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Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | established right to a jury that reflects the community's judgment about whether the evidence supporting conviction and execution for a particular crime crosses the "reasonable doubt" threshold has been made to disappear. This bit of legerdemain permits the Court to offer an easy analogy to exclusion for other types of bias and argue that *458 death-qualification should be evaluated under the same lenient standards. Ante, at 423-424. Because the Court never acknowledges the constitutional rights was meant to protect, it need not explain why 's protections are no longer needed. It is bad enough that the Court is so eager to discard well-established Sixth Amendment rights of a capital defendant for the sake of efficient capital punishment. But if the Court is to take such a precipitate step, at the very least it should acknowledge having done so and explain why these consistently recognized rights should be recognized no longer. III as the foregoing discussion makes clear, is best understood in the context of our cases preserving the integrity of the jury both as an impartial factfinder and as the voice of the community. As such the protection of 's stringent standards of proof could not be more important to the capital defendant: "The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power a reluctance to entrust plenary powers over the life and liberty of the citizen to one *459 judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Crucial to the jury right is the requirement that "the jury be a body truly representative of the community." Smith v. As we said in "[t]his prophylactic vehicle is not provided if the jury pool is made up of |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." The death-qualification process is fraught with threats to these constitutional guarantees.[10] The risk of the "overzealous prosecutor and the compliant, biased, or eccentric judge," at 15, is particularly acute in the context of a capital case. Passions, as we all know, can run to the extreme when the State tries one accused of a barbaric act against society, or one accused of a crime that for whatever reason inflames the community. Pressures on the government to secure a conviction, to "do something," can overwhelm even those of good conscience. See 47 U. S., at 1053 When prosecutors and judges are elected, or when they harbor political ambitions, such pressures are particularly dangerous. Cf. 48 U.S. 447, 47 With such pressures invariably being brought to bear, strict controls on the death-qualification *40 process are imperative. Death-qualification works to the advantage of only the prosecutor; if not carefully controlled, it is tool with which the prosecutor can create a jury perhaps predisposed to convict[11] and certainly predisposed to impose the ultimate sanctio Broad death-qualification threatens the requirement that be drawn from a fair cross section of the community and thus undermines both the defendant's interest in a representative body and society's interest in full community participation in capital sentencing. "One of the most important *41 functions any jury can perform in making such a selection [of life or death] is to maintain a link between contemporary community values and the penal system a link without which the determination of punishment could hardly reflect `the evolving standards of decency that mark the progress of a maturing society.' " 15 ). AS JUSTICE STEVENS wrote last Term, "if the decision that capital punishment is the appropriate sanction in extreme cases is justified because it expresses the community's moral sensibility its demand that a given affront to humanity requires retribution it follows that a representative cross section of the community must be given the responsibility for making that decisio" That the Court would be willing to place the life of this capital defendant, and all others, in the hands of a skewed jury is unpardonable. Of perhaps equal gravity are the implications of today's opinion for the established right of every criminal defendant to a jury drawn from a fair cross section of the community. If, as the Court suggests, the Sixth Amendment jury right requires only a "quest for jurors who will conscientiously |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | right requires only a "quest for jurors who will conscientiously apply the law and find the facts," ante, at 423 if, in other words, the only pertinent question is whether the individual jurors are impartial, see ; then the right to a jury drawn from a fair cross section of the community is lost. IV Though the unexplained evisceration of 's protections of a capital defendant's Sixth Amendment rights is the most troubling accomplishment of the opinion for the Court, its discussion of the proper standard of review of *42 state-court determinations cannot pass without some comment. One evident purpose of the Court's redefinition of the standards governing death-qualification is to bring review of death-qualification questions within the scope of the presumption of correctness of state-court factual findings on federal collateral review. 28 U.S. C. 2254(d). In recent cases the Court has held that the question whether a juror is biased is a question of fact and therefore review of a trial court's voir dire decision to exclude or not exclude receives a presumption of correctness under 2254(d). E. g., Had the Court maintained 's strict standards for death-qualification, there would be no question that trial-court decisions to exclude scrupled jurors would not be questions of fact subject to the presumption of correctness. Whether a prospective juror with qualms about the death penalty expressed an inability to abide by an oath with sufficient strength and clarity to justify exclusion is certainly a "mixed question" an application of a legal standard to undisputed historical fact. Even if one were to accept the Court's redefinition of the proper standards for death-qualification, it would not follow that the Court's holding with respect to the applicability of 2254(d) is correct. JUSTICE STEVENS, dissenting in has persuasively demonstrated that "the question whether a juror has an opinion that disqualifies is a mixed one of law and fact," because the question is " `whether the nature and strength of the opinion formed are such as in law necessarily. raise the presumption of partiality.' " (quoting 3 U.S. 717, (191)). V Today's opinion for the Court is the product of a saddening confluence of three of the most disturbing trends in our constitutional jurisprudence respecting the fundamental rights of our people. The first is the Court's unseemly eagerness to *43 recognize the strength of the State's interest in efficient law enforcement and to make expedient sacrifices of the constitutional rights of the criminal defendant to such interests. United 48 U.S. 897, The second is the Court's increasing disaffection with the previously unquestioned principle, endorsed |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | the Court's increasing disaffection with the previously unquestioned principle, endorsed by every Member of this Court, that "because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards" 48 U. S., 8 E. g., 45 U.S. 37 ; 1-44 ; Barclay v. 43 U.S. 939 The third is the Court's increasingly expansive definition of "questions of fact" calling for application of the presumption of correctness of 28 U.S. C. 2254(d) to thwart vindication of fundamental rights in the federal courts. E. g., 44 U.S. 114 ; These trends all reflect the same desolate truth: we have lost our sense of the transcendent importance of the Bill of Rights to our society. See United ("[I]t is the very purpose of a Bill of Rights to identify values that may not be sacrificed to expediency"). We have lost too our sense of our own role as Madisonian "guardians" of these rights. See 1 Annals of Cong. 439 (1789) (remarks of James Madison). Like the death-qualified that the prosecution can now mold to its will to enhance the chances of victory, this Court increasingly acts as the adjunct of the State and its prosecutors in facilitating efficient and expedient conviction and execution irrespective of the Constitution's fundamental guarantees. One can only hope that this day too will soon pass. |
Justice Roberts | 2,014 | 0 | concurring | Scialabba v. Cuellar De Osorio | https://www.courtlistener.com/opinion/2678135/scialabba-v-cuellar-de-osorio/ | I agree with much of the plurality’s opinion and with its conclusion that the Board of Immigration Appeals reason- ably interpreted 8 U.S. C. I write separately because I take a different view of what makes this provi- sion “ambiguous” under U. S. A. As the plurality reads section 1153(h)(3), the statute’s two clauses address the issue before the Court “in diver- gent ways” and “do not easily cohere with each other.” Ante, at 14. For the plurality, the first clause looks “to- ward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family prefer- ence petition,” while the second clause offers narrower relief that can help “only a subset of those beneficiaries.” Such “ill-fitting clauses,” the plurality says, “left the Board with a choice—essentially of how to reconcile the statute’s different commands.” Ante, at 21. To the extent the plurality’s opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong. Courts defer to an agency’s reasonable construction of an ambiguous 2 SCIALABBA v. CUELLAR DE OSORIO ROBERTS, C. J., concurring in judgment statute because we presume that Congress intended to assign responsibility to resolve the ambiguity to the agency. at –844. But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the reso- lution of such a conflict is not statutory construction but legislative choice. is not a license for an agency to repair a statute that does not make sense.1 I see no conflict, or even “internal tension,” ante, at 14, in section 1153(h)(3). See (we must “inter- pret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts into a[ ] harmonious whole’ ” (citation omitted)). The statute reads: “If the age of an alien is determined under [section 1153(h)(1)] to be 21 years of age or older for the pur- poses of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the origi- nal petition.” The first clause states a condition—one that beneficiar- ies from any preference category can meet—and thereby —————— 1 National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), is not to the contrary. There the Court confronted two different statutes, enacted to address different |
Justice Roberts | 2,014 | 0 | concurring | Scialabba v. Cuellar De Osorio | https://www.courtlistener.com/opinion/2678135/scialabba-v-cuellar-de-osorio/ | the Court confronted two different statutes, enacted to address different problems, that pre- sented “seemingly categorical—and, at first glance, irreconcilable— legislative commands.” We deferred to an agency’s reason- able interpretation, which “harmonize[d] the statutes,” in large part because of our strong presumption that one statute does not impliedly repeal another. at 662–669. Home Builders did not address the consequences of a single statutory provision that appears to give divergent commands. Cite as: 573 U. S. (2014) 3 ROBERTS, C. J., concurring in judgment defines the persons potentially affected by this provision. But the clause does not grant anything to anyone. I disa- gree with the plurality that the first clause “points toward broad-based relief,” ante, at 21, because I do not think the first clause points toward any relief at all.2 Imagine a provision of the Tax Code that read: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” It would be immediately apparent from that provision that an enrolled student who lives on campus is not entitled to the deduction, even though the student falls within the conditional first clause. And yet no one would describe the two clauses as being in tension. If the Internal Revenue Service then interpreted the term “cost of off-campus housing” to ex- clude payments by a student who rents a home from his parents, a court would determine whether that interpreta- tion was reasonable. The same is true in this case.3 The particular benefit provided by section 1153(h)(3) is found exclusively in the second clause—the only operative —————— 2 For the same reason, I do not agree with the contention in JUSTICE SOTOMAYOR’s dissent that the first clause of section 1153(h)(3) unam- biguously “answers the precise question in this case.” Post, at 6. 3 JUSTICE SOTOMAYOR’s dissent accuses me of “ignor[ing]” the first clause of section 1153(h)(3), “treating [that] clause as a nullity,” and denying the clause “effect.” Post, at 20–21. But that point is correct only if the reader adopts JUSTICE SOTOMAYOR’s own premise, that the first clause has operative effect on its own. I give the statute’s first clause precisely the (limited) effect it is meant to have: it defines who is potentially affected by section 1153(h)(3). JUSTICE SOTOMAYOR’s re- sponse to the campus housing example proves my point by acknowledg- ing that who gets relief under a statute depends entirely on the mean- ing of the statute’s operative provision, not on the reach of the introductory clause. See post, at 21. The Court would |
Justice Roberts | 2,014 | 0 | concurring | Scialabba v. Cuellar De Osorio | https://www.courtlistener.com/opinion/2678135/scialabba-v-cuellar-de-osorio/ | the introductory clause. See post, at 21. The Court would not reject a reasonable interpretation of the term “cost of off-campus housing,” as JUSTICE SOTOMAYOR’s dissent would, simply because the IRS could have interpreted the term to cover more students who fall within the prefa- tory clause. 4 SCIALABBA v. CUELLAR DE OSORIO ROBERTS, C. J., concurring in judgment provision. There we are told what an aged-out beneficiary (from whatever preference category) is entitled to: His petition “shall automatically be converted to the appropri- ate category and the alien shall retain the original priority date.” But automatic conversion is not possi- ble for every beneficiary in every preference category, as the plurality convincingly demonstrates. Ante, at 15–19. Automatic conversion requires, at minimum, that the beneficiary have his own sponsor, who demonstrates that he is eligible to act as a sponsor, and who commits to providing financial support for the beneficiary. Ante, at 18. Some aged-out children will not meet those prerequi- sites, and they cannot benefit from automatic conversion even under respondents’ interpretation of the statute.4 Beyond those requirements, however, Congress did not speak clearly to which petitions can “automatically be converted.” Whatever other interpretations of that provision might be possible, it was reasonable, for the reasons explained by the plurality, for the Board to interpret section 1153(h)(3) to provide relief only to a child who was a principal or derivative beneficiary of an F2A petition. That interpretation is consistent with the ordi- nary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration sys- tem. Ante, at 15–20. It also avoids the problems that would flow from respondents’ proposed alternative inter- pretations, including the suggestion that retention of the original priority date provides a benefit wholly separate from automatic conversion. Ante, at 18–19, 22–32. I concur in the judgment. —————— 4 JUSTICE SOTOMAYOR’s dissent is wrong that “the relief promised in (priority date retention and automatic conversion) can be given” to every aged-out child in every preference category, post, at 21, and it therefore follows that the statute is ambiguous. Cite as: 573 U. S. (2014) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–930 LORI SCIALABBA, ACTING DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., PETITIONERS v. ROSA- LINA CUELLAR DE OSORIO ET AL. |
Justice Souter | 2,006 | 20 | majority | Lopez v. Gonzales | https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/ | The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." (c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term "aggravated felony" *628 by a list that mentions "illicit trafficking in a controlled substance including a drug trafficking crime (as defined in section 924(c) of title 18)." 101(a)(43)(B), as added by 7342, and as amended by 222(a), 8 U.S.C. 01(a)(43)(B). The general phrase "illicit trafficking" is left undefined, but 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, 101(a)(43) of the INA provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." 8 U.S.C. 01(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. 1229b(a)(3). Nor is an aggravated felon eligible for asylum. 58(b)(2)(A)(ii), 58(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual 2L1.2 (hereinafter USSG); comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person's possession of cocaine, and was sentenced to five years' imprisonment. See S.D. Codified Laws 22-2-5 (1988); 22-6-1 ; 22-3-3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[1] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U.S.C. 1227(a)(2)(B)(i), and was also for an aggravated felony, see 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See 1229b(a)(3). At first, the Immigration Judge agreed |
Justice Souter | 2,006 | 20 | majority | Lopez v. Gonzales | https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/ | of removal. See 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez's drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, WL 993589 ; United (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him *629 removed. The BIA affirmed, and the Court of Appeals affirmed the BIA,[2] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[3] We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance including," but not limited to, "a drug trafficking crime (as defined in section 924(c) of title 18)." 8 U.S.C. 01(a)(43)(B). Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S.D. Codified Laws 22-3-3, a state felony, 22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U.S.C. 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see 841 (2000 ed. and Supp. III); United ("Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone"). Despite this federal misdemeanor treatment, the Government argues that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see 21 U.S.C. 844(a). That is enough, says the Government, because 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its |
Justice Souter | 2,006 | 20 | majority | Lopez v. Gonzales | https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/ | few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being *630 defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. And ordinarily "trafficking" means some sort of commercial dealing. See Black's Law Dictionary 1534 (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also ; (App.1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[4] Reading 924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. Cf. Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean "`just what [he chose] it to meanneither more nor less,'"[5] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[6] First, an offense that necessarily counts as "illicit trafficking" under the INA is a "drug trafficking crime" under 924(c), that is, a "felony punishable under the [CSA]," 924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the CSA; where else would one naturally look? Although the Government would have us look to *631 state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of 924 expressly refer to guilt under state law, see 924(g)(3), (k)(2), and the implication confirms that the reference solely to a "felony punishable under the [CSA]" in 924(c)(2) is to a crime punishable as a felony under the federal Act. See ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally |
Justice Souter | 2,006 | 20 | majority | Lopez v. Gonzales | https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/ | in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read "punishable as a felony," and that by saying simply "punishable" Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government's way. We do not use a phrase like "felony punishable under the [CSA]" when we mean to signal or allow a break between the noun "felony" and the contiguous modifier "punishable under the [CSA]," let alone a break that would let us read the phrase as if it said "felony punishable under the CSA whether or not as a felony." Regular usage points in the other direction, and when we read "felony punishable under the Act," we instinctively understand "felony punishable as such under the Act" or "felony as defined by the Act."[7] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating "the cardinal rule that statutory language must be read in context." General Dynamics Land Systems, 124 S. Ct. 16, 1 L. Ed. 2d 1094 That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term "aggravated felony" "applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. 01(a)(43). But before this provision is given the Government's expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of "an offense. in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez's state crime actually fell within the *632 general term "illicit trafficking," the state felony |
Justice Souter | 2,006 | 20 | majority | Lopez v. Gonzales | https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/ | within the *632 general term "illicit trafficking," the state felony conviction would count as an "aggravated felony," regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U.S.C. 844(a).[8] The Government's reliance on the penultimate sentence of 8 U.S.C. 01(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of 01(a)(43) suggests that Congress changed the meaning of "felony punishable under the [CSA]" when it took that phrase from Title 18 and incorporated it into Title 8's definition of "aggravated felony." Yet the Government admits it has never begun a prosecution under (c)(1)(A) where the underlying "drug trafficking crime" was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33-36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government's interpretation of "felony punishable under the [CSA]" in the very context in which that phrase appears in the United States Code belies the Government's claim that its interpretation is the more natural one.[9] Finally, the Government's reading would render the law of alien removal, see 8 U.S.C. 1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG 2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of "illicit trafficking in a controlled substance"). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an "aggravated felony" (like the 924(c)(2) definition of "drug trafficking crime"). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies *633 and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government's approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, |
Justice Souter | 2,006 | 20 | majority | Lopez v. Gonzales | https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/ | marijuana. Not only is it a misdemeanor under the CSA, see 21 U.S.C. 844(a), but the INA expressly excludes "a single offense involving possession for one's own use of 30 grams or less" from the controlled substance violations that are grounds for deportation, 8 U.S.C. 1227(a)(2)(B)(i). Yet by the Government's lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See 1229b(a)(3).[10] There is no hint in the statute's text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U.S.C. 844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government's reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Stevens | 2,009 | 16 | dissenting | Boyle v. United States | https://www.courtlistener.com/opinion/145864/boyle-v-united-states/ | In my view, Congress intended the term “enterprise” as it is used in the Racketeer Influenced and Corrupt Or ganizations Act (RICO), 18 U.S. C. et seq., to refer only to business-like entities that have an existence apart from the predicate acts committed by their employees or associates. The trial judge in this case committed two significant errors relating to the meaning of that term. First, he instructed the jury that “an association of indi viduals, without structural hierarchy, form[ed] solely for the purpose of carrying out a pattern of racketeering acts” can constitute an enterprise. App. 112. And he allowed the jury to find that element satisfied by evidence showing a group of criminals with no existence beyond its intermit tent commission of racketeering acts and related offenses. Because the Court’s decision affirming petitioner’s convic tion is inconsistent with the statutory meaning of the term enterprise and serves to expand RICO liability far beyond the bounds Congress intended, I respectfully dissent. I RICO makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct 2 BOYLE v. UNITED STATES STEVENS, J., dissenting or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The statute defines “enterprise” to include “any individual, partnership, corporation, associa tion, or other legal entity, and any union or group of indi viduals associated in fact although not a legal entity.” (4). It is clear from the statute and our earlier decisions construing the term that Congress used “enterprise” in these provisions in the sense of “a business organization,” Webster’s Third New International Dictionary 757 (1976), rather than “a ‘venture,’ ‘undertaking,’ or ‘project,’ ” ante, at 6 (quoting Webster’s Third New International Diction ary, at 757). First, the terms “individual, partnership, corporation, association, or other legal entity” describe entities with formal legal structures most commonly es tablished for business purposes. (4). In context, the subsequent reference to any “union or group of individuals associated in fact although not a legal entity” reflects an intended commonality between the legal and nonlegal entities included in the provision. “The juxtaposition of the two phrases suggests that ‘asso ciated in fact’ just means structured without the aid of legally defined structural forms such as the business corporation.” Limestone Development Corp. v. Lemont, 520 F.3d 797, 804–805 (CA7 2008).1 —————— 1 To be sure, we have read RICO’s enterprise term broadly to include entities with exclusively noneconomic motives or wholly unlawful purposes. See National Organization for Women, |
Justice Stevens | 2,009 | 16 | dissenting | Boyle v. United States | https://www.courtlistener.com/opinion/145864/boyle-v-united-states/ | motives or wholly unlawful purposes. See National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 252 (1994) (NOW); United 580–581 (1981). But those holdings are consistent with the conclusion that an enterprise is a business-like entity. Indeed, the examples of qualifying associations cited in —including loan-sharking, property-fencing, drug-trafficking, and counterfeiting operations— satisfy that criterion, as each describes an organization with continuing operations directed toward providing goods or services to its customers. See at 589–590 (citing ; 116 Cong. Rec. 592 (1970)). Cite as: 556 U. S. (2009) 3 STEVENS, J., dissenting That an enterprise must have business-like characteris tics is confirmed by the text of and our decision in Section 1962(c) creates liability for “conduct[ing] or participat[ing] in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.” In Reves, we examined that provision’s meaning and held that, “[i]n order to ‘participate, directly or indirectly, in the conduct of such enterprise’s affairs,’ one must have some part in directing those affairs.” (quoting ). It is not enough for a defendant to “carry on” or “participate in” an enterprise’s affairs through a pattern of racketeering activity; instead, evidence that he operated, managed, or directed those affairs is required. See at 177–179. This requirement confirms that the enterprise element demands evidence of a certain quantum of business-like organization—i.e., a system of processes, dealings, or other affairs that can be “directed.” Our cases also make clear that an enterprise “is an entity separate and apart from the pattern of activity in which it engages.” United 452 U.S. 576, 583 (1981). As with the requirement that an enter prise have business-like characteristics, that an enterprise must have a separate existence is confirmed by and Reves. If an entity’s existence consisted solely of its members’ performance of a pattern of racketeering acts, the “enterprise’s affairs” would be synonymous with the “pattern of racketeering activity.” Section 1962(c) would then prohibit an individual from conducting or participat ing in “the conduct of [a pattern of racketeering activity] through a pattern of racketeering activity”—a reading —————— Similarly, the enterprise at issue in NOW was a nationwide network of antiabortion groups that had a leadership counsel and regular confer ences and whose members undertook an extensive pattern of extortion, arson, and other racketeering activity for the purpose of “shut[ting] down abortion clinics.” 4 BOYLE v. UNITED STATES STEVENS, J., dissenting that is unbearably redundant, particularly in a case like this one in which a single pattern of activity is alleged. The only way to avoid that result is to require that an “enterprise’s affairs” be something |
Justice Stevens | 2,009 | 16 | dissenting | Boyle v. United States | https://www.courtlistener.com/opinion/145864/boyle-v-united-states/ | result is to require that an “enterprise’s affairs” be something other than the pattern of racketeering activity undertaken by its members.2 Recognizing an enterprise’s business-like nature and its distinctness from the pattern of predicate acts, however, does not answer the question of what proof each element requires. In cases involving a legal entity, the matter of proving the enterprise element is straightforward, as the entity’s legal existence will always be something apart from the pattern of activity performed by the defendant or his associates. Cf. Cedric Kushner Promotions, Ltd. v. King, But in the case of an association-in-fact enterprise, the Government must ad duce other evidence of the entity’s “separate” existence and “ongoing organization.” There may be cases in which a jury can infer that exis tence and continuity from the evidence used to establish the pattern of racketeering activity. But that will be —————— 2 The other subsections of 18 U.S. C. further demonstrate the business-like nature of the enterprise element and its necessary dis tinctness from the pattern of racketeering activity. Subsection (a) prohibits anyone who receives income derived from a pattern of racket eering activity from “us[ing] or invest[ing], directly or indirectly, any part of such income in acquisition of any interest in, or the estab lishment or operation of, any enterprise.” And subsection (b) prohibits anyone from “acquir[ing] or maintain[ing]” any interest in or control of an enterprise through a pattern of racketeering activity. We noted in NOW that the term enterprise “plays a different role in the structure” of those subsections than it does in subsection (c) because the enter prise in those subsections is the –259. We did not, however, suggest that the term has a substantially different meaning in each subsection. To the contrary, our observation that the enterprise in subsection (c) is “the vehicle through which the unlawful pattern of racketeering activity is committed,” indicates that, as in subsections (a) and (b), the enterprise must have an exis tence apart from the pattern of racketeering activity. Cite as: 556 U. S. (2009) 5 STEVENS, J., dissenting true only when the pattern of activity is so complex that it could not be performed in the absence of structures or processes for planning or concealing the illegal conduct beyond those inherent in performing the predicate acts. More often, proof of an enterprise’s separate existence will require different evidence from that used to establish the pattern of predicate acts. Precisely what proof is required in each case is a more difficult question, largely due to the abundant variety of RICO predicates and enterprises. Because covered |
Justice Stevens | 2,009 | 16 | dissenting | Boyle v. United States | https://www.courtlistener.com/opinion/145864/boyle-v-united-states/ | the abundant variety of RICO predicates and enterprises. Because covered enter prises are necessarily business-like in nature, however, proof of an association-in-fact enterprise’s separate exis tence will generally require evidence of rules, routines, or processes through which the entity maintains its continu ing operations and seeks to conceal its illegal acts. As petitioner suggests, this requirement will usually be satis fied by evidence that the association has an “ascertainable structure beyond that inherent in the pattern of racketeer ing activity in which it engages.” Pet. for Cert. i. Exam ples of such structure include an organizational hierarchy, a “framework for making decisions,” an “internal disci pline mechanism,” “regular meetings,” or a practice of “reinvest[ing] proceeds to promote and expand the enter prise.” Reply Brief for Petitioner 31–34. In other cases, the enterprise’s existence might be established through evidence that it provides goods or services to third parties, as such an undertaking will require organizational ele ments more comprehensive than those necessary to per form a pattern of predicate acts. Thus, the evidence needed to establish an enterprise will vary from case to case, but in every case the Government must carry its burden of proving that an alleged enterprise has an exis tence separate from the pattern of racketeering activity undertaken by its constituents. 6 BOYLE v. UNITED STATES STEVENS, J., dissenting II In some respects, my reading of the statute is not very different from that adopted by the Court. We agree that “an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s pur pose.” Ante, at 6. But the Court stops short of giving content to that requirement. It states only that RICO “demands proof that the enterprise had ‘affairs’ of suffi cient duration to permit an associate to ‘participate’ in those affairs through ‘a pattern of racketeering activity,’ ” before concluding that “[a] trial judge has considerable discretion in choosing the language of an instruction” and need not use the term “structure.” Ante, at 7. While I agree the word structure is not talismanic, I would hold that the instructions must convey the requirement that the alleged enterprise have an existence apart from the alleged pattern of predicate acts. The Court’s decision, by contrast, will allow juries to infer the existence of an enterprise in every case involving a pattern of racketeer ing activity undertaken by two or more associates. By permitting the Government to prove both elements with the same evidence, the Court renders the enterprise |
Justice Stevens | 2,009 | 16 | dissenting | Boyle v. United States | https://www.courtlistener.com/opinion/145864/boyle-v-united-states/ | elements with the same evidence, the Court renders the enterprise requirement essentially meaningless in association-in-fact cases. It also threatens to make that category of offenses indistinguishable from conspiracies to commit predicate acts, see as the only remaining difference is ’s pattern requirement. The Court resists this criticism, arguing that “demands much more” than the inchoate offense defined in Ante, at 10. It states that the latter “may be completed in the brief period needed for the formation of the agreement and the com mission of a single overt act in furtherance of the conspir acy,” whereas the former requires the creation of “a group with a common purpose and course of conduct—and the Cite as: 556 U. S. (2009) 7 STEVENS, J., dissenting actual commission of a pattern of predicate offenses.” Given that it is also unlawful to conspire to violate see (d), this comment provides no assur ance that RICO and offenses remain distinct. Only if proof of the enterprise element—the “group with a com mon purpose and course of conduct”—requires evidence of activity or organization beyond that inherent in the pat tern of predicate acts will RICO offenses retain an identity distinct from offenses. This case illustrates these concerns. The trial judge instructed the jury that an enterprise need have only the degree of organization necessary “for carrying out its objectives” and that it could “find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts.” App. 112.3 These instructions were plainly deficient, as they did not require the Government to prove that the alleged enterprise had an existence apart from the pattern of predicate acts. Instead, they permit ted the Government’s proof of the enterprise’s structure and continuing nature—requirements on which all agree—to consist only of evidence that petitioner and his associates performed a pattern of racketeering activity. Petitioner’s requested instruction would have required the jury to find that the alleged enterprise “had an ongo ing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts.” That instruction does not precisely track my understanding of the statute; although evidence of “structural hierarchy” can evidence an enterprise, it is not necessary to establish that element. Nevertheless, the proposed instruction would have better directed the jury to consider whether —————— 3 For the full text of the relevant portion of the instructions, see ante, at 3, n. 1. 8 BOYLE v. UNITED STATES STEVENS, J., dissenting the alleged enterprise possessed the separate existence necessary to |
Justice Stevens | 2,009 | 16 | dissenting | Boyle v. United States | https://www.courtlistener.com/opinion/145864/boyle-v-united-states/ | dissenting the alleged enterprise possessed the separate existence necessary to expose petitioner to liability under and the trial judge should have considered an instruction along those lines. The trial judge also erred in finding the Government’s evidence in this case sufficient to support petitioner’s RICO convictions. Petitioner was alleged to have partici pated and conspired to participate in the conduct of an enterprise’s affairs through a pattern of racketeering activity consisting of one act of bank robbery and three acts of interstate transportation of stolen funds. at 15–19. The “primary goals” of the alleged enterprise “included generating money for its members and associ ates through the commission of criminal activity, includ ing bank robberies, bank burglaries and interstate trans portation of stolen money.” And its modus operandi was to congregate periodically when an associate had a lead on a night-deposit box that the group could break into. Whoever among the associates was available would bring screwdrivers, crowbars, and walkie-talkies to the location. Some acted as lookouts, while others re trieved the money. When the endeavor was successful, the participants would split the proceeds. Thus, the group’s purpose and activities, and petitioner’s participation therein, were limited to sporadic acts of taking money from bank deposit boxes. There is no evidence in RICO’s text or history that Congress intended it to reach such ad hoc associations of thieves. III Because the instructions and evidence in this case did not satisfy the requirement that an alleged enterprise have an existence separate and apart from the pattern of activity in which it engages, I respectfully dissent |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” –34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” Colorado law does not permit the Commission to assess money damages or fines. 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | and because the potential customers “were doing something illegal” at that time. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. (2018) 7 Opinion of the Court same-sex couples on this basis. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | to Phillips in this case did not violate the Free Exercise Clause. ; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. at 57a. The Commission ordered Phillips to “cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with this Order.” at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or The Cite as: 584 U. S. (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” at (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See (per curiam); see also (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, (2012); At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects against discrimina- tion on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu 540– 542 (1993); (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries refuse[d] the patron’s request because of the offensive nature of the requested message.” A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. – (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under |
Justice Kennedy | 2,018 | 4 | majority | Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n | https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ | neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect |
Justice Brennan | 1,972 | 13 | majority | Lake Carriers' Assn. v. MacMullan | https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/ | This is an appeal from the judgment of a three-judge District Court, convened under 28 U.S. C. 2281, 2284, dismissing a complaint to have the Michigan Watercraft Pollution Control Act of 1970, et seq. declared invalid and its enforcement enjoined. We noted probable jurisdiction, and affirm the District Court's determination to abstain from decision pending state court proceedings. The Michigan statute, effective January 1, provides in pertinent part: "Sec. 3. (1) A person [defined in 2 (i) to mean "an individual, partnership, firm, corporation, association or other entity"] shall not place, throw, deposit, discharge or cause to be discharged into or onto the waters of this state, any sewage [defined in 2 (d) to mean "all human body wastes, treated or untreated"] or other liquid or solid materials *501 which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes. "(2) It is unlawful to discharge, dump, throw or deposit sewage from a recreational, domestic or foreign watercraft used for pleasure or for the purpose of carrying passengers, cargo or otherwise engaged in commerce on the waters of this state. "Sec. 4. (1) Any pleasure or recreational watercraft operated on the waters of this state which is moored or registered in another state or jurisdiction, if equipped with a pollution control device approved by that jurisdiction, may be approved by the [State Water Resources Commission of the Department of Natural Resources] to operate on the waters of this state. "(2) A person owning, operating or otherwise concerned in the operation, navigation or management of a watercraft [defined in 2 (g) to include "foreign and domestic vessels engaged in commerce upon the waters of this state" as well as "privately owned recreational watercraft"] having a marine toilet shall not own, use or permit the use of such toilet on the waters of this state unless the toilet is equipped with 1 of the following pollution control devices: "(a) A holding tank or self-contained marine toilet which will retain all sewage produced on the watercraft for subsequent disposal at approved dock-side or onshore collection and treatment facilities. "(b) An incinerating device which will reduce to ash all sewage produced on the watercraft. The ash shall be disposed of onshore in a manner which will preclude pollution. *502 "Sec. 8. Commercial docks and wharfs designed for receiving and loading cargo and/or freight from commercial watercraft must furnish facilities, if determined necessary, as prescribed by the commission, to accommodate discharge of sewage from heads and |
Justice Brennan | 1,972 | 13 | majority | Lake Carriers' Assn. v. MacMullan | https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/ | the commission, to accommodate discharge of sewage from heads and galleys [of] the watercraft which utilize the docks or wharfs. "Sec. 10. The commission may promulgate all rules necessary or convenient for the carrying out of duties and powers conferred by this act. "Sec. 11. Any person who violates any provision of this act is guilty of a misdemeanor and shall be fined not more than $500.00. To be enforceable, the provision or the rule shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Appelleesthe State Attorney General, the Department of Natural Resources and its Director, and the Water Resources Commission and its Executive Secretaryread these provisions as prohibiting the discharge of sewage, whether treated or untreated, in Michigan waters and as requiring vessels with marine toilets to have sewage storage devices. Appellantsthe Lake Carriers' Association and individual members who own or operate federally enrolled and licensed Great Lakes bulk cargo vesselschallenge the Michigan law on a variety of grounds. They urge that the Michigan law is beyond the State's police power and places an undue burden on interstate and foreign commerce, impermissibly interferes with uniform maritime law, denies them due process and equal protection of the laws, and is unconstitutionally vague. They also contend that the Michigan statute conflicts with or is *503 pre-empted by federal law, primarily[1] the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970, and is therefore invalid under the Supremacy Clause. Under the Water Quality Improvement Act, the Administrator of the Environmental Protection Agency[2] is directed "[a]s soon as possible, after April 3, 1970, [to] promulgate Federal standards of performance for marine sanitation devices which shall be designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters of the United States from new vessels and existing vessels, except vessels not equipped with installed toilet facilities." 33 U.S. C. 1163 (b) (1).[3] These standards, which as of now are not issued,[4] are to become effective for new vessels two years after promulgation and for existing vessels five years after promulgation. 33 U.S. C. 1163 (c) (1). Thereafter, "no State shall adopt or enforce any statute or regulation with respect to the *504 design, manufacture, or installation or use of any marine sanitation device on any vessel subject to the provisions of this section." 1163 (f). However, "[u]pon application by a State, and where the Administrator determines that |
Justice Brennan | 1,972 | 13 | majority | Lake Carriers' Assn. v. MacMullan | https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/ | application by a State, and where the Administrator determines that any applicable water quality standards require such a prohibition, he shall by regulation completely prohibit the discharge from a vessel of any sewage (whether treated or not) into those waters of such State which are the subject of the application and to which such standards apply." Thus, the federal law appears to contemplate sewage control through onboard treatment before disposal in navigable waters, unless the Administrator provides on special application for a complete prohibition on discharge in designated areas. The District Court below did not reach the merits of appellants' complaint on the ground that "the lack of a justiciable controversy precludes entry of this Court into the matter."[5] "An overview of the factual situation presented by the evidence in this case," said the District Court, "compels but one conclusion: that the plaintiffs here are seeking an advisory *505 opinion" The District Court also found "compelling reasons to abstain from consideration of the matter in its present posture," ibid.namely, "the attitude of Michigan authorities who seek the co-operation of the industry in the implementation of its program and have not instigated, nor does it appear, threatened criminal prosecutions," ;[6] the availability of declaratory relief in Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law;[7] the absence of existing conflict between the Michigan requirements and other state laws;[8] and the publication *506 of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statute.[9] Appellants now urge that their complaint does present an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S. C. 2201, that is ripe for decision. We agree. The test to be applied, of course, is the familiar one stated in Maryland Casualty : "Basically, the question in each case is whether there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Compare, e. g., ib with, e. g., Since, as appellees concede, [10] the Michigan requirements on the discharge of sewage will be preempted when the federal standards become effective, the gist of appellants' grievance is that, according to Michigan authorities, they are required under Michigan law to install sewage storage devices that (1) may become unnecessary once federal standards, authorizing discharge of treated sewage, become applicable or (2) may, in any event, conflict with other state regulations pending the promulgation and effective date of the federal *507 standards. The immediacy and reality |
Justice Brennan | 1,972 | 13 | majority | Lake Carriers' Assn. v. MacMullan | https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/ | date of the federal *507 standards. The immediacy and reality of appellants' concerns do not depend, contrary to what the District Court may have considered, on the probability that federal standards will authorize discharge of treated sewage in Michigan waters or that other States will implement sewage control requirements inconsistent with those of Michigan. They depend instead only on the present effectiveness in fact of the obligation under the Michigan statute to install sewage storage devices. For if appellants are now under such an obligation, that in and of itself makes their attack on the validity of the law a live controversy, and not an attempt to obtain an advisory opinion. See, e. g., Southern Pacific Regarding the present effectiveness in fact of a statutory obligation, the plurality opinion in stated that a justiciable controversy does not exist where "compliance with [challenged] statutes is uncoerced by the risk of their enforcement." That, however, is not this case. Although appellees have indicated that they will not prosecute under the Michigan act until adequate land-based pump-out facilities are available to service vessels equipped with sewage storage devices, they have sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible. The following colloquy that occurred on oral argument here is instructive, Tr. of Oral Arg. 34-35: "[Appellees]: We urge that the leadtime for the construction or erection of pump-out facilities is necessary, and there would be no enforcement until pump-out facilities were available. * "Q. But you're insisting that the carriers get ready to comply and "[Appellees]: Yes, sir. "Q. because if you wait until pump-out stations are ready to begin [servicing] tanks, then there will be another great delay? "[Appellees]: Oh, yes, sir. "Q. So you have a rather concrete confrontation with these carriers now, don't you? "[Appellees]: Yes, sir, we do." Thus, if appellants are to avoid prosecution, they must be prepared, according to Michigan authorities, to retain all sewage on board as soon as pump-out facilities are available, which, in turn, means that they must promptly install sewage storage devices.[11] In this circumstance, compliance is coerced by the threat of enforcement, and the controversy is both immediate and real. See, e. g., ; City of Altus, See generally, e. g., Comment, 62 Colo. L. Rev. 106 (1962).[12] *509 Appellants next argue that the District Court erred in abstaining from deciding the merits of their complaint.[13] We agree that abstention was not proper on the majority of grounds given by the District Court, but hold that abstention was, nevertheless, appropriate for |
Justice Brennan | 1,972 | 13 | majority | Lake Carriers' Assn. v. MacMullan | https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/ | District Court, but hold that abstention was, nevertheless, appropriate for another reason suggested but not fully articulated in its opinion. Abstention is a "judge-made doctrine first fashioned in 1941 in Railroad justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." The majority of circumstances relied on by the District Court in this case do not fall within that category. First, the absence of an immediate threat of prosecution does not argue against reaching the merits of appellants' complaint. In and this Court held that, apart from "extraordinary circumstances," a federal court may not enjoin a pending state prosecution or declare invalid the statute under which the prosecution was brought. The decisions there were premised on considerations of equity practice and comity in our federal system that have little force in the absence of a pending state proceeding. In that circumstance, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. See generally *510 Similarly, the availability of declaratory relief in Michigan courts on appellants' federal claims is wholly beside the point. In at we said: "In thus [establishing jurisdiction for the exercise of] federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, `. to guard, enforce, and protect every right granted or secured by the Constitution of the United States'" Compare, e. g., The possibility that the Administrator of the Environmental Protection Agency may upon Michigan's application forbid the discharge of even treated sewage in state waters and the asserted absence of present conflict between the Michigan requirements and other state laws are equally immaterial. Just as they do not diminish the immediacy and reality of appellants' grievance, they do not call for abstention. The last factor relied on by the District Courtthe publication of proposed federal standards that might be considered by Michigan in the interpretation and enforcement of its statutedoes, however, point toward considerations that fall within the "special circumstances" permitting abstention. The paradigm case for abstention arises when the challenged state statute is susceptible of "a construction by the state courts that would avoid or modify the [federal] constitutional question. Harrison Compare" More fully, we have explained: "Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the |
Justice Brennan | 1,972 | 13 | majority | Lake Carriers' Assn. v. MacMullan | https://www.courtlistener.com/opinion/108546/lake-carriers-assn-v-macmullan/ | is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication The doctrine contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." That is precisely the circumstance presented here. The Michigan Watercraft Pollution Control Act of 1970 has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars that go to the foundation of their grievance. It is indeed only an assertion by appellees that the Michigan law proscribes the discharge of even treated sewage in state waters. Section 3 (2) of the Act does state that "[i]t is unlawful to discharge sewage from a recreational, domestic or foreign watercraft used for pleasure or for [commerce]" and 4 (2) does require vessels equipped with toilet facilities to have sewage storage devices.[14] Yet 3 (1) seemingly contemplates the discharge *512 of treated sewage by merely prohibiting any person from emitting sewage "which [renders] the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." Moreover, 11 provides that "[t]o be enforceable, the provision [of the Act] or the rule [presumably promulgated thereunder] shall be of such flexibility that a watercraft owner, in carrying out the provision or rule, is able to maintain maritime safety requirements and comply with the federal marine and navigation laws and regulations." Michigan has thus demonstrated concern that its pollution control requirements be sufficiently flexible to accord with federal law. We do not know, of course, how far Michigan courts will go in interpreting the requirements of the state Watercraft Pollution Control Act in light of the federal Water Quality Improvement Act[15] and the constraints of the United States Constitution.[16] But we are satisfied that authoritative resolution of the ambiguities in the Michigan law is sufficiently likely to avoid or significantly modify the federal questions appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations that we have found compelling in prior decisions. See, e. g., ; In affirming the decision of the District Court to abstain, we, of course, intimate no view on the merits of appellants' claims. We do, however, vacate the judgment below and remand the case to the District Court *513 with |
Justice Ginsburg | 1,996 | 5 | concurring | Ohio v. Robinette | https://www.courtlistener.com/opinion/118066/ohio-v-robinette/ | Robert Robinette's traffic stop for a speeding violation on an interstate highway in Ohio served as prelude to a search of his automobile for illegal drugs. Robinette's experience was not uncommon in Ohio. As the Ohio Supreme Court related, the sheriff's deputy who detained Robinette for speeding and then asked Robinette for permission to search his vehicle "was on drug interdiction patrol at the time." The deputy testified in Robinette's case that he routinely requested permission to search automobiles he stopped for traffic violations. According to the deputy's testimony in another prosecution, he requested consent to search in 786 traffic stops in 1992, the year of Robinette's arrest. From their unique vantage point, Ohio's courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: "[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their *41 right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to `practice' his drug interdiction technique." Against this background, the Ohio Supreme Court determined, and announced in Robinette's case, that the federal and state constitutional rights of Ohio citizens to be secure in their persons and property called for the protection of a clear-cut instruction to the State's police officers: An officer wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first tell the motorist that he or she is free to go. The Ohio Supreme Court described the need for its first-tell-then-ask rule this way: "The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. "Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him. "While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal Constitution and Section 14, Article I of the Ohio |
Justice Ginsburg | 1,996 | 5 | concurring | Ohio v. Robinette | https://www.courtlistener.com/opinion/118066/ohio-v-robinette/ | federal Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such an unreasonable interference with their liberty." -699. *42 Today's opinion reversing the decision of the Ohio Supreme Court does not pass judgment on the wisdom of the first-tell-then-ask rule. This Court's opinion simply clarifies that the Ohio Supreme Court's instruction to police officers in Ohio is not, under this Court's controlling jurisprudence, the command of the Federal Constitution. See ante, at 39 40. The Ohio Supreme Court invoked both the Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing alone, independently justified the court's rule. The ambiguity in the Ohio Supreme Court's decision renders this Court's exercise of jurisdiction proper under and this Court's decision on the merits is consistent with the Court's "totality of the circumstances" Fourth Amendment precedents, see ante, at 39. I therefore concur in the Court's judgment. I write separately, however, because it seems to me improbable that the Ohio Supreme Court understood its firsttell-then-ask rule to be the Federal Constitution's mandate for the Nation as a whole. "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards."[*] But ordinarily, when a state high court grounds a rule of criminal procedure in the Federal Constitution, the *43 court thereby signals its view that the Nation's Constitution would require the rule in all 50 States. Given this Court's decisions in consent-to-search cases such as and however, I suspect that the Ohio Supreme Court may not have homed in on the implication ordinarily to be drawn from a state court's reliance on the Federal Constitution. In other words, I question whether the Ohio court thought of the strict rule it announced as a rule for the governance of police conduct not only in Miami County, Ohio, but also in Miami, Florida. The first-tell-then-ask rule seems to be a prophylactic measure not so much extracted from the text of any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations of textually guaranteed rights. In this Court announced a similarly motivated rule as a minimal national requirement without suggesting that the text of the Federal Constitution required the precise measures the Court's opinion set forth. See ; see also Although all parts of the United States fall within this Court's domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic rules governing the conduct of officials in Ohio, but |
Justice Ginsburg | 1,996 | 5 | concurring | Ohio v. Robinette | https://www.courtlistener.com/opinion/118066/ohio-v-robinette/ | prophylactic rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme Court's decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure made for Ohio, designed to reinforce in that State the right of the people to be secure against unreasonable searches and seizures. *44 The Ohio Supreme Court's syllabus and opinion, however, were ambiguous. Under Long, the existence of ambiguity regarding the federal- or state-law basis of a state-court decision will trigger this Court's jurisdiction. Long governs even when, all things considered, the more plausible reading of the state court's decision may be that the state court did not regard the Federal Constitution alone as a sufficient basis for its ruling. Compare with It is incumbent on a state court, therefore, when it determines that its State's laws call for protection more complete than the Federal Constitution demands, to be clear about its ultimate reliance on state law. Similarly, a state court announcing a new legal rule arguably derived from both federal and state law can definitively render state law an adequate and independent ground for its decision by a simple declaration to that effect. A recent Montana Supreme Court opinion on the scope of an individual's privilege against self-incrimination includes such a declaration: "While we have devoted considerable time to a lengthy discussion of the application of the Fifth Amendment to the United States Constitution, it is to be noted that this holding is also based separately and independently on [the defendant's] right to remain silent pursuant to Article II, Section 25 of the Montana Constitution." cert. denied, post, p. 930. An explanation of this order meets the Court's instruction in Long that "[i]f the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [this Court] will not undertake to review the decision." On remand, the Ohio Supreme Court may choose to clarify that its instructions to law enforcement officers in Ohio find *45 adequate and independent support in state law, and that in issuing these instructions, the court endeavored to state dispositively only the law applicable in Ohio. See -34 To avoid misunderstanding, the Ohio Supreme Court must itself speak with the clarity it sought to require of its State's police officers. The efficacy of its endeavor to safeguard the liberties of Ohioans without disarming the State's police can then be tested in the precise way |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all. I Indiana's public indecency statute provides: "(a) A person who knowingly or intentionally, in a public place: "(1) engages in sexual intercourse; "(2) engages in deviate sexual conduct; "(3) appears in a state of nudity; or "(4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. "(b) `Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state." On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: "Indiana *573 does not regulate dancing. It regulates public nudity. Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit "message of eroticism," so long as he does not commit any of the four specified acts in the process.[1] Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of "the freedom of speech." Public indecencyincluding public nudityhas long been an offense at common law. See 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity 17, pp. 449, 472-474 (1970); Annot., Criminal offense predicated on indecent exposure, 93 A. L. R. 996, 997-998 (1934); Indiana's first public nudity statute, Rev. Laws of Ind., ch. 26, 60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to *574 the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F. |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | of hot dogs and machine tools, see Miller, 904 F. 2d, at 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See N.E.2d 856, ; In re Levinson, ; ; ; ; ; ; ; ;[2] The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no *575 basis for thinking that our society has ever shared that Thoreauvian "you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else" beau idealmuch less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See See also Paris Adult Theatre ; The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication.[3] *576 II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not in my view implicate the First Amendment. The First Amendment explicitly protects "the freedom of |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | First Amendment. The First Amendment explicitly protects "the freedom of speech [and] of the press"oral and written speechnot "expressive conduct." When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication to regulate election campaigns, see or to prevent littering, see 3 ), we insist that it meet the high, First Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purposeif only expressive of the fact that the actor disagrees with the prohibition. See, e. g., Florida Free Beaches, It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or evenas some of our cases have suggested, see, e. g., United (8)that it be justified by an "important or substantial" *577 government interest. Nor do our holdings require such justification: We have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e. g., United ; ; ; (9) ; (6) ;[4] In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, howeverwhere suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasonswe have allowed the regulation to stand. O', at ; ; cf. United ; As we clearly expressed the point in Johnson: "The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription." All our holdings (though admittedly not some of our discussion) support the conclusion that "the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription." Community for Creative (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev'd sub nom. Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation *579 (which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of free exercise. In Employment Div., Dept. of Human Resources of we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, `cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" quoting ; see also Minersville School ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs"). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. III While I do not think the plurality's conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: The government interest in the regulation must be "`important or substantial,'" ante, at 567, quoting O', at As I have indicated, *580 I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the "importance" of government interestsand especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the "importance" of the State's interest here, see ante, at 569, is in point. Paris Adult Theatre and 478 U. S., at did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly "important" or "substantial," or amounted to |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | those concerns were particularly "important" or "substantial," or amounted to anything more than a rational basis for regulation. involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see ; the State's prohibition could therefore be invalidated only if it had no rational We found that the State's "right. to maintain a decent society" provided a "legitimate" basis for regulationeven as to obscene material viewed by consenting -60. In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational 478 U.S., at I would uphold the Indiana statute on precisely the same ground: Moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed. * * * Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct *581 as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. JUSTICE SOUTER, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a striptease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. *582 I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United (8), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments. It is, of course, true that this justification has not been articulated by Indiana's Legislature or by its courts. As the plurality observes, "Indiana does not record legislative history, and the State's highest court has not shed additional light on the statute's purpose," ante, at 568. While it is certainly sound in such circumstances to infer general purposes "of protecting societal order and morality from [the statute's] text and history," ib I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity." Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. (1). At least as to the regulation of expressive conduct,[1] "[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | reenacted in its exact form if the same or another legislator made a `wiser' speech about it." O', In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O' to justify the State's enforcement of the statute against the type of adult entertainment at issue here. At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O' criterion. See 391 U.S., at The second O' prong asks whether the regulation "furthers an important or substantial governmental interest." The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here "furthers" that interest. I believe that our cases have addressed this question sufficiently to establish that it does. In we upheld a city's zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment, by protecting approximately 95% of the city's area from the placement of motion picture theaters emphasizing "`matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" for observation by patrons therein.'" Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems *584 that would be caused by adult theaters in that city. Rather, "Renton was entitled to rely on the experiences of Seattle and other cities," which demonstrated the harmful secondary effects correlated with the presence "of even one [adult] theater in a given neighborhood." ; cf. ; The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Theatres, and LaRue. It therefore is no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e. g., United ; United In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | preventing prostitution, sexual assault, and associated crimes. Given our recognition that "society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," American Theatres, I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every *585 case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O'.[2] The third O' condition is that the governmental interest be "unrelated to the suppression of free expression," 391 U.S., at and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects "because creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution," post, at 592, and that regulation of expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. The major premise of the dissent's reasoning may be correct, but its minor premise describing the causal theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation *586 actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies regardless of whether those bodies are engaged in expression or not. In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. Because the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest |
Justice Scalia | 1,991 | 9 | concurring | Barnes v. Glen Theatre, Inc. | https://www.courtlistener.com/opinion/112635/barnes-v-glen-theatre-inc/ | with secondary effects that the local government had an interest in regulating was content neutral ) because it was "justified without reference to the content of the regulated speech." We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the "secondary effects" justification means that enforcement of the Indiana statute against nude dancing is "justified without reference to the content of the regulated [expression]," which is sufficient, at least in the context of sexually explicit expression,[3] to satisfy the third prong of the O' test. *587 The fourth O' condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose. Accordingly, I find O' satisfied and concur in the judgment. |
Justice White | 1,991 | 6 | concurring | Coleman v. Thompson | https://www.courtlistener.com/opinion/112640/coleman-v-thompson/ | I concur in the judgment of the Court and I join in its opinion, but add a few words concerning what occurred below. stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `"clearly and expressly"' states that its judgment rests on a state procedural bar." quoting in turn quoting If there were nothing before us but the order granting the State's motion to dismiss for untimeliness, it would be clear enough that the dismissal was based on a procedural default. But the state court did not grant the State's explicit request for an early ruling on the motion. Instead, the court delayed ruling on the motion to dismiss, and hence briefs on both the motion and the merits were filed. Six months later, the court "upon consideration whereof" granted the State's motion to dismiss the appeal. Hence petitioner's argument that the court studied the merits of the federal claims to determine whether to waive the procedural default, found those claims lacking, and only then granted the motion to dismiss; it is as though the court had said that it was granting the motion to dismiss the appeal as untimely because the federal *8 claims were untenable and provided the court no reason to waive the default. The predicate for this argument is that on occasion the Virginia Supreme Court waives the untimeliness rule. If that were true, the rule would not be an adequate and independent state ground barring direct or habeas review. Cf. The filing of briefs and their consideration would do no more than buttress the claim that the rule is not strictly enforced. Petitioner argues that the Virginia court does in fact waive the rule on occasion, but I am not now convinced that there is a practice of waiving the rule when constitutional issues are at stake, even fundamental ones. The evidence is too scanty to permit a conclusion that the rule is no longer an adequate and independent state ground barring federal review. The fact that merits briefs were filed and were considered by the court, without more, does not justify a different conclusion. |
Justice Stevens | 1,997 | 16 | dissenting | Harbor Tug & Barge Co. v. Papai | https://www.courtlistener.com/opinion/118110/harbor-tug-barge-co-v-papai/ | During the 2-year period immediately before his injury, respondent Papai worked as a maintenance man and a deckhand for various employers who hired out of the Inland Boatman's *561 Union hiring hall. He testified that about 70 percent of his work was as a deckhand, and that "most of that work [was] done while the boats were moving on the water." App. 34. If all of that deckhand work had been performed for petitioner, there would be no doubt about Papai's status as a seaman. Petitioner, however, did not maintain a permanent crew on any of its vessels. Instead, like other tugboat operators in the San Francisco Bay area, it obtained its deckhands on a job-by-job basis through the union hiring hall. Under these circumstances, I believe the Court of Appeals correctly concluded that Papai's status as a seaman should be tested by the character of his work for the group of vessel owners that used the same union agent to make selections from the same pool of employees. In Chandris, the Court rejected a "voyage test" of seaman status, concluding that an employee who was injured while performing his duties on a vessel on the high seas was not necessarily a Jones Act seaman. The Court instead adopted a status-based inquiry that looked at the nature and duration of the employee's relationship to a vesselor an identifiable group of vesselsin navigation to determine whether that employee received Jones Act coverage. Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the preceding two years was primarily seaman's work. I believe this conclusion is unsupported by either the reasoning or the language in the Chandris opinion. Chandris ` status-based test requires a maritime worker to have a relationship that is substantial in duration and nature with a vessel, or an identifiable group of vessels, in navigation. See Nothing in the Court's holding there intimated that the "identifiable group of vessels" need all be *562 owned by the same person.[1] Particularly in a labor market designed to allow employers to rely on temporary workers for a range of jobs, there is "no reason to limit the seaman status inquiry exclusively to an examination of the overall course of a worker's service with a particular employer." As the Court of Appeals observed in this case: "If the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be |
Justice Stevens | 1,997 | 16 | dissenting | Harbor Tug & Barge Co. v. Papai | https://www.courtlistener.com/opinion/118110/harbor-tug-barge-co-v-papai/ | performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system." The unfairness created by the Court's rule is evident. Let us assume that none of the tugboat operators in the bay area have permanent crews and that all of them obtain their deckhands on a more or less random basis through the same hiring hall. Further, assume that about 70 percent of the work performed by the employees thus obtained is seaman's work, while the remainder is shore-based maintenance work. A typical employee working for a typical employer in that pool would have the status of a seaman, and both the employees and the employers would be aware of this reality about their work environment. But under the Court's reasoning, even if over 70 percent of his randomly selected assignments during a 2-year period were seaman assignments, an injured worker would not be a seaman for Jones Act purposes if he happened to receive only a few assignments with the owner of the particular boat on which he was injured and those assignments were not seaman's work. *563 The majority tries to justify this conclusion with the argument that a rule acknowledging an employee's status as a seaman based on the work he does for a number of employers who hire out of the same hiring hall would create uncertainties for employers. Ante, at 558. The Court's concern is that an employer might not realize that an employee he had selected to chip paint on a docked boat had spent most of the past year as a deckhand on a neighboring vessel. This fear is exaggerated, since an employer who hires its workers out of a union hiring hall should be presumed to be familiar with the general character of their work. Moreover, surely the unfairness created by the majority's rule outweighs this concern. Of course, in order to hold a particular employer liable, an employment relationship must have existed between the worker and the particular vessel owner at the time of the injury. Chandris teaches us, however, that the specific activity being performed at the time of the injury is not sufficient to establish the employee's status under the Jones Act. Rather, we must determine whether an employee has seaman status by looking at his work history. The character of that history in the market from which a vessel owner obtains all of its crews seems to me just as relevant as the assignments to the particular operator for whom |
Justice Douglas | 1,972 | 10 | concurring | DH Overmyer Co. v. Frick Co. | https://www.courtlistener.com/opinion/108474/dh-overmyer-co-v-frick-co/ | I agree that the heavy burden against the waiver of constitutional rights, which applies even in civil matters, Ohio Bell Tel. ; Aetna Ins. Co. v. Kennedy, 301 U. S. *189 389, 393 has been effectively rebutted by the evidence presented in this record. Whatever procedural hardship the Ohio confession-of-judgment scheme worked upon the petitioners was voluntarily and understandingly self-inflicted through the arm's-length bargaining of these corporate parties. I add a word concerning the contention that opening of confessed judgments in Ohio is merely discretionary and requires a higher burden of persuasion than is ordinarily imposed upon defendants. As I read the Ohio law of cognovit notes, trial judges have traditionally enjoyed wide discretion in vacating confessed judgments. 32 Ohio Jur. 2d, Judgments 558 (1958). In however, the Ohio Supreme Court imposed certain safeguards on the exercise of a judge's discretion in opening confessed judgments. That case also involved a petition to open a confessed judgment where, as here, the debtor alleged the affirmative defense of failure of consideration. Using the preponderance-of-the-evidence test, the trial court had found insufficient support for the debtor's claim and had dismissed the motion to open. On appeal, however, the Ohio Supreme Court reversed on the degree of proof needed to vacate a confessed judgment. Said the court: "[I]f there is credible evidence supporting the defense. from which reasonable minds may reach different conclusions, it is then the duty of the court to suspend the judgment and permit the issue raised by the pleadings to be tried by a jury or, if a jury is waived, by the court." (Emphasis supplied.) Thus it would appear that the Ohio confessed judgment may be opened if the debtor poses a jury question, that *190 is, if his evidence would have been sufficient to prevent a directed verdict against him. That standard is a minimal obstacle.[*] The fact that a trial judge is dutybound to vacate judgments obtained through cognovit clauses where debtors present jury questions is a complete answer to the contention that unbridled discretion governs the disposition of petitions to vacate. See also ; ; Central National Bank of The record shows that the petitioners were given every opportunity after judgment to explain their affirmative defense to the state courts and that the defense was rejected solely because the evidence adduced in support thereof was too thin to warrant further presentation to a jury. |
per_curiam | 1,992 | 200 | per_curiam | Espinosa v. Florida | https://www.courtlistener.com/opinion/112788/espinosa-v-florida/ | Under Florida law, after a defendant is found guilty of a capital felony, a separate sentencing proceeding is conducted to determine whether the sentence should be life imprisonment or death. (1) At the close of a hearing at which the prosecution and the defense may present evidence and argument in favor of and against the death penalty, ib the trial judge charges the jurors to consider "[w]hether sufficient aggravating circumstances exist," "[w]hether sufficient mitigating circumstances exist which outweigh the aggravating circumstances," and "[b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death." 921.141(2). The verdict does not include specific findings of aggravating and mitigating circumstances, but states only the jury's sentencing recommendation. "Notwithstanding the recommendation of a majority of the jury," the trial court itself must then "weig[h] the aggravating and mitigating circumstances" to determine finally whether the sentence will be life or death. 921.141(3). If the trial court fixes punishment at death, the court must issue a written statement of the circumstances found and weighed. A Florida jury found petitioner Henry Jose Espinosa guilty of first-degree murder. At the close of the evidence in the penalty hearing, the trial court instructed the jury on aggravating factors. One of the instructions informed the jury that it was entitled to find as an aggravating factor that the murder of which it had found Espinosa guilty was "especially wicked, evil, atrocious or cruel." See 921.141(h). The jury recommended that the trial court impose death, and the court, finding four aggravating and two mitigating factors, did so. On appeal to the Supreme Court of Florida, petitioner argued that the "wicked, evil, atrocious or cruel" instruction was vague and therefore left the jury with insufficient guidance when to find the existence of the aggravating factor. The court rejected this argument and affirmed, saying: *1081 "We reject Espinosa's complaint with respect to the text of the jury instruction on the heinous, atrocious, or cruel aggravating factor upon the rationale of" Our cases establish that, in a where the sentencer weighs aggravating and mitigating circumstances, the weighing of an invalid aggravating circumstance violates the Eighth Amendment. See ; ; ; Our cases further establish that an aggravating circumstance is invalid in this sense if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. See We have held instructions more specific and elaborate than the one given in the instant case unconstitutionally vague. See ; ; The here does not argue that the "especially wicked, evil, atrocious or cruel" |
per_curiam | 1,992 | 200 | per_curiam | Espinosa v. Florida | https://www.courtlistener.com/opinion/112788/espinosa-v-florida/ | not argue that the "especially wicked, evil, atrocious or cruel" instruction given in this case was any less vague than the instructions we found lacking in Shell, Cartwright, or Godfrey. Instead, echoing the Supreme Court's reasoning in the argues that there was no need to instruct the jury with the specificity our cases have required where the jury was the final sentencing authority, because, in the Florida scheme, the jury is not "the sentencer" for Eighth Amendment purposes. This is true, the argues, because the trial court is not bound by the jury's sentencing recommendation; rather, the court must independently determine which aggravating and mitigating circumstances exist, and, after weighing the circumstances, enter a sentence "[n]otwithstanding the recommendation of a majority of the jury," (3). *1082 Our examination of Florida case law indicates, however, that a Florida trial court is required to pay deference to a jury's sentencing recommendation, in that the trial court must give "great weight" to the jury's recommendation, whether that recommendation be life, see Tedder v. or death, see Smith v. cert. denied, ; Grossman v. cert. denied, Thus, Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances. It is true that, in this case, the trial court did not directly weigh any invalid aggravating circumstances. But, we must presume that the jury did so, see just as we must further presume that the trial court followed Florida law, cf. and gave "great weight" to the resultant recommendation. By giving "great weight" to the jury recommendation, the trial court indirectly weighed the invalid aggravating factor that we must presume the jury found. This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, cf. and the result, therefore, was error. We have often recognized that there are many constitutionally permissible ways in which s may choose to allocate capital sentencing authority. See ; Today's decision in no way signals a retreat from that position. We merely hold that, if a weighing decides to place capital sentencing authority in two actors rather than one, neither actor must be permitted to weigh invalid aggravating circumstances. *1083 The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Florida is reversed. We remand for proceedings not inconsistent with this |
Justice Stewart | 1,976 | 18 | second_dissenting | United States v. Janis | https://www.courtlistener.com/opinion/109539/united-states-v-janis/ | The Court today holds that evidence unconstitutionally seized from the respondent by state officials may be introduced against him in a proceeding to adjudicate his *461 liability under the wagering excise tax provisions of the Internal Revenue Code of 1954. This result, in my view, cannot be squared with In that case the Court discarded the "silver platter doctrine" and held that evidence illegally seized by state officers cannot lawfully be introduced against a defendant in a federal criminal trial. Unless the Elkins doctrine is to be abandoned, evidence illegally seized by state officers must be excluded as well from federal proceedings to determine liability under the federal wagering excise tax provisions. These provisions, constituting an "interrelated statutory system for taxing wagers," operate in an area "permeated with criminal statutes" and impose liability on a group "inherently suspect of criminal activities." quoted in While the enforcement of these provisions results in the collection of revenue, "we cannot ignore either the characteristics of the activities" which give rise to wagering tax liability "or the composition of the group" from which payment is sought. Grosso v. United The wagering provisions are intended not merely to raise revenue but also to "assist the efforts of state and federal authorities to enforce [criminal] penalties" for unlawful wagering activities. Federal officials responsible for the enforcement of the wagering tax provisions regularly cooperate with federal and local officials responsible for enforcing criminal laws restricting or forbidding wagering. See 390 U.S., -48. Similarly, federal and local law enforcement personnel regularly provide federal tax officials with information, obtained in criminal investigations, indicating *462 liability under the wagering tax.[*] The pattern is one of mutual cooperation and coordination, with the federal wagering tax provisions buttressing state and federal criminal sanctions. *463 Given this pattern, our observation in Elkins is directly opposite: "Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that at least tacitly [invites federal officers] to encourage state officers in the disregard of constitutionally protected freedom." -222. To be sure, the Elkins case was a federal criminal proceeding and the present case is civil in nature. But our prior decisions make it clear that this difference is irrelevant for Fourth Amendment exclusionary rule purposes where, as here, the civil proceeding serves as an adjunct to the enforcement of the criminal law. See Plymouth The Court's failure to heed these precedents not only rips a hole in the fabric of the law but leads to a result that cannot |
Justice Stewart | 1,976 | 18 | second_dissenting | United States v. Janis | https://www.courtlistener.com/opinion/109539/united-states-v-janis/ | of the law but leads to a result that cannot even serve the valid arguments of those who would eliminate the exclusionary rule entirely. For under the Court's ruling, society must not only continue to pay the high cost of the exclusionary rule (by forgoing criminal convictions which can be obtained only on the basis of illegally seized evidence) but it must also forfeit the benefit for which it has paid so dearly. If state police officials can effectively crack down on gambling law violators by the simple expedient of violating their constitutional rights and turning the illegally seized evidence over to Internal Revenue Service agents on the proverbial "silver platter," then the deterrent *464 purpose of the exclusionary rule is wholly frustrated. "If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation." |
Justice Douglas | 1,973 | 10 | majority | Ciba Corp. v. Weinberger | https://www.courtlistener.com/opinion/108821/ciba-corp-v-weinberger/ | Petitioner manufactures a drug called Ritonic Capsules[] for which it filed a new drug application (NDA) that became effective in 1959. Under the Act then in force, an NDA for a "new drug" required the manufacturer to submit to the Food and Drug Administration (FDA) adequate proof of the drug's safety. This *642 particular NDA became effective on the basis of the drug's safety. As we have noted in the companion s, the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938, as amended, directed FDA to withdraw approval for NDA's which became effective prior to that time if, after notice and opportunity for hearing, it found a lack of "substantial evidence" that the drug involved was effective as claimed in its labeling. And, as we have noted, "substantial evidence" as used in the Act, 505 (d) and 505 (e) (3), 21 U.S. C. 355 (d) and 355 (e) (3), means "adequate and well-controlled investigations" from which experts may conclude that the drug will have the claimed effect. A panel of the National Academy of Sciences-National Research Council (NAS-NRC) reviewed the claims made for Ritonic Capsules and found it "ineffective" for each of the claims. FDA concluded there was a lack of substantial evidence of its efficacy and gave notice of its intent to withdraw the NDA, offering petitioner an opportunity to submit the required kind of data bearing on the efficacy of the drug and stating that withdrawal of approval of the NDA would cause the Ritonic Capsules to be a "new drug" for which no NDA was in effect, thereby making future sales unlawful. Petitioner responded, submitting data on the issue of efficacy and maintained that Ritonic Capsules was not a "new drug" for purposes of the Act as amended. FDA concluded that petitioner's evidence was insufficient to establish effectiveness and gave notice of a hearing on the withdrawal of the NDA. Petitioner responded, contested FDA's authority to proceed further, and claimed that the product was not a "new drug" under the 1962 Act. It reserved the right to establish its position in the administrative proceedings, in judicial proceedings, or in both. Petitioner filed no more data to support its *643 position; and accordingly FDA withdrew approval of the NDA on the ground that there was no substantial evidence that the drug was effective as claimed. Petitioner sought review of the withdrawal order in the Court of Appeals for the Second Circuit, as provided in 505 (h), 21 U.S. C. 355 (h). The Court of Appeals affirmed the withdrawal order. CIBA-Geigy Meanwhile, and prior to |
Justice Douglas | 1,973 | 10 | majority | Ciba Corp. v. Weinberger | https://www.courtlistener.com/opinion/108821/ciba-corp-v-weinberger/ | Appeals affirmed the withdrawal order. CIBA-Geigy Meanwhile, and prior to the issuance of the withdrawal order, petitioner brought suit in the District Court for the District of New Jersey seeking declaratory and injunctive relief. After hearing, the District Court granted the Government's motion to dismiss the complaint for lack of jurisdiction. On appeal, the Court of Appeals for the Third Circuit affirmed, holding that FDA was authorized to decide the jurisdictional question as an incident of its power to approve or withdraw approval for NDA's, that its decision on that issue was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional question could not be relitigated in a separate suit for a declaratory judgment. We affirm the Court of Appeals. We have stated in Weinberger v. Bentex Pharmaceuticals, Inc., post, p. 645, our reasons for concluding that FDA has jurisdiction in an administrative proceeding to determine whether a drug product is a "new drug" within the meaning of 201 (p) of the Act, 21 U.S. C. 321 (p). A decision that FDA lacks authority to determine in its own proceedings the coverage of the Act it administers, subject of course to judicial review, would seriously impair FDA's ability to discharge the responsibilities placed on it by Congress. As we said in Weinberger v. Hynson, Westcott & Dunning, Inc., ante, p. 609, and the Bentex the definition of "new drug" as used in 201 (p) (1) involves *644 a determination of technical and scientific questions by experts. The agency is therefore appropriately the arm of Government to make the threshold determination of the issue of coverage. Cf. Oklahoma Press Publishing It is, of course, true that the Act gives FDA a second line of defensecivil injunction proceedings, criminal penalties, and in rem seizure and condemnation. See 302 (a), 303, 304, 21 U.S. C. 332 (a), 333, 334. Those are sanctions to enforce the prohibition of the Act against the sale in commerce of any article in violation of 505. But the Act does not create a dual system of controlone administrative, and the other judicial. Cases may arise where there has been no formal administrative determination of the "new drug" issue, it being first tendered to a district court. Even then, however, the district court might well stay its hand, awaiting an appropriate administrative determination of the threshold question. See the Bentex Where there is, however, an administrative determination, whether it be explicit or implicit in the withdrawal of an NDA, the |
per_curiam | 1,982 | 200 | per_curiam | Wyrick v. Fields | https://www.courtlistener.com/opinion/110809/wyrick-v-fields/ | In this case, the United States Court of Appeals for the Eighth Circuit, over a dissent by Judge Ross, directed that respondent Edward Fields' petition for a writ of habeas corpus be granted; it did so on the ground that Fields had been convicted with evidence obtained in violation of his Fifth Amendment right to have counsel present at an interrogation. We have concluded that the Court of Appeals' majority misconstrued this Court's recent decision in and imposed a new and unjustified limit on police questioning of a suspect who voluntarily, knowingly, and intelligently waives his right to have counsel present. I Respondent, a soldier then stationed at Fort Leonard Wood, Mo., was charged with raping an 81-year-old woman on September 21, 1974. After his arrest on September 25, Fields was released on his own recognizance. He retained *44 private defense counsel. After discussing the matter with his counsel and with a military attorney provided him by the Army, Fields requested a polygraph examination. This request was granted and the examination was conducted on December 4 by an agent of the Army's Criminal Investigation Division (CID) at the fort. Prior to undergoing the polygraph examination, Fields was given a written consent document, which he signed, informing him of his rights, as required by and of his rights under the Uniform Code of Military Justice and the Eighth Amendment. In addition, the CID agent read to Fields the following detailed statement: "Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used against you in a criminal You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he's reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?" See Fields answered: "No." At the conclusion of the polygraph examination, which took less than two hours, the CID agent told Fields that there had been some deceit, and asked him |
per_curiam | 1,982 | 200 | per_curiam | Wyrick v. Fields | https://www.courtlistener.com/opinion/110809/wyrick-v-fields/ | Fields that there had been some deceit, and asked him if he could explain why his answers were bothering him. Fields then admitted having *45 intercourse with the victim on September 21, but said that she had instigated and consented to it. The agent asked Fields if he wished to discuss the matter further with another CID agent and with the Waynesville, Mo., Chief of Police. Fields said that he did. Then, in his turn, the Police Chief read Fields his Miranda warnings once again before questioning him. Fields repeated that he had had sexual contact with the victim, but that it had been consensual. Respondent was tried before a jury in the Circuit Court, Pulaski County, Mo. He sought to suppress the testimony of the two CID agents and the Police Chief regarding his "confessions" to voluntary intercourse. The trial court denied the motion, ruling that Fields had waived his rights. The testimony was admitted. Fields was convicted, and was sentenced to 25 years in prison. The Missouri Court of Appeals affirmed the judgment on the ground that Fields "had been repeatedly and amply advised of his rights and voluntarily, knowingly and intelligently waived his rights." Eventually, Fields sought a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, agreeing with the Missouri Court of Appeals that Fields had voluntarily, knowingly, and intelligently waived his right to counsel, denied respondent's petition. On appeal, however, the Eighth Circuit reversed and remanded the case with directions to order the State either to release Fields or to afford him a new II The Court of Appeals found that the police conduct in question contravened the "clear import" of this Court's decision in : "a defendant's right to have counsel present at custodial interrogations must be zealously guarded." In Edwards, this Court had held that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided *46 unless the suspect himself initiates dialogue with the -487. The Eighth Circuit recognized that what it called the "per se rule" of Edwards "does not resolve the issue present here." Fields and his counsel had agreed that Fields should take the polygraph examination, and Fields appeared voluntarily and stated that he did not want counsel present during the interrogation. Thus, the Court of Appeals conceded that "Fields thereby `initiated' further dialogue with the authorities after his right to counsel had been invoked." When the suspect has initiated the dialogue, Edwards makes clear that the right to have |
per_curiam | 1,982 | 200 | per_curiam | Wyrick v. Fields | https://www.courtlistener.com/opinion/110809/wyrick-v-fields/ | the dialogue, Edwards makes clear that the right to have a lawyer present can be waived: "If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be `interrogation.' In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the " n. 9. Citing this language, the Eighth Circuit acknowledged as it had to that "[t]here is no question that Fields waived his right to have counsel present while the [polygraph] examination itself was being conducted." Yet that court found that the State had failed to satisfy its burden of proving that "Fields knowingly and intelligently waived his right to have counsel present at the post-test interrogation." The court suggested that had the CID agent merely "paus[ed] to remind the defendant" of his rights, thus *47 providing "meaningfully timed Miranda warnings" (emphasis in original), there would have been no violation. III In reaching this result, the Court of Appeals did not examine the "totality of the circumstances," as Edwards requires. Fields did not merely initiate a "meeting." By requesting a polygraph examination, he initiated interrogation. That is, Fields waived not only his right to be free of contact with the authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. Fields validly waived his right to have counsel present at "post-test" questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a "knowing and intelligent relinquishment or abandonment" of his rights. The Court of Appeals relied on two facts indicating the need for a new set of warnings: the polygraph examination had been discontinued, and Fields was asked if he could explain the test's unfavorable results. To require new warnings because of these two facts is unreasonable. Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The CID agent could have informed Fields during the examination that his answers indicated deceit; asking Fields, after the equipment was disconnected, why the answers were bothering him was not any more coercive. The Court of Appeals stated that there |
per_curiam | 1,982 | 200 | per_curiam | Wyrick v. Fields | https://www.courtlistener.com/opinion/110809/wyrick-v-fields/ | any more coercive. The Court of Appeals stated that there was no indication that Fields or his lawyer anticipated that Fields would be asked questions after the examination. But it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result. Moreover, Fields had been informed that he could stop the questioning at any time, and could request at any time that *48 his lawyer join him. Merely disconnecting the polygraph equipment could not remove this knowledge from Fields' mind.[*] The only plausible explanation for the court's holding is that, encouraged by what it regarded as a per se rule established in Edwards, it fashioned another rule of its own: that, notwithstanding a voluntary, knowing, and intelligent waiver of the right to have counsel present at a polygraph examination, and notwithstanding clear evidence that the suspect understood that right and was aware of his power to stop questioning at any time or to speak to an attorney at any time, the police again must advise the suspect of his rights before questioning him at the same interrogation about the results of the polygraph. The court indicated that this rule was needed because it thought that the use of polygraph "results" in questioning, although it does not necessarily render a response involuntary, is inherently coercive. But Courts of Appeals, including a different panel of the Eighth Circuit itself, and state courts, have rejected such a rule. See, e. g., United ; ; ; Cf. The Eighth Circuit's rule certainly finds no support in Edwards, which emphasizes that the totality of the circumstances, including the fact that the suspect initiated the questioning, is controlling. Nor is the *49 rule logical; the questions put to Fields after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before. The rule is simply an unjustifiable restriction on reasonable police questioning. IV According to the dissent, a substantial question as to the admissibility of Fields' statements may be raised under the Sixth Amendment. Post, at 52-55. The Sixth Amendment issues raised by the dissent, however, are not before us. The Court of Appeals rested its judgment exclusively on the Fifth Amendment "right to have counsel present during a custodial interrogation" and on its interpretation of this Court's decision in Edwards. 682 F. 2d, at 158. That interpretation was flawed and the judgment of the Court of Appeals must be reversed. We express no view as |
Justice Powell | 1,981 | 17 | concurring | Complete Auto Transit, Inc. v. Reis | https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/ | The Court's opinion makes clear that Congress, in enacting the Taft-Hartley amendments to the National Labor Relations Act, did not intend to hold individuals liable in damages for wildcat strikes. I therefore join the Court's judgment and most of its opinion. I do not, however, share the Court's view that there remains to management a "significant array of other remedies," ante, at 46, n. 8, with which to deter or obtain compensation for illegal strikes. In fact, the "remedies" said to be available are largely chimerical. I Collective-bargaining agreements typically contain a promise by the union not to strike during the agreement's term. Unions agree to these no-strike clauses in exchange for the employer's promise to arbitrate disputes arising in contract *48 administration. Textile Each promise is the "quid pro quo" for the other, because the employer yields traditional managerial autonomy in exchange for industrial peace. Despite the mutual benefits of the no-strike/grievance-arbitration pact, strikes in breach of contract occur with disturbing frequency. In some cases, these strikes are encouraged or even instigated by union leaders.[] Often, however, they are true "wildcats"strikes that arise spontaneously to protest grievances against the company and, occasionally, against the union leadership itself. Responsible unions disapprove of such strikes, but some officials, especially those at the local level, may acquiesce in them because of the fervor of intransigent members. Whatever the cause, strikes in breach of contract frequently injure all concerned: the employer,[2] employees, and the public. Strikes and lockouts by their nature squander human working capacity, the full use of which is essential to the enjoyment of the Nation's productive potential. To be sure, the national labor policy recognizes that, in some circumstances, the use of weapons of strike and lockout is consistent *49 with and protected by law. Labor, management, and the public nevertheless share a "common goal of uninterrupted production." The essential tenet of our labor policy is that "a system of industrial self-government" based on consensual (albeit vigorously negotiated) labor contracts, see is preferable to "strikes, lockouts, or other self-help," Boys When the Taft-Hartley amendments were enacted in 947, the Nation had experienced a wave of labor unrest.[3] Congress found that "the balance of power in collective-bargaining" had been destroyed because employers, who had promised to arbitrate disputes in exchange for no-strike promises, often failed to obtain the industrial peace for which they bargained. S. Rep. 4.[4] II It is increasingly clear that the 947 Taft-Hartley amendments did not provide employers with an effective remedy for wildcat strikes. The Court today holds, properly I think, that Congress intended to foreclose a |
Justice Powell | 1,981 | 17 | concurring | Complete Auto Transit, Inc. v. Reis | https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/ | holds, properly I think, that Congress intended to foreclose a damages remedy against individual wildcat strikers. The Court states, however, that *420 there remains a number of legal weapons with which to deter or terminate illegal strikes, or to obtain compensation when they occur. Ante, at 46-47, n. 8. In support of its view, the Court contends that the employer may (i) obtain an injunction, (ii) discharge the strikers, (iii) request the union to use its internal disciplinary powers, or (iv) sue the union entity for damages. In reality, more often than not, each of these remedies is illusory. Injunctions in labor disputes are generally prohibited by the Norris-LaGuardia Act.[5] In Boys the Court recognized a limited exception to the anti-injunction provisions of that Act. Boys permits injunctions to terminate strikes pending arbitration if the grievance underlying the strike is arbitrable. However, Boys offers only "narrow" because injunctions cannot be obtained in strikes of other kinds. E. g., Buffalo Forge v. Steelworkers, Moreover, even when an injunction is available, workers on strike often are disinclined to obey it.[6] Courts may be reluctant to impose contempt penalties on individual workers; if ordered, such penalties are difficult to enforce. Nor is discharge a realistic remedy in most cases. Because a strike in breach of contract is unprotected conduct under the National Labor Relations Act, see NLRB v. Sands Mfg. workers who strike illegally may be terminated. It therefore has been argued that discharge *42 effectively deters strikes and punishes wrongdoers because discharge is "the industrial equivalent of capital punishment." M. Jay Whitman, Wildcat Strikes: The Union's Narrowing Path to Rectitude?, 50 Ind. L. J. 472, 48 There are at least three reasons why this remedy in practice often is not effective. First, in a large wildcat strike, wholesale discharges are not practical because an employer cannot terminate all or most of his labor force without crippling production. See Boys at 248-, n. 7.[7] Second, certain kinds of selective discharges arguably are illegal. The National Labor Relations Board takes the position that an employer may not discipline a union officer more severely than other strike participants, even where the union officer failed to fulfill a contractual undertaking to help terminate strikes.[8] In any event, discharging only selected strikers is unlikely to influence the rank and file to return to work. Such discharges actually may aggravate worker discontent and thereby prolong the strike. Cedar Coal v. United Mine Workers, cert. denied, ; see *422 n. 33 (972). At a minimum, strikers may insist that their discharged colleagues be reinstated as a condition to returning |
Justice Powell | 1,981 | 17 | concurring | Complete Auto Transit, Inc. v. Reis | https://www.courtlistener.com/opinion/110472/complete-auto-transit-inc-v-reis/ | their discharged colleagues be reinstated as a condition to returning to work. Fishman & Brown, Union Responsibility for Wildcat strikes, Third, arbitrators not infrequently refuse to sustain discharges of strikers. See Handsaker & Handsaker, Remedies and Penalties for Wildcat Strikes: How Arbitrators and Federal Courts Have Ruled, The union itself normally will not discipline its striking members. Most unions have the legal authority to take such action, see Summers, Legal Limitations on Union Discipline, but the power seldom is used. In a wildcat strike, worker recalcitrance sometimes is directed at the incumbent union leadership as much as at company management. In these circumstances, the Union's attempt to discipline is unlikely to be effective and may be counterproductive. Moreover, under this Court's decision in Carbon v. Mine Workers, a parent union normally is not obligated to take affirmative steps to prevent or terminate a wildcat strike. Absent such an obligation, there is little incentive for the union to intervene, even where intervention would be useful. Finally, a suit for damages against the union entity rarely is feasible.[9] Last Term, in Carbon we largely *423 foreclosed this possibility when we held that liability normally may not be imposed on a parent union [0] absent proof that it authorized or ratified the strike.[] It is a foolish union that would invite a damages suit by explicitly endorsing a strike in this manner. See n. III The Court plainly is unrealistic, therefore, when it suggests that employers have at their disposal a battery of alternative remedies for illegal strikes. Ante, at 46-47, n. 8. The result of the absence of remedies is a lawless vacuum. Despite a no-strike clause, a plant may be closed with adverse consequences that often are far-reaching. The strike injures the employer, other companies and their employees, and consumers in general. Frequently, the strike is harmful even to the majority of strikers, who feel obligated to honor the picket line of minority wildcatters. It is, of course, the province of Congress to set the Nation's labor policy. I do not suggest that authorizing a damages remedy against individual wildcat strikers would be desirable. I do believe, however, that the absence of an effective *424 remedy leaves such strikes undeterred and the public interest unprotected. The National Labor Relations Act, as amended in 947, was intended to further broader national interests than those of either labor or management. It was conceived not only as a charter for labor rights but also as a framework of law to promote orderly labor relations. Wildcat strikes are at war with these objectives. |
Justice Blackmun | 1,977 | 11 | majority | Dixon v. Love | https://www.courtlistener.com/opinion/109651/dixon-v-love/ | The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect. *10 I The case centers on 6-206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled "Discretionary authority to suspend or revoke license or permit." It empowers the Secretary of State to act "without preliminary hearing upon a showing by his records or other sufficient evidence" that a driver's conduct falls into any one of 18 enumerated categories. Ill. Rev. Stat., c. 95 1/2, 6-206 (a) (195). Pursuant to his rulemaking authority under this law, 6-211 (a),[1] the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual's driving record.[2] The Secretary has established a comprehensive system of assigning "points" for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records. One of the statutorily enumerated circumstances justifying *108 license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. 6-206 (a) (2).[3] This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver's accumulated "points."[4] Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee "[h]as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of *109 offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway." 6-206 (a) (3). Here again the Secretary has limited his broad statutory discretion by an administrative regulation. This regulation allows suspension or revocation, where sufficient points have been accumulated to warrant a second suspension within a 5-year period.[5] The regulation concludes flatly: "A person who has been suspended thrice within a 10 year period shall be revoked." Section 6-206 (c) (1)[6] requires the Secretary "immediately" to provide written notice of a discretionary suspension or revocation under this statute, but no prior hearing is required. Within 20 days of his receiving a written request from the licensee, |
Justice Blackmun | 1,977 | 11 | majority | Dixon v. Love | https://www.courtlistener.com/opinion/109651/dixon-v-love/ | days of his receiving a written request from the licensee, the Secretary must schedule a full evidentiary hearing *110 for a date "as early as practical" in either Sangamon County or Cook County, as the licensee may specify. 2-118 (a). The final decision of the Secretary after such hearing is subject to judicial review in the Illinois courts. 2-118 (e). In addition, a person whose license is suspended or revoked may obtain a restricted permit for commercial use or in case of hardship. 6-206 (c) (2) and (3).[] II Appellee Love, a resident of Chicago, is employed as a truck-driver. His license was suspended in November 1969, under 6-206 (a) (2), for three convictions within a 12-month period. He was then convicted of a charge of driving while his license was suspended, and consequently another suspension was imposed in March 190 pursuant to 6-303 (b). Appellee received no further citation until August 194, when he was arrested twice for speeding. He was convicted of both charges and then received a third speeding citation in February 195. On March 2, he was notified by letter that he would lose his driving privileges if convicted of a third offense. On March 31 appellee was convicted of the third speeding charge. *111 On June 3, appellee received a notice that his license was revoked effective June 6.[8] The stated authority for the revocation was 6-206 (a) (3); the explanation, following the language of the statute, was: "This action has been taken as a result of: Your having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates disrespect for the traffic laws." App. 13. Appellee, then aged 25, made no request for an administrative hearing. Instead, he filed this purported class action[9] on June 5 against the Illinois Secretary of State in the United States District Court for the Northern District of Illinois. His complaint sought a declaratory judgment that 6-206 (a) (3) was unconstitutional, an injunction against enforcement of the statute, and damages. Appellee's application for a temporary restraining order was granted on condition that he apply for a hardship driving permit. He applied for that permit on June 10, and it was issued on July 25. A three-judge District Court was convened to consider appellee's claim that the Illinois statute was unconstitutional. On cross-motions for summary judgment, the court held that a license cannot constitutionally be suspended or revoked under 6-206 (a) (3) until after a hearing is held to determine whether the licensee meets the statutory criteria of "lack of ability |
Justice Blackmun | 1,977 | 11 | majority | Dixon v. Love | https://www.courtlistener.com/opinion/109651/dixon-v-love/ | the licensee meets the statutory criteria of "lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws *112 and the safety of other persons upon the highway." The court regarded such a prior hearing as mandated by this Court's decision in Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing 6-206 (a) (3). The Secretary appealed, and we noted probable jurisdiction sub nom. III It is clear that the Due Process Clause applies to the deprivation of a driver's license by the State: "Suspension of issued licenses involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in namely, "the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter." We may analyze the present case, too, in terms of the factors considered in : "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and *113 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the |
Justice Blackmun | 1,977 | 11 | majority | Dixon v. Love | https://www.courtlistener.com/opinion/109651/dixon-v-love/ | who are those most likely to be affected by the deprival of driving privileges. See n. We therefore conclude that the nature of the private interest here is not so great as to require us "to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." See (194). Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great. Under the Secretary's regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary's attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Tr. of Oral Arg. 41, 4. Since appellee *114 does not dispute the factual basis for the Secretary's decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations.[10] Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations. Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings. See 424 U. S., at 34. Far more substantial than the administrative burden, however, is the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard. See 402 U.S. 63, 65, 61 This factor fully distinguishes where the "only purpose" of the Georgia statute there under consideration was "to obtain security from which to pay any judgments against the licensee resulting from the accident."[11] In contrast, the Illinois statute at *115 issue in the instant case is designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others. We conclude that the public interests present under the circumstances of this case are sufficiently visible and weighty for the State to make its |
Justice Blackmun | 1,977 | 11 | majority | Dixon v. Love | https://www.courtlistener.com/opinion/109651/dixon-v-love/ | sufficiently visible and weighty for the State to make its summary initial decision effective without a predecision administrative hearing. The present case is a good illustration of the fact that procedural due process in the administrative setting does not always require application of the judicial model. When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. Here the Secretary commendably sought to define the statutory standard narrowly by the use of his rulemaking authority.[12] The decision to use objective rules in this case provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers. The approach taken by the District Court would have the contrary result of reducing the fairness of the system, by requiring a necessarily subjective inquiry in each case as to a driver's "disrespect" or "lack of ability to exercise ordinary and reasonable care." The second count of appellee's complaint challenged 6-206 (a) (3) on the grounds of vagueness and inadequacy of standards. The three-judge court did not reach the issue. *. We regard the claim, in the light of Love's record, as frivolous. The judgment of the District Court is reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. JUSTICE STEVENS, with whom MR. |
Justice Rehnquist | 1,986 | 19 | dissenting | Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, PC | https://www.courtlistener.com/opinion/111694/three-affiliated-tribes-of-fort-berthold-reservation-v-wold-engineering/ | North Dakota law provides that in order for an Indian tribe such as petitioner to avail itself of the jurisdiction of North Dakota courts as a plaintiff, it must also accept the jurisdiction of those courts when it is properly named as a defendant *894 in them. This Court holds that such a rule which would commend itself to most people as eminently fair is pre-empted by federal law. To support this conclusion the Court advances two arguments: first, pre-emption by Pub. L. 280, and, second, the "overshadowing" of the state interest by "longstanding federal and tribal interests." Ante, at 884. Neither by themselves nor in the rather awkward juxtaposition in which the Court places them are these arguments persuasive. The Court's argument based on Pub. L. 280 consists of two assertions: (1) Pub. L. 280 pre-empts Chapter 2-19's disclaimer of pre-existing jurisdiction because the federal statute establishes a "comprehensive" legislative plan to govern Indian matters, and Chapter 2-19's disclaimer is incompatible with the plan's general purpose to authorize the assumption of state jurisdiction over Indian country, ante, at 884-885; and (2) the initial failure of Pub. L. 280 to authorize a disclaimer of jurisdiction, combined with the subsequent authorization of such disclaimer in the 1968 amendments with respect to jurisdiction assumed pursuant to Pub. L. 280, evidence a congressional intent to forbid the disclaimer of jurisdiction assumed prior to the passage of Pub. L. 280. Ante, at 885-88. The Court provides no support for its assertion that Pub. L. 280 establishes a "comprehensive" federal scheme that pre-empts any state law that may inhibit the accomplishment of its general purpose. The Court's citation to is unhelpful; the Court there was describing the "comprehensive and detailed" scrutiny that Congress appeared to give in deciding whether or not to eliminate federal barriers to state jurisdiction over Indian matters, and not the nature of Pub. L. 280. In addition, the brevity of Pub. L. 280, its 1968 amendments, and the relevant legislative history belie the Court's assertion that these statutes establish a "comprehensive" plan like statutes that occupy a given field *895 of regulation. Cf. Public Law 280 does little more than make a general pronouncement that certain federal barriers to state jurisdiction have been eliminated. See Act of Aug. 15, 1953, ch. 505, Nor does the legislative history, the 1968 amendments, or their legislative history provide any additions that transform the general pronouncement into a "comprehensive" plan. See S. Rep. No. 83d Cong. 1st Sess. (1953); Title IV, 402, 403, ; S. Rep. No. 21, 90th Cong., 1st Sess. (196). |
Justice Rehnquist | 1,986 | 19 | dissenting | Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, PC | https://www.courtlistener.com/opinion/111694/three-affiliated-tribes-of-fort-berthold-reservation-v-wold-engineering/ | ; S. Rep. No. 21, 90th Cong., 1st Sess. (196). There is also nothing inconsistent between the State's disclaimer of pre-existing jurisdiction and the purpose of Pub. L. 280. Congress stated that Pub. L. 280 was designed to accomplish two general purposes: "First, withdrawal of Federal responsibility for Indian affairs wherever practicable; and second, termination of the subjection of Indians to Federal laws applicable to Indians as such." S. Rep. No. The statute's elimination of certain federal barriers to the assertion of state jurisdiction over Indian country was an important means of furthering these goals. But the statute's complete silence on the disclaimer of state jurisdiction cannot reasonably be taken to imply an intent to forbid such disclaimer. This is especially true with respect to jurisdiction lawfully assumed before the passage of Pub. L. 280, since disclaimer of such jurisdiction would certainly have been entirely proper before passage of the Act. Nor can any congressional intent to forbid the disclaimer of jurisdiction asserted prior to the passage of Pub. L. 280 be reasonably inferred from the subsequent authorization of such disclaimer with respect to jurisdiction asserted pursuant to Pub. L. 280. This Court has long recognized that federal law has a "generally interstitial character," in the sense that Congress generally enacts legislation against the background of existing state law. See, e. g., Burks v. Lasker, 441 U. S. *896 41, 48 (199), citing P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 40-41 (2d ed. 193). An appreciation for this traditional understanding of the nature of state power does not render superfluous the congressional authorization of disclaimer in the 1968 amendments to Pub. L. 280. See Title IV, 402, 403, Since the 1968 amendments were generally designed to impose a limitation on the ability of state legislatures to assert jurisdiction over Indian country, Congress could reasonably have intended the provision authorizing the disclaimer of previously asserted jurisdiction to encourage such disclaimer with a concomitant retention of a more limited form of jurisdiction. That the disclaimer provision referred only to jurisdiction asserted pursuant to Pub. L. 280 says nothing about congressional intent as to jurisdiction lawfully asserted in some other way. Given the traditional powers of state government, it is unreasonable to interpret such silence as evidence of an intent to forbid the States to disclaim jurisdiction asserted in another way. I find the Court's pre-emption analysis to be quite unconvincing. I think the Court's reasoning supporting its conclusion that federal and tribal interests "overshadow" the State's interest in fair play |
Justice Rehnquist | 1,986 | 19 | dissenting | Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, PC | https://www.courtlistener.com/opinion/111694/three-affiliated-tribes-of-fort-berthold-reservation-v-wold-engineering/ | and tribal interests "overshadow" the State's interest in fair play for litigants fares no better than its reasoning about Pub. L. 280. The requirement that a tribe consent to the general civil jurisdiction of state courts as a quid pro quo for access to those courts as a plaintiff seems entirely fair and evenhanded to me. Nothing in Pub. L. 280 or any other federal statute requires a State to accept jurisdiction over Indian country in the first place. Nor has such an obligation been created as a matter of federal case law dealing with the Indians. To the contrary, all the cases and statutes with which I am familiar speak only to the limitations on the assertion of jurisdiction over these matters. Thus, because Congress and this Court have left the States free to bar access entirely by simply not asserting jurisdiction over Indian *89 country at all, I do not see how any "federal interest" precludes them from establishing conditions on the assertion of jurisdiction, and thereby on access to state courts, as North Dakota has done here: the employment of the North Dakota courts in matters in which the tribe has an interest shall not be solely at the option of the tribe. I think there is nothing in Pub. L. 280 nor in federal Indian policy that prohibits North Dakota from applying its statute in the manner in which it did in this case, and I therefore dissent from the Court's contrary conclusion. |
Justice Marshall | 1,979 | 15 | dissenting | Touche Ross & Co. v. Redington | https://www.courtlistener.com/opinion/110112/touche-ross-co-v-redington/ | In determining whether to imply a private cause of action for damages under a statute that does not expressly authorize such a remedy, this Court has considered four factors: "First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,'that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Applying these factors, I believe respondents are entitled to bring an action against accountants who have allegedly breached duties imposed under 17 (a) of the Securities Exchange Act of 1934, 15 U.S. C. q (a). Since respondents seek relief on behalf of brokerage firm customers, the first inquiry is whether those customers are the intended beneficiaries of the regulatory scheme. Under 17 (a), brokers must file such reports "as the [SEC], by rule, prescribes as necessary or appropriate for the protection of investors." 15 U.S. C. q (a) (1) (emphasis added). Cf. *581 J. I. Case Pursuant to this authority, the SEC requires brokers to provide a battery of financial statements, and directs independent accountants to verify the brokers' reports. 17 CFR 240.17a-5 (19); see ante, at 563-564, n. 3. The purpose of these requirements, as the Commission has consistently emphasized, is to enable regulators to "monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers." Ante, at 570.[1] In addition, at the time of the events giving rise to this suit, the rules implementing 17 mandated that brokers disclose to customers whether an accountant's audit had revealed any "material inadequacies" in financial procedures. (1972). Thus, it is clear that brokerage firm customers are the "favored wards" of 17, (CA2 19), and that the initial test of is satisfied here.[2] With respect to the second Cort factor, the legislative history does not explicitly address the availability of a damages remedy under 17. The majority, however, discerns an intent to deny private remedies from two aspects of the statutory scheme. Because unrelated sections in the 1934 Act expressly grant private rights of action for violation of their terms, the Court suggests |
Justice Marshall | 1,979 | 15 | dissenting | Touche Ross & Co. v. Redington | https://www.courtlistener.com/opinion/110112/touche-ross-co-v-redington/ | of action for violation of their terms, the Court suggests that Congress would have made such provision under 17 had it wished to do so. But as we noted recently in Cannon v. University of Chicago, 441 U. S. *582 677, 711 (1979), "that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section." The Court finds a further indication of congressional intent in the interaction between 17 and 18 of the 1934 Act. Section 18 (a), 15 U.S. C. r (a), affords an express remedy for misstatements in reports filed with the Commission, apparently including reports required by 17, but limits relief to purchasers or sellers of securities whose price was affected by the misstatement. In light of this limitation, the majority reasons, we should not imply a remedy under 17 which embraces a broader class of plaintiffs. However, 18 pertains to investors who are injured in the course of securities transactions, while 17 is concerned exclusively with brokerage firm customers who may be injured by a broker's insolvency. Given this divergence in focus, 18 does not reflect an intent to restrict the remedies available under 17. Indeed, since false reports regarding a broker's financial condition would not affect the price of securities held by the broker's customers, 18 would provide these persons with no remedy at all. I am unwilling to assume that "Congress simultaneously sought to protect to class and deprived [it] of the means of protection." 592 F.2d, at A cause of action for damages here is consistent with the underlying purposes of the legislative scheme. Because the SEC lacks the resources to audit all the documents that brokers file, it must rely on certification by accountants. See J. I. Case at ; ; see 592 F.2d, at n. 12. Implying a private right of action would both facilitate the SEC's enforcement efforts and provide an incentive for accountants to perform their certification functions properly. Finally, enforcement of the 1934 Act's reporting provisions is plainly not a matter of traditional state concern, but rather *583 relates solely to the effectiveness of federal statutory requirements. And, as the Court of Appeals held, since the problems caused by broker insolvencies are national in scope, so too must be the standards governing financial disclosure. at In sum, straightforward application of the four Cort factors compels affirmance of the judgment below. Because the Court misapplies this precedent and disregards the evident purpose of 17, I respectfully dissent. |
Justice Black | 1,971 | 21 | majority | Perez v. Ledesma | https://www.courtlistener.com/opinion/108266/perez-v-ledesma/ | Given our decisions today in No. 2, Younger v. ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, in which we have determined when it is appropriate for a federal court to intervene in the administration of a State's criminal laws, the disposition of this case should not be difficult. I Ledesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they displayed for sale allegedly obscene magazines, books, and playing cards. As a result of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La. Rev. Stat. Ann. 14:106 and St. Bernard Parish Ordinance 21-60. After the state court proceedings had commenced by the filing of the informations, appellees instituted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seized materials. Although the three-judge court declined to issue an injunction against the pending *84 or any future prosecutions, it did enter a suppression order and require the return of all the seized material to the appellees. The local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of jurisdiction to the hearing on the merits.[1] It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution. "In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials, the prosecutions should be effectively terminated." (Emphasis added.) Moreover, the District Court retained jurisdiction "for the purposes of hereafter entering any orders necessary to enforce" its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in |
Justice Black | 1,971 | 21 | majority | Perez v. Ledesma | https://www.courtlistener.com/opinion/108266/perez-v-ledesma/ | the then-pending state obscenity prosecution. According to our holding in Younger v. such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. See Younger v. Ex Parte Young, There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State's criminal laws. We therefore hold that the three-judge court improperly intruded into the State's own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seized materials. II After crippling Louisiana's ability to enforce its criminal statute against Ledesma, the three-judge court expressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that "it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance," the court nevertheless seized the "opportunity to express its views on the constitutionality of the ordinance." Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court's view and declared the parish ordinance invalid. There is considerable question concerning *86 the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case.[2] III We are, however, unable to review the decision concerning the local ordinance because this Court has no jurisdiction to review on direct appeal the validity of a declaratory judgment against a local ordinance, such as St. Bernard Parish Ordinance 21-60. Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would have been acting in the capacity of a single-judge court. We held in that a three-judge court was not properly convened to consider the constitutionality of a statute of only local application, similar to a local ordinance. |
Justice Black | 1,971 | 21 | majority | Perez v. Ledesma | https://www.courtlistener.com/opinion/108266/perez-v-ledesma/ | statute of only local application, similar to a local ordinance. Under 28 U.S. C. 1253 we have jurisdiction to consider on direct appeal only those civil actions "required. to be heard and determined" by a three-judge court. Since the constitutionality of this parish ordinance was not "required to be heard and determined" by a three-judge panel, there is no jurisdiction in this Court to review that question. The fact that a three-judge court was properly convened in this case to consider the injunctive relief requested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent jurisdictional *87 base. Even where a three-judge court is properly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them.[3] See Public Service In this case, the order granting the declaratory judgment was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge. The three-judge court stated: "The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith." n. 31. (Emphasis added.) The last clause of the quoted sentence indicates what, under must be the case: The decision granting declaratory relief against the Parish of St. Bernard Ordinance 21-60 was the decision of a single federal judge. This fact is confirmed by the orders entered by the two courts. The three-judge court entered the following order at the end of its opinion. "Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing: "1. That all seized materials be returned, instanter, to those from whom they were seized, *88 "2. That said materials be suppressed as evidence in any pending or future prosecutions of the plaintiffs, "3. That the preliminary and permanent injunctions prayed for be denied, and "4. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." The order of the single-judge District Court is as follows: "For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: "1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. "2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." -671. The fact that the clerk of the District Court merged these orders into |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | Title II of the Communications Act of 1934, as amended, 47 U.S. C. 151 et seq., subjects all providers of "telecommunications servic[e]" to mandatory common-carrier regulation, 153(44). In the order under review, the *974 Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide "telecommunications servic[e]" as the Communications Act defines that term, and hence are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act under U. S. A. and the Administrative Procedure Act, 5 U.S. C. 551 et seq. We hold that it is. I The traditional means by which consumers in the United States access the network of interconnected computers that make up the Internet is through "dial-up" connections provided over local telephone facilities. See ; In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798, 4802-4803, ¶ 9 (hereinafter Declaratory Ruling). Using these connections, consumers access the Internet by making calls with computer modems through the telephone wires owned by local phone companies. See Communications Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by providing a physical connection, but also by offering consumers the ability to translate raw Internet data into information they may both view on their personal computers and transmit to other computers connected to the Internet. See In re Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11501, 11531, ¶ 63 (1998) (hereinafter Universal Service Report or Report); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law 988 (hereinafter Huber); 345 F. 3d, at Technological limitations of local telephone wires, however, retard the speed at which data from the Internet may be transmitted *975 through end users' dial-up connections. Dial-up connections are therefore known as "narrowband," or slower speed, connections. "Broadband" Internet service, by contrast, transmits data at much higher speeds. There are two principal kinds of broadband Internet service: cable modem service and Digital Subscriber Line (DSL) service. Cable modem service transmits data between the Internet and users' computers via the network of television cable lines owned by cable companies. See DSL service provides high-speed access using the local telephone wires owned by local telephone companies. See WorldCom, Cable companies and telephone companies can either provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease their transmission facilities to independent ISPs that then use the facilities to provide consumers with Internet access. Other ways of transmitting high-speed Internet data into homes, including terrestrial and |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | of transmitting high-speed Internet data into homes, including terrestrial and satellite-based wireless networks, are also emerging. Declaratory Ruling 4802, ¶ 6. II At issue in these cases is the proper regulatory classification under the Communications Act of broadband cable Internet service. The Act, as amended by the Telecommunications Act of 1996, defines two categories of regulated entities relevant to these cases: telecommunications carriers and information-service providers. The Act regulates telecommunications carriers, but not information service providers, as common carriers. Telecommunications carriers, for example, must charge just and reasonable, nondiscriminatory rates to their customers, 47 U.S. C. 201-, design their systems so that other carriers can interconnect with their communications networks, 251(a)(1), and contribute to the federal "universal service" fund, 254(d). *976 These provisions are mandatory, but the Commission must forbear from applying them if it determines that the public interest requires it. 160(a), (b). Information-service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications, see 151-161. These two statutory classifications originated in the late 1970's, as the Commission developed rules to regulate data-processing services offered over telephone wires. That regime, the "Computer II" rules, distinguished between "basic" service (like telephone service) and "enhanced" service (computer-processing service offered over telephone lines). In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77 F. C. C. 2d 384, 417-423, ¶¶ 86-101 (1980) (hereinafter Computer II Order). The Computer II rules defined both basic and enhanced services by reference to how the consumer perceives the service being offered. In particular, the Commission defined "basic service" as "a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information." By "pure" or "transparent" transmission, the Commission meant a communications path that enabled the consumer to transmit an ordinary-language message to another point, with no computer processing or storage of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting it over the network such as via a telephone or a facsimile. Basic service was subject to common-carrier regulation. "[E]nhanced service," however, was service in which "computer processing applications [were] used to act on the *977 content, code, protocol, and other aspects of the subscriber's information," such as voice and data storage services, as well as "protocol conversion" (i. e., ability to communicate between networks that employ different data-transmission |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | e., ability to communicate between networks that employ different data-transmission formats), By contrast to basic service, the Commission decided not to subject providers of enhanced service, even enhanced service offered via transmission wires, to Title II common-carrier regulation. The Commission explained that it was unwise to subject enhanced service to common-carrier regulation given the "fast-moving, competitive market" in which they were offered. The definitions of the terms "telecommunications service" and "information service" established by the 1996 Act are similar to the Computer II basic- and enhanced-service classifications. "Telecommunications service"the analog to basic serviceis "the offering of telecommunications for a fee directly to the public regardless of the facilities used." 47 U.S. C. 153(46). "Telecommunications" is "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 153(43). "Telecommunications carrier[s]"those subjected to mandatory Title II common-carrier regulationare defined as "provider[s] of telecommunications services." 153(44). And "information service"the analog to enhanced serviceis "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." 153(20). In September the Commission initiated a rulemaking proceeding to, among other things, apply these classifications to cable companies that offer broadband Internet service directly to consumers. In March that rulemaking culminated in the Declaratory Ruling under review in these cases. In the Declaratory Ruling, the Commission concluded *978 that broadband Internet service provided by cable companies is an "information service" but not a "telecommunications service" under the Act, and therefore not subject to mandatory Title II common-carrier regulation. In support of this conclusion, the Commission relied heavily on its Universal Service Report. See Declaratory Ruling 4821-4822, ¶¶ 36-37 (citing Universal Service Report). The Universal Service Report classified "non-facilities-based" ISPs those that do not own the transmission facilities they use to connect the end user to the Internetsolely as information-service providers. See Universal Service Report 11533, ¶ 67. Unlike those ISPs, cable companies own the cable lines they use to provide Internet access. Nevertheless, in the Declaratory Ruling, the Commission found no basis in the statutory definitions for treating cable companies differently from non-facilities-based ISPs: Both offer "a single, integrated service that enables the subscriber to utilize Internet access service and to realize the benefits of a comprehensive service offering." Declaratory Ruling 4823, ¶ 38. Because Internet access provides a capability for manipulating and storing information, the Commission concluded that it was an information service. The integrated nature of Internet access and the high-speed wire used to provide Internet access led the |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | the high-speed wire used to provide Internet access led the Commission to conclude that cable companies providing Internet access are not telecommunications providers. This conclusion, the Commission reasoned, followed from the logic of the Universal Service Report. The Report had concluded that, though Internet service "involves data transport elements" because "an Internet access provider must enable the movement of information between customers' own computers and distant computers with which those customers seek to interact," it also "offers end users information-service capabilities inextricably intertwined with data transport." Universal Service Report 11539-11540, ¶ 80. ISPs, therefore, were not "offering telecommunications directly to the public," *979 153(46), and so were not properly classified as telecommunications carriers, see In other words, the Commission reasoned that consumers use their cable modems not to transmit information "transparently," such as by using a telephone, but instead to obtain Internet access. The Commission applied this same reasoning to cable companies offering broadband Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not "offe[r] telecommunications service to the end user, but rather merely us[e] telecommunications to provide end users with cable modem service." Declaratory Ruling 4824, ¶ 41. Though the Commission declined to apply mandatory Title II common-carrier regulation to cable companies, it invited comment on whether under its Title I jurisdiction it should require cable companies to offer other ISPs access to their facilities on common-carrier terms. Numerous parties petitioned for judicial review, challenging the Commission's conclusion that cable modem service was not telecommunications service. By judicial lottery, the Court of Appeals for the Ninth Circuit was selected as the venue for the challenge. The Court of Appeals granted the petitions in part, vacated the Declaratory Ruling in part, and remanded to the Commission for further proceedings. In particular, the Court of Appeals vacated the ruling to the extent it concluded that cable modem service was not "telecommunications service" under the Communications Act. It held that the Commission could not permissibly construe the Communications Act to exempt cable companies providing Internet service from Title II regulation. See Rather than analyzing the permissibility of that construction under the deferential framework of See -1132. Portland held that cable modem service was a "telecommunications service," *980 though the court in that case was not reviewing an administrative proceeding and the Commission was not a party to the case. See -880. Nevertheless, Portland's holding, the Court of Appeals reasoned, overrode the contrary interpretation reached by the Commission in the Declaratory Ruling. See -1. We granted certiorari to settle the important questions of federal law that these cases present. III |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | important questions of federal law that these cases present. III We first consider whether we should apply 's framework to the Commission's interpretation of the term "telecommunications service." We conclude that we should. We also conclude that the Court of Appeals should have done the same, instead of following the contrary construction it adopted in Portland. A In this Court held that ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts. -866. If a statute is ambiguous, and if the implementing agency's construction is reasonable, requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation. and n. 11. The framework governs our review of the Commission's Congress has delegated to the Commission the authority to "execute and enforce" the Communications Act, 151, and to "prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions" of the Act, 201(b); AT&T These provisions give the Commission the authority to promulgate *981 binding legal rules; the Commission issued the order under review in the exercise of that authority; and no one questions that the order is within the Commission's jurisdiction. See Household Credit Services, ; United ; Hence, as we have in the past, we apply the framework to the Commission's interpretation of the Communications Act. See National Cable & Telecommunications Assn., ; -502. Some of the respondents dispute this conclusion, on the ground that the Commission's interpretation is inconsistent with its past practice. We reject this argument. Agency inconsistency is not a basis for declining to analyze the agency's interpretation under the framework. Un-explained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. See Motor Vehicle Mfrs. Assn. of United States, For if the agency adequately explains the reasons for a reversal of policy, "change is not invalidating, since the whole point of is to leave the discretion provided by the ambiguities of a statute with the implementing agency." ; see also ; "An initial agency interpretation is not instantly carved in stone. On the contrary, the agency must consider varying interpretations and the wisdom of its policy on a continuing basis," for example, in response to changed factual circumstances, or a change in administrations, see |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | to changed factual circumstances, or a change in administrations, see State That is no doubt why *982 in itself, this Court deferred to an agency interpretation that was a recent reversal of agency policy. See -858. We therefore have no difficulty concluding that applies. B The Court of Appeals declined to apply because it thought the Commission's interpretation of the Communications Act foreclosed by the conflicting construction of the Act it had adopted in Portland. See -1132. It based that holding on the assumption that Portland's construction overrode the Commission's, regardless of whether Portland had held the statute to be That reasoning was incorrect. A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from itself. established a "presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Smiley, Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court's interpretation to override an agency's. 's premise is that it is for agencies, not courts, to fill statutory gaps. See 467 U. S., and n. 11. The better rule is to hold judicial interpretations contained in precedents to the same demanding step one standard that applies if the court is reviewing the agency's construction on a blank slate: Only a judicial precedent holding that the statute *983 unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency A contrary rule would produce anomalous results. It would mean that whether an agency's interpretation of an ambiguous statute is entitled to deference would turn on the order in which the interpretations issue: If the court's construction came first, its construction would prevail, whereas if the agency's came first, the agency's construction would command deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals' rule, moreover, would "lead to the ossification of large portions of our statutory law," Mead, by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither nor the doctrine of |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | judicial constructions of ambiguous statutes. Neither nor the doctrine of stare decisis requires these haphazard results. The dissent answers that allowing an agency to override what a court believes to be the best interpretation of a statute makes "judicial decisions subject to reversal by executive officers." Post, at 1016 (opinion of SCALIA, J.). It does not. Since teaches that a court's opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency's decision to construe that statute differently from a court does not say that the court's holding was legally wrong. Instead, the agency may, consistent with the court's holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes. In all other respects, the court's prior ruling remains binding law (for example, as to agency interpretations to which is inapplicable). The precedent has not been "reversed" by the agency, any more than a federal court's interpretation of a State's law can be said to have been "reversed" by a *984 state court that adopts a conflicting (yet authoritative) interpretation of state law. The Court of Appeals derived a contrary rule from a mistaken reading of this Court's decisions. It read to establish that a prior judicial construction of a statute categorically controls an agency's contrary -1132; see also post, at 1016, n. 11 established no such proposition. declined to defer to a construction adopted by the United States Sentencing Commission that conflicted with one the Court previously had adopted in Chapman, however, had held the relevant statute to be See Thus, established only that a precedent holding a statute to be unambiguous forecloses a contrary agency That limited holding accorded with this Court's prior decisions, which had held that a court's interpretation of a statute trumps an agency's under the doctrine of stare decisis only if the prior court holding "determined a statute's clear meaning." Maislin Industries, U. S., ; see also Lechmere, Those decisions allow a court's prior interpretation of a statute to override an agency's interpretation only if the relevant court decision held the statute Against this background, the Court of Appeals erred in refusing to apply to the Commission's interpretation of the definition of "telecommunications service," 47 U.S. C. 153(46). Its prior decision in Portland held only that the best reading of 153(46) was that cable modem service was a "telecommunications service," not that it was the only permissible reading of the statute. See -880. Nothing in Portland held that the Communications *985 Act unambiguously required treating |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | Portland held that the Communications *985 Act unambiguously required treating cable Internet providers as telecommunications carriers. Instead, the court noted that it was "not presented with a case involving potential deference to an administrative agency's statutory construction pursuant to the doctrine," ; and the court invoked no other rule of construction (such as the rule of lenity) requiring it to conclude that the statute was unambiguous to reach its judgment. Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency's, the court must hold that the statute unambiguously requires the court's Portland did not do so. As the dissent points out, it is not logically necessary for us to reach the question whether the Court of Appeals misapplied for us to decide whether the Commission acted lawfully. See post, at 1019-1020 (opinion of SCALIA, J.). Nevertheless, it is no "great mystery" why we are reaching the point here. Post, at 1019. There is genuine confusion in the lower courts over the interaction between the doctrine and stare decisis principles, as the petitioners informed us at the certiorari stage of this litigation. See Pet. for Cert. of Federal Communications Commission et al. in No. 04-281, pp. 19-23; Pet. for Cert. of National Cable & Telecomm. Assn. et al. in No. 04-277, pp. 22-29. The point has been briefed. See Brief for Federal Petitioners 38-44; Brief for Cable-Industry Petitioners 30-36. And not reaching the point could undermine the purpose of our grant of certiorari: to settle authoritatively whether the Commission's Declaratory Ruling is lawful. Were we to uphold the Declaratory Ruling without reaching the point, the Court of Appeals could once again strike down the Commission's rule based on its Portland decision. Portland (at least arguably) could compel the Court of Appeals once again to reverse the Commission despite our decision, since our conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an "information *986 service" leaves untouched Portland's holding that the Commission's interpretation is not the best reading of the statute. We have before decided similar questions that were not, strictly speaking, necessary to our disposition. See, e. g., ; (criticizing this Court for not reaching the question whether the Missouri Supreme Court erred by failing to follow directly controlling Supreme Court precedent, though that conclusion was not necessary to the Court's decision). It is prudent for us to do so once again today. IV We next address whether the Commission's construction of the definition of "telecommunications service," 47 U.S. C. 153(46), is a permissible |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | of "telecommunications service," 47 U.S. C. 153(46), is a permissible reading of the Communications Act under the framework. established a familiar two-step procedure for evaluating whether an agency's interpretation of a statute is lawful. At the first step, we ask whether the statute's plain terms "directly addres[s] the precise question at issue." If the statute is ambiguous on the point, we defer at step two to the agency's interpretation so long as the construction is "a reasonable policy choice for the agency to make." The Commission's interpretation is permissible at both steps. A We first set forth our understanding of the interpretation of the Communications Act that the Commission embraced. The issue before the Commission was whether cable companies providing cable modem service are providing a "telecommunications service" in addition to an "information service." *987 The Commission first concluded that cable modem service is an "information service," a conclusion unchallenged here. The Act defines "information service" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications" 153(20). Cable modem service is an information service, the Commission reasoned, because it provides consumers with a comprehensive capability for manipulating information using the Internet via high-speed telecommunications. That service enables users, for example, to browse the World Wide Web, to transfer files from file archives available on the Internet via the "File Transfer Protocol," and to access e-mail and Usenet newsgroups. Declaratory Ruling 4821, ¶ 37; Universal Service Report 11537, ¶ 76. Like other forms of Internet service, cable modem service also gives users access to the Domain Name System (DNS). DNS, among other things, matches the Web page addresses that end users type into their browsers (or "click" on) with the Internet Protocol (IP) addresses[1] of the servers containing the Web pages the users wish to access. Declaratory Ruling 4821-4822, ¶ 37. All of these features, the Commission concluded, were part of the information service that cable companies provide consumers. ; see also Universal Service Report 11536-11539, ¶¶ 75-79. At the same time, the Commission concluded that cable modem service was not "telecommunications service." "Telecommunications service" is "the offering of telecommunications for a fee directly to the public." 47 U.S. C. 153(46). "Telecommunications," in turn, is defined as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." *988 153(43). The Commission conceded that, like all information-service providers, cable companies use "telecommunications" to provide consumers with Internet service; cable companies provide such |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | to provide consumers with Internet service; cable companies provide such service via the high-speed wire that transmits signals to and from an end user's computer. Declaratory Ruling 4823, ¶ 40. For the Commission, however, the question whether cable broadband Internet providers "offer" telecommunications involved more than whether telecommunications was one necessary component of cable modem service. Instead, whether that service also includes a telecommunications "offering" "turn[ed] on the nature of the functions the end user is offered," for the statutory definition of "telecommunications service" does not "res[t] on the particular types of facilities used," ; see 153(46) (definition of "telecommunications service" applies "regardless of the facilities used"). Seen from the consumer's point of view, the Commission concluded, cable modem service is not a telecommunications offering because the consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access: "As provided to the end user the telecommunications is part and parcel of cable modem service and is integral to its other capabilities." Declaratory Ruling 4823, ¶ 39. The wire is used, in other words, to access the World Wide Web, newsgroups, and so forth, rather than "transparently" to transmit and receive ordinary-language messages without computer processing or storage of the message. See The integrated character of this offering led the Commission to conclude that cable modem service is not a "stand-alone," transparent offering of telecommunications. Declaratory Ruling 4823-4825, ¶¶ 41-43. *989 B This construction passes 's first Respondents argue that it does not, on the ground that cable companies providing Internet service necessarily "offe[r]" the underlying telecommunications used to transmit that service. The word "offering" as used in 153(46), however, does not unambiguously require that result. Instead, "offering" can reasonably be read to mean a "stand-alone" offering of telecommunications, i. e., an offered service that, from the user's perspective, transmits messages unadulterated by computer processing. That conclusion follows not only from the ordinary meaning of the word "offering," but also from the regulatory history of the Communications Act. 1 Cable companies in the broadband Internet service business "offe[r]" consumers an information service in the form of Internet access and they do so "via telecommunications," 153(20), but it does not inexorably follow as a matter of ordinary language that they also "offe[r]" consumers the high-speed data transmission (telecommunications) that is an input used to provide this service, 153(46). We have held that where a statute's plain terms admit of two or more reasonable ordinary usages, the Commission's choice of one of them is entitled to deference. |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | Commission's choice of one of them is entitled to deference. See ; National Railroad Passenger The term "offe[r]" as used in the definition of telecommunications service, 153(46), is ambiguous in this way. *990 It is common usage to describe what a company "offers" to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product, as the dissent concedes. See post, at 1006-1007 (opinion of Scalia, J.). One might well say that a car dealership "offers" cars, but does not "offer" the integrated major inputs that make purchasing the car valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as "offering" consumers the car's components in addition to the car itself. Even if it is linguistically permissible to say that the car dealership "offers" engines when it offers cars, that shows, at most, that the term "offer," when applied to a commercial transaction, is ambiguous about whether it describes only the offered finished product, or the product's discrete components as well. It does not show that no other usage is permitted. The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated offering. See We think that they are sufficiently integrated, because "[a] consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access." In the telecommunications context, it is at least reasonable to describe companies as not "offering" to consumers each discrete input that is necessary to providing, and is always used in connection with, a finished service. We think it no misuse of language, for example, to say that cable companies providing Internet service do not "offer" consumers DNS, even though DNS is essential to providing Internet access. Declaratory Ruling 4810, n. 74, 4822-4823, ¶ 38. Likewise, a telephone company "offers" consumers a transparent transmission path that conveys an ordinary-language message, not necessarily the data-transmission *991 facilities that also "transmi[t] information of the user's choosing," 153(43), or other physical elements of the facilities used to provide telephone service, like the trunks and switches, or the copper in the wires. What cable companies providing cable modem service and telephone companies providing telephone service "offer" is Internet service and telephone service respectivelythe finished services, though they do so using (or "via") the discrete components composing the end product, including data transmission. |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | the discrete components composing the end product, including data transmission. Such functionally integrated components need not be described as distinct "offerings." In response, the dissent argues that the high-speed transmission component necessary to providing cable modem service is necessarily "offered" with Internet service because cable modem service is like the offering of pizza delivery service together with pizza, and the offering of puppies together with dog leashes. Post, at 1007-1008 (opinion of SCALIA, J.). The dissent's appeal to these analogies only underscores that the term "offer" is ambiguous in the way that we have described. The entire question is whether the products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes). That question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided, questions leaves to the Commission to resolve in the first instance. As the Commission has candidly recognized, "the question may not always be straightforward whether, on the one hand, an entity is providing a single information service with communications and computing components, or, on the other hand, is providing two distinct services, one of which is a telecommunications service." Universal Service Report 11530, ¶ 60. Because the term "offer" can sometimes refer to a single, finished product and sometimes to the "individual components in a package being offered" (depending on whether the components "still possess sufficient identity to be described *992 as separate objects," post, at 1006), the statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering. This leaves federal telecommunications policy in this technical and complex area to be set by the Commission, not by warring analogies. We also do not share the dissent's certainty that cable modem service is so obviously like pizza delivery service and the combination of dog leashes and dogs that the Commission could not reasonably have thought otherwise. Post, at 1007-1008. For example, unlike the transmission component of Internet service, delivery service and dog leashes are not integral components of the finished products (pizzas and pet dogs). One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet and the transmission always occurs in connection with information processing. In any event, we doubt that a statute that, for example, subjected offerors of "delivery" service (such as Federal Express and United Parcel Service) to |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | service (such as Federal Express and United Parcel Service) to common-carrier regulation would unambiguously require pizza-delivery companies to offer their delivery services on a common-carrier basis. 2 The Commission's traditional distinction between basic and enhanced service, see -977, also supports the conclusion that the Communications Act is ambiguous about whether cable companies "offer" telecommunications with cable modem service. Congress passed the definitions in the Communications Act against the background of this regulatory history, and we may assume that the parallel terms "telecommunications service" and "information service" substantially incorporated their meaning, as the Commission has held. See, e. g., In re Federal-State Joint Board on Universal Service, 12 FCC Rcd. 8776, 9179-9180, ¶ 788 *993 (noting that the "definition of enhanced services is substantially similar to the definition of information services" and that "all services previously considered `enhanced services' are `information services'"); The regulatory history in at least two respects confirms that the term "telecommunications service" is ambiguous. First, in the Computer II Order that established the terms "basic" and "enhanced" services, the Commission defined those terms functionally, based on how the consumer interacts with the provided information, just as the Commission did in the order below. See -977. As we have explained, Internet service is not "transparent in terms of its interaction with customer supplied information," Computer II Order 420, ¶ 96; the transmission occurs in connection with information processing. It was therefore consistent with the statute's terms for the Commission to assume that the parallel term "telecommunications service" in 47 U.S. C. 153(46) likewise describes a "pure" or "transparent" communications path not necessarily separately present, from the end user's perspective, in an integrated information-service offering. The Commission's application of the basic/enhanced-service distinction to non-facilities-based ISPs also supports this conclusion. The Commission has long held that "all those who provide some form of transmission services are not necessarily common carriers." Computer II Order 431, ¶ 122; see also For example, the Commission did not subject to common-carrier regulation those service providers that offered enhanced services over telecommunications facilities, but that did not themselves own the underlying facilities so-called "non-facilities-based" providers. See Universal *994 Service Report 11530, ¶ 60. Examples of these services included database services in which a customer used telecommunications to access information, such as Dow Jones News and Lexis, as well as "value added networks," which lease wires from common carriers and provide transmission as well as protocol-processing service over those wires. See In re Amendment to Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry), 3 FCC Rcd. 1150, 1153, n. 23 (1988); These services |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | 3 FCC Rcd. 1150, 1153, n. 23 (1988); These services "combin[ed] communications and computing components," yet the Commission held that they should "always be deemed enhanced" and therefore not subject to common-carrier regulation. Universal Service Report 11530, ¶ 60. Following this traditional distinction, the Commission in the Universal Service Report classified ISPs that leased rather than owned their transmission facilities as pure information-service providers. Respondents' statutory arguments conflict with this regulatory history. They claim that the Communications Act unambiguously classifies as telecommunications carriers all entities that use telecommunications inputs to provide information service. As respondent MCI concedes, this argument would subject to mandatory common-carrier regulation all information-service providers that use telecommunications as an input to provide information service to the public. Brief for Respondent MCI, Inc., 30. For example, it would subject to common-carrier regulation non-facilities-based ISPs that own no transmission facilities. See Universal Service Report 11532-11533, ¶ 66. Those ISPs provide consumers with transmission facilities used to connect to the Internet, see and so, under respondents' argument, necessarily "offer" telecommunications to consumers. Respondents' position that all such entities are necessarily "offering telecommunications" therefore entails mandatory common-carrier regulation of entities that the Commission *995 never classified as "offerors" of basic transmission service, and therefore common carriers, under the Computer II regime.[2] See Universal Service Report 11540, ¶ 81 (noting past Commission policy); Computer and Communications Industry We doubt that the parallel term "telecommunications service" unambiguously worked this abrupt shift in Commission policy. Respondents' analogy between cable companies that provide cable modem service and facilities-based enhanced-service providersthat is, enhanced-service providers who own the transmission facilities used to provide those servicesfares no better. Respondents stress that under the Computer II rules the Commission regulated such providers more heavily than non-facilities-based providers. The Commission required, for example, local telephone companies that provided enhanced services to offer their wires on a common-carrier basis to competing enhanced-service providers. See, e. g., In re Amendment of Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry), 104 F. C. C. 2d 958, 964, ¶ 4 (1986) (hereinafter Computer III Order). Respondents argue that the Communications Act unambiguously requires the same treatment for cable companies because cable companies also own the facilities they use to provide cable modem service (and therefore information service). *996 We disagree. We think it improbable that the Communications Act unambiguously freezes in time the Computer II treatment of facilities-based information-service providers. The Act's definition of "telecommunications service" says nothing about imposing more stringent regulatory duties on facilities-based information-service providers. The definition hinges solely on whether the entity "offer[s] telecommunications for a |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | hinges solely on whether the entity "offer[s] telecommunications for a fee directly to the public," 47 U.S. C. 153(46), though the Act elsewhere subjects facilities-based carriers to stricter regulation, see 251(c) (imposing various duties on facilities-based local telephone companies). In the Computer II rules, the Commission subjected facilities-based providers to common-carrier duties not because of the nature of the "offering" made by those carriers, but rather because of the concern that local telephone companies would abuse the monopoly power they possessed by virtue of the "bottleneck" local telephone facilities they owned. See Computer II Order 474-475, ¶¶ 229, 231; Computer III Order 968-969, ¶ 12; 535 U. S., at The differential treatment of facilities-based carriers was therefore a function not of the definitions of "enhanced-service" and "basic service," but instead of a choice by the Commission to regulate more stringently, in its discretion, certain entities that provided enhanced service. The Act's definitions, however, parallel the definitions of enhanced and basic service, not the facilities-based grounds on which that policy choice was based, and the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction. In fact, it has invited comment on whether it can and should do so. See In sum, if the Act fails unambiguously to classify nonfacilities-based information-service providers that use telecommunications inputs to provide an information service as "offer[ors]" of "telecommunications," then it also fails unambiguously *997 to classify facilities-based information-service providers as telecommunications-service offerors; the relevant definitions do not distinguish facilities-based and nonfacilities-based carriers. That silence suggests, instead, that the Commission has the discretion to fill the consequent statutory gap. C We also conclude that the Commission's construction was "a reasonable policy choice for the [Commission] to make" at 's second 467 U. S., Respondents argue that the Commission's construction is unreasonable because it allows any communications provider to "evade" common-carrier regulation by the expedient of bundling information service with telecommunications. Respondents argue that under the Commission's construction a telephone company could, for example, offer an information service like voice mail together with telephone service, thereby avoiding common-carrier regulation of its telephone service. We need not decide whether a construction that resulted in these consequences would be unreasonable because we do not believe that these results follow from the construction the Commission adopted. As we understand the Declaratory Ruling, the Commission did not say that any telecommunications service that is priced or bundled with an information service is automatically unregulated under Title II. The Commission said that a telecommunications input used to provide an information service that is not |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | input used to provide an information service that is not "separable from the data-processing capabilities of the service" and is instead "part and parcel of [the information service] and is integral to [the information service's] other capabilities" is not a telecommunications offering. Declaratory Ruling 4823, ¶ 39; see This construction does not leave all information-service offerings exempt from mandatory Title II regulation. "It is plain," for example, that a local telephone company "cannot *998 escape Title II regulation of its residential local exchange service simply by packaging that service with voice mail." Universal Service Report 11530, ¶ 60. That is because a telephone company that packages voice mail with telephone service offers a transparent transmission pathtelephone servicethat transmits information independent of the information-storage capabilities provided by voice mail. For instance, when a person makes a telephone call, his ability to convey and receive information using the call is only trivially affected by the additional voice-mail capability. Equally, were a telephone company to add a time-of-day announcement that played every time the user picked up his telephone, the "transparent" information transmitted in the ensuing call would be only trivially dependent on the information service the announcement provides. By contrast, the high-speed transmission used to provide cable modem service is a functionally integrated component of that service because it transmits data only in connection with the further processing of information and is necessary to provide Internet service. The Commission's construction therefore was more limited than respondents assume. Respondents answer that cable modem service does, in fact, provide "transparent" transmission from the consumer's perspective, but this argument, too, is mistaken. Respondents characterize the "information-service" offering of Internet access as consisting only of access to a cable company's e-mail service, its Web page, and the ability it provides consumers to create a personal Web page. When a consumer goes beyond those offerings and accesses content provided by parties other than the cable company, respondents argue, the consumer uses "pure transmission" no less than a consumer who purchases phone service together with voice mail. This argument, we believe, conflicts with the Commission's understanding of the nature of cable modem service, an understanding we find to be reasonable. When an end user *999 accesses a third-party's Web site, the Commission concluded, he is equally using the information service provided by the cable company that offers him Internet access as when he accesses the company's own Web site, its e-mail service, or his personal Web page. For example, as the Commission found below, part of the information service cable companies provide is access to DNS service. See |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | service cable companies provide is access to DNS service. See A user cannot reach a third-party's Web site without DNS, which (among other things) matches the Web site address the end user types into his browser (or "clicks" on with his mouse) with the IP address of the Web page's host server. See P. Albitz & C. Liu, DNS and BIND 10 (For an Internet user, "DNS is a must. [N]early all of the Internet's network services use DNS. That includes the World Wide Web, electronic mail, remote terminal access, and file transfer"). It is at least reasonable to think of DNS as a "capability for acquiring retrieving, utilizing, or making available" Web site addresses and therefore part of the information service cable companies provide. 47 U.S. C. 153(20).[3] Similarly, the Internet service provided by cable companies facilitates access to third-party Web pages by offering consumers the ability to store, or "cache," popular content on local computer servers. See Declaratory Ruling 4810, ¶ 17, and n. 76. Cacheing obviates the need for the end user to download anew information from third-party *1000 Web sites each time the consumer attempts to access them, thereby increasing the speed of information retrieval. In other words, subscribers can reach third-party Web sites via "the World Wide Web, and browse their contents, [only] because their service provider offers the `capability for acquiring, [storing] retrieving [and] utilizing information.'" Universal Service Report 11538, ¶ 76 (quoting 47 U.S. C. 153(20)). "The service that Internet access providers offer to members of the public is Internet access," Universal Service Report 11539, ¶ 79, not a transparent ability (from the end user's perspective) to transmit information. We therefore conclude that the Commission's construction was reasonable. V Respondent MCI, Inc., urges that the Commission's treatment of cable modem service is inconsistent with its treatment of DSL service, see and therefore is an arbitrary and capricious deviation from agency policy. See 5 U.S. C. 706(2)(A). MCI points out that when local telephone companies began to offer Internet access through DSL technology in addition to telephone service, the Commission applied its Computer II facilities-based classification to them and required them to make the telephone lines used to transmit DSL service available to competing ISPs on nondiscriminatory, common-carrier terms. See ; In re Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd. 24011, 24030-24031, ¶¶ 36-37 (1998) (hereinafter Wireline Order) (classifying DSL service as a telecommunications service). MCI claims that the Commission's decision not to regulate cable companies similarly under Title II is inconsistent with its DSL policy. We conclude, however, that |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | is inconsistent with its DSL policy. We conclude, however, that the Commission provided a reasoned explanation for treating cable modem service differently *1001 from DSL service. As we have already noted, see the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.[4] It has done so here. The traditional reason for its Computer II common-carrier treatment of facilities-based carriers (including DSL carriers), as the Commission explained, was "that the telephone network [was] the primary, if not exclusive, means through which information service providers can gain access to their customers." Declaratory Ruling 4825, ¶ 44 (emphasis in original; internal quotation marks omitted). The Commission applied the same treatment to DSL service based on that history, rather than on an analysis of contemporaneous market conditions. See Wireline Order 24031, ¶ 37 (noting DSL carriers' "continuing obligation" to offer their transmission facilities to competing ISPs on nondiscriminatory terms). The Commission in the order under review, by contrast, concluded that changed market conditions warrant different treatment of facilities-based cable companies providing Internet access. Unlike at the time of Computer II, substitute forms of Internet transmission exist today: "[R]esidential high-speed access to the Internet is evolving over multiple electronic platforms, including wireline, cable, terrestrial wireless and satellite." Declaratory Ruling 4802, ¶ 6; see also U. S. Telecom The Commission concluded that "`broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.'" Declaratory Ruling 4802, ¶ 5. *1002 This, the Commission reasoned, warranted treating cable companies unlike the facilities-based enhanced-service providers of the past. We find nothing arbitrary about the Commission's providing a fresh analysis of the problem as applied to the cable industry, which it has never subjected to these rules. This is adequate rational justification for the Commission's conclusions. Respondents argue, in effect, that the Commission's justification for exempting cable modem service providers from common-carrier regulation applies with similar force to DSL providers. We need not address that argument. The Commission's decision appears to be a first step in an effort to reshape the way the Commission regulates information-service providers; that may be why it has tentatively concluded that DSL service provided by facilities-based telephone companies should also be classified solely as an information service. See In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 17 FCC Rcd. 3019, 3030, ¶ 20 The Commission need not immediately apply the policy reasoning in the Declaratory Ruling to all types of information-service providers. It apparently has decided to revisit its longstanding Computer II classification of |
Justice Thomas | 2,005 | 1 | majority | National Cable & Telecommunications Assn. v. Brand X Internet Services | https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/ | has decided to revisit its longstanding Computer II classification of facilities-based information-service providers incrementally. Any inconsistency between the order under review and the Commission's treatment of DSL service can be adequately addressed when the Commission fully reconsiders its treatment of DSL service and when it decides whether, pursuant to its ancillary Title I jurisdiction, to require cable companies to allow independent ISPs access to their facilities. See and this page. We express no view on those matters. In particular, we express no view on how the Commission should, or lawfully may, classify DSL service. * * * The questions the Commission resolved in the order under review involve a "subject matter [that] is technical, complex, *1003 and dynamic." Gulf The Commission is in a far better position to address these questions than we are. Nothing in the Communications Act or the Administrative Procedure Act makes unlawful the Commission's use of its expert policy judgment to resolve these difficult questions. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Brennan | 1,983 | 13 | majority | Moses H. Cone Memorial Hospital v. Mercury Constr. Corp. | https://www.courtlistener.com/opinion/110873/moses-h-cone-memorial-hospital-v-mercury-constr-corp/ | This case, commenced as a petition for an order to compel arbitration under 4 of the United States Arbitration Act of 1925 (Arbitration Act or Act), 9 U.S. C. 4, presents the question whether, in light of the policies of the Act and of our decisions in Colorado Water Conservation and the District Court for the Middle District of North Carolina properly stayed this diversity action pending resolution of a concurrent state-court suit. The Court of Appeals for the Fourth Circuit reversed the stay. We granted certiorari. We affirm. I Petitioner Moses H. Cone Memorial Hospital (Hospital) is located in Greensboro, N. C. Respondent Mercury Construction Corp. (Mercury), a construction contractor, has its principal place of business in Alabama. In July 1975, Mercury and the Hospital entered into a contract for the construction of additions to the Hospital building. The contract, drafted by representatives of the Hospital, included provisions for resolving disputes arising out of the contract or its breach. All disputes involving interpretation of the contract or performance of the construction work were to be referred in the first instance to J. N. Pease Associates (Architect), an independent architectural firm hired by the Hospital to design and oversee the construction project. With certain *5 stated exceptions,[1] any dispute decided by the Architect (or not decided by it within a stated time) could be submitted by either party to binding arbitration under a broad arbitration clause in the contract: "All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof." App. -30. The contract also specified the time limits for arbitration demands.[2] Construction on the project began in July 1975. Performance was to be completed by October 1979.[3] In fact, construction was substantially completed in February 1979, and final inspections were made that June. *6 At a meeting in October 1977 (during construction), attended by representatives of Mercury, the Hospital, and the Architect, Mercury agreed, at the Architect's request, to withhold its claims for delay and impact costs (i. e., claims for extended overhead or increase in construction costs due to delay or inaction by the Hospital) until the work was substantially completed. On this |
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