- cating the defendant. That particular violation of the defendant’s confrontation rights, incriminating evidence of the most persuasive sort, ineradicable, as a practical matter, from the jury’s mind, justified what we have de- scribed as a narrow departure from the presumption that jurors follow their instructions, Richardson v. 481 U.S. 200, 207 (1987). We have declined to extend that exception, and have continued to apply the presumption to instructions regarding mitigating evidence in capital-sentencing proceedings, see, e.g., Weeks, 528 U.S., at 234. There is no reason to think the jury could not follow its instruction to consider the defendants sepa- rately in this case. Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events. Joint trial may enable a jury “to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in the sentencing.” v. Kentucky, 483 U.S. 402, 418 (1987). That the codefendants might have “antagonistic” theories of mitigation, does not suffice to over- come Kansas’s “interest in promoting the reliability and consistency of its judicial process,” at 418. Limiting instructions, like those used in the Carrs’ sentencing proceeding, “often will suffice to cure any risk of prejudice.” at 539 (citing Richardson, Cite as: 577 U. S. (2016) 17 Opinion of the Court ). To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of “wan- to[n] and freakis[h]” imposition of death sentences. Gregg v. Georgia, (joint opinion of Stewart, Powell, and Stevens, JJ.). Better that two |
Justice Scalia | 2,016 | 9 | majority | Kansas v. Carr | https://www.courtlistener.com/opinion/3170728/kansas-v-carr/ | opinion of Stewart, Powell, and Stevens, JJ.). Better that two de- fendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather than reasoned judgment,” –14. Only the most extravagant speculation would lead to the conclusion that the supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair. It is beyond reason to think that the jury’s death verdicts were caused by the identification of Reginald as the “corrupter” or of Jonathan as the “corrupted,” the jury’s viewing of Reginald’s handcuffs, or the sister’s re- tracted statement that Reginald fired the final shots. None of that mattered. What these defendants did—acts of almost inconceivable cruelty and depravity—was de- scribed in excruciating detail by Holly, who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair. IV When we granted the State’s petition for a writ of certio- rari for the Carrs’ cases, we declined to review whether the Confrontation Clause, U. S. Const., Amdt. 6, requires that defendants be allowed to cross-examine witnesses whose statements are recorded in police reports referred to by the State in penalty-phase proceedings. The Kansas Supreme Court did not make the admission of those statements a basis for its vacating of the death sentences, but merely “caution[ed]” that in the resentencing proceed- 18 KANSAS v. CARR Opinion of the Court ings these out-of-court testimonial statements should be We are confi- dent that cross-examination regarding these police reports would not have had the slightest effect upon the sen- tences. See (1986). * * * The judgments of the Supreme Court of Kansas are reversed, and these cases are remanded for further pro- ceedings not inconsistent with this opinion. It is so ordered. Cite as: 577 U. S. (2016) 1 SOTOMAYOR, J., dissenting NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES Nos. 14–449, 14-450, and 14–452 KANSAS, PETITIONER 14–449 v. JONATHAN D. CARR KANSAS, PETITIONER 14–450 v. REGINALD DEXTER CARR, JR. KANSAS, PETITIONER 14–452 v. SIDNEY J. |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | Petitioner, Hugo Zacchini, is an entertainer. He performs a "human cannonball" act in which he is shot from a cannon into a net some 200 feet away. Each performance occupies some 1 seconds. In August and September 1972, petitioner was engaged to perform his act on a regular basis at the Geauga County Fair in Burton, Ohio. He performed in a fenced area, surrounded by grandstands, at the fair grounds. Members of the public attending the fair were not charged a separate admission fee to observe his act. On August 30, a freelance reporter for Scripps-Howard Broadcasting the operator of a television broadcasting station and respondent in this case, attended the fair. He *64 carried a small movie camera. Petitioner noticed the reporter and asked him not to film the performance. The reporter did not do so on that day; but on the instructions of the producer of respondent's daily newscast, he returned the following day and videotaped the entire act. This film clip, approximately 1 seconds in length, was shown on the 11 o'clock news program that night, together with favorable commentary.[1] Petitioner then brought this action for damages, alleging that he is "engaged in the entertainment business," that the act he performs is one "invented by his father and performed only by his family for the last fifty years," that respondent "showed and commercialized the film of his act without his consent," and that such conduct was an "unlawful appropriation of plaintiff's professional property." App. 4-. Respondent answered and moved for summary judgment, which was granted by the trial court. The Court of Appeals of Ohio reversed. The majority held that petitioner's complaint stated a cause of action for conversion and for infringement of a common-law copyright, and one judge concurred in the judgment on the ground that the complaint stated a cause of action for appropriation of petitioner's "right of publicity" in the film of his act. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial. *6 Like the concurring judge in the Court of Appeals, the Supreme Court of Ohio rested petitioner's cause of action under state law on his "right to publicity value of his performance." The opinion syllabus, to which we are to look for the rule of law used to decide the case,[2] declared first that one may not use for his own benefit the name or likeness of another, whether or not the use or benefit is |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | of another, whether or not the use or benefit is a commercial one, and second that respondent would be liable for the appropriation, over petitioner's objection and in the absence of license or privilege, of petitioner's right to the publicity value of his performance. The court nevertheless gave judgment for respondent because, in the words of the syllabus: "A TV station has a privilege to report in its newscasts matters of legitimate public interest which would otherwise be protected by an individual's right of publicity, unless the actual intent of the TV station was to appropriate the benefit of the publicity for some non-privileged private use, or unless the actual intent was to injure the individual." We granted certiorari, to consider an issue unresolved by this Court: whether the First and Fourteenth Amendments immunized respondent from damages for its alleged infringement of petitioner's state-law "right of publicity." Pet. for Cert. 2. Insofar as the Ohio Supreme Court held that the First and Fourteenth Amendments of the *66 United States Constitution required judgment for respondent, we reverse the judgment of that court. I If the judgment below rested on an independent and adequate state ground, the writ of certiorari should be dismissed as improvidently granted, for "[o]ur only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." We are confident, however, that the judgment below did not rest on an adequate and independent state ground and that we have jurisdiction to decide the federal issue presented in this case. There is no doubt that petitioner's complaint was grounded in state law and that the right of publicity which petitioner was held to possess was a right arising under Ohio law. It is also clear that respondent's claim of constitutional privilege was sustained. The source of this privilege was not identified in the syllabus. It is clear enough from the opinion of the Ohio Supreme Court, which we are permitted to consult for understanding of the syllabus,[3] that in adjudicating *67 the crucial question of whether respondent had a privilege to film and televise petitioner's performance, the court placed principal reliance on Time, a case involving First Amendment limitations on state tort actions. It construed the principle of that case, along with |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | actions. It construed the principle of that case, along with that of New York Times to be that "the press has a privilege to report matters of legitimate public interest even though such reports might intrude on matters otherwise private," and concluded, therefore, that the press is also "privileged when an individual seeks to publicly exploit his talents while keeping the benefits private." The privilege thus exists in cases "where appropriation of a right of publicity is claimed." The court's opinion also referred to Draft 21 of the relevant portion of Restatement (Second) of Torts (197), which was understood to make room for reasonable press appropriations by limiting the reach of the right of privacy rather than by creating a privileged invasion. The court preferred the notion of privilege over the Restatement's formulation, however, reasoning that "since the gravamen of the issue in this case is not whether the degree of intrusion is reasonable, but whether First Amendment principles require that the *68 right of privacy give way to the public right to be informed of matters of public interest and concern, the concept of privilege seems the more useful and appropriate one." n. n. (Emphasis added.) Had the Ohio court rested its decision on both state and federal grounds, either of which would have been dispositive, we would have had no jurisdiction. Fox Film (193); Enterprise Irrigation 243 U.S. 17, But the opinion, like the syllabus, did not mention the Ohio Constitution, citing instead this Court's First Amendment cases as controlling. It appears to us that the decision rested solely on federal grounds. That the Ohio court might have, but did not, invoke state law does not foreclose jurisdiction here. ; Indiana ex rel. 303 U.S. 9, Even if the judgment in favor of respondent must nevertheless be understood as ultimately resting on Ohio law, it appears that at the very least the Ohio court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did. In this event, we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide the privilege issue solely as a matter of Ohio law. If the Supreme Court of Ohio "held as it did because it felt under compulsion of federal law as enunciated by this Court so to hold, it should be relieved of that compulsion. It should be freed to decide |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | relieved of that compulsion. It should be freed to decide these suits according to its own local law." Missouri ex rel. Southern R. v. Mayfield, (190). *69 II The Ohio Supreme Court held that respondent is constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy. This, he claimed, was an appropriation of his professional property. The Ohio Supreme Court agreed that petitioner had "a right of publicity" that gave him "personal control over commercial display and exploitation of his personality and the exercise of his talents."[4] This right of "exclusive control over the publicity given to his performances" was said to be such a "valuable part of the benefit which may be attained by his talents and efforts" that it was entitled to legal protection. It was *70 also observed, or at least expressly assumed, that petitioner had not abandoned his rights by performing under the circumstances present at the Geauga County Fair Grounds. The Ohio Supreme Court nevertheless held that the challenged invasion was privileged, saying that the press "must be accorded broad latitude in its choice of how much it presents of each story or incident, and of the emphasis to be given to such presentation. No fixed standard which would bar the press from reporting or depicting either an entire occurrence or an entire discrete part of a public performance can be formulated which would not unduly restrict the `breathing room' in reporting which freedom of the press requires." 47 Ohio St. 2d, at 23, Under this view, respondent was thus constitutionally free to film and display petitioner's entire act.[] The Ohio Supreme Court relied heavily on Time, but that case does not mandate a media privilege to televise a performer's entire act without his consent. Involved in Time, was a claim under the New York "Right of Privacy" statute[6] that Life Magazine, in *71 the course of reviewing a new play, had connected the play with a long-past incident |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | new play, had connected the play with a long-past incident involving petitioner and his family and had falsely described their experience and conduct at that time. The complaint sought damages for humiliation and suffering flowing from these nondefamatory falsehoods that allegedly invaded Hill's privacy. The Court held, however, that the opening of a new play linked to an actual incident was a matter of public interest and that Hill could not recover without showing that the Life report was knowingly false or was published with reckless disregard for the truththe same rigorous standard that had been applied in New York Times Time, which was hotly contested and decided by a divided Court, involved an entirely different tort from the "right of publicity" recognized by the Ohio Supreme Court. As the opinion reveals in Time, the Court was steeped in the literature of privacy law and was aware of the developing distinctions and nuances in this branch of the law. The Court, for example, cited W. Prosser, Law of Torts 831-832 and the same author's well-known article, Privacy, both of which divided privacy into four distinct branches.[7] The Court was aware that it was adjudicating a "false light" privacy case involving a matter of public interest, not a case involving "intrusion," 38 U.S., at 384-38, n. 9, "appropriation" of a *72 name or likeness for the purposes of trade, or "private details" about a non-newsworthy person or event, at 383 n. 7. It is also abundantly clear that Time, did not involve a performer, a person with a name having commercial value, or any claim to a "right of publicity." This discrete kind of "appropriation" case was plainly identified in the literature cited by the Court[8] and had been adjudicated in the reported cases.[9] *73 The differences between these two torts are important. First, the State's interests in providing a cause of action in each instance are different. "The interest protected" in permitting recovery for placing the plaintiff in a false light "is clearly that of reputation, with the same overtones of mental distress as in defamation." Prosser, By contrast, the State's interest in permitting a "right of publicity" is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.[10] As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Second, the two torts differ in the degree to which they intrude |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | two torts differ in the degree to which they intrude on dissemination of information to the public. In "false light" cases the only way to protect the interests involved is to attempt to minimize publication of the damaging matter, while in "right of publicity" cases the only question is who gets to do the publishing. An entertainer such as petitioner usually has no objection to the widespread publication of his act as long as he gets the commercial benefit of such publication. Indeed, in the present case petitioner did not seek to enjoin the broadcast of his act; he simply *74 sought compensation for the broadcast in the form of damages. Nor does it appear that our later cases, such as ; ; and Time, require or furnish substantial support for the Ohio court's privilege ruling. These cases, like New York Times, emphasize the protection extended to the press by the First Amendment in defamation cases, particularly when suit is brought by a public official or a public figure. None of them involve an alleged appropriation by the press of a right of publicity existing under state law. Moreover, Time, New York Times, Metromedia, Gertz, and Firestone all involved the reporting of events; in none of them was there an attempt to broadcast or publish an entire act for which the performer ordinarily gets paid. It is evident, and there is no claim here to the contrary, that petitioner's state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner's act.[11] Wherever the line in particular situations is to be drawn between media reports that are protected and *7 those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner, Copyrights Act, 17 U.S. C. App. 101 et seq. ( ed.); cf. Kalem v. Harper Bros., 222 U.S. ; 22 U.S. 317 or to film and broadcast a prize fight, (CA3), cert. denied, 31 U.S. 926 (196); or a baseball game, Pittsburgh Athletic v. KQV Broadcasting where the promoters or the participants had other plans for publicizing the event. There are ample reasons for reaching this conclusion. The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. As |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | substantial threat to the economic value of that performance. As the Ohio court recognized, this act is the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the "right of exclusive control over the publicity given to his performance"; if the public can see the act free on television, it will be less willing to pay to see it at the fair.[12] The *76 effect of a public broadcast of the performance is similar to preventing petitioner from charging an admission fee. "The rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay." Kalven, Privacy in Tort LawWere Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966). Moreover, the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer. Thus, in this case, Ohio has recognized what may be the strongest case for a "right of publicity"involving, not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place. Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in (194): "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." *77 These laws perhaps regard the "reward to the owner [as] a secondary consideration," United 18 but they were "intended definitely to grant valuable, enforceable rights" in order to afford greater encouragement to the production of works of benefit to the public. |
Justice White | 1,977 | 6 | majority | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | to the production of works of benefit to the public. Washingtonian Publishing v. Pearson, The Constitution does not prevent Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work. Cf. 412 U.S. 46 ; Kewanee Oil v. Bicron Corp.,[13] *78 There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment itself can be important news. Time, But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it. Nor do we think that a state-law damages remedy against respondent would represent a species of liability without fault contrary to the letter or spirit of Respondent knew that petitioner objected to televising his act but nevertheless displayed the entire film. We conclude that although the State of Ohio may as a *79 matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so. Reversed. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR. |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | Appellant is a town attorney in Nassau County, N. Y., who, along with other local law enforcement officials, was preliminary enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, aff'd, In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of and its companion cases. Appellees are three corporations which operate bars at various locations within the town. Prior to enactment of the ordinance in question, each provided topless dancing as entertainment for its customers. On July 17, the town enacted Local Law No. 1-, an ordinance making it unlawful for bar owners and others to permit waitresses, barmaids, and entertainers to appear in their establishments with breasts uncovered or so thinly draped as to appear uncovered. Appellees complied with the ordinance by clothing their dancers in bikini tops, but on August 9, brought this action in the District Court under 42 U.S. C. 1983. They alleged that the ordinance violated their rights under the First and Fourteenth Amendments to the United States Constitution. Their pleadings sought a temporary restraining *925 order, a preliminary injunction, and declaratory relief. The prayer for a temporary restraining order was denied instanter, but the motion for a preliminary injunction was set for a hearing on August 22, On August 10, the day after the appellees' complaint was filed, and their application for a temporary restraining order denied, one of them, M & L Restaurant, Inc., resumed its briefly suspended presentation of topless dancing. On that day, and each of the three succeeding days, M & L and its topless dancers were served with criminal summonses based on violation of the ordinance.[1] These summonses were returnable before the Nassau County Court on September 13, The other two appellees, Salem Inn, Inc., and Tim-Rob Bar, Inc., did not resume the presentation of topless entertainment in their bars until after the District Court issued its preliminary injunction. On September 5, appellant filed an answer which alleged that a criminal prosecution had been instituted against at least one of the appellees; the District Court was urged to "refuse to exercise jurisdiction" and to dismiss the complaint. App. 33. On September 6, on the basis of oral argument and memoranda of law, the District Court entered an opinion and order in which it "[found] that (1) Local Law No. 1- of the Town of North Hempstead is on its face violative of plaintiffs' First Amendment rights in that it prohibits |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | violative of plaintiffs' First Amendment rights in that it prohibits across the board nonobscene conduct in the form of topless dancing, and (2) that the daily penalty of $500 for each violation of the ordinance, the prior state-court decision validating a similar ordinance, *926 the overbreadth of the ordinance, and the potential harm to plaintiffs' business by its enforcement justify federal intervention and injunctive relief." The court concluded by enjoining appellant "pending the final determination of this action from prosecuting the plaintiffs for any violation of Local Law No. 1- or in any way interfering with their activities which may be prohibited by the text of said Local Law." The court did address appellant's contention, but held that the pending prosecution against M & L did not affect the availability of injunctive relief to Salem and Tim-Rob. As for M & L, it concluded that if federal relief were granted to two of the appellees, "it would be anomalous" not to extend it to M & L as well. The Court of Appeals for the Second Circuit affirmed by a divided vote. It held that the "ordinance would have to fall," and that the claim of deprivation of constitutional rights and diminution of business warranted the issuance of a preliminary injunction. The Court of Appeals rejected appellant's claim that the District Court ought to have dismissed appellees' complaint on the authority of and its companion cases. As to Salem and Tim-Rob, did not present a bar because there had at no time been a pending prosecution against them under the ordinance. As for M & L, the court thought that it posed "a slightly different problem," since the state prosecution was begun only one day after the filing of appellees' complaint in the District Court. The court recognized that this situation was not squarely covered by either or but concluded that the interests of avoiding contradictory outcomes, of conservation of judicial energy, and of a clearcut method for determining when federal *927 courts should defer to state prosecutions, all militated in favor of granting relief to all three appellees. We deal first with a preliminary jurisdictional matter. This appeal was taken under 28 U.S. C. 1254 (2), which provides this Court with appellate jurisdiction at the behest of a party relying on a state statute held unconstitutional by a court of appeals.[2] There is authority, questioned but never put to rest, that 1254 (2) is available only when review is sought of a final judgment. ; South Carolina Electric & Gas But see The present appeal, however, seeks review of |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | Gas But see The present appeal, however, seeks review of the affirmance of a preliminary injunction. We also are less than completely certain that the Court of Appeals did in fact hold Local Law 1- to be unconstitutional, since it considered the merits only for the purpose of ruling on the propriety of preliminary injunctive relief. We need not resolve these issues, which have neither been briefed nor argued, because we in any event have certiorari jurisdiction under 28 U.S. C. 2103. As we have previously done in an identical situation, El we dismiss the appeal and, treating the papers as a petition for certiorari, grant the writ of certiorari. Turning to the issues raised by petitioner, we are faced with the necessity of determining whether the holdings of and must give way before such interests in efficient judicial administration as were relied upon by the Court of Appeals. We think *928 that the interest of avoiding conflicting outcomes in the litigation of similar issues, while entitled to substantial deference in a unitary system, must of necessity be subordinated to the claims of federalism in this particular area of the law. The classic example is the petitioner in and his companion. Both were warned that failure to cease pamphleteering would result in their arrest, but while the petitioner in ceased and brought an action in the federal court, his companion did not cease and was prosecuted on a charge of criminal trespass in the state court. -456. The same may be said of the interest in conservation of judicial manpower. As worthy a value as this is in a unitary system, the very existence of one system of federal courts and 50 systems of state courts, all charged with the responsibility for interpreting the United States Constitution, suggests that on occasion there will be duplicating and overlapping adjudication of cases which are sufficiently similar in content, time, and location to justify being heard before a single judge had they arisen within a unitary system. We do not agree with the Court of Appeals, therefore, that all three plaintiffs should automatically be thrown into the same hopper for purposes, and should thereby each be entitled to injunctive relief. We cannot accept that view, any more than we can accept petitioner's equally Procrustean view that because M & L would have been barred from injunctive relief had it been the sole plaintiff, Salem and Tim-Rob should likewise be barred not only from injunctive relief but from declaratory relief as well. While there plainly may be some circumstances in which legally distinct parties |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the considerations which govern any one of them, this is not such a casewhile respondents are represented *929 by common counsel, and have similar business activities and problems, they are apparently unrelated in terms of ownership, control, and management. We thus think that each of the respondents should be placed in the position required by our cases as if that respondent stood alone. Respondent M & L could have pursued the course taken by the other respondents after the denial of their request for a temporary restraining order. Had it done so, it would not have subjected itself to prosecution for violation of the ordinance in the state court. When the criminal summonses issued against M & L on the days immediately following the filing of the federal complaint, the federal litigation was in an embryonic stage and no contested matter had been decided. In this posture, M & L's prayer for injunction is squarely governed by We likewise believe that for the same reasons bars M & L from obtaining declaratory relief, absent a showing of 's special circumstances, even though the state prosecution was commenced the day following the filing of the federal complaint. Having violated the ordinance, rather than awaiting the normal development of its federal lawsuit, M & L cannot now be heard to complain that its constitutional contentions are being resolved in a state court. Thus M & L's prayers for both injunctive and declaratory relief are subject to 's restrictions.[3] *930 The rule with regard to the coplaintiffs, Salem and Tim-Rob, is equally clear, insofar as they seek declaratory relief. Salem and Tim-Rob were not subject to state criminal prosecution at any time prior to the issuance of a preliminary injunction by the District Court. Under they thus could at least have obtained a declaratory judgment upon an ordinary showing of entitlement to that relief. The District Court, however, did not grant declaratory relief to Salem and Tim-Rob, but instead granted them preliminary injunctive relief. Whether injunctions of future criminal prosecutions are governed by standards is a question which we reserved in both and We now hold that on the facts of this case the issuance of a preliminary injunction is not subject to the restrictions of The principle underlying and Samuels is that state courts are fully competent to adjudicate constitutional claims, and therefore a federal court should, in all but the most exceptional circumstances, refuse to interfere with an ongoing state |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | most exceptional circumstances, refuse to interfere with an ongoing state criminal proceeding. In the absence of such a proceeding, however, as we recognized in a plaintiff may challenge the constitutionality of the state statute in federal court, assuming he can satisfy the requirements for federal jurisdiction. See also Lake Carriers' No state proceedings were pending against either Salem or Tim-Rob at the time the District Court issued its preliminary injunction. Nor was there any question that they satisfied the requirements for federal jurisdiction. As we have already stated, they were assuredly entitled to declaratory relief, and since we have previously *931 recognized that "[o]rdinarily the practical effect of [injunctive and declaratory] relief will be virtually identical," Samuels, we think that Salem and Tim-Rob were entitled to have their claims for preliminary injunctive relief considered without regard to 's restrictions. At the conclusion of a successful federal challenge to a state statute or local ordinance, a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary. But prior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm. Moreover, neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute. The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. It is recognized, however, that a district court must weigh carefully the interests on both sides. Although only temporary, the injunction does prohibit state and local enforcement activities against the federal plaintiff pending final resolution of his case in the federal court. Such a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of But while the standard to be applied by the district court in deciding whether a plaintiff is entitled to a preliminary injunction is stringent, the standard of appellate *932 review is simply whether the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion. 411 While we regard the question as a close one, we believe that the issuance of a preliminary injunction in behalf of respondents Salem |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | issuance of a preliminary injunction in behalf of respondents Salem and Tim-Rob was not an abuse of the District Court's discretion. As required to support such relief, these respondents alleged (and petitioner did not deny) that absent preliminary relief they would suffer a substantial loss of business and perhaps even bankruptcy. Certainly the latter type of injury sufficiently meets the standards for granting interim relief, for otherwise a favorable final judgment might well be useless. The other inquiry relevant to preliminary relief is whether respondents made a sufficient showing of the likelihood of ultimate success on the merits. Both the District Court and the Court of Appeals found such a likelihood. The order of the District Court spoke in terms of actually holding the ordinance unconstitutional, but in the context of a preliminary injunction the court must have intended to refer only to the likelihood that respondents ultimately would prevail. The Court of Appeals properly clarified this point. -21. Although the customary "barroom" type of nude dancing may involve only the barest minimum of protected expression, we recognized in that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could *933 therefore ban such dancing as a part of its liquor license program. In the present case, the challenged ordinance applies not merely to places which serve liquor, but to many other establishments as well. The District Court observed, we believe correctly: "The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in `any public place' with uncovered breasts. There is no limit to the interpretation of the term `any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the `Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance." We have previously held that even though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court. As we said in : "Because overbroad laws, like vague ones, deter privileged activity, our |
Justice Rehnquist | 1,975 | 19 | majority | Doran v. Salem Inn, Inc. | https://www.courtlistener.com/opinion/109314/doran-v-salem-inn-inc/ | "Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise an overbreadth challenge." Even if we may assume that the State of New York has delegated its authority under the Twenty-first Amendment to towns such as North Hempstead, and that the ordinance would therefore be constitutionally valid under if limited to places dispensing alcoholic beverages, the ordinance in this case is not so *934 limited. Nor does petitioner raise any other legitimate state interest that would counterbalance the constitutional protection presumptively afforded to activities which are plainly within the reach of Local Law 1-. See United In these circumstances, and in the light of existing case law, we cannot conclude that the District Court abused its discretion by granting preliminary injunctive relief. This is the extent of our appellate inquiry, and we therefore "intimate no view as to the ultimate merits of [respondents'] contentions." at The judgment of the Court of Appeals is reversed as to respondent M & L, and affirmed as to respondents Salem and Tim-Rob. It is so ordered. MR. JUSTICE DOUGLAS, concurring in the judgment in part and dissenting in part. While adhering to my position in I join the judgment of the Court insofar as it holds that Salem Inn and Tim-Rob were entitled to a preliminary injunction pending disposition of their request for declaratory relief. I do not condone the conduct of M & L in violating the challenged ordinance without awaiting judicial action on its federal complaint, but like the Court of Appeals, I find no compelling reason to distinguish M & L from the other respondents in terms of the relief which is appropriate. I would therefore affirm the judgment below in all respects. |
Justice Marshall | 1,975 | 15 | majority | Austin v. New Hampshire | https://www.courtlistener.com/opinion/109219/austin-v-new-hampshire/ | Appellants are residents of Maine who were employed in New Hampshire during the 1970 tax year and as such were subject to the New Hampshire Commuters Income Tax On behalf of themselves and others similarly situated, they petitioned the New Hampshire Superior Court for a declaration that the tax violates the Privileges and Immunities and Equal Protection Clauses of the Constitutions of New Hampshire and of the United States The cause was transferred directly to the New Hampshire Supreme Court, which upheld the tax 11 N H 137, We noted probable jurisdiction of the federal constitutional claims, and on the basis of the Privileges and Immunities Clause of Art IV, we now reverse I The New Hampshire Commuters Income Tax imposes a tax on nonresidents' New Hampshire-derived income in *658 excess of $2,000[1] The tax rate is % except that if the nonresident taxpayer's State of residence would impose a lesser tax had the income been earned in that State, the New Hampshire tax is reduced to the amount of the tax that the State of residence would impose Employers are required to withhold % of the nonresident's income, however, even if his home State would tax him at less than the full % Any excess tax withheld is refunded to the nonresident upon his filing a New Hampshire tax return after the close of the tax year showing that he is entitled to be taxed at a rate less than % The Commuters Income Tax initially imposes a tax of % as well on the income earned by New Hampshire residents outside the State It then exempts such income from the tax, however: (1) if it is taxed by the State from which it is derived; (2) if it is exempted from taxation by the State from which it is derived; or (3) if the State from which it is derived does not tax such income[2]*659 The effect of these imposition and exemption features is that no resident of New Hampshire is taxed on his out-of-state income Nor is the domestic earned income of New Hampshire residents taxed In effect, then, the State taxes only the incomes of nonresidents working in New Hampshire;[3] it is on the basis of this disparate treatment of residents and nonresidents that appellants challenge New Hampshire's right to tax their income from employment in that State[] *660 II The Privileges and Immunities Clause of Art IV, 2, cl 1, provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" The Clause thus establishes a |
Justice Marshall | 1,975 | 15 | majority | Austin v. New Hampshire | https://www.courtlistener.com/opinion/109219/austin-v-new-hampshire/ | Citizens in the several States" The Clause thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment The origins of the Clause do reveal, however, the concerns of central import to the Framers During the preconstitutional period, the practice of some States denying to outlanders the treatment that its citizens demanded for themselves was widespread The fourth of the Articles of Confederation was intended to arrest this centrifugal tendency with some particularity It provided: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively" The discriminations at which this Clause was aimed were by no means eradicated during the short life of the Confederation,[5]*661 and the provision was carried over into the comity article of the Constitution in briefer form but with no change of substance or intent,[6] unless it was to strengthen the force of the Clause in fashioning a single nation[7] Thus, in the first, and long the leading, explication of the Clause, Mr Justice Washington, sitting as Circuit Justice, deemed the fundamental privileges and immunities protected by the Clause to be essentially coextensive with those calculated to achieve the purpose of forming a more perfect Union, including "an exemption from higher taxes or impositions than are paid by the other citizens of the state" (No 3,230) (CCED Pa 15) In resolving constitutional challenges to state tax measures this Court has made it clear that "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification" See Our review of tax classifications has generally been concomitantly narrow, therefore, to fit the broad discretion vested in the state legislatures When a tax measure is challenged as an undue burden on an activity granted special constitutional recognition, however, the appropriate degree of inquiry is that necessary to protect the competing constitutional value from erosion See This consideration applies equally to the protection of individual liberties, see and to the maintenance of our constitutional federalism See Michigan-Wisconsin Pipe Line The Privileges and Immunities Clause, by making |
Justice Marshall | 1,975 | 15 | majority | Austin v. New Hampshire | https://www.courtlistener.com/opinion/109219/austin-v-new-hampshire/ | Michigan-Wisconsin Pipe Line The Privileges and Immunities Clause, by making noncitizenship or nonresidence[8] an improper basis for locating a special burden, implicates not only the individual's right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism Since nonresidents are not represented in the taxing State's legislative halls, cf Allied Stores of Ohio, judicial acquiescence in taxation schemes that burden them particularly would remit them to such redress as they could secure through their own State; but "to prevent [retaliation] was one of the chief ends sought to be accomplished by the adoption of the Constitution" *663 Our prior cases, therefore, reflect an appropriately heightened concern for the integrity of the Privileges and Immunities Clause by erecting a standard of review substantially more rigorous than that applied to state tax distinctions among, say, forms of business organizations or different trades and professions The first such case was challenging a statute under which nonresidents were required to pay $300 per year for a license to trade in goods not manufactured in Maryland, while resident traders paid a fee varying from $12 to $150, depending upon the value of their inventory The State attempted to justify this disparity as a response to the practice of "runners" from industrial States selling by sample in Maryland, free from local taxation and other overhead expenses incurred by resident merchants It portrayed the fee as a "tax upon a particular business or trade, carried on in a particular mode," rather than a discrimination against traders from other States Although the tax may not have been "palpably arbitrary," see Allied Stores of Ohio, the discrimination could not be denied and the Court held that it violated the guarantee of the Privileges and Immunities Clause against "being subjected to any higher tax or excise than that exacted by law of permanent residents"[9] In Travellers' Insurance the Court considered a tax laid on the value of stock in local insurance corporations The shares of *66 nonresident stockholders were assessed at their market value, while those owned by residents were assessed at market value less the proportionate value of all real estate held by the corporation and on which it had already paid a local property tax In analyzing the apparent discrimination thus worked against nonresidents, the Court took account of the overall distribution of the tax burden between resident and nonresident stockholders Finding that nonresidents paid no local property taxes, while residents paid those taxes at an average rate approximating or exceeding the rate imposed by the State on nonresidents' stock, the |
Justice Marshall | 1,975 | 15 | majority | Austin v. New Hampshire | https://www.courtlistener.com/opinion/109219/austin-v-new-hampshire/ | the rate imposed by the State on nonresidents' stock, the Court upheld the scheme While more precise equality between the two classes could have been obtained, it was "enough that the State has secured a reasonably fair distribution of burdens, and that no intentional discrimination has been made against non-residents" Their contribution to state and local property tax revenues, that is, was no more than the ratable share of their property within the State The principles of Ward and Travellers' were applied to taxes on nonresidents' local incomes in and Shaffer upheld the Oklahoma tax on income derived from local property and business by a nonresident where the State also taxed the incomefrom wherever derivedof its own citizens Putting aside "theoretical distinctions" and looking to "the practical effect and operation" of the scheme, the nonresident was not treated more onerously than the resident in any particular, and in fact was called upon to make no more than his ratable contribution to the support of the state government The New York tax on residents' and nonresidents' income at issue in Travis, by contrast, could not be sustained when its actual effect was considered The tax there granted personal exemptions to each resident *665 taxpayer for himself and each dependent, but it made no similar provision for nonresidents The disparity could not be "deemed to be counterbalanced" by an exemption for nonresidents' interest and dividend income because it was not likely "to benefit non-residents to a degree corresponding to the discrimination against them" Looking to "the concrete, the particular incidence" of the tax, therefore, the Court said of the many New Jersey and Connecticut residents who worked in New York: "They pursue their several occupations side by side with residents of the State of New Yorkin effect competing with them as to wages, salaries, and other terms of employment Whether they must pay a tax upon the first $1,000 or $2,000 of income, while their associates and competitors who reside in New York do not, makes a substantial difference This is not a case of occasional or accidental inequality due to circumstances personal to the taxpayer but a general rule, operating to the disadvantage of all non-residents and favoring all residents " -81 III Against this background establishing a rule of substantial equality of treatment for the citizens of the taxing State and nonresident taxpayers, the New Hampshire Commuters Income Tax cannot be sustained The overwhelming fact, as the State concedes, is that the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes |
Justice Marshall | 1,975 | 15 | majority | Austin v. New Hampshire | https://www.courtlistener.com/opinion/109219/austin-v-new-hampshire/ | and it is not offset even approximately by other taxes imposed upon residents alone[10] Rather, the argument advanced in favor *666 of the tax is that the ultimate burden it imposes is "not more onerous in effect," on nonresidents because their total state tax liability is unchanged once the tax credit they receive from their State of residence is taken into account See n While this argument has an initial appeal, it cannot be squared with the underlying policy of comity to which the Privileges and Immunities Clause commits us According to the State's theory of the case, the only practical effect of the tax is to divert to New Hampshire tax revenues that would otherwise be paid to Maine, an effect entirely within Maine's power to terminate by repeal of its credit provision for income taxes paid to another State The Maine Legislature could do this, presumably, by amending the provision so as to deny a credit for taxes paid to New Hampshire while retaining it for the other 8 States Putting aside the acceptability of such a scheme, and the relevance of any increase in appellants' home state taxes that the diversionary effect is said to have,[11] we do not think the possibility that Maine could *667 shield its residents from New Hampshire's tax cures the constitutional defect of the discrimination in that tax In fact, it compounds it For New Hampshire in effect invites appellants to induce their representatives, if they can, to retaliate against it A similar, though much less disruptive, invitation was extended by New York in support of the discriminatory personal exemption at issue in Travis The statue granted the nonresident a credit for taxes paid to his State of residence on New York-derived income only if that State granted a substantially similar credit to New York residents subject to its income tax New York contended that it thus "looked forward to the speedy adoption of an income tax by the adjoining States," which would eliminate the discrimination "by providing similar exemptions similarly conditioned" To this the Court responded in terms fully applicable to the present case Referring to the anticipated legislative response of the neighboring States, it stated: "This, however, is wholly speculative; New York has no authority to legislate for the adjoining States; and we must pass upon its statute with respect to its effect and operation in the existing situation A State may not barter away the right, conferred upon its citizens by the Constitution of the United States, to enjoy the privileges and immunities of citizens when they go into |
per_curiam | 1,997 | 200 | per_curiam | Foreman v. Dallas County | https://www.courtlistener.com/opinion/1515492/foreman-v-dallas-county/ | Texas by statute authorizes counties to appoint election judges, one for each precinct, who supervise voting at the polls on election days. In 1983 and several times thereafter, Dallas County changed its procedures for selecting these officials. Each of the new methods used party-affiliation formulas of one sort or another. After the most recent change in 1996, appellants sued the county and others in the United States District Court, claiming that 5 of the Voting Rights Act of 1965, as amended, 42 U.S. C. 1973c, required that the changes be precleared. A three-judge court held that preclearance was not required because the county was simply exercising, under the state statute, its "discretion to adjust [the procedure for appointing election judges] according to party power." App. to Juris. Statement 4a. The court apparently concluded that this "discretionary" use of political power meant that the various methods for selecting election judges were not covered changes under 5. The court also concluded that the Justice Department's preclearance of a 1985 submission from the Statethe recodification of its entire election codeoperated to preclear the county's use of partisan considerations in selecting election judges. The court denied injunctive relief, and later dismissed appellants' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Appellants have brought both of these rulings here. We believe that the decision of the District Court is inconsistent with our precedents. First, in we held that even "an administrative effort to comply with a statute that had already received clearance" may require separate preclearance, because 5 "reaches informal as well as formal changes." Thus, the fact that the county here was exercising its "discretion" pursuant to a state statute does not shield its actions from 5. The question is simply whether the county, by its actions, whether taken pursuant to a statute *981 or not, "enact[ed] or [sought] to administer any standard, practice, or procedure with respect to voting different from" the one in place on November 1, 1972. 5. The fact that the county's new procedures used political party affiliation as the selection criterion does not mean that the methods were exempt from preclearance. Second, the State's 1985 submission (the recodification and a 30-page summary of changes to the old law) indicated that the only change being made to the statute concerning election judges was a change to "the beginning date and duration of [their] appointment." Thus, neither the recodified statute nor the State's explanations said anything about the use of specific, partisan-affiliation methods for selecting election judges. This submission was clearly insufficient under our precedents to put the Justice Department |
Justice Thomas | 2,003 | 1 | concurring | Smith v. Doe | https://www.courtlistener.com/opinion/127899/smith-v-doe/ | I join the Court's opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that "there is no place for [an implementation-based] challenge" in our ex post facto jurisprudence. Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See at -274 As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining "the statute on its face." In this case, ASORA does not specify a means of making registry information available to the public. It states only that "[i]nformation about a sex offender that is contained in the central registry is confidential and not subject to public disclosure except as to the sex offender's name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a *107 statement as to whether the offender is in compliance with requirements of AS 12.63 or cannot be located." (b) (2000). By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur. JUSTICE SOUTER, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment. As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called - test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United ; We have said that "`only the clearest proof'" that a law is punitive based on substantial factors will be able to overcome the legislative categorization. ). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing |
Justice Thomas | 2,003 | 1 | concurring | Smith v. Doe | https://www.courtlistener.com/opinion/127899/smith-v-doe/ | characterization of the Act, but also see considerable evidence pointing the other way. The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from *108 our past cases, which have relied heavily on the legislature's stated label in finding a civil intent. See ; ; The placement of the Act in the State's code, another important indicator, see at also leaves matters in the air, for although the section establishing the registry is among the code's health and safety provisions, which are civil, see (2000), the section requiring registration occurs in the title governing criminal procedure, see 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see offenders are obliged, at least initially, to register with state and local police, see 12.63.010(b), (c), although the actual information so obtained is kept by the State's Department of Public Safety, a regulatory agency, see 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute's intended character is clearly civil. The substantial indicators relevant at step two of the - analysis likewise point in different directions. To start with purpose, the Act's legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e. g., United and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no *109 further, given pervasive attitudes toward sex offenders, see infra this page and 110, n. See The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See That argument can claim support, too, from the severity of the burdens imposed. |
Justice Thomas | 2,003 | 1 | concurring | Smith v. Doe | https://www.courtlistener.com/opinion/127899/smith-v-doe/ | claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e. g., Massaro, Shame, Culture, and American Criminal Law, While the Court accepts the State's explanation that the Act simply makes public information available in a new way, ante, at 99, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.[*] *110 To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the "`clearest proof'" of penal substance in this case, see 522 U. S., at and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment. JUSTICE STEVENS, dissenting in No. 01-7 and concurring in the judgment in No. 01-1231.[*] These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-7 is whether the Alaska Sex Offender Registration Act is an ex post facto law, and in No. 01-1231 *111 it is whether Connecticut's similar law violates the Due Process Clause. The Court's opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants' freedom. The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information |
Justice Thomas | 2,003 | 1 | concurring | Smith v. Doe | https://www.courtlistener.com/opinion/127899/smith-v-doe/ | provide local law enforcement authorities with extensive personal information including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page. The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the "[w]idespread public access," ante, at 99 (opinion in No. 01-7), *112 to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction. To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e. g., De ; Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but |
Justice Thomas | 2,003 | 1 | concurring | Smith v. Doe | https://www.courtlistener.com/opinion/127899/smith-v-doe/ | a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on him. See And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e.g., N. J. Stat. Ann. 45:1-21 (West Supp. 2002). *113 Likewise, in the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a "`mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Nor was the conviction even a necessary predicate for the commitment. See While one might disagree in other respects with it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute. No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, "recidivism is the statutory concern" that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 105 (opinion in No. 01-7). That is the principal rationale that underlies the "three strikes" statute that the Court has upheld *114 in Ewing v. California, ante, p. 11. Reliance on that rationale here highlights the conclusion that the retroactive application of these statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution. I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part |
Justice Thomas | 2,003 | 1 | concurring | Smith v. Doe | https://www.courtlistener.com/opinion/127899/smith-v-doe/ | registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses. Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court's disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-7. |
Justice Marshall | 1,990 | 15 | dissenting | Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp. | https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/ | We have consistently held that a trial judge bears the primary responsibility for managing the cases before him. One of the fundamental purposes of Rule 11 is to strengthen the hand of the trial judge in his efforts to police abusive litigation practices and to provide him sufficient flexibility to craft penalties appropriate to each case. The Court's interpretation of Rule 11, in contrast, is overly restrictive, as it reads into the Rule an absolute immunity for law firms from any sanction for their misconduct. Although the Court recognizes that the relevant phrase in Rule 11 "the person who signed" the pleading, motion, or paper at issue could mean a juridical person on whose behalf *128 the document is signed, ante, at 124, it nonetheless finds that the phrase has a more limited meaning in the context of the Rule as a whole. As I cannot acquiesce in such an unnecessary erosion of the discretion of federal trial judges, I dissent. The Court's reading of the "plain meaning" of Rule 11 is based entirely on the connection it perceives between the language at the beginning of the Rule, which refers to an individual " `signer,' " and the crucial language in the last sentence, which allows a court to impose sanctions on " `the person who signed' " a pleading or paper. Ante, at 123-124. Although the text of the Rule does not foreclose the reading the Court finds compelling, that interpretation is by no means the only reasonable one and certainly is not required by the "plain meaning." Significantly, in three separate places the Rule identifies the person signing a document as the "signer." Yet it uses an entirely different phrase, "the person who signed" the pleading, in its listing of parties who may be sanctioned for violations, thereby drawing an explicit distinction between the two phrases. If the drafters had intended to limit the entity that could be sanctioned under the Rule to the individual signer, they easily could have repeated the word "signer" a fourth time. The use of different phrases may reasonably be viewed as an indication of two different meanings. In the case of "signer," the drafters unambiguously sought to refer to the individual who actually signed the document; in their subsequent use of the phrase "the person who signed," the drafters may have signaled their intent to allow a court to impose sanctions on any juridical person, including the law firm of the individual signer. In the context of the Federal Rules of Civil Procedure, drafted by a committee familiar with |
Justice Marshall | 1,990 | 15 | dissenting | Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp. | https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/ | Rules of Civil Procedure, drafted by a committee familiar with traditional legal concepts, one can reasonably assume that the word "person" indicates more than just natural persons, encompassing partnerships and professional corporations as well. See, e. g., 5 U.S. C. 551(2) (Administrative Procedure Act defines *129 "person" as an "individual, partnership, corporation, association, or public or private organization other than an agency"); N. Y. Partnership Law 2 (McKinney 1988) (defining "person" to include "individuals, partnerships, corporations, and other associations"). At the least, an interpretation of Rule 11 that gives "person" its legal meaning is no less plausible than the majority's more restrictive reading of the Rule. The purposes of the Rule support this construction of Rule 11. All pleadings, motions, and papers must be signed by an attorney in his individual name. This requirement serves in part the administrative goal of identifying for the court one person who can answer questions about the papers. Because Rule 11 proceedings often occur at the end of litigation, see Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S. C. App., p. 129 (1982 ed., Supp. V), it will often be crucial that the relevant documents, which may have been filed months or even years earlier, identify a specific individual with knowledge of their contents. No such administrative concerns suggest that the phrase "the person who signed" the paper should be restricted to an individual. Furthermore, as the majority emphasizes, ante, at 126, the requirement of an individual signer promotes a measure of individual accountability by ensuring that someone takes direct responsibility for each filing. Yet encouraging individual accountability and firm accountability are not mutually exclusive goals. Indeed, individual accountability may be heightened when an attorney understands that his carelessness or maliciousness may subject both himself and his firm to liability. The concern that a person take direct responsibility for each paper is not disserved by holding the law firm responsible in cases where the district court determines that both are blameworthy. In short, it is not internally inconsistent, nor does it inevitably lead to "puzzling" results, ante, at 125, to allow a trial judge the discretion to impose sanctions on a law firm, a juridical person, for which a signing attorney acts as agent. *130 The policies underlying Rule 11 decisively indicate that "person" should be interpreted broadly so that a court can effectively exercise discretion in formulating appropriate sanctions. Although, as the majority infers from the Rule's text, one purpose of Rule 11 may be "to bring home" to the individual signer his personal responsibility for complying with its dictates, |
Justice Marshall | 1,990 | 15 | dissenting | Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp. | https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/ | individual signer his personal responsibility for complying with its dictates, ante, at 126, the Rule is explicitly designed to deter improper pleadings, motions, and papers. Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S. C. App., p. 129 (1982 ed., Supp. V) ("The word `sanctions' in the caption. stresses a deterrent orientation in dealing with improper pleadings"). Admittedly, in some cases, sanctions imposed solely on the individual signer may halt abusive practices most effectively. In other cases, however, deterrence might best be served by imposing sanctions on the signer's law firm in an attempt to encourage internal monitoring. The trial judge is in the best position to assess the dynamics of each situation and to act accordingly. Recognizing the need to tailor the sanction to each particular situation, the Advisory Committee emphasized in a related context the need for "flexibility" in dealing with violations. See Flexibility is no less important when a judge decides whether one, some, or all of the many entities before him should be held responsible for improper pleadings, motions, or papers. Where, as here, the Rule itself does not demand rigidity, it is unwise for the Court to constrict the options available to a trial judge faced with a violation of Rule 11. The judge who observes improper behavior and who is intimately familiar with the facts of a case should be allowed to fashion the penalty that most effectively deters future abuse. Today's decision unwisely ties the hands of trial judges who must deal frequently and immediately with Rule 11 violations and ill serves the goal of administering that Rule justly and efficiently. See Fed. Rule Civ. Proc. 1. *131 The District Court apportioned the sanction here between the signing attorney and his law firm, based on its assessment of the relative culpability of each. I firmly believe that this sort of penalty is precisely what Rule 11 contemplates. I therefore cannot join the Court's reading of the Rule which creates an immunity for law firms from its coverage |
Justice Stevens | 1,983 | 16 | concurring | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | In my opinion the application to vacate the stay raises a serious question about the propriety of the prosecutor's argument to the jury at the sentencing phase of respondent's trial. In that argument the prosecutor sought to minimize the jury's responsibility for imposing a death sentence by implying that the verdict was merely a threshold determination that would be corrected by the appellate courts if it were not the proper sentence for this offender. I quote some of that argument: *53 "I want to read you some laws because something they [the defense] said, don't sentence this man to death, don't kill this man. You see, you have the last word on the verdict, and it but, by far you don't have the last word on it if you return it. The Louisiana Supreme Court has enacted a series of statutes that I want to read to you. What happens if you return a death penalty in this case. Because the law that's set up is very exacting, detailed and complicated procedure for a review of this court, the Louisiana Supreme Court, and other courts before any death penalty can be imposed. The law states, 905.9, Review on Appeal, The Supreme Court of Louisiana shall review of every sentence of death to determine if it is excessive. The Court, by rule, shall establish such procedures as necessary to satisfy constitutional criteria for review. And, then the statute, they enact it. See, not necessarily, it's mandatory that the Supreme Court review it. There's seven judges on the Supreme Court. The highest judges in this state. For it to be upheld, four of them will have to approve it. Well, what do they review? They state that every sentence of death shall be reviewed by this court to determine if it is excessive, and in determining whether the sentence is excessive, the court shall determine. A. Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. If they decide it was, they can reverse it and order a life sentence to be imposed. Whether the evidence supports the jury's findings of a statutory aggravating circumstance. If they find it didn't, they can reverse it and order a life sentence. Where the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. If they don't think the crime was heinous enough, they can reverse it and order a life sentence. If they don't think this defendant if they think the crime was heinous *54 enough and the statutory circumstances |
Justice Stevens | 1,983 | 16 | concurring | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | the crime was heinous *54 enough and the statutory circumstances were proved but they don't think it ought to be applied to this defendant, they can reverse it and order a life sentence. Whenever the death penalty is imposed, a verbation [sic] transcript of the sentence hearing along with the record required on appeal shall be transferred to the Court. They review everything that went on in this trial. And there is a total and complete investigation done on the defendant to determine whether or not they will let your decision to impose the death penalty stand. And only then does it make it through the Louisiana State Supreme Court, and the defendant has a right, if he wishes I'm not saying that it's granted in every case. It could be denied. It could be appealed all the way through the United States Supreme Court. "But more important, what is this verdict going to mean? You see, you represent a certain segment of our society, law abiding people, raising families, working for a living, not robbing stores. You're the people that set the standards in this community. The Justices of the Supreme Court will review, and determine their decision whether or not if you decide to give him the death penalty, whether or not you were correct or not, but you see, it use [sic] to be one." Tr. 290-292, 296 (emphasis supplied). In my view, this argument encouraged the jury to err on the side of imposing the death sentence in order to "send a message" since such an error would be corrected on appeal (while a life sentence could not). I do not believe that argument accurately described the function of appellate review in Louisiana. The Louisiana Supreme Court does not review "everything" that occurred during the trial. If it finds that one aggravating factor supported the jury's verdict, it will not consider the defendant's claim that the jury improperly *55 relied upon other aggravating factors in reaching its verdict. See (La.), cert. denied, post, p. 908. That rule was applied by the Louisiana Supreme Court in this very case. See cert. denied, While that limitation on appellate review is constitutionally permissible in the context of Louisiana's death penalty statute, see given the state-law premises of Louisiana's capital punishment scheme, see it certainly is a more limited form of appellate review than that described by the prosecutor. In my opinion, the argument was prejudicial to the accused, both because it appears to have misstated the law and because it may have led the jury to discount |
Justice Stevens | 1,983 | 16 | concurring | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | and because it may have led the jury to discount its grave responsibility in determining the defendant's fate. A prosecutor should never invite a jury to err because the error may be corrected on appeal. That is especially true when the death penalty is at stake. Nevertheless, because the essence of this issue was raised in prior proceedings questioning the competency of trial counsel who failed to object to the argument when it was made the Court is justified in applying a strict standard of review to this second federal habeas corpus application. See I do not find an adequate justification for respondent's failure to raise this argument in his earlier federal habeas action. Since respondent did raise the related argument of ineffectiveness of counsel, he was no doubt aware of this argument and may have deliberately chosen not to raise it in the first habeas corpus petition. See ; ; ; Moreover, since competent counsel failed to object to the argument at the trial itself, thereby failing to avail himself of the usual *56 procedure for challenging this type of constitutional error, I question whether it can be said that this trial was fundamentally unfair. See and n. 8 (STEVENS, J., dissenting). Accordingly, though not without misgivings, I concur in the Court's decision to vacate the stay. |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | This case concerns the issue-preclusion component of the Double Jeopardy Clause1 In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been deter mined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit” Does issue preclusion apply when a jury returns incon sistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact? In such a case, this Court has held, both verdicts stand The Government is barred by the Double Jeopardy Clause from challenging the acquittal, —————— 1 The parties use the expression “collateral estoppel component,” but as this Court has observed, “issue preclusion” is the more descriptive term ; see Restatement (Second) of Judgments Comment b, pp 251–252 (1980) 2 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court see but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect, United Does issue preclusion attend a jury’s acquittal verdict if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue? This Court has answered yes, in those circum stances, the acquittal has preclusive force v United States, As “there is no way to decipher what a hung count represents,” we reasoned, a jury’s failure to decide “has no place in the issue-preclusion analysis” ; see (“[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything”) In the case before us, the jury returned irreconcilably inconsistent verdicts of conviction and Without more, would control There could be no retrial of charges that yielded acquittals but, in view of the incon sistent verdicts, the acquittals would have no issue preclusive effect on charges that yielded convictions In this case, however, unlike the guilty verdicts were vacated on appeal because of error in the judge’s instruc tions unrelated to the verdicts’ inconsistency Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis We hold otherwise One cannot know from the jury’s report why it returned no verdict “A host of reasons” could account for a jury’s failure to decide—“sharp dis agreement, confusion about the issues, exhaustion after a long trial, to name but a few” But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | conviction for unrelated legal error does not reconcile the jury’s inconsistent returns We therefore bracket this case with not and affirm the Cite as: 580 U S (201) 3 Opinion of the Court judgment of the Court of Appeals, which held that issue preclusion does not apply when verdict inconsistency renders unanswerable “what the jury necessarily decided” I A The doctrine of claim preclusion instructs that a final judgment on the merits “foreclos[es] successive litigation of the very same claim” New Hampshire v Maine, 532 US 42, 48 (2001); see Restatement (Second) of Judg ments p 11 (1980) (hereinafter Restatement) So instructing, the doctrine serves to “avoid multiple suits on identical entitlements or obligations between the same parties” 18 C Wright, A Miller, & E Cooper, Federal Practice and Procedure p 9 (2d ed 2002) (herein after Wright & Miller) Long operative in civil litigation, Restatement, at 2, claim preclusion is also essential to the Constitution’s prohibition against successive criminal prosecutions No person, the Double Jeopardy Clause states, shall be “subject for the same offense to be twice put in jeopardy of life or limb” Amdt 5 The Clause “protects against a second prosecution for the same offense after conviction”; as well, “[i]t protects against a second prosecution for the same offense after ” North “[A] verdict of acquittal [in our justice system] is final,” the last word on a criminal charge, and therefore operates as “a bar to a subsequent prosecution for the same offense” Green v United States, The allied doctrine of issue preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment See Restatement 2, at 148, 250; Wright & Miller at It applies in both civil and criminal proceedings, with an important distinction In civil litigation, where issue preclusion and 4 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court its ramifications first developed, the availability of appel late review is a key factor Restatement Comment a, 4; see Reporter’s Note, at 284 (noting “the pervasive importance of reviewability in the application of preclusion doctrine”) In significant part, preclusion doc trine is premised on “an underlying confidence that the result achieved in the initial litigation was substantially correct” 4 US 10, (1980); see Restatement Comment f, at 295 “In the absence of appellate review,” we have observed, “such confidence is often unwarranted” 4 US, at In civil suits, inability to obtain review is exceptional; it occurs typically when the controversy has become moot In criminal cases, however, only one side (the defendant) has recourse to an appeal from |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | one side (the defendant) has recourse to an appeal from an adverse judgment on the merits The Government “cannot secure appellate review” of an acquittal, even one “based upon an egregiously erroneous foundation,” Juries enjoy an “unreviewable power to return a verdict of not guilty for impermissi ble reasons,” for “the Government is precluded from ap pealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause” United States v The absence of appel late review of acquittals, we have cautioned, calls for guarded application of preclusion doctrine in criminal cases See 4 US, –23, and n 18 Particularly where it appears that a jury’s verdict is the result of compromise, compassion, lenity, or misunder standing of the governing law, the Government’s inability to gain review “strongly militates against giving an ac quittal [issue] preclusive effect” See also Re statement Comment g, at 295 (Where circumstances suggest that an issue was resolved on erroneous consider ations, “taking the prior determination at face value for Cite as: 580 U S (201) 5 Opinion of the Court purposes of the second action would [impermissibly] ex tend the imperfections in the adjudicative process”); Comment j, at 283 (Issue preclusion may be de nied where it is “evident from the jury’s verdict that the verdict was the result of compromise”); Wright & Miller at 1 (same) B This case requires us to determine whether an appellate court’s vacatur of a conviction alters issue-preclusion analysis under the Double Jeopardy Clause Three prior decisions guide our disposition This Court first interpreted the Double Jeopardy Clause to incorporate the principle of issue preclusion in v Swenson, 2 involved a robbery of six poker players by a group of masked men was charged with robbing one of the players, but a jury acquit ted him “due to insufficient evidence” The State then tried again, this time for robbing another of the poker players Aided by “substantially stronger” testimony from “witnesses [who] were for the most part the same,” –440, the State secured a conviction We held that the second prosecution violated the Double Jeopardy Clause Because the sole issue in dispute in the first trial was whether had been one of the robbers, the jury’s acquittal verdict precluded the State from trying to convince a different jury of that very same fact in a second trial —————— 2 Though we earlier recognized that res judicata (which embraces both claim and issue preclusion) applies in criminal as well as civil proceedings, we did not link the issue-preclusion inquiry to the Double Jeopardy Clause See ; (The principle |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | inquiry to the Double Jeopardy Clause See ; (The principle that “a question of fact or of law distinctly put in issue and directly deter mined by a court of competent jurisdiction cannot afterwards be dis puted between the same parties” applies to “the decisions of criminal courts”) BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court Our decision in explained that issue preclusion in criminal cases must be applied with “realism and rational ity” To identify what a jury in a previous trial necessarily decided, we instructed, a court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter” (quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, (190)) This inquiry, we explained, “must be set in a practical frame and viewed with an eye to all the circum stances of the proceedings” 39 US, ) We have also made clear that “[t]he burden is on the defend ant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided” by a prior jury’s verdict of (1994) (internal quotation marks omitted); accord Dowling v United States, In United we held that a defendant cannot meet this burden when the same jury returns irreconcilably inconsistent verdicts on the ques tion she seeks to shield from reconsideration ’s starting point was our holding in that a criminal defendant may not attack a jury’s finding of guilt on one count as inconsistent with the jury’s verdict of acquittal on another count –59 The Court’s opinion in stated no exceptions to this rule, and after the Court had several times “alluded to [the] rule as an established principle,” Nevertheless, several Courts of Appeals had “recogniz[ed] exceptions to the rule,” at 2, and sought an exception for the verdicts of guilt she faced At trial, a jury had acquitted of various substan tive drug charges but convicted her of using a telephone in “causing and facilitating” those same offenses at 59– Cite as: 580 U S (201) Opinion of the Court 0 She appealed, arguing that “the verdicts were incon sistent, and that she therefore was entitled to reversal of the telephone facilitation convictions” Issue preclusion, she maintained, barred “acceptance of [the] guilty verdict[s]” on the auxiliary offenses because the same jury had acquitted her of the predicate felonies Rejecting ’s argument, we noted that issue pre clusion is “predicated on the assumption that the jury acted rationally” at When a jury returns irrecon cilably inconsistent verdicts, we said, one can glean no more than that “either in the acquittal or |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | glean no more than that “either in the acquittal or the conviction the jury did not speak their real conclusions” (quoting ) Although it is impos sible to discern which verdict the jurors arrived at ration ally, we observed, “that does not show that they were not convinced of the defendant’s guilt” US, at 4–5 (quoting ) In the event of inconsistent verdicts, we pointed out, it is just as likely that “the jury, convinced of guilt, properly reached its conclusion on [one count], and then through mistake, compromise, or lenity, arrived at an inconsistent conclu sion on the [related] offense” Because a court would be at a loss to know which verdict the jury “really meant,” we reasoned, principles of issue preclusion are not useful, for they are “predicated on the assumption that the jury acted rationally and found cer tain facts in reaching its verdict” at Holding that the acquittals had no preclusive effect on the counts of conviction, we reaffirmed ’s rule, under which both ’s convictions and her acquittals, albeit inconsistent, remained Finally, in we clarified that ’s holding on inconsistent verdicts does not extend to an apparent inconsistency between a jury’s verdict of acquittal on one count and its inability to 8 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court reach a verdict on another count See (“[I]nconsistent verdicts” present an “entirely different context” than one involving “both verdicts and seemingly inconsistent hung counts”) was tried on charges of fraud and insider trading The jury acquit ted him of the fraud offenses, which the Court of Appeals concluded must have reflected a finding that he “did not have any insider information that contradicted what was presented to the public” Yet the jury failed to reach a verdict on the insider-trading charges, as to which “the possession of insider information was [likewise] a critical issue of ultimate fact” Arguing that the jury had therefore acted inconsistently, the Govern ment sought to retry on the hung counts We ruled that retrial was barred by the Double Jeopardy Clause A jury “speaks only through its verdict,” we noted at 121 Any number of reasons—including confusion about the issues and sheer exhaustion, we observed— could cause a jury to hang Accordingly, we said, only “a jury’s decisions, not its failures to decide,” identify “what a jury necessarily determined at trial” Because a hung count reveals nothing more than a jury’s failure to reach a decision, we further reasoned, it supplies no evidence of the jury’s irrationality at 124–125 Hung counts, we therefore held, “ha[ve] no place in the issue-preclusion |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | counts, we therefore held, “ha[ve] no place in the issue-preclusion analysis,” : When a jury acquits on one count while failing to reach a verdict on another count concerning the same issue of ultimate fact, the acquittal, and only the acquittal, counts for preclusion purposes Given the preclusive effect of the acquittal, the Court concluded, could not be retried on the hung count –125 C With our controlling precedent in view, we turn to the inconsistent verdicts rendered in this case The prosecu Cite as: 580 U S (201) 9 Opinion of the Court tion stemmed from an alleged bribe paid by petitioner Juan Bravo-Fernandez (Bravo), an entrepreneur, to peti tioner Hector Martínez-Maldonado (Martínez), then a senator serving the Commonwealth of Puerto Rico The alleged bribe took the form of an all-expenses-paid trip to Las Vegas, including a $1,000 seat at a professional box ing match featuring a popular Puerto Rican contender United According to the Government, Bravo intended the bribe to secure Martínez’ help in shepherding legislation through the Puerto Rico Senate that, if enacted, would “provid[e] substantial financial benefits” to Bravo’s enterprise In the leadup to the Las Vegas trip, Martínez submitted the legislation for the Senate’s consideration and issued a committee report supporting it; within a week of returning from Las Vegas, Martínez issued another favorable report and voted to enact the legislation at – Based on these events, a federal grand jury in Puerto Rico indicted petitioners for, inter alia, federal-program bribery, in violation of 18 US C §; conspiracy to violate §, in violation of and traveling in inter state commerce to further violations of §, in violation of the Travel Act, Following a three-week trial, a jury convicted Bravo and Martínez of the standalone § bribery offense, but acquitted them of the related conspiracy and Travel Act charges Fernandez, Each received a sentence of 48 months in prison The Court of Appeals for the First Circuit vacated the § convictions for instructional error In the First Circuit’s view, the jury had been erroneously charged on what constitutes criminal conduct under that statute –2 The charge permitted the jury to find Bravo —————— 3 Petitioners were indicted on several other charges not relevant here See United 10 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court and Martínez “guilty of offering and receiving a gratuity,” at 1, but, the appeals court held, § proscribes only quid pro quo bribes, and not gratuities, at 224 True, the court acknowledged, the jury was instructed on both theories of bribery, and the evidence at trial sufficed to support a |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | bribery, and the evidence at trial sufficed to support a guilty verdict on either theory at 19–20 But the Court of Appeals could not say with confidence that the erroneous charge was harmless, so it vacated the § convictions and remanded for further proceedings 39 On remand, relying on the issue-preclusion component of the Double Jeopardy Clause, Bravo and Martínez moved for judgments of acquittal on the standalone § charges They could not be retried on the bribery offense, they insisted, because the jury necessarily determined that they were not guilty of violating § when it acquitted them of conspiring to violate § and traveling in interstate commerce to fur ther violations of § That was so, petition ers maintained, because the only contested issue at trial was whether Bravo had offered, and Martínez had accepted, a bribe within the meaning of § at 19; see Tr of Oral Arg 4 (“There was no dispute that they agreed to go to a boxing match together”; nor was there any dispute “that to get to Las Vegas from Puerto Rico, you have to travel” across state lines) The District Court denied the motions for 988 F Supp 2d, at 19–198 If the sole issue disputed at trial was whether Bravo and Mar tínez had violated §, the court explained, then “the jury —————— 4 As the First Circuit acknowledged, this holding is contrary to the rulings of “most circuits to have addressed th[e] issue” at Three other Federal Courts of Appeals have considered the question; each has held that § prohibits gratuities as well as quid pro quo bribes See United 2 F3d 10, 3 ; United States v Hawkins, F3d 880, ; United 92 (CA8 200) Cite as: 580 U S (201) 11 Opinion of the Court [had] acted irrationally” at 19 Because the same jury had simultaneously convicted Bravo and Martínez on the standalone § charges, “the verdict simply was inconsistent” The First Circuit affirmed the denial of petitioners’ motions for acquittal, agreeing that the jury’s inconsistent returns were fatal to petitioners’ issue-preclusion plea The jury received the same bribery instruc tions for each count involving §, the court noted, so the §-based verdicts—convicting on the standalone bribery charges but acquitting on the related Travel Act and conspiracy counts—could not be reconciled at 54–555 The Court of Appeals rejected petitioners’ argument that the eventual invalidation of the bribery convictions rendered ’s inconsistent-verdicts rule inapplicable the court reminded, calls for a practical appraisal based on the complete record of the prior proceeding; the § bribery convictions, like the §-based acquittals, |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | prior proceeding; the § bribery convictions, like the §-based acquittals, were part of that record See 90 F3d, at 50 Nor are vacated convictions like hung counts for issue-preclusion purposes, the court continued Informed by our decision in the First Circuit recognized that a hung count reveals only a jury’s failure to decide, and therefore cannot evidence actual inconsistency with a jury’s decision 90 F3d, at 50–51 In contrast, the court said, vacated con victions “are jury decisions, through which the jury has spoken” The later upset of a conviction on an unrelated ground, the court reasoned, does not undermine ’s recognition that “inconsistent verdicts make it —————— 5 As just observed, see petitioners urge that § bribery was the sole issue in controversy, and that there was no dispute on other elements of the Travel Act and conspiracy counts See Tr of Oral Arg 4 See also Brief for United States 13 (accepting that the jury “returned irreconcilably inconsistent verdicts”) If another element could explain the acquittals, then there would be no inconsistency and no argument against a new trial on bribery See infra, at 12–13 12 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court impossible to determine what a jury necessarily decided” 90 F3d, The First Circuit therefore concluded that “vacated convictions, unlike hung counts, are relevant to the [issue-preclusion] inquiry” We granted certiorari to resolve a conflict among courts on this question: Does the issue-preclusion component of the Double Jeopardy Clause bar the Government from retrying defendants, like Bravo and Martínez, after a jury has returned irreconcilably inconsistent verdicts of convic tion and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency? 55 U S (201) Holding that the Double Jeopardy Clause does not bar retrial in these circumstances, we affirm the First Circuit’s judgment II When a conviction is overturned on appeal, “[t]he gen eral rule is that the [Double Jeopardy] Clause does not bar reprosecution” Justices of Boston Municipal Court v Lydon, 4 US 294, The ordinary conse quence of vacatur, if the Government so elects, is a new trial shorn of the error that infected the first trial This —————— Compare United 1058–101 (holding that retrial does not violate Double Jeopardy Clause under these circumstances); United 50 F2d 33, 3 (CA5 1985) (same); 98 A2d 11, 1141–1142 (D C 2010) (same); and State v Kelly, 201 N J 1, 3–4, 992 A 2d 89 (2010) (same), with Mich 91, 105– 10, (holding that Double Jeopardy Clause bars retrial in this situation) As the First Circuit explained, “[a]lthough and predate |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | this situation) As the First Circuit explained, “[a]lthough and predate both the Second and Fifth Circuits decided that vacated counts are relevant to the analysis at a time when those circuits had already ruled that hung counts should be disregarded for purposes of the inquiry” 51, n (citing United 59 F2d 329, 335–33 (CA2 199); United 599 F2d 14, 1– (CA5 199)) The Second Circuit, moreover, has adhered to since See United 531 Fed Appx Cite as: 580 U S (201) 13 Opinion of the Court “continuing jeopardy” rule neither gives effect to the va cated judgment nor offends double jeopardy principles Rather, it reflects the reality that the “criminal proceed ings against an accused have not run their full course” And by permitting a new trial post vacatur, the continuing-jeopardy rule serves both society’s and criminal defendants’ interests in the fair administration of justice “It would be a high price indeed for society to pay,” we have recognized, “were every accused granted immunity from punishment because of any defect sufficient to consti tute reversible error in the proceedings leading to convic tion” United 3 US 43, 4 (194) And the rights of criminal defendants would suffer too, for “it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevo cably beyond the reach of further prosecution” Bravo and Martínez ask us to deviate from the general rule that, post vacatur of a conviction, a new trial is in order When a conviction is vacated on appeal, they main tain, an acquittal verdict simultaneously returned should preclude the Government from retrying the defendant on the vacated count Our precedent, harmonious with issue- preclusion doctrine, opposes the foreclosure petitioners seek A Bravo and Martínez bear the burden of demonstrating that the jury necessarily resolved in their favor the ques tion whether they violated § 510 US, 3 But, as we have explained, see at a defendant cannot meet that burden where the trial yielded incompat ible jury verdicts on the issue the defendant seeks to insulate from relitigation Here, the jury convicted Bravo and Martínez of violating § but acquitted them of 14 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court conspiring, and traveling with the intent, to violate § The convictions and acquittals are irreconcilable because other elements of the Travel Act and conspiracy counts were not disputed See –11, and n 5 It is unknowable “which of the |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | –11, and n 5 It is unknowable “which of the inconsistent verdicts—the acquittal[s] or the conviction[s]—‘the jury really meant’ ” 90 F3d, at (quoting US, at ); see Restatement Comment f, at 295 (“Where a determi nation relied on as preclusive is itself inconsistent with some other adjudication of the same issue, confidence [in that determination] is generally unwarranted”) In view of the Government’s inability to obtain review of the acquittals, US, at the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect See 4 US, n 1 That petitioners’ bribery convictions were later vacated for trial error does not alter our analysis The critical inquiry is whether the jury actually decided that Bravo and Martínez did not violate § counsels us to approach that task with “realism and rationality,” 39 US, in particular, to examine the trial record “with an eye to all the circumstances of the proceedings,” As the Court of Appeals explained, “the fact [that] the jury convicted [Bravo and Martínez] of violating § would seem to be of quite obvious relevance” to this practical inquiry, “even though the convictions were later vacated” 90 F3d, at 50 Because issue preclusion “depends on the jury’s assessment of the facts in light of the charges as presented at trial,” a conviction overturned on appeal is “appropriately considered in our assessment of [an acquittal] verdict’s preclusive effect” United States v 101 Indeed, the jurors in this case might not have acquitted on the Travel Act and conspiracy counts absent their belief that the § bribery convictions would stand See Cite as: 580 U S (201) 15 Opinion of the Court Bravo and Martínez could not be retried on the bribery counts, of course, if the Court of Appeals had vacated their § convictions because there was insufficient evidence to support those convictions For double jeopardy purposes, a court’s evaluation of the evidence as insufficient to con vict is equivalent to an acquittal and therefore bars a second prosecution for the same offense See v United States, 43 US 1, ; cf US, at (noting that defendants are “afforded protec tion against jury irrationality or error by [courts’] inde pendent review of the sufficiency of the evidence”) But this is scarcely a case in which the prosecution “failed to muster” sufficient evidence in the first proceeding 43 US, Quite the opposite The evidence pre sented at petitioners’ trial, the Court of Appeals deter mined, supported a guilty verdict on the gratuity theory (which the First Circuit ruled impermissible) as well as the quid pro quo theory (which the First |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | well as the quid pro quo theory (which the First Circuit ap proved) 90 F3d, at 44 Vacatur was compelled for the sole reason that the First Circuit found the jury charge erroneous to the extent that it encompassed gratuities See at 9–10, and n 4 Therefore, the general rule of “allowing a new trial to rectify trial error” applied 43 US, at 14 Nor, as the Government acknowledges, would retrial be tolerable if the trial error could resolve the apparent in consistency in the jury’s verdicts See Brief for United States 30 (If, for example, “a jury receives an erroneous instruction on the count of conviction but the correct in struction on the charge on which it acquits, the instruc tional error may reconcile the verdicts”) But the instruc tional error here cannot account for the jury’s contradictory determinations because the error applied equally to every §-related count See As in so in this case, “[t]he problem is that the same jury reached inconsistent results” US, at 1 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court The convictions’ later invalidation on an unrelated ground does not erase or reconcile that inconsistency: It does not bear on “the factual determinations actually and neces sarily made by the jury,” nor does it “serv[e] to turn the jury’s otherwise inconsistent and irrational verdict into a consistent and rational verdict” Mich 91, 125, (Markman, J, dissenting) Bravo and Martínez, therefore, cannot estab lish the factual predicate necessary to preclude the Gov ernment from retrying them on the standalone § charges—namely, that the jury in the first proceeding actually decided that they did not violate the federal brib ery statute B To support their argument for issue preclusion, Bravo and Martínez highlight our decision in In they point out, we recognized that hung counts “have never been accorded respect as a matter of law or history” That is also true of vacated convictions, they urge, so vacated convictions, like hung counts, should be excluded from the inquiry into what the jury necessarily determined Brief for Petitioners 20–24 Asserting that we have “never held an invalid conviction relevant to or evidence of anything,” Tr of Oral Arg 5, Bravo and Martínez argue that taking account of a vacated conviction in our issue-preclusion analysis would im permissibly give effect to “a legal nullity,” Brief for Peti tioners 39; see Mich, 852 N W 2d, at 142 (majority opinion) (considering a vacated count would impermissibly “bring that legally vacated conviction back to life”) This argument misapprehends the inquiry It is undisputed that petitioners’ convictions are invalid judg |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | inquiry It is undisputed that petitioners’ convictions are invalid judg ments that may not be used to establish their guilt The question is whether issue preclusion stops the Govern Cite as: 580 U S (201) 1 Opinion of the Court ment from prosecuting them anew On that question, Bravo and Martínez bear the burden of showing that the issue whether they violated § has been “determined by a valid and final judgment of ” 55 US, 9 (internal quotation marks omitted) To judge whether they carried that burden, a court must realisti cally examine the record to identify the ground for the §-based acquittals 39 US, A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later over turned on appeal for unrelated legal error: The split ver dict—finding § violated on the standalone counts, but not violated on the related Travel Act and conspiracy counts—tells us that, on one count or the other, “the jury [did] not follo[w] the court’s instructions,” whether because of “mistake, compromise, or lenity” US, at 5; see at Petitioners’ acquittals therefore do not support the application of issue preclusion here Further relying on Bravo and Martínez contend that their vacated convictions should be ignored because, as with hung counts, “there is no way to decipher” what they represent Brief for Petitioners 28 (quoting ) The § convictions are meaningless, they maintain, because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit— payment of a gratuity Brief for Petitioners 24 This argument trips on ’s reasoning did —————— Nor is this the first time we have looked to a vacated conviction to ascertain what a jury decided in a prior proceeding Our holding in Morris v Mathews, 5 US 23 (198), that a conviction vacated on double jeopardy grounds may be “reduced to a conviction for a lesser included offense which is not jeopardy barred,” at 24–2, rested on exactly that rationale See at 2 (relying on a jeopardy-barred vacated conviction for aggravated murder to conclude that the jury “necessarily found that the defendant’s conduct satisfie[d] the elements of the lesser included offense” of simple murder) 18 BRAVO-FERNANDEZ v UNITED STATES Opinion of the Court not rest on a court’s inability to detect the basis for a jury’s decision Rather, this Court reasoned that, when a jury hangs, there is no decision, hence no evidence of irration ality –125 A verdict of guilt, by con trast, is a jury decision, even if subsequently vacated on appeal It therefore |
Justice Ginsburg | 2,016 | 5 | majority | Bravo-Fernandez v. United States | https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/ | jury decision, even if subsequently vacated on appeal It therefore can evince irrationality That is the case here Petitioners do not dispute that the Government’s evidence at trial supported a guilty verdict on the quid pro quo theory, or that the gratuity instruction held erroneous by the Court of Appeals applied to every §-based offense Because no rational jury could have reached conflicting verdicts on those counts, petitioners’ § convictions “reveal the jury’s inconsis tency—which is the relevant issue here—even if they do not reveal which theory of liability jurors relied upon in reach ing those inconsistent verdicts” Brief for United States 31 In other words, because we do not know what the jury would have concluded had there been no instructional error, Brief for Petitioners 28–29, a new trial on the counts of conviction is in order Bravo and Martínez have suc ceeded on appeal to that extent, but they are entitled to no more The split verdict does not impede the Government from renewing the prosecution8 —————— 8 A number of lower courts have reached the same conclusion See 853 F2d, 59 (If the defendant “was convicted of the offense that is the subject of the retrial,” the case is materially different from one with “an acquittal accompanied by a failure to reach a ver dict”); 50 F2d, at 3 (a case in which “the jury returned no verdict of conviction” on the compound count, “but only a verdict of acquittal on the substantive count,” is not instructive on whether the Government may retry a defendant after an inconsistent verdict has been vacated); 98 A2d, 2 (“ does nothing to undermine” the conclusion that a defendant may be retried after an inconsistent verdict is overturned); Kelly, 201 N J, at 4, 992 A 2d, at 89 (explaining in the context of retrial following vacatur that “ has no application to a case involving an inconsistent verdict of acquittals and convictions returned by the same jury”) Cite as: 580 U S (201) 19 Opinion of the Court The Double Jeopardy Clause, as the First Circuit ex plained, forever bars the Government from again prosecut ing Bravo and Martínez on the §-based conspiracy and Travel Act offenses; “the acquittals themselves remain inviolate” 90 F3d, n Bravo and Martínez have also gained “the benefit of their appellate victory,” : a second trial on the standalone bribery charges, in which the Government may not invoke a gratuity theory But issue preclusion is not a doctrine they can comman deer when inconsistent verdicts shroud in mystery what the jury necessarily decided * * |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | I continue to believe that this case presents a political question inappropriate for judicial resolution. See Zivo- tofsky v. Clinton, 566 U. S. (2012) (BREYER, J., dissenting). But because precedent precludes resolving this case on political question grounds, see at (majority opinion) (slip op., at 1), I join the Court’s opinion. Cite as: 576 U. S. (2015) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES No. 13–628 MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 8, 2015] JUSTICE THOMAS, concurring in the judgment in part and dissenting in part. Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, ignores that constitutional alloca- tion of power insofar as it directs the President, contrary to his wishes, to list “Israel” as the place of birth of Jerusalem- born citizens on their passports. The President has long regulated passports under his residual foreign affairs power, and this portion of does not fall within any of Congress’ enumerated powers. By contrast, poses no such problem insofar as it regulates consular reports of birth abroad. Unlike pass- ports, these reports were developed to effectuate the natu- ralization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain 2 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. U. S. citizenship. The regulation of these reports does not fall within the President’s foreign affairs powers, but within Congress’ enumerated powers under the Naturali- zation and Necessary and Proper Clauses. Rather than adhere to the Constitution’s division of powers, the Court relies on a distortion of the President’s recognition power to hold both of these parts of unconstitutional. Because I cannot join this faulty analy- sis, I concur only in the portion of the Court’s judgment holding unconstitutional as applied to passports. I respectfully dissent from the remainder of the Court’s judgment. I A The Constitution specifies a number of foreign affairs powers and divides them between the political branches. Among others, Article I allocates to Congress the powers “[t]o regulate Commerce with foreign |
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