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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/ | the Hospital) until the work was substantially completed. On this record, the Hospital does not contest the existence of this agreement, although it asserts that the Architect lacked authority to agree to a delay in presentation of claims or to entertain claims after the contract work was completed. In January 1980, Mercury submitted to the Architect its claims for delay and impact costs. Mercury and the Architect discussed the claims over several months, substantially reducing the amount of the claims. According to the Hospital, it first learned of the existence of Mercury's claims in April 1980; its lawyers assumed active participation in the claim procedure in May. The parties differ in their characterizations of the events of the next few months whether there were "ongoing negotiations," or merely an "investigation" by the Hospital. In any event, it appears from the record that lawyers for the Hospital requested additional information concerning Mercury's claims. As a result, on August 12, 1980, Mercury gave a detailed presentation of its claims at a meeting attended by Mercury's representatives and lawyers, the Hospital's representatives and lawyers, and representatives of the Architect. Mercury agreed to send copies of its files to an expert hired by the Hospital, and the parties agreed to meet again on October 13. On October 6, Mercury's counsel telephoned the Hospital's counsel to confirm that the scheduled meeting would go forward. The Hospital's counsel said he would call back the next day. When he did, he informed Mercury's counsel that the Hospital would pay nothing on Mercury's claim. He also said that the Hospital intended to file a declaratory judgment action in North Carolina state court. *7 True to its word, the Hospital filed an action on the morning of October 8 in the Superior Court of Guilford County, N. C., naming Mercury and the Architect as defendants. The complaint alleged that Mercury's claim was without factual or legal basis and that it was barred by the statute of limitations. It alleged that Mercury had lost any right to arbitration under the contract due to waiver, laches, estoppel, and failure to make a timely demand for arbitration. The complaint also alleged various delinquencies on the part of the Architect. As relief, the Hospital sought a declaration that there was no right to arbitration; a stay of arbitration; a declaration that the Hospital bore no liability to Mercury; and a declaration that if the Hospital should be found liable in any respect to Mercury, it would be entitled to indemnity from the Architect. The complaint was served on Mercury on October 9. |
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/ | Architect. The complaint was served on Mercury on October 9. On that same day, Mercury's counsel mailed a demand for arbitration. On October 15, without notice to Mercury, the Hospital obtained an ex parte injunction from the state court forbidding Mercury to take any steps directed toward arbitration. Mercury objected, and the stay was dissolved on October 27. As soon as the stay was lifted, Mercury filed the present action in the District Court, seeking an order compelling arbitration under 4 of the Arbitration Act, 9 U.S. C. 4.[4] Jurisdiction was based on diversity of citizenship. On the Hospital's motion, the District Court stayed Mercury's federal-court suit pending resolution of the state-court suit because the two suits involved the identical issue of the arbitrability of Mercury's claims. App. to Pet. for Cert. A-38. *8 Mercury sought review of the District Court's stay by both a notice of appeal and a petition for mandamus. A panel of the Court of Appeals for the Fourth Circuit heard argument in the case, but before the panel issued any decision, the court informed the parties that it would consider the case en banc. After reargument, the en banc court held that it had appellate jurisdiction over the case under 28 U.S. C. 11. It reversed the District Court's stay order and remanded the case to the District Court with instructions for entry of an order to arbitrate. II Before we address the propriety of the District Judge's stay order, we must first decide whether that order was appealable to the Court of Appeals under 28 U.S. C. 11.[5] Mercury sought appellate review through two alternative routes a notice of appeal under 11, and a petition for mandamus under the All Writs Act, 28 U.S. C. 1651.[6] Mercury expressly stated that its appeal was based only on 11, and not on 28 U.S. C. 12 (relating to interlocutory appeals). The Hospital contends that the order appealed from was not a "final decisio[n]" within 11. We *9 disagree and hold that the stay order was final for purposes of appellate jurisdiction. Idlewild Liquor is instructive in this regard. There the plaintiff brought a federal suit challenging the constitutionality of a state statute. The District Judge declined to convene a three-judge court and stayed the federal suit under the Pullman abstention doctrine.[7] We held that the District Court's action was final and therefore reviewable by the Court of Appeals, stating: "The Court of Appeals properly rejected the argument that the order of the District Court `was not final and hence unappealable under 28 U.S. C. 11, |
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/ | not final and hence unappealable under 28 U.S. C. 11, 12,' pointing out that `[a]ppellant was effectively out of court.' " n. 2.[8] *10 Here, the argument for finality of the District Court's order is even clearer. A district court stay pursuant to Pullman abstention is entered with the expectation that the federal litigation will resume in the event that the plaintiff does not obtain relief in state court on state-law grounds.[9] Here, by contrast, the District Court predicated its stay order on its conclusion that the federal and state actions involved "the identical issue of arbitrability of the claims of Mercury Construction Corp. against the Moses H. Cone Memorial Hospital." App. to Pet. for Cert. A-38. That issue of arbitrability was the only substantive issue present in the federal suit. Hence, a stay of the federal suit pending resolution of the state suit meant that there would be no further litigation in the federal forum; the state court's judgment on the issue would be res judicata.[10] Thus, here, even more surely than in Idlewild, Mercury was "effectively out of court." Hence, as the Court of Appeals held, this stay order amounts to a dismissal of the suit.[11] *11 In any event, if the District Court order were not final for appealability purposes, it would nevertheless be appealable within the exception to the finality rule under The factors required to show finality under this exception have been summarized as follows: "To come within the `small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal *12 from a final judgment." Coopers &[12] There can be no dispute that this order meets the second and third of these criteria. An order that amounts to a refusal to adjudicate the merits plainly presents an important issue separate from the merits.[13] For the same reason, this order would be entirely unreviewable if not appealed now. Once the state court decided the issue of arbitrability, the federal court would be bound to honor that determination as res judicata. The Hospital contends nevertheless that the District Court's stay order did not meet the first of the criteria, namely that it "conclusively determine the disputed question." But this is true only in the technical sense that every order short of a final decree is subject to reopening at the discretion of the district judge.[14] In this case, however, there is *13 no basis to suppose that the District Judge contemplated |
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/ | *13 no basis to suppose that the District Judge contemplated any reconsideration of his decision to defer to the parallel state-court suit. He surely would not have made that decision in the first instance unless he had expected the state court to resolve all relevant issues adequately. See Part IV-E, infra. It is not clear why the judge chose to stay the case rather than to dismiss it outright; for all that the record shows, there was no reason other than the form of the Hospital's motion. Whatever the reason, however, the practical effect of his order was entirely the same for present purposes, and the order was appealable. III We turn now to the principal issue to be addressed, namely, the propriety of the District Court's decision to stay this federal suit out of deference to the parallel litigation brought in state court. Colorado Water Conservation provides persuasive guidance in deciding this question. A Colorado involved the effect of the McCarran Amendment, 43 U.S. C. 666, on the existence and exercise of federal-court jurisdiction to adjudicate federal water rights, 28 U.S. C. 1345. The Amendment waives the Government's sovereign immunity to permit the joinder of the United States in some state-court suits for the adjudication of water rights. In Colorado however, the Government proceeded in Federal District Court, bringing suit against some 1,000 nonfederal water users, seeking a declaration of the water rights of certain federal entities and Indian tribes. Shortly thereafter, a defendant in that suit *14 sought to join the United States in a state-court proceeding for the comprehensive adjudication and administration of all water rights within the river system that was the subject of the federal-court suit. The District Court dismissed the federal suit, holding that the abstention doctrine required deference to the state-court proceedings. The Court of Appeals for the Tenth Circuit reversed, holding that the suit of the United States was within the District Court's jurisdiction under 28 U.S. C. 1345 and that abstention was inappropriate. We reversed the judgment of the Court of Appeals and affirmed the judgment of the District Court dismissing the complaint. We began our analysis by examining the abstention doctrine in its various forms. We noted: "Abstention from the exercise of federal jurisdiction is the exception, not the rule. `The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified |
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/ | Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.' "[15] After canvassing the three categories of abstention, we concluded that none of them applied to the case at -817.[16] Nevertheless, we held that the District Court's dismissal was proper on another ground one resting not on considerations of state-federal comity or on avoidance of constitutional *15 decisions, as does abstention, but on "considerations of `[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' "[17] We noted that " `the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,' " and that the federal courts have a "virtually unflagging obligation to exercise the jurisdiction given them."[18] We continued: "Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist." We declined to prescribe a hard-and-fast rule for dismissals of this type, but instead described some of the factors relevant to the decision. "It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums. No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction *16 and the combination of factors counselling against that exercise is required. Only the clearest of justifications will warrant dismissal." -819 As this passage makes clear, the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case. Colorado itself illustrates this principle |
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/ | particular setting of the case. Colorado itself illustrates this principle in operation. By far the most important factor in our decision to approve the dismissal there was the "clear federal policy [of] avoidance of piecemeal adjudication of water rights in a river system," as evinced in the McCarran Amendment. We recognized that the Amendment represents Congress' judgment that the field of water rights is one peculiarly appropriate for comprehensive treatment in the forums having the greatest experience and expertise, assisted by state administrative officers acting under the state courts. -820. In addition, we noted that other factors in the case tended to support dismissal the absence of any substantial progress in the federal-court litigation; the presence in the suit of extensive rights governed by state law; the geographical inconvenience of the federal forum; and the Government's previous willingness to litigate similar suits in state court. B Before discussing the application of Colorado 's exceptional-circumstances test, we must address the Hospital's argument that that test was undermined by our subsequent decision in We find no merit in this argument for at least two reasons. *17 The Hospital relies on the opinion of JUSTICE REHNQUIST, announcing the judgment of the Court. The Hospital argues that JUSTICE REHNQUIST's opinion, if not expressly overruling Colorado at least modifies its holding substantially. But it is clear that a majority of the Court reaffirmed the Colorado test in Calvert. JUSTICE REHNQUIST'S opinion commanded only four votes. It was opposed by the dissenting opinion, in which four Justices concluded that the Calvert District Court's stay was impermissible under Colorado -669, 672-674 JUSTICE BLACKMUN, although concurring in the judgment, agreed with the dissent that Colorado 's exceptional-circumstances test was controlling; he voted to remand to permit the District Court to apply the Colorado factors in the first instance.[19] -668. On remand, the Court of Appeals correctly recognized that the four dissenting Justices and JUSTICE BLACKMUN formed a majority to require application of the Colorado test. Calvert Fire Insurance[20] *18 Even on the basis of JUSTICE REHNQUIST's opinion, however, there is an obvious distinction between Calvert and this case. The key to Calvert was the standard for issuance of a writ of mandamus under 28 U.S. C. 1651.[21] As JUSTICE REHNQUIST stressed, such extraordinary writs are used in aid of appellate jurisdiction only to confine an inferior court to a lawful exercise of its prescribed authority, or to compel it to exercise its authority when it is its duty to do so. The movant must show that his right to the writ is clear and indisputable. -662, 664, |
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/ | right to the writ is clear and indisputable. -662, 664, 665-666 JUSTICE REHNQUIST concluded that the movant in Calvert had failed to meet this burden. At the same time, he noted that the movant might have succeeded on a proper appeal. In this case we have held that the Court of Appeals did have appellate jurisdiction; it properly exercised that jurisdiction to find that the District Court's stay was impermissible under Colorado The Hospital further contends that Calvert requires reversal here because the opinions of JUSTICE REHNQUIST and *19 JUSTICE BLACKMUN require greater deference to the discretion of the District Court than was given by the Court of Appeals in this case. Under both Calvert and Colorado of course, the decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance. Yet to say that the district court has discretion is not to say that its decision is unreviewable; such discretion must be exercised under the relevant standard prescribed by this Court. In this case, the relevant standard is Colorado 's exceptional-circumstances test, as elucidated by the factors discussed in that case. As we shall now explain, we agree with the Court of Appeals that the District Court in this case abused its discretion in granting the stay. IV Applying the Colorado factors to this case, it is clear that there was no showing of the requisite exceptional circumstances to justify the District Court's stay. The Hospital concedes that the first two factors mentioned in Colorado are not present here. There was no assumption by either court of jurisdiction over any res or property, nor is there any contention that the federal forum was any less convenient to the parties than the state forum. The remaining factors avoidance of piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums far from supporting the stay, actually counsel against it. A There is no force here to the consideration that was paramount in Colorado itself the danger of piecemeal litigation. The Hospital points out that it has two substantive disputes here one with Mercury, concerning Mercury's claim for delay and impact costs, and the other with the Architect, concerning the Hospital's claim for indemnity for any liability it may have to Mercury. The latter dispute cannot be sent *20 to arbitration without the Architect's consent, since there is no arbitration agreement between the Hospital and the Architect. It is true, therefore, that if Mercury obtains an arbitration order for its dispute, the Hospital |
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/ | Mercury obtains an arbitration order for its dispute, the Hospital will be forced to resolve these related disputes in different forums. That misfortune, however, is not the result of any choice between the federal and state courts; it occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.[22] Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.[23] If the dispute between Mercury and the Hospital is arbitrable under the Act, then the Hospital's two disputes will be resolved separately one in arbitration, and the other (if at all) in state-court litigation. Conversely, if the dispute between Mercury and the Hospital is not arbitrable, then both disputes will be resolved in state court. But neither of those two outcomes depends at all on which court decides the question of arbitrability. Hence, a decision to allow that issue to be decided in federal rather than state court does not cause piecemeal resolution of the parties' underlying disputes. Although *21 the Hospital will have to litigate the arbitrability issue in federal rather than state court, that dispute is easily severable from the merits of the underlying disputes. B The order in which the concurrent tribunals obtained and exercised jurisdiction cuts against, not for, the District Court's stay in this case. The Hospital argues that the stay was proper because the state-court suit was filed some 19 days before the federal suit. In the first place, this argument disregards the obvious reason for the Hospital's priority in filing. An indispensable element of Mercury's cause of action under 4 for an arbitration order is the Hospital's refusal to arbitrate. See n. 27, infra. That refusal did not occur until less than a day before the Hospital filed its state suit. Hence, Mercury simply had no reasonable opportunity to file its 4 petition first. Moreover, the Hospital succeeded in obtaining an ex parte injunction from the state court forbidding Mercury to take any steps to secure arbitration.[24] Mercury filed its 4 petition the same day that the injunction was dissolved.[25] That aside, the Hospital's priority argument gives too mechanical a reading to the "priority" element of the Colorado balance. This factor, as with the other Colorado factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress |
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/ | filed first, but rather in terms of how much progress has been made in the two actions. Colorado illustrates *22 this point well. There, the federal suit was actually filed first. Nevertheless, we pointed out as a factor favoring dismissal "the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss." 424 U.S., Here, the opposite was true. It was the state-court suit in which no substantial proceedings (excepting only the abortive temporary injunction) had taken place at the time of the decision to stay. In the federal suit, by contrast, the parties had taken most of the steps necessary to a resolution of the arbitrability issue.[26] In realistic terms, the federal suit was running well ahead of the state suit at the very time that the District Court decided to refuse to adjudicate the case. This refusal to proceed was plainly erroneous in view of Congress' clear intent, in the Arbitration Act, to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible. The Act provides two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S. C. 3, and an affirmative order to engage in arbitration, 4. Both of these sections call for an expeditious and summary hearing, with only restricted inquiry into factual issues.[27] Assuming that the state court would *23 have granted prompt relief to Mercury under the Act,[28] there still would have been an inevitable delay as a result of the District Court's stay. The stay thus frustrated the statutory policy of rapid and unobstructed enforcement of arbitration agreements. C Besides the four factors expressly discussed in Colorado there is another that emerges from Calvert the fact that federal law provides the rule of decision on the merits. The state-versus-federal-law factor was of ambiguous relevance in Colorado[] In Calvert, however, both the four-vote dissenting opinion and JUSTICE BLACKMUN's opinion concurring in the judgment pointed out that the case involved issues of federal law. ; See also Colorado n. 21. It is equally apparent that this case involves federal issues. The basic issue presented in Mercury's federal suit was the arbitrability of the dispute between Mercury and the Hospital. Federal law in the terms of the Arbitration Act governs that issue in either state or federal court. Section 2 is the primary substantive provision of the Act, declaring that a written agreement to arbitrate "in any maritime transaction or a contract evidencing |
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/ | to arbitrate "in any maritime transaction or a contract evidencing a transaction involving commerce. shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2.[30] Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. In Prima Paint for example, the parties had signed a contract containing an arbitration clause, but one party alleged that there had been fraud in the inducement of the entire contract (although the alleged fraud did not go to the arbitration clause in particular). The issue before us was whether the issue of fraud in the inducement was itself an arbitrable controversy. We held that the language and policies of the Act required the conclusion that the fraud issue was arbitrable. Although our holding in Prima Paint extended only to the specific issue presented, the Courts of Appeals have since consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues *25 should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.[31] To be sure, the source-of-law factor has less significance here than in Calvert, since the federal courts' jurisdiction to enforce the Arbitration Act is concurrent with that of the state courts.[32] But we emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist "exceptional" circumstances, the "clearest of justifications," that can suffice under Colorado *26 to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender, see n. the presence of federal-law issues must always be a major consideration weighing against surrender.[33] D Finally, in this case an important reason against allowing a stay is the probable inadequacy of the state-court proceeding to protect Mercury's rights. We are not to be understood to impeach the competence or procedures of the North Carolina courts. Moreover, state courts, as |
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/ | procedures of the North Carolina courts. Moreover, state courts, as much as federal courts, are obliged to grant stays of litigation under 3 of the Arbitration Act.[34] It is less clear, however, whether the same is true of an order to compel arbitration under 4 of the Act.[35] We need not resolve that question here; it suffices to say that there was, at a minimum, substantial room for doubt that Mercury could obtain from the state court an order compelling *27 the Hospital to arbitrate.[36] In many cases, no doubt, a 3 stay is quite adequate to protect the right to arbitration. But in a case such as this, where the party opposing arbitration is the one from whom payment or performance is sought, a stay of litigation alone is not enough. It leaves the recalcitrant party free to sit and do nothing neither to litigate nor to arbitrate. If the state court stayed litigation pending arbitration but declined to compel the Hospital to arbitrate, Mercury would have no sure way to proceed with its claims except to return to federal court to obtain a 4 order a pointless and wasteful burden on the supposedly summary and speedy procedures prescribed by the Arbitration Act. E The Hospital argues that the Colorado test is somehow inapplicable because in this case the District Court merely stayed the federal litigation rather than dismissing the suit outright, as in Colorado It contends that Mercury remains free to seek to reopen the federal suit on a showing that the state suit has failed to adjudicate its rights, and that a stay is less onerous than a dismissal. We have already rejected this distinction, for purposes of this case, in discussing appellate jurisdiction. We reject it in this context for the same reasons. *28 We have no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado counsels in favor of deferring to a parallel state-court suit.[37] We can say, however, that a stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. See Part Thus, the decision to invoke Colorado necessarily |
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/ | all. See Part Thus, the decision to invoke Colorado necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4247, pp. 517-519 Moreover, assuming that for some unexpected reason the state forum does turn out to be inadequate in some respect, the Hospital's argument fails to make out any genuine difference between a stay and a dismissal. It is true that Mercury could seek to return to federal court if it proved necessary; but that would be equally true if the District Court had dismissed the case. It is highly questionable whether this Court would have approved a dismissal of a federal suit in Colorado (or in any of the abstention cases, see ) if the federal courts did not remain open to a dismissed plaintiff who later demonstrated the inadequacy of the state forum. * V In addition to reversing the District Court's stay, the Court of Appeals decided that the underlying contractual dispute between Mercury and the Hospital is arbitrable under the Arbitration Act and the terms of the parties' arbitration agreement. It reversed the District Court's judgment and remanded the case "with directions to proceed in conformity herewith." In effect, the Court of Appeals directed the District Court to enter a 4 order to arbitrate. In this Court, the Hospital does not contest the substantive correctness of the Court of Appeals' holding on arbitrability. It does raise several objections to the procedures the Court of Appeals used in considering and deciding this case. In particular, it points out that the only issue formally appealed to the Court of Appeals was the propriety of the District Court's stay order. Ordinarily, we would not expect the Court of Appeals to pass on issues not decided in the District Court. In the present case, however, we are not disposed to disturb the court's discretion in its handling of the case in view of the special interests at stake and the apparent lack of any prejudice to the parties. Title 28 U.S. C. 2106 gives a court of appeals some latitude in entering an order to achieve justice in the circumstances. The Arbitration Act calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses. The Court of Appeals had in the record full briefs and evidentiary submissions from both parties on the merits of arbitrability, and held that there were no disputed issues of fact requiring a jury |
Justice Souter | 2,004 | 20 | majority | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | The United States is subject to a cause of action for the benefit of at least some individuals adversely affected by a federal agency's violation of the Privacy Act of 1974. The question before us is whether plaintiffs must prove some actual damages to qualify for a minimum statutory award of $1,000. We hold that they must. I Petitioner Buck Doe filed for benefits under the Black Lung Benefits Act, 0 U.S. C. 901 et seq., with the Office of Workers' Compensation Programs, the division *617 of the Department of Labor responsible for adjudicating it. The application form called for a Social Security number, which the agency then used to identify the applicant's claim, as on documents like "multicaptioned" notices of hearing dates, sent to groups of claimants, their employers, and the lawyers involved in their cases. The Government concedes that following this practice led to disclosing Doe's Social Security number beyond the limits set by the Privacy Act. See 5 U.S. C. 552a(b). Doe joined with six other black lung claimants to sue the Department of Labor, alleging repeated violations of the Act and seeking certification of a class of "`all claimants for Black Lung Benefits since the passage of the Privacy Act.'" Pet. for Cert. 6a. Early on, the United States stipulated to an order prohibiting future publication of applicants' Social Security numbers on multicaptioned hearing notices, and the parties then filed cross-motions for summary judgment. The District Court denied class certification and entered judgment against all individual plaintiffs except Doe, finding that their submissions had raised no issues of cognizable harm. As to Doe, the court accepted his uncontroverted evidence of distress on learning of the improper disclosure, granted summary judgment, and awarded $1,000 in statutory damages under 5 U.S. C. 552a(g)(4). A divided panel of the Fourth Circuit affirmed in part but reversed on Doe's claim, holding the United States entitled to summary judgment across the board. The Circuit treated the $1,000 statutory minimum as available only to plaintiffs who suffered actual damages because of the agency's violation, and then found that Doe had not raised a triable issue of fact about actual damages, having submitted no corroboration for his claim of emotional distress, such as evidence of physical symptoms, medical treatment, loss of income, or impact on his behavior. In fact, the only indication of emotional affliction was Doe's conclusory allegations that he was "`torn *618 all to pieces'" and "`greatly concerned and worried'" because of the disclosure of his Social Security number and its potentially "`devastating'" consequences. Doe petitioned for review of the holding |
Justice Souter | 2,004 | 20 | majority | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | potentially "`devastating'" consequences. Doe petitioned for review of the holding that some actual damages must be proven before a plaintiff may receive the minimum statutory award. See Pet. for Cert. i. Because the Fourth Circuit's decision requiring proof of actual damages conflicted with the views of other Circuits, see, e.g., ; ; ; ; we granted certiorari. We now affirm. II "[I]n order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary to regulate the collection, maintenance, use, and dissemination of information by such agencies." Privacy Act of 1974, 2(a)(5), The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements. Subsection (g)(1) recognizes a civil action for agency misconduct fitting within any of four categories (the fourth, in issue here, being a catchall), 5 U.S. C. 552a(g)(1)(A)-(D), and then makes separate provision for the redress of each. The first two categories cover deficient management of records: subsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper material in a record, and subsection (g)(1)(B) provides a right of access against any agency refusing to allow an individual to inspect a record kept on him. In each instance, further provisions specify *619 such things as the de novo nature of the suit (as distinct from any form of deferential review), 552a(g)(2)(A), (g)()(A), and mechanisms for exercising judicial equity jurisdiction (by in camera inspection, for example), 552a(g)()(A). The two remaining categories deal with derelictions having consequences beyond the statutory violations per se. Subsection (g)(1)(C) describes an agency's failure to maintain an adequate record on an individual, when the result is a determination "adverse" to that person. Subsection (g)(1)(D) speaks of a violation when someone suffers an "adverse effect" from any other failure to hew to the terms of the Act. Like the inspection and correction infractions, breaches of the statute with adverse consequences are addressed by specific terms governing relief: "In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of "(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and "(B) the costs of the action together with |
Justice Souter | 2,004 | 20 | majority | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | $1,000; and "(B) the costs of the action together with reasonable attorney fees as determined by the court." 552a(g)(4).[1] *620 III Doe argues that subsection (g)(4)(A) entitles any plaintiff adversely affected by an intentional or willful violation to the $1,000 minimum on proof of nothing more than a statutory violation: anyone suffering an adverse consequence of intentional or willful disclosure is entitled to recovery. The Government claims the minimum guarantee goes only to victims who prove some actual damages. We think the Government has the better side of the argument. To begin with, the Government's position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for "actual damages sustained." It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a "person entitled to recovery," the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act's sole provision for recovering anything (as distinct from equitable relief). With such an obvious referent for "person entitled to recovery" in the plaintiff who sustains "actual damages," Doe's theory is immediately questionable in ignoring the "actual damages" language so directly at hand and instead looking for "a person entitled to recovery" in a separate part of the statute devoid of any mention either of recovery or of what might be recovered. Nor is it too strong to say that Doe does ignore statutory language. When Doe reads the statute to mean that the United States shall be liable to any adversely affected subject of an intentional or willful violation, without more, he treats willful action as the last fact necessary to make the Government "liable," and he is thus able to describe anyone *621 to whom it is liable as entitled to the $1,000 guarantee. But this way of reading the statute simply pays no attention to the fact that the statute does not speak of liability (and consequent entitlement to recovery) in a freestanding, unqualified way, but in a limited way, by reference to enumerated damages.[2] Doe's manner of reading "entitle[ment] to recovery" as satisfied by adverse effect caused by intentional or willful violation is in tension with more than the text, however. It is at odds with the traditional understanding that tort |
Justice Souter | 2,004 | 20 | majority | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | It is at odds with the traditional understanding that tort recovery requires not only wrongful act plus causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed. See, e. g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 0 (5th ed. 1984). Doe, instead, identifies a person as entitled to recover without any reference to proof of damages, actual or otherwise. Doe might respond that it makes sense to speak of a privacy tort victim as entitled to recover without reference to damages because analogous common law would not require him to show particular items of injury in order to receive a dollar recovery. Traditionally, the common law has provided such victims with a claim for "general" damages, which for privacy and defamation torts are presumed damages: a monetary award calculated without reference to specific harm.[] *622 Such a rejoinder would not pass muster under the Privacy Act, however, because a provision of the Act not previously mentioned indicates beyond serious doubt that general damages are not authorized for a statutory violation. An uncodified section of the Act established a Privacy Protection Study Commission, which was charged, among its other jobs, to consider "whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(1)(C) or (D) of title 5."[4] 5(c)(2)(B)(iii), Congress left the question of general damages, that is, for another day. Because presumed damages are therefore clearly unavailable, we have no business treating just any adversely affected victim of an intentional or willful violation as entitled to recovery, without something more. This inference from the terms of the Commission's mandate is underscored by drafting history showing that Congress cut out the very language in the bill that would have authorized any presumed damages.[5] The Senate bill would have authorized an award of "actual and general damages *62 sustained by any person," with that language followed by the guarantee that "in no case shall a person entitled to recovery receive less than the sum of $1,000." S. 418, 9d Cong., 2d Sess., 0(c)(1) (1974). Although the provision for general damages would have covered presumed damages, see n. this language was trimmed from the final statute, subject to any later revision that might be recommended by the Commission. The deletion of "general damages" from the bill is fairly seen, then, as a deliberate elimination of any possibility of imputing harm and awarding presumed damages.[6] The deletion thus precludes |
Justice Souter | 2,004 | 20 | majority | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | imputing harm and awarding presumed damages.[6] The deletion thus precludes any hope of a sound interpretation of entitlement to recovery without reference to actual damages.[7] Finally, Doe's reading is open to the objection that no purpose is served by conditioning the guarantee on a person's being entitled to recovery. As Doe treats the text, Congress could have accomplished its object simply by providing that the Government would be liable to the individual for actual damages "but in no case less than the sum of $1,000" plus fees and costs. Doe's reading leaves the reference to entitlement to recovery with no job to do, and it accordingly accomplishes nothing.[8] *624 IV There are three loose ends. Doe's argument suggests it would have been illogical for Congress to create a cause of action for anyone who suffers an adverse effect from intentional or willful agency action, then deny recovery without actual damages. But this objection assumes that the language in subsection (g)(1)(D) recognizing a federal "civil action" on the part of someone adversely affected was meant, without more, to provide a complete cause of action, and of course this is not so. A subsequent provision requires proof of intent or willfulness in addition to adverse effect, and if the specific state of mind must be proven additionally, it is equally consistent with logic to require some actual damages as well. Nor does our view deprive the language recognizing a civil action by an adversely affected person of any independent effect, for it may readily be understood as having a limited but specific function: the reference in 552a(g)(1)(D) to "adverse effect" acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue. See Director, Office of Workers' Compensation ; see also 5 U.S. C. 702 (providing review of agency action under the Administrative Procedure Act to individuals who have been "adversely affected or aggrieved"). That is, an individual subjected to an adverse effect *625 has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act.[9] Next, Doe also suggests there is something peculiar in offering some guaranteed damages, as a form of presumed damages not requiring proof of amount, only to those plaintiffs who can demonstrate actual damages. But this approach parallels another remedial scheme that the drafters of the Privacy Act would probably have known about. At common law, certain defamation torts were redressed |
Justice Souter | 2,004 | 20 | majority | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | known about. At common law, certain defamation torts were redressed by general damages but only when a plaintiff first proved some "special harm," i. e., "harm of a material and generally of a pecuniary nature." Restatement of Torts 575, Comments a and b (198) (discussing defamation torts that are "not actionable per se"); see also Restatement (Second) of Torts 575, Comments a and b (1976) (same). Plaintiffs claiming such torts could recover presumed damages only if they could demonstrate some actual, quantifiable pecuniary loss. Because the recovery of presumed damages in these cases was supplemental to compensation for specific harm, it was hardly unprecedented for Congress to make a guaranteed minimum contingent upon some showing of actual damages, thereby avoiding giveaways to plaintiffs with nothing *626 more than "abstract injuries," Los[10] In a final effort to save his claim, Doe points to a pair of statutes with remedial provisions that are worded similarly to 552a(g)(4). See Tax Reform Act of 1976, 1201(i)(2)(A), -1666, 26 U.S. C. 6110(j)(2)(A); 1202(e)(1), 26 U.S. C. 7217(c) (1976 ed., Supp. V) ; Electronic Communications Privacy Act of 1986, 201, 18 U.S. C. 2707(c). He contends that legislative history of these subsequent enactments shows that Congress sometimes used language similar to 5 U.S. C. 552a(g)(4) with the object of authorizing true liquidated damages remedies. See, e. g., S. Rep. No. 94-98, p. 48 (1976) (discussing 1202(e)(1) of the Tax Reform Act); S. Rep. No. 99-541, p. 4 (1986) (discussing 201 of the Electronic Communications Privacy Act). There are two problems with this argument. First, as to 1201(i)(2)(A) of the Tax Reform Act, the text is too far different from the language of the Privacy Act to serve as any sound basis for analogy; it does not include the critical limiting phrase "entitled to recovery." But even as to 1202(e)(1) of the Tax Reform Act and 201 of the Electronic Communications Privacy Act, the trouble with Doe's position is its reliance on the legislative histories of completely separate statutes passed well after the Privacy Act. Those of us who look to legislative history have been wary about expecting to find reliable interpretive help outside the record of the statute being construed, and we have said repeatedly that "`subsequent legislative *627 history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment,'" Solid Waste Agency of Northern Cook 51 U.S. 159, ).[11] V The "entitle[ment] to recovery" necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of |
Justice Stevens | 2,009 | 16 | dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | The Age Discrimination in Employment Act of 1967 (ADEA), et *2353 seq., makes it unlawful for an employer to discriminate against any employee "because of" that individual's age, 623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The "but-for" causation standard endorsed by the Court today was advanced in Justice KENNEDY's dissenting opinion in Price a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. e-2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct of age discrimination to obtain a mixed-motives instruction. I The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.[1] Instead, the question arose for the first time in respondent's brief, which asked us to "overrule Price with respect to its application to the ADEA." Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: "`We would normally expect notice of an intent to make so far-reaching an argument in the respondent's opposition to a petition for certiorari, cf. this Court's Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.'" Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.[2] Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress' intent. The ADEA provides that "[i]t shall be unlawful for an employer. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1) As we |
Justice Stevens | 2,009 | 16 | dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | because of such individual's age." 29 U.S.C. 623(a)(1) As we recognized in Price when we construed the identical "because of" language of Title VII, see 42 U.S.C. e-2(a)(1) (making it unlawful for an employer "to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, *2354 conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" ), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee. In Price we concluded that the words "`because of' such individual's. sex mean that gender must be irrelevant to employment decisions." (plurality opinion); see also (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.[3] We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff's sex into account. (plurality opinion). But this affirmative defense did not alter the meaning of "because of." As we made clear, when "an employer considers both gender and legitimate factors at the time of making a decision, that decision was `because of' sex." ; see also (White, J., concurring in judgment). We readily rejected the dissent's contrary assertion. "To construe the words `because of' as colloquial shorthand for `but-for' causation," we said, "is to misunderstand them." (plurality opinion).[4] Today, however, the Court interprets the words "because of" in the ADEA "as colloquial shorthand for `but-for' causation." That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII's language apply "with equal force in the context of age discrimination, for the substantive provisions of the ADEA `were derived in haec verba from Title VII.'" Trans World Airlines, See generally For this reason, Justice KENNEDY's dissent in Price assumed the plurality's mixed-motives framework extended to the ADEA, see and the Courts of Appeals to have *2355 considered the issue unanimously have applied Price to ADEA claims.[5] The Court nonetheless suggests that applying Price would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper that "[a disparate-treatment] claim `cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and |
Justice Stevens | 2,009 | 16 | dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Ante, 350. The italicized phrase is at best inconclusive as to the meaning of the ADEA's "because of" language, however, as other passages in Hazen Paper demonstrate. We also stated, for instance, that the ADEA "requires the employer to ignore an employee's age," and noted that "[w]hen the employer's decision is wholly motivated by factors other than age," there is no violation, So too, we indicated the "possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status," a classic mixed-motives scenario. Moreover, both Hazen Paper and on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas and Texas Dept. of Community See, e.g., -143, ; Hazen Paper 507 U.S., at This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II The conclusion that "because of" an individual's age means that age was a motivating factor in an employment decision is bolstered by Congress' reaction to Price in the 1991 Civil Rights Act. As part of its response to "a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws," H.R.Rep. No. 102-40, pt. 2, p. 2 (1991), U.S.Code Cong. & Admin.News 1991, p. 694 (hereinafter H.R. Rep.), Congress eliminated the affirmative defense to liability that Price had furnished employers and provided instead that an employer's same-decision showing would limit only a plaintiff's remedies. See e-5(g)(2)(B). Importantly, however, Congress ratified Price 's interpretation of the plaintiff's burden of proof, rejecting the dissent's suggestion in that case that but-for causation was the proper standard. See *2356 e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.[6] But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price 's construction of "because of" |
Justice Stevens | 2,009 | 16 | dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | interpretation of the Act: Price 's construction of "because of" remains the governing law for ADEA claims. Our recent decision in is precisely on point, as we considered in that case the effect of Congress' failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that "the relevant 1991 amendments expanded the coverage of Title VII[but] did not amend the ADEA or speak to the subject of age discrimination," we held that "Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA." 544 U.S., ); see also 5-6, L. Ed. 2d 283 If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress' partial ratification of Price to argue against that case's precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price likewise must not apply because Congress effectively codified Price 's holding in the amendments. Ante, 348-2349. This does not follow. To the contrary, the fact that Congress endorsed this Court's interpretation of the "because of" language in Price (even as it rejected the employer's affirmative defense to liability) provides all the more reason to adhere to that decision's motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g., H.R. Rep., pt. 2, at 17 ("When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions"); ; see also H.R. Rep., pt. 1, at 45; S.Rep. No. 101-315, pp. 6, 22 (1990). The 1991 amendments to Title VII also provide the answer to the majority's argument that the mixed-motives approach has proved unworkable. Ante, 351-2352. Because Congress has codified a mixed-motives *2357 framework for Title VII cases the vast majority of antidiscrimination lawsuits the Court's concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today's decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims. The Court's resurrection of the but-for causation standard is unwarranted. Price repudiated that standard 20 years ago, and Congress' response to our decision further militates against the crabbed interpretation the Court |
Justice Stevens | 2,009 | 16 | dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up whether a mixed-motives jury instruction is ever proper in an ADEA case is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert I would accordingly hold that a plaintiff need not present direct of age discrimination to obtain a mixed-motives instruction. The source of the direct- debate is Justice O'Connor's opinion concurring in the judgment in Price Writing only for herself, Justice O'Connor argued that a plaintiff should be required to introduce "direct " that her sex motivated the decision before the plurality's mixed-motives framework would apply. 490 U.S., 76, that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Unlike the cases addressed, however, Price garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see 354, n. 3; he disagreed only as to the type of an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective he wrote separately to express his view that an employer's credible testimony could suffice. 490 U.S., 61, Because Justice White provided a fifth vote for the "rationale explaining the result" of the Price decision, 430 U.S., at his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct Any questions raised by Price as to a direct requirement were settled by this Court's unanimous decision in Desert in which we held that a plaintiff need not introduce direct to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing *2358 the language of e-2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct and that "Congress has been unequivocal when imposing heightened proof requirements." The statute's silence with respect to direct we held, meant that "we should not depart from the `[c]onventional rul[e] of civil litigation. [that] requires a plaintiff to prove his case by a preponderance of the ', using `direct or circumstantial'" (quoting Price 490 U.S., 53, (plurality opinion), and Postal |
Justice Stevens | 2,009 | 16 | dissenting | Gross v. FBL Financial Services, Inc. | https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/ | circumstantial'" (quoting Price 490 U.S., 53, (plurality opinion), and Postal Service Bd. of ). We also recognized the Court's consistent acknowledgment of the utility of circumstantial in discrimination cases. Our analysis in Desert applies with equal force to the ADEA. Cf. ante, 351-2352, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct requirement, and we have specifically recognized the utility of circumstantial in ADEA cases. See (cited by Desert -100, ). Moreover, in Hazen Paper we held that an award of liquidated damages for a "willful" violation of the ADEA did not require proof of the employer's motivation through direct ; Desert thus confirms the answer provided by the plurality and Justice White in Price : An ADEA plaintiff need not present direct of discrimination to obtain a mixed-motives instruction. IV The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent. |
Justice Stevens | 2,002 | 16 | majority | Chao v. Mallard Bay Drilling, Inc. | https://www.courtlistener.com/opinion/118472/chao-v-mallard-bay-drilling-inc/ | Respondent operates a fleet of barges used for oil and gas exploration. On April 9, 1997, one of those barges, "Rig 52," was towed to a location in the territorial waters of Louisiana, where it drilled a well over two miles deep. On June 16, 1997, when the crew had nearly completed drilling, an explosion occurred, killing four members of the crew and injuring two others. Under United States Coast Guard regulations, the incident qualified as a "marine casualty" because it involved a commercial vessel operating "upon the navigable waters of the United States." Pursuant to its statutory authority, the Coast Guard conducted an investigation of the casualty. See 46 U.S. C. 6101-6104, 6301-6308 (1994 ed. and Supp. V).[1] The resulting report was limited in scope to what the Coast Guard described as "purely vessel issues," and noted that the Coast Guard "does not regulate mineral drilling operations in state waters, and does not have the expertise to adequately analyze all issues relating to the failure of an oil/natural gas well." App. to Pet. for Cert. 24a. The Coast Guard determined that natural gas had leaked from the well, spread throughout the barge, and was likely ignited by sparks in the pump room. The report made factual findings concerning the crew's actions, but did not accuse respondent of violating any Coast Guard regulations. Indeed, the report noted the *238 limits of the Coast Guard's regulation of vessels such as Rig 52: The report explained that, although Rig 52 held a Coast Guard Certificate of Documentation, it had "never been inspected by the Coast Guard and is not required to hold a Certificate of Inspection or be inspected by the Coast Guard." at 27a. In Coast Guard terminology, Rig 52 was an "uninspected vessel," see 46 U.S. C. 2101(43), as opposed to one of the 14 varieties of "inspected vessels" subject to comprehensive Coast Guard regulation, see 46 U.S. C. 3301 (1994 ed. and Supp. V). Based largely on information obtained from the Coast Guard concerning this incident, the Occupational Safety and Health Administration (OSHA) cited respondent for three violations of the Occupational Safety and Health Act of 1970 (OSH Act or Act), as amended, 29 U.S. C. 651 et seq. (1994 ed. and Supp. V), and the Act's implementing regulations. The citations alleged that respondent failed promptly to evacuate employees on board the drilling rig; failed to develop and implement an emergency response plan to handle anticipated emergencies; and failed to train employees in emergency response. No. 97-1973, Respondent did not deny the charges, but challenged OSHA's jurisdiction to issue |
Justice Stevens | 2,002 | 16 | majority | Chao v. Mallard Bay Drilling, Inc. | https://www.courtlistener.com/opinion/118472/chao-v-mallard-bay-drilling-inc/ | not deny the charges, but challenged OSHA's jurisdiction to issue the citations on two grounds: that Rig 52 was not a "workplace" within the meaning of 4(a) of the Act;[2] and that 4(b)(1) of the Act pre-empted OSHA jurisdiction because the Coast Guard had exclusive authority to prescribe *239 and enforce standards concerning occupational safety and health on vessels in navigable waters.[3] The Administrative Law Judge (ALJ) rejected both jurisdictional challenges. Finding that respondent's "employees were not performing navigational-related activities" and that Rig 52 "was stationary and within the territorial boundaries of the State of Louisiana," he concluded that Rig 52 was a "workplace" within the meaning of the Act. The ALJ then held that the Coast Guard had not pre-empted OSHA's jurisdiction under 4(b)(1), explaining that respondent had identified no basis for an "industry-wide exemption from OSHA regulations" for uninspected vessels, and had failed to identify any Coast Guard regulation "specifically regulat[ing]" the subject matter of the citations. In the ALJ's view, another federal agency cannot pre-empt OSHA's jurisdiction under 4(b)(1) unless that agency exercises its statutory authority to regulate a particular working condition: Mere possession of the power to regulate is not enough.[4] The Occupational Safety and Health Review Commission declined review of the ALJ's decision and issued a final order assessing a penalty against respondent of $4,410 per citation. at *240 Without reaching the question whether Rig 52 was a "workplace" under 4(a) of the OSH Act, the United States Court of Appeals for the Fifth Circuit reversed. It held that the Coast Guard "has exclusive jurisdiction over the regulation of working conditions of seamen aboard vessels such as [Rig 52], thus precluding OSHA's regulation under Section 4(b)(1) of the OSH Act." The Court of Appeals determined that this pre-emption encompassed uninspected vessels such as Rig 52, as well as inspected ones, explaining that the Coast Guard "has in fact exercised" its "authority to issue safety regulations for uninspected vessels"as 4(b)(1) requires for pre-emption. (stating, with respect to uninspected vessels, that the Coast Guard has issued regulations concerning "life preservers and other life saving equipment; emergency alerting and locating equipment; fire extinguishing equipment; backfire flame control; ventilation of tanks and engine spaces; cooking, heating, and lighting systems; safety orientation and emergency instructions; action required after an accident; and signaling lights"). However, the court conceded that "[b]ecause a drilling barge is not self-propelled, some of these regulations, by their nature, do not apply to [Rig 52]." n. 6. Because other Courts of Appeals have construed the preemptive force of 4(b)(1) more narrowly than did the Fifth Circuit, akin |
Justice Stevens | 2,002 | 16 | majority | Chao v. Mallard Bay Drilling, Inc. | https://www.courtlistener.com/opinion/118472/chao-v-mallard-bay-drilling-inc/ | of 4(b)(1) more narrowly than did the Fifth Circuit, akin to the interpretation adopted by the ALJ in this case,[5] we granted certiorari to resolve the conflict. We reverse, as the statute requires us to do. The OSH Act imposes on covered employers a duty to provide working conditions that "are free from recognized hazards that are causing or are likely to cause death or serious *241 bodily harm" to their employees, as well as an obligation to comply with safety standards promulgated by the Secretary of Labor. 29 U.S. C. 654(a)(1), (2).[6] The coverage of the Act does not, however, extend to working conditions that are regulated by other federal agencies. To avoid overlapping regulation, 4(b)(1) of the Act, as codified in 29 U.S. C. 653(b)(1), provides: "Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health." (Emphasis added.) Congress' use of the word "exercise" makes clear that, contrary to respondent's position, see, e. g., Tr. of Oral Arg. 39, mere possession by another federal agency of unexercised authority to regulate certain working conditions is insufficient to displace OSHA's jurisdiction. Furthermore, another federal agency's minimal exercise of some authority over certain conditions on vessels such as Rig 52 does not result in complete pre-emption of OSHA jurisdiction, because the statute also makes clear that OSHA is only preempted if the working conditions at issue are the particular ones "with respect to which" another federal agency has regulated, and if such regulations "affec[t] occupational safety or health." 653(b)(1).[7] To determine whether Coast Guard *242 regulations have pre-empted OSHA's jurisdiction over the working conditions on Rig 52, it is thus necessary to examine the contours of the Coast Guard's exercise of its statutory authority, not merely the existence of such authority. Congress has assigned a broad and important mission to the Coast Guard. Its governing statute provides, in part: "The Coast Guard shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department" 14 U.S. C. 2 ( ed.). Under this provision, the Coast Guard possesses authority to promulgate and enforce regulations promoting the safety of vessels anchored in state navigable waters, such as Rig 52. As mentioned above, however, in defining the Coast Guard's regulatory authority, Congress has divided the universe of |
Justice Stevens | 2,002 | 16 | majority | Chao v. Mallard Bay Drilling, Inc. | https://www.courtlistener.com/opinion/118472/chao-v-mallard-bay-drilling-inc/ | Coast Guard's regulatory authority, Congress has divided the universe of vessels into two broad classes: "inspected vessels" and "uninspected vessels." In 46 U.S. C. 3301 (1994 ed. and Supp. V), Congress has listed 14 types of vessels that are "subject to inspection" by the Coast Guard pursuant to a substantial body of rules mandated by Congress.[8] In contrast, 46 *243 U. S. C. 2101(43) defines an "uninspected vessel" as "a vessel not subject to inspection under section 3301 that is not a recreational vessel." The parties do not dispute that OSHA's regulations have been pre-empted with respect to inspected vessels, because the Coast Guard has broad statutory authority to regulate the occupational health and safety of seamen aboard inspected vessels, 46 U.S. C. 3306 (1994 ed. and Supp. V), and it has exercised that authority. Indeed, the Coast Guard and OSHA signed a "Memorandum of Understanding" (MOU) on March 17, 1983, evidencing their agreement that, as a result of the Coast Guard's exercise of comprehensive authority over inspected vessels, OSHA "may not enforce the OSH Act with respect to the working conditions of seamen aboard inspected vessels." The MOU recognizes that the exercise of the Coast Guard's authorityand hence the displacement of OSHA jurisdiction extends not only to those working conditions on inspected vessels specifically discussed by Coast Guard regulations, but to all working conditions on inspected vessels, including those "not addressed by the specific regulations." Thus, as OSHA recognized in the MOU, another agency may "exercise" its authority within the meaning of 4(b)(1) of the OSH Act either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels. Uninspected vessels such as Rig 52, however, present an entirely different regulatory situation. Nearly all of the Coast Guard regulations responsible for displacing OSHA's jurisdiction over inspected vessels, as described in the MOU, do not apply to uninspected vessels like Rig 52. See 46 U.S. C. 2101(43). Rather, in the context of uninspected vessels, the Coast Guard's regulatory authorityand exercise thereofis more limited. With respect to uninspected vessels, the Coast Guard regulates matters related to marine *244 safety, such as fire extinguishers, life preservers, engine flame arrestors, engine ventilation, and emergency locating equipment. See 46 U.S. C. 4102 (1994 ed. and Supp. V); 46 CFR pts. 24-26 Because these general marine safety regulations do not address the occupational safety and health concerns faced by inland drilling operations on uninspected vessels, they do not pre-empt OSHA's authority under 4(b)(1) in this case. Indeed, as the Court of Appeals acknowledged, many of these general Coast Guard regulations |
Justice Stevens | 2,002 | 16 | majority | Chao v. Mallard Bay Drilling, Inc. | https://www.courtlistener.com/opinion/118472/chao-v-mallard-bay-drilling-inc/ | of Appeals acknowledged, many of these general Coast Guard regulations for uninspected vessels do not even apply to stationary barges like Rig 52. See 212 F.3d, n. 6. In addition to issuing these general marine safety regulations, the Coast Guard has exercised its statutory authority to regulate a number of specific working conditions on certain types of uninspected vessels. For example, the Coast Guard regulates drilling operations that take place on the outer continental shelf. See 43 U.S. C. 1333(a)(1); 33 CFR pt. 142 And it is true that some of these more specific regulations would, pursuant to 4(b)(1), pre-empt OSHA regulations covering those particular working conditions and vessels. But respondent has not identified any specific Coast Guard regulations that address the types of risk and vessel at issue in this case: namely, dangers from oil-drilling operations on uninspected barges in inland waters. Simply because the Coast Guard has engaged in a limited exercise of its authority to address certain working conditions pertaining to certain classes of uninspected vessels does not mean that all OSHA regulation of all uninspected vessels has been pre-empted. See 29 U.S. C. 653(b)(1) (preemption only extends to working conditions "with respect to which" other federal agencies have exercised their authority (emphasis added)). Because the Coast Guard has neither affirmatively regulated the working conditions at issue in this case, nor asserted comprehensive regulatory jurisdiction *245 over working conditions on uninspected vessels, the Coast Guard has not "exercise[d]" its authority under 4(b)(1).[9] We think it equally clear that Rig 52 was a "workplace" as that term is defined in 4(a) of the Act. The vessel was located within the geographic area described in the definition: "a State," 29 U.S. C. 653(a), namely, Louisiana. Nothing in the text of 4(a) attaches any significance to the fact that the barge was anchored in navigable waters. Rather, the other geographic areas described in 4(a) support a reading of that provision that includes a State's navigable waters: for example, 4(a) covers the Outer Continental Shelf, and sensibly extends to drilling operations attached thereto. Cf. 43 U.S. C. 1333(a)(1). Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Justice Scalia took no part in the decision of this case. |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | Cross burning with "an intent to intimidate," Va. Code Ann. ง 18.2-423 (1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment. For the reasons stated in the separate opinions that Justice White and wrote in R. A. V. v. St. that simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct. With this observation, join JUSTCE O'CONNOR's opinion. JUSTCE SCALA, with whom JUSTCE THOMAS joins as to Parts and concurring in part, concurring in the judgment in part, and dissenting in part. agree with the Court that, under our decision in R. A. V. v. St. a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. Accordingly, join Parts - of the Court's opinion. also agree that we should vacate and remand the judgment of the Virginia Supreme Court so that that court can have an opportunity authoritatively to construe the prima-facie-evidence provision of Va. Code Ann. ง 18.2-423 (1996). write separately, however, to describe what believe to be the correct interpretation of ง 18.2-423, and to explain why believe there is no justification for the plurality's apparent decision to invalidate that provision on its face. Section 18.2-423 provides that the burning of a cross in public view "shall be prima facie evidence of an intent to intimidate." n order to determine whether this component *369 of the statute violates the Constitution, it is necessary, first, to establish precisely what the presentation of prima facie evidence accomplishes. Typically, "prima facie evidence" is defined as: "Such evidence as, in the judgment of the law, is sufficient to establish a given fact and which if not rebutted or contradicted, will remain sufficient. [Such evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence." Black's Law Dictionary 1190 The Virginia Supreme Court has, in prior cases, embraced this canonical understanding of the pivotal statutory language. E.g., For example, in the Virginia Supreme Court interpreted a law of the that (1) prohibited the possession of certain "burglarious" tools "with intent to commit burglary, robbery, or larceny," and (2) provided that "[t]he possession of such burglarious tools shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Va. Code Ann. ง 18.1-87 (1960). The court explained that the prima-facie-evidence provision "cuts off no defense nor interposes any obstacle to a contest of the |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | defense nor interposes any obstacle to a contest of the facts, and `relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.'" -904; see also 124 S. E. 2d, at 904 (noting that the prima-facie-evidence provision "`is merely a rule of evidence and not the determination of a fact'"). The established meaning in Virginia, then, of the term "prima facie evidence" appears to be perfectly orthodox: t *370 is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. "Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose." 7B Michie's Jurisprudence of Virginia and West Virginia ง 32 (1998) To be sure, Virginia is entirely free, if it wishes, to discard the canonical understanding of the term "prima facie evidence." ts courts are also permitted to interpret the phrase in different ways for purposes of different statutes. n this case, however, the Virginia Supreme Court has done nothing of the sort. To the extent that tribunal has spoken to the question of what "prima facie evidence" means for purposes of ง 18.2-423, it has not deviated a whit from its prior practice and from the ordinary legal meaning of these words. Rather, its opinion explained that under ง 18.2-423, "the act of burning a cross alone, with no evidence of intent to intimidate, will suffice for arrest and prosecution and will insulate the from a motion to strike the evidence at the end of its case-in-chief." Put otherwise, where the has demonstrated through its case in chief that the defendant burned a cross in public view, this is sufficient, at least until the defendant has come forward with rebuttal evidence, to create a jury issue with respect to the intent element of the offense. t is important to note that the Virginia Supreme Court did not suggest (as did the trial court's jury instructions in respondent Black's case, see infra, at 377) that a jury may, in light of the prima-facie-evidence provision, ignore any rebuttal evidence that has been presented and, solely on the basis of a showing that the defendant burned a cross, find that he intended to intimidate. Nor, crucially, did that court say that the presentation of prima facie evidence is always sufficient to get a case to a jury, i. e., that |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | to get a case to a jury, i. e., that a court may never *371 direct a verdict for a defendant who has been shown to have burned a cross in public view, even if, by the end of trial, the defendant has presented rebuttal evidence. nstead, according to the Virginia Supreme Court, the effect of the prima-facie-evidence provision is far more limited. t suffices to "insulate the from a motion to strike the evidence at the end of its case-in-chief," but it does nothing more. 262 Va., at 553 S.E.2d, at That is, presentation of evidence that a defendant burned a cross in public view is automatically sufficient, on its own, to support an inference that the defendant intended to intimidate only until the defendant comes forward with some evidence in rebuttal. The question presented, then, is whether, given this understanding of the term "prima facie evidence," the cross-burning statute is constitutional. The Virginia Supreme Court answered that question in the negative. t stated that "ง 18.2-423 sweeps within its ambit for arrest and prosecution, both protected and unprotected speech." "The enhanced probability of prosecution under the statute chills the expression of protected speech sufficiently to render the statute overbroad." 553 S.E.2d, at This approach toward overbreadth analysis is unprecedented. We have never held that the mere threat that individuals who engage in protected conduct will be subject to arrest and prosecution suffices to render a statute overbroad. Rather, our overbreadth jurisprudence has consistently focused on whether the prohibitory terms of a particular statute extend to protected conduct; that is, we have inquired whether individuals who engage in protected conduct can be convicted under a statute, not whether they might be subject to arrest and prosecution. E. g., (a statute "that make[s] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid" ); (a statute may be overbroad "if in its reach it prohibits constitutionally protected conduct" ); R. A. V. v. St. (deeming the ordinance at issue "fatally overbroad because it criminalizes expression protected by the First Amendment" ). Unwilling to embrace the Virginia Supreme Court's novel mode of overbreadth analysis, today's opinion properly focuses on the question of who may be convicted, rather than who may be arrested and prosecuted, under ง 18.2-423. Thus, it notes that "[t]he prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense."[1]Ante, at 365 n such cases, the plurality explains, "[t]he provision permits the to arrest, prosecute, and convict a person based |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | permits the to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." And this, according to the plurality, is constitutionally problematic because "a burning cross is not always intended to intimidate," and nonintimidating cross burning cannot be prohibited. n particular, the opinion notes that cross burning may serve as "a statement of ideology" or "a symbol of group solidarity" at Ku Klux Klan rituals, and may even serve artistic purposes as in the case of the film Mississippi Burning. Ante. at 365-366. The plurality is correct in all of this โ and it means that some individuals who engage in protected speech may, because *373 of the prima-facie-evidence provision, be subject to conviction. Such convictions, assuming they are unconstitutional, could be challenged on a case-by-case basis. The plurality, however, with little in the way of explanation, leaps to the conclusion that the possibility of such convictions justifies facial invalidation of the statute. n deeming ง 18.2-423 facially invalid, the plurality presumably means to rely on some species of overbreadth doctrine.[2] But it must be a rare species indeed. We have noted that "[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman f one looks only to the core provision of ง 18.2-423 โ "[i]t shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross" โ it appears not to capture any protected conduct; that language is limited in its reach to conduct *374 which a State is, under the Court's holding, ante, at 363, allowed to prohibit. n order to identify any protected conduct that is affected by Virginia's cross-burning law, the plurality is compelled to focus not on the statute's core prohibition, but on the prima-facie-evidence provision, and hence on the process through which the prohibited conduct may be found by a jury.[3] And even in that context, the plurality cannot claim that improper convictions will result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who might impermissibly be convicted by reason of that provision are those who adopt a particular trial strategy, to wit, abstaining from the presentation of a defense. The plurality is thus left with a strikingly attenuated argument to support the claim that Virginia's cross-burning statute is facially invalid. The class of persons that the plurality contemplates could impermissibly be convicted under |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | persons that the plurality contemplates could impermissibly be convicted under ง 18.2-423 includes only those individuals who (1) burn a cross in public view, (2) do not intend to intimidate, (3) are nonetheless charged and prosecuted, and (4) refuse to present a defense. Ante, at 365 ("The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense"). Conceding (quite generously, in my view) that this class of persons exists, it cannot possibly give rise to a viable facial challenge, not even with the aid of our First Amendment *375 overbreadth doctrine. For this Court has emphasized repeatedly that "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." See also ; Members of City Council of Los ; New The notion that the set of cases identified by the plurality in which convictions might improperly be obtained is sufficiently large to render the statute substantially overbroad is fanciful. The potential improper convictions of which the plurality complains are more appropriately classified as the sort of "marginal applications" of a statute in light of which "facial invalidation is inappropriate."[4] *376 Perhaps more alarming, the plurality concedes, ante, at 364, 365, that its understanding of the prima-facie-evidence provision is premised on the jury instructions given in respondent Black's case. This would all be well and good were it not for the fact that the plurality facially invalidates ง 18.2-423. Ante, at 367 ("[T]he prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face"). am aware of no case โ and the plurality cites none โ in which we have facially invalidated an ambiguous statute on the basis of a constitutionally troubling jury instruction.[5] And it is altogether *377 unsurprising that there is no precedent for such a holding. For where state law is ambiguous, treating jury instructions as binding interpretations would cede an enormous measure of power over state law to trial judges. A single judge's idiosyncratic reading of a state statute could trigger its invalidation. n this case, the troubling instruction โ "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent," App. 196 โ was taken verbatim from Virginia's Model Jury nstructions. But these Model nstructions have been neither promulgated by the legislature nor formally adopted by the |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | neither promulgated by the legislature nor formally adopted by the Virginia Supreme Court. And it is hornbook law, in Virginia as elsewhere, that "[p]roffered instructions which do not correctly state the law are erroneous and should be refused." 10A Michie's Jurisprudence of Virginia and West Virginia, nstructions ง 15, p. 35 (Supp. 2000). The plurality's willingness to treat this jury instruction as binding (and to strike down ง 18.2-423 on that basis) would be shocking enough had the Virginia Supreme Court offered no guidance as to the proper construction of the prima-facie-evidence provision. For ordinarily we would decline to pass upon the constitutionality of an ambiguous state statute until that State's highest court had provided a binding construction. *3 E. g., Arizonans for Official f there is any exception to that rule, it is the case where one of two possible interpretations of the state statute would clearly render it unconstitutional, and the other would not. n that situation, applying the maxim "ut res magis valeat quam pereat" we would do precisely the opposite of what the plurality does here โ that is, we would adopt the alternative reading that renders the statute constitutional rather than unconstitutional. The plurality's analysis is all the more remarkable given the dissonance between the interpretation of ง 18.2-423 implicit in the jury instruction and the one suggested by the Virginia Supreme Court. That court's opinion did not state that, once proof of public cross burning is presented, a jury is permitted to infer an intent to intimidate solely on this basis and regardless of whether a defendant has offered evidence to rebut any such inference. To the contrary, in keeping with the black-letter understanding of "prima facie evidence," the Virginia Supreme Court explained that such evidence suffices only to "insulate the from a motion to strike the evidence at the end of its case-in-chief." 262 Va., at 553 S. E. 2d, at The court did not so much as hint that a jury is permitted, under ง 18.2-423, to ignore rebuttal evidence and infer an intent to intimidate strictly on the basis of the prosecution's prima facie case. And unless and until the Supreme Court of Virginia tells us that the prima-facie-evidence provision permits a jury to infer intent under such conditions, this Court is entirely unjustified in facially invalidating ง 18.2-423 on this basis. As its concluding performance, in an apparent effort to paper over its unprecedented decision facially to invalidate a statute in light of an errant jury instruction, the plurality states: "We recognize that the Supreme Court of Virginia has not |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | "We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision. We also recognize the *379 theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility." Ante, at 367. Now this is truly baffling. Having declared, in the immediately preceding sentence, that ง 18.2-423 is "unconstitutional on its face," the plurality holds out the possibility that the Virginia Supreme Court will offer some saving construction of the statute. t should go without saying that if a saving construction of ง 18.2-423 is possible, then facial invalidation is inappropriate. E. g., So, what appears to have happened is that the plurality has facially invalidated not ง 18.2-423, but its own hypothetical interpretation of ง 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of ง 18.2-423. Words cannot express my wonderment at this virtuoso performance. As the analysis in Part demonstrates, believe the prima-facie-evidence provision in Virginia's cross-burning statute is constitutionally unproblematic. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of ง 18.2-423, concur in the Court's decision to vacate and remand the judgment with respect to respondents Elliott and O'Mara. also agree that respondent Black's conviction cannot stand. As noted above, the jury in Black's case was instructed that "[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196 (emphasis *380 added). Where this instruction has been given, it is impossible to determine whether the jury has rendered its verdict (as it must) in light of the entire body of facts before it โ including evidence that might rebut the presumption that the cross burning was done with an intent to intimidate โ or, instead, has chosen to ignore such rebuttal evidence and focused exclusively on the fact that the defendant burned a cross.[6] Still, cannot go along with the Court's decision to affirm the judgment with respect to Black. n that judgment, the Virginia Supreme Court, having erroneously concluded that ง 18.2-423 is overbroad, not only vacated Black's conviction, but dismissed the indictment against him as 553 S. E. 2d, at Because believe the constitutional defect in Black's conviction is rooted in a jury instruction and not in the statute itself, would not dismiss the indictment and would permit the to retry Black if it wishes to do so. t is an interesting |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | if it wishes to do so. t is an interesting question whether the plurality's willingness to let the Virginia Supreme Court resolve the plurality's make-believe facial invalidation of the statute extends as well to the facial invalidation insofar as it supports dismissal of the indictment against Black. Logically, there is no reason why it would not. JUSTCE SOUTER, with whom JUSTCE KENNEDY and JUSTCE GNSBURG join, concurring in the judgment in part and dissenting in part. agree with the majority that the Virginia statute makes a content-based distinction within the category of punishable intimidating or threatening expression, the very type of distinction *381 we considered in R. A. V. v. St. disagree that any exception should save Virginia's law from unconstitutionality under the holding in R. A. V. or any acceptable variation of it. The ordinance struck down in R. A. V., as it had been construed by the State's highest court, prohibited the use of symbols (including but not limited to a burning cross) as the equivalent of generally proscribable fighting words, but the ordinance applied only when the symbol was provocative "`on the basis of race, color, creed, religion or gender.'" ). Although the Virginia statute in issue here contains no such express "basis of" limitation on prohibited subject matter, the specific prohibition of cross burning with intent to intimidate selects a symbol with particular content from the field of all proscribable expression meant to intimidate. To be sure, that content often includes an essentially intimidating message, that the cross burner will harm the victim, most probably in a physical way, given the historical identification of burning crosses with arson, beating, and lynching. But even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white Protestant supremacy. The ideological message not only accompanies many threatening uses of the symbol, but is also expressed when a burning cross is not used to threaten but merely to symbolize the supremacist ideology and the solidarity of those who espouse it. As the majority points out, the burning cross can broadcast threat and ideology together, ideology alone, or threat alone, as was apparently the choice of respondents Elliott and O'Mara. Ante, at 354-357, 363. The issue is whether the statutory prohibition restricted to this symbol falls within one of the exceptions to R. A. V.'s general condemnation of limited content-based proscription *382 within a broader category of expression proscribable generally. Because of the burning cross's extraordinary force as a method of intimidation, the R. A. V. exception most likely to cover the statute |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | R. A. V. exception most likely to cover the statute is the first of the three mentioned there, which the R. A. V. opinion called an exception for content discrimination on a basis that "consists entirely of the very reason the entire class of speech at issue is proscribable." This is the exception the majority speaks of here as covering statutes prohibiting "particularly virulent" proscribable expression. Ante, at 363. do not think that the Virginia statute qualifies for this virulence exception as R. A. V. explained it. The statute fits poorly with the illustrative examples given in R. A. V., none of which involves communication generally associated with a particular message, and in fact, the majority's discussion of a special virulence exception here moves that exception toward a more flexible conception than the version in R. A. V. will reserve judgment on that doctrinal development, for even on a pragmatic conception of R. A. V. and its exceptions the Virginia statute could not pass muster, the most obvious hurdle being the statute's prima facie evidence provision. That provision is essential to understanding why the statute's tendency to suppress a message disqualifies it from any rescue by exception from R. A. V.'s general rule. R. A. V. defines the special virulence exception to the rule barring content-based subclasses of categorically proscribable expression this way: prohibition by subcategory is nonetheless constitutional if it is made "entirely" on the "basis" of "the very reason" that "the entire class of speech at issue is proscribable" at all. The Court explained that when the subcategory is confined to the most obviously proscribable instances, "no significant danger of idea or viewpoint discrimination exists," and the explanation *383 was rounded out with some illustrative examples. None of them, however, resembles the case before us.[1] The first example of permissible distinction is for a prohibition of obscenity unusually offensive "in its prurience," with citation to a case in which the Seventh Circuit discussed the difference between obscene depictions of actual people and simulations. As that court noted, distinguishing obscene publications on this basis does not suggest discrimination on the basis of the message conveyed. The opposite is true, however, when a general prohibition of intimidation is rejected in favor of a distinct proscription of intimidation by cross burning. The cross may have been selected because of its special power to threaten, but it may also have been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | doctrine or because it found that dramatic, public espousal of it was a civic embarrassment. Thus, there is no kinship between the cross-burning statute and the core prurience example. Nor does this case present any analogy to the statute prohibiting threats against the President, the second of R. A. V.'s examples of the virulence exception and the one the majority relies upon. Ante, at 362. The content discrimination in that statute relates to the addressee of the threat and reflects the special risks and costs associated with threatening the President. Again, however, threats against the President are not generally identified by reference to the content of any message that may accompany the threat, let alone any viewpoint, and there is no obvious correlation in fact between victim and message. Millions of statements are made about the President every day on every subject *384 and from every standpoint; threats of violence are not an integral feature of any one subject or viewpoint as distinct from others. Differential treatment of threats against the President, then, selects nothing but special risks, not special messages. A content-based proscription of cross burning, on the other hand, may be a subtle effort to ban not only the intensity of the intimidation cross burning causes when done to threaten, but also the particular message of white supremacy that is broadcast even by nonthreatening cross burning. thus read R. A. V.'s examples of the particular virulence exception as covering prohibitions that are not clearly associated with a particular viewpoint, and that are consequently different from the Virginia statute. On that understanding of things, necessarily read the majority opinion as treating R. A. V.'s virulence exception in a more flexible, pragmatic manner than the original illustrations would suggest. Ante, at 363. Actually, another way of looking at today's decision would see it as a slight modification of R. A. V.'s third exception, which allows content-based discrimination within a proscribable category when its "nature" is such "that there is no realistic possibility that official suppression of ideas is afoot." R. A. V., The majority's approach could be taken as recognizing an exception to R. A. V. when circumstances show that the statute's ostensibly valid reason for punishing particularly serious proscribable expression probably is not a ruse for message suppression, even though the statute may have a greater (but not exclusive) impact on adherents of one ideology than on others, ante, at 362-363. My concern here, in any event, is not with the merit of a pragmatic doctrinal move. For whether or not the Court should conceive of exceptions to R. |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | or not the Court should conceive of exceptions to R. A. V.'s general rule in a more practical way, no content-based statute should survive even under a pragmatic recasting of R. A. V. without a high probability that no "official suppression of ideas is afoot," * 505 U. S., believe the prima facie evidence provision stands in the way of any finding of such a high probability here. Virginia's statute provides that burning a cross on the property of another, a highway, or other public place is "prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. ง 18.2-423 (1996). While that language was added by amendment to the earlier portion of the statute criminalizing cross burning with intent to intimidate, ante, at 363 (plurality opinion), it was a part of the prohibitory statute at the time these respondents burned crosses, and the whole statute at the time of respondents' conduct is what counts for purposes of the First Amendment. As see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. Ante, at 354-357. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. n the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public. n such a case, if the factfinder is aware of the prima facie evidence provision, as the jury was in respondent Black's case, ante, at 349-350, the provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. What is significant is not that the provision *386 permits a factfinder's conclusion that the defendant acted with proscribable and punishable intent without any further indication, because some such indication will almost always be presented. What is significant is that the provision will encourage a factfinder to err on the |
Justice Stevens | 2,003 | 16 | concurring | Virginia v. Black | https://www.courtlistener.com/opinion/127908/virginia-v-black/ | the provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The effect of such a distortion is difficult to remedy, since any guilty verdict will survive sufficiency review unless the defendant can show that, "viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression, as JUSTCE O'CONNOR notes. Ante, at 365-366 (plurality opinion). To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. Thus, the appropriate way to consider the statute's prima facie evidence term, in my view, is not as if it were an overbroad statutory definition amenable to severance or a narrowing construction. The question here is not the permissible scope of an arguably overbroad statute, but the claim of a clearly content-based statute to an exception from the general prohibition of content-based proscriptions, an exception that is not warranted if the statute's terms show that suppression of ideas may be afoot. Accordingly, the way to look at the prima facie evidence provision is to consider it for any indication of what is afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful. t is difficult to conceive of an intimidation case that could be easier to prove than one with cross burning, assuming *387 any circumstances suggesting intimidation are present. The provision, apparently so unnecessary to legitimate prosecution of intimidation, is therefore quite enough to raise the question whether Virginia's content-based statute seeks more than mere protection against a virulent form of intimidation. t consequently bars any conclusion that an exception to the general rule of R. A. V. is warranted on the ground "that there is no realistic [or little realistic] possibility that official suppression of ideas is afoot," 505 U.S.,[2] Since no R. A. V. exception can save the statute as content based, it can only survive if narrowly tailored to serve a compelling state interest, a stringent test the statute cannot pass; a content-neutral statute banning intimidation would achieve the same object without singling out particular content. V conclude that the statute under which |
Justice Rehnquist | 1,987 | 19 | majority | O'Lone v. Estate of Shabazz | https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/ | This case requires us to consider once again the standard of review for prison regulations claimed to inhibit the exercise of constitutional rights. Respondents, members of the Islamic *345 faith, were prisoners in New Jersey's Leesburg State Prison.[1] They challenged policies adopted by prison officials which resulted in their inability to attend Jumu'ah, a weekly Muslim congregational service regularly held in the main prison building and in a separate facility known as "the Farm." Jumu'ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. See Koran 62: 9-10; Brief for Imam Jamil Abdullah Al-Amin et al. as Amici Curiae 18-31. There is no question that respondents' sincerely held religious beliefs compelled attendance at Jumu'ah. We hold that the prison regulations here challenged did not violate respondents' rights under the Free Exercise Clause of the First Amendment to the United States Constitution. Inmates at Leesburg are placed in one of three custody classifications. Maximum security and "gang minimum" security inmates are housed in the main prison building, and those with the lowest classification full minimum live in "the Farm." Both respondents were classified as gang minimum security prisoners when this suit was filed, and respondent Mateen was later classified as full minimum. Several changes in prison policy prompted this litigation. In April 1983, the New Jersey Department of Corrections issued Standard 853, which provided that inmates could no longer move directly from maximum security to full minimum status, but were instead required to first spend a period of time in the intermediate gang minimum status. App. 147. This change was designed to redress problems that had arisen when inmates were transferred directly from the restrictive maximum security status to full minimum status, with its markedly higher level of freedom. Because of serious overcrowding in the main building, Standard 853 further mandated that gang minimum inmates ordinarily be assigned jobs outside the main building. These inmates work in details of 8 to 15 persons, supervised by one guard. *346 Standard 853 also required that full minimum inmates work outside the main institution, whether on or off prison grounds, or in a satellite building such as the Farm. Corrections officials at Leesburg implemented these policies gradually and, as the District Court noted, with some difficulty. In the initial stages of outside work details for gang minimum prisoners, officials apparently allowed some Muslim inmates to work inside the main building on Fridays so that they could attend Jumu'ah. This alternative was eventually eliminated in March in light |
Justice Rehnquist | 1,987 | 19 | majority | O'Lone v. Estate of Shabazz | https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/ | Jumu'ah. This alternative was eventually eliminated in March in light of the directive of Standard 853 that all gang minimum inmates work outside the main building. Significant problems arose with those inmates assigned to outside work details. Some avoided reporting for their assignments, while others found reasons for returning to the main building during the course of the workday (including their desire to attend religious services). Evidence showed that the return of prisoners during the day resulted in security risks and administrative burdens that prison officials found unacceptable. Because details of inmates were supervised by only one guard, the whole detail was forced to return to the main gate when one prisoner desired to return to the facility. The gate was the site of all incoming foot and vehicle traffic during the day, and prison officials viewed it as a high security risk area. When an inmate returned, vehicle traffic was delayed while the inmate was logged in and searched. In response to these burdens, Leesburg officials took steps to ensure that those assigned to outside details remained there for the whole day. Thus, arrangements were made to have lunch and required medications brought out to the prisoners, and appointments with doctors and social workers were scheduled for the late afternoon. These changes proved insufficient, however, and prison officials began to study alternatives. After consulting with the director of social services, the director of professional services, and the *347 prison's imam and chaplain, prison officials in March issued a policy memorandum which prohibited inmates assigned to outside work details from returning to the prison during the day except in the case of emergency. The prohibition of returns prevented Muslims assigned to outside work details from attending Jumu'ah. Respondents filed suit under 42 U.S. C. 1983, alleging that the prison policies unconstitutionally denied them their Free Exercise rights under the First Amendment, as applied to the States through the Fourteenth Amendment. The District Court, applying the standards announced in an earlier decision of the Court of Appeals for the Third Circuit, concluded that no constitutional violation had occurred. The District Court decided that Standard 853 and the March prohibition on returns "plausibly advance" the goals of security, order, and rehabilitation. It rejected alternative arrangements suggested by respondents, finding that "no less restrictive alternative could be adopted without potentially compromising a legitimate institutional objective." The Court of Appeals, sua sponte hearing the case en banc, decided that its earlier decision relied upon by the District Court was not sufficiently protective of prisoners' free exercise rights, and went on to state that prison |
Justice Rehnquist | 1,987 | 19 | majority | O'Lone v. Estate of Shabazz | https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/ | free exercise rights, and went on to state that prison policies could be sustained only if: "the state show[s] that the challenged regulations were intended to serve, and do serve, the important penological goal of security, and that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems. The expert testimony of prison officials should be given due weight, but such testimony is not dispositive of the issue whether no reasonable adjustment is possible. Where it is found that reasonable methods of accommodation can be adopted without sacrificing either the State's interest in security or the prisoners' interest *348 in freely exercising their religious rights, the State's refusal to allow the observance of a central religious practice cannot be justified and violates the prisoner's first amendment rights." In considering whether a potential method of accommodation is reasonable, the court added, relevant factors include cost, the effects of overcrowding, understaffing, and inmates' demonstrated proclivity to unruly conduct. See at n. 3. The case was remanded to the District Court for reconsideration under the standards enumerated in the opinion. We granted certiorari to consider the important federal constitutional issues presented by the Court of Appeals' decision, and to resolve apparent confusion among the Courts of Appeals on the proper standards to be applied in considering prisoners' free exercise claims. Several general principles guide our consideration of the issues presented here. First, "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." See Turner v. Safley, ante, at 84; Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion. See Second, "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives including deterrence of crime, rehabilitation of prisoners, and institutional security. at -823; v. *349 In considering the appropriate balance of these factors, we have often said that evaluation of penological objectives is committed to the considered judgment of prison administrators, "who are actually charged with and trained in the running of the particular institution under examination." See Turner v. Safley, ante, at 86-87. To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a "reasonableness" test less restrictive than that ordinarily applied to alleged infringements of |
Justice Rehnquist | 1,987 | 19 | majority | O'Lone v. Estate of Shabazz | https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/ | less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights. See, e. g., We recently restated the proper standard: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, ante, at 89.[2] This approach ensures the ability of corrections officials "to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration," ib and avoids unnecessary intrusion of the judiciary into problems particularly *350 ill suited to "resolution by decree." v. See also Turner v. Safley, ante, at 89; We think the Court of Appeals decision in this case was wrong when it established a separate burden on prison officials to prove "that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems." 782 F.2d, at See also Though the availability of accommodations is relevant to the reasonableness inquiry, we have rejected the notion that "prison officials have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Turner v. Safley, ante, at 90-91. By placing the burden on prison officials to disprove the availability of alternatives, the approach articulated by the Court of Appeals fails to reflect the respect and deference that the United States Constitution allows for the judgment of prison administrators. Turning to consideration of the policies challenged in this case, we think the findings of the District Court establish clearly that prison officials have acted in a reasonable manner. Turner v. Safley drew upon our previous decisions to identify several factors relevant to this reasonableness determination. First, a regulation must have a logical connection to legitimate governmental interests invoked to justify it. Ante, at 89-90. The policies at issue here clearly meet that standard. The requirement that full minimum and gang minimum prisoners work outside the main facility was justified by concerns of institutional order and security, for the District Court found that it was "at least in part a response to a critical overcrowding in the state's prisons, and at least in part designed to ease tension and drain on the facilities *351 during that part of the day when the inmates were outside the confines of the main buildings." 595 F. Supp., at We think it beyond doubt that the standard is related to this legitimate concern. The subsequent policy prohibiting returns to the institution during the day also passes muster under this standard. Prison officials testified that the returns from outside work details generated congestion and |
Justice Rehnquist | 1,987 | 19 | majority | O'Lone v. Estate of Shabazz | https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/ | that the returns from outside work details generated congestion and delays at the main gate, a high risk area in any event. Return requests also placed pressure on guards supervising outside details, who previously were required to "evaluate each reason possibly justifying a return to the facilities and either accept or reject that reason." Rehabilitative concerns further supported the policy; corrections officials sought a simulation of working conditions and responsibilities in society. Chief Deputy Ucci testified: "One of the things that society demands or expects is that when you have a job, you show up on time, you put in your eight hours, or whatever hours you are supposed to put in, and you don't get off If we can show inmates that they're supposed to show up for work and work a full day, then when they get out at least we've done something." Tr. 89. These legitimate goals were advanced by the prohibition on returns; it cannot seriously be maintained that "the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner v. Safley, ante, at 89-90. Our decision in Turner also found it relevant that "alternative means of exercising the right remain open to prison inmates." Ante, at 90. There are, of course, no alternative means of attending Jumu'ah; respondents' religious beliefs insist that it occur at a particular time. But the very stringent requirements as to the time at which Jumu'ah may be held may make it extraordinarily difficult for prison officials to assure that every Muslim prisoner is able to attend that service. While we in no way minimize the central importance of Jumu'ah to respondents, we are unwilling to hold that prison *352 officials are required by the Constitution to sacrifice legitimate penological objectives to that end. In Turner, we did not look to see whether prisoners had other means of communicating with fellow inmates, but instead examined whether the inmates were deprived of "all means of expression." Ante, at 92. Here, similarly, we think it appropriate to see whether under these regulations respondents retain the ability to participate in other Muslim religious ceremonies. The record establishes that respondents are not deprived of all forms of religious exercise, but instead freely observe a number of their religious obligations. The right to congregate for prayer or discussion is "virtually unlimited except during working hours," Tr. 182 (testimony of O'Lone), and the state-provided imam has free access to the prison. Muslim prisoners are given different meals whenever pork is served in the prison cafeteria. Special |
Justice Rehnquist | 1,987 | 19 | majority | O'Lone v. Estate of Shabazz | https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/ | meals whenever pork is served in the prison cafeteria. Special arrangements are also made during the month-long observance of Ramadan, a period of fasting and prayer. During Ramadan, Muslim prisoners are awakened at 4 a.m. for an early breakfast, and receive dinner at 8:30 each evening. We think this ability on the part of respondents to participate in other religious observances of their faith supports the conclusion that the restrictions at issue here were reasonable. Finally, the case for the validity of these regulations is strengthened by examination of the impact that accommodation of respondents' asserted right would have on other inmates, on prison personnel, and on allocation of prison resources generally. See Turner v. Safley, ante, at 90. Respondents suggest several accommodations of their practices, including placing all Muslim inmates in one or two inside work details or providing weekend labor for Muslim inmates. See Brief for Respondents 52-53. As noted by the District Court, however, each of respondents' suggested accommodations would, in the judgment of prison officials, have adverse effects on the institution. Inside work details for gang minimum inmates would be inconsistent with the legitimate concerns *353 underlying Standard 853, and the District Court found that the extra supervision necessary to establish weekend details for Muslim prisoners "would be a drain on scarce human resources" at the prison. Prison officials determined that the alternatives would also threaten prison security by allowing "affinity groups" in the prison to flourish. Administrator O'Lone testified that "we have found out and think almost every prison administrator knows that any time you put a group of individuals together with one particular affinity interest you wind up with a leadership role and an organizational structure that will almost invariably challenge the institutional authority." Tr. 179-180. Finally, the officials determined that special arrangements for one group would create problems as "other inmates [see] that a certain segment is escaping a rigorous work detail" and perceive favoritism. These concerns of prison administrators provide adequate support for the conclusion that accommodations of respondents' request to attend Jumu'ah would have undesirable results in the institution. These difficulties also make clear that there are no "obvious, easy alternatives to the policy adopted by petitioners." Turner v. Safley, ante, at 93. We take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to "substitute our judgment on difficult and sensitive matters of institutional administration," for the determinations of those charged with the formidable task of running a prison. Here the District Court decided that the regulations alleged to infringe constitutional rights were reasonably |
Justice Blackmun | 1,980 | 11 | concurring | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | I join the Court's opinion but write separately to state my understanding of the effect of the holding in Part IV-B. The Court there affirms, as not clearly erroneous, the District Court's determination that the city of Rome failed to meet its burden of disproving that the 13 disputed annexation had a discriminatory effect. That issue, for me, is close, but I accept the District Court's ruling. The holding, however, *188 does seem to have the anomalous result of leaving the voters residing in those annexed areas within the jurisdiction of Rome's Board of Education, but outside the jurisdiction of its City Commission.[*] As the appellees point out, however, Brief for Appellees 40-42, affirmance of the District Court's holding does not preclude the city from altering this anomaly. It seems significant to me that the District Court adopted the remedial device of conditioning its approval of the annexations on Rome's abandonment of the residency requirement for City Commission elections. It thus denied the city's motion for approval of the annexations "without prejudice to renewal upon the undertaking of suitable action consistent with the views expressed herein." This remedial device, conditioning the approval of annexations on the elimination of pre-existing discriminatory aspects of a city's electoral system, was developed in City of summarily aff'd, and expressly approved by this Court in City of I entertain some doubt about the District Court's apparent conclusion that the residency requirement for Commission elections, standing alone, would render the postannexation electoral system of Rome one that did not "fairly recogniz[e] the minority's political potential," within the meaning of City of Richmond. The discriminatory effect of a residency requirement in an at-large election system results from its necessary separation of one contest into a number of individual contests, thereby frustrating minority efforts to utilize effectively single-shot voting. See ante, at 185, n. 21. *189 And in a city the size of Rome, one might reasonably conclude that a requirement that one Commission member reside in each of nine wards would have such an effect. The District Court failed to analyze, however, the impact of the Attorney General's preclearance of Rome's reduction of the number of wards in the city from nine to three. The potential for effective single-shot voting would not be frustrated by a requirement that three commissioners be elected from each of three wards, so long as candidates were not required to run for a particular "numbered post" within each ward. Given the Attorney General's preclearance of the reduction of the number of wards from nine to three, the latter requirement is one that |
Justice Blackmun | 1,980 | 11 | concurring | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | from nine to three, the latter requirement is one that the District Court should have considered in determining whether the presence of a residency requirement would necessarily lead to the conclusion that Rome's postannexation electoral system is one that does not fairly recognize the minority's political potential. I do not dissent from the affirmance of the District Court's holding with respect to the annexations, however, because the appellees have conceded that Rome need not abandon its residency requirement in order to keep the annexed areas within the jurisdiction of the City Commission. Appellees state: "If the City wished to retain both a residency requirement and at-large elections, it could couple its pre-1966 procedures with its subsequent shift to a system of electing three commissioners from each of three wards. (The Attorney General had not objected to the change from nine wards to three larger wards.) When candidates are running concurrently for three unnumbered positions in each of the three wards, without a majority-vote requirement, there can be no head-to-head contest, and single-shot voting by black voters would give them a chance to elect the candidate they supported." Brief for Appellees 41-42. *190 Thus, on the understanding that the Attorney General would not object to the District Court's approval of the annexations insofar as they expand the jurisdiction of the City Commission, if the city either eliminates the residency requirement and returns to a nine ward system, or retains the residency requirement and the three-ward system that has been in effect since 1966, I join in Part IV-B of the Court's opinion. MR. |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | Because this case was brought in state court, the Court concedes, the Eleventh Amendment is inapplicable here. See ante, at 63-64. Like the guest who would not leave, *72 however, the Eleventh Amendment lurks everywhere in today's decision and, in truth, determines its outcome. I Section 1 of the Civil Rights Act of 1871, 42 U.S. C. 1983, renders certain "persons" liable for deprivations of constitutional rights. The question presented is whether the word "person" in this statute includes the States and state officials acting in their official capacities. One might expect that this statutory question would generate a careful and thorough analysis of the language, legislative history, and general background of 1983. If this is what one expects, however, one will be disappointed by today's decision. For this case is not decided on the basis of our ordinary method of statutory construction; instead, the Court disposes of it by means of various rules of statutory interpretation that it summons to its aid each time the question looks close. Specifically, the Court invokes the following interpretative principles: the word "persons" is ordinarily construed to exclude the sovereign; congressional intent to affect the federal-state balance must be "clear and manifest"; and intent to abrogate States' Eleventh Amendment immunity must appear in the language of the statute itself. The Court apparently believes that each of these rules obviates the need for close analysis of a statute's language and history. Properly applied, however, only the last of these interpretative principles has this effect, and that principle is not pertinent to the case before us. The Court invokes, first, the "often-expressed understanding" that " `in common usage, the term "person" does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.' " Ante, at 64, quoting This rule is used both to refute the argument that the language of 1983 demonstrates an intent that States be included as defendants, ante, at 64, and to overcome the argument *73 based on the Dictionary Act's definition of "person" to include bodies politic and corporate, ante, at 69-70. It is ironic, to say the least, that the Court chooses this interpretive rule in explaining why the Dictionary Act is not decisive, since the rule is relevant only when the word "persons" has no statutory definition. When one considers the origins and content of this interpretive guideline, moreover, one realizes that it is inapplicable here and, even if applied, would defeat rather than support the Court's approach and result. The idea that the word "persons" ordinarily excludes the sovereign can be traced to |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | word "persons" ordinarily excludes the sovereign can be traced to the "familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words." Dollar Savings As this passage suggests, however, this interpretive principle applies only to "the enacting sovereign." United See also Jefferson County Pharmaceutical Assn., Furthermore, as explained in United even the principle as applied to the enacting sovereign is not without limitations: "Where an act of Parliament is made for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the king is bound by such act, though not particularly named therein; but where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king is not bound, unless the statute is made to extend to him by express words." It would be difficult to imagine a statute more clearly designed "for the public good," and "to prevent injury and wrong," than 1983. Even if this interpretive principle were relevant to this case, the Court's invocation of it to the exclusion of careful statutory analysis is in error. As we have made clear, this principle is merely "an aid to consistent construction of statutes of the enacting sovereign when their purpose is in *74 doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated." United at Indeed, immediately following the passage quoted by the Court today, ante, at 64, to the effect that statutes using the word "person" are "ordinarily construed to exclude" the sovereign, we stated: "But there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law. "Decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction." United See also Wilson v. Omaha n at ]; and much depends on the context, the subject matter, legislative history, and executive interpretation"); |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | the context, the subject matter, legislative history, and executive interpretation"); Pfizer ; Guarantee Title & Trust ; ; The second interpretive principle that the Court invokes comes from cases such as ; Pennhurst State School and ; South ; and United which require a "clear and manifest" expression of congressional intent to change some aspect of federal-state relations. Ante, at 65. These cases do not, however, permit substitution of an absolutist rule of statutory construction for thorough statutory analysis. Indeed, in each of these decisions the Court undertook a careful and detailed analysis of the statutory language and history under consideration. Rice is a particularly inapposite source for the interpretive method that the Court today employs, since it observes that, according to conventional pre-emption analysis, a "clear and manifest" intent to pre-empt state legislation may appear in the "scheme" or "purpose" of the federal statute. See 331 U.S., at The only principle of statutory construction employed by the Court that would justify a perfunctory and inconclusive analysis of a statute's language and history is one that is irrelevant to this case. This is the notion "that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' " Ante, at 65, quoting State As the Court notes, was an Eleventh Amendment case; the "constitutional balance" to which refers is that struck by the Eleventh Amendment as this Court has come to interpret it. Although the Court apparently wishes it were otherwise, the principle of interpretation that announced is unique to cases involving the Eleventh Amendment. Where the Eleventh Amendment applies, the Court has devised a clear-statement principle more robust than its requirement of clarity in any other situation. Indeed, just today, the Court has intimated that this clear-statement principle is not simply a means of discerning congressional intent. See Dellmuth v. Muth, post, at 232 (concluding that one may not rely on a "permissible inference" from a statute's language and structure in finding abrogation of immunity); post, *76 at 238- (BRENNAN, J., dissenting); but see Pennsylvania v. Union Gas Co., ante, p. 1. Since this case was brought in state court, however, this strict drafting requirement has no application here. The Eleventh Amendment can hardly be "a consideration," ante, at 67, in a suit to which it does not apply. That this Court has generated a uniquely daunting requirement of clarity in Eleventh Amendment cases explains why did not decide the question before us today. Because only the Eleventh |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | decide the question before us today. Because only the Eleventh Amendment permits use of this clear-statement principle, the holding of that 1983 does not abrogate States' Eleventh Amendment immunity tells us nothing about the meaning of the term "person" in 1983 as a matter of ordinary statutory construction. Quern's conclusion thus does not compel, or even suggest, a particular result today. The singularity of this Court's approach to statutory interpretation in Eleventh Amendment cases also refutes the Court's argument that, given Quern's holding, it would make no sense to construe 1983 to include States as "persons." See ante, at 66. This is so, the Court suggests, because such a construction would permit suits against States in state but not federal court, even though a major purpose of Congress in enacting 1983 was to provide a federal forum for litigants who had been deprived of their constitutional rights. See, e. g., 365 U.S. 7 In answering the question whether 1983 provides a federal forum for suits against the States themselves, however, one must apply the clear-statement principle reserved for Eleventh Amendment cases. Since this principle is inapplicable to suits brought in state court, and inapplicable to the question whether States are among those subject to a statute, see ; the answer to the question whether 1983 provides a federal forum for suits against the States may be, and most often will *77 be, different from the answer to the kind of question before us today. Since the question whether Congress has provided a federal forum for damages suits against the States is answered by applying a uniquely strict interpretive principle, see the Court should not pretend that we have, in Quern, answered the question whether Congress intended to provide a federal forum for such suits, and then reason backwards from that "intent" to the conclusion that Congress must not have intended to allow such suits to proceed in state court. In short, the only principle of statutory interpretation that permits the Court to avoid a careful and thorough analysis of 1983's language and history is the clear-statement principle that this Court has come to apply in Eleventh Amendment cases a principle that is irrelevant to this state-court action. In my view, a careful and detailed analysis of 1983 leads to the conclusion that States are "persons" within the meaning of that statute. II Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Although 1983 itself does not define the term "person," we are not without a statutory definition of this word. "Any analysis of the meaning of the word `person' in 1983 must begin with the Dictionary Act." 436 U.S. Passed just two months before *78 1983, and designed to "suppl[y] rules of construction for all legislation," ib the Dictionary Act provided: "That in all acts hereafter passed the word `person' may extend and be applied to bodies politic and corporate. unless the context shows that such words were intended to be used in a more limited sense" Act of Feb. 25, 1871, 2, Stat. 431. In Monell, we held this definition to be not merely allowable but mandatory, requiring that the word "person" be construed to include "bodies politic and corporate" unless the statute under consideration "by its terms called for a deviation from this practice." -690, n. 53. Thus, we concluded, where nothing in the "context" of a particular statute "call[s] for a restricted interpretation of the word `person,' the language of that [statute] should prima facie be construed to include `bodies politic' among the entities that could be sued." Both before and after the time when the Dictionary Act and 1983 were passed, the phrase "bodies politic and corporate" was understood to include the States. See, e. g., J. Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States of America 185 (11th ed. 6); W. Shumaker & G. Longsdorf, Cyclopedic Dictionary of Law 104 (1901); ; ; ; ; ; U.S. 175, See also United ("The United States is a government, and, consequently, a body politic and corporate"); Van (6) Indeed, the very legislators who passed 1 referred to States in these terms. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (Sen. Vickers) ("What is a State? Is *79 it not a body politic and corporate?"); ("A State is a corporation"). The reason why States are "bodies politic and corporate" is simple: just as a corporation is an entity that can act only through its agents, "[t]he State is a political corporate body, can act only through agents, and can command only by laws." at See also 's Law Dictionary 159 ("[B]ody politic or corporate": "A |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | also 's Law Dictionary 159 ("[B]ody politic or corporate": "A social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good"). As a "body politic and corporate," a State falls squarely within the Dictionary Act's definition of a "person." While it is certainly true that the phrase "bodies politic and corporate" referred to private and public corporations, see ante, at 69, and n. 9, this fact does not draw into question the conclusion that this phrase also applied to the States. Phrases may, of course, have multiple referents. Indeed, each and every dictionary cited by the Court accords a broader realm one that comfortably, and in most cases explicitly, includes the sovereign to this phrase than the Court gives it today. See 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence (1879) ("[T]he term body politic is often used in a general way, as meaning the state or the sovereign power, or the city government, without implying any distinct express incorporation"); W. Anderson, A Dictionary of Law 127 ("[B]ody politic": "The governmental, sovereign power: a city or a State"); 's Law Dictionary 143 (1891) ("[B]ody politic": "It is often used, in a rather loose way, to designate the state or nation or sovereign power, or the government of a county or municipality, without distinctly connoting any express and individual corporate charter"); 1 A. Burrill, A Law Dictionary and Glossary 212 (2d ed. 1871) ("[B]ody politic": "A body to take in succession, framed by policy"; "[p]articularly *80 applied, in the old books, to a corporation sole"); Because I recognize that both uses of this phrase were deemed valid when 1983 and the Dictionary Act were passed, the Court accuses me of "confus[ing] [the] precise definition of [this] phrase with its use `in a rather loose way,' " "to refer to the state (as opposed to a State)." Ante, at 70, n. 9, quoting It had never occurred to me, however, that only "precise" definitions counted as valid ones. Where the question we face is what meaning Congress attached to a particular word or phrase, we usually and properly are loath to conclude that Congress meant to use the word or phrase in a hypertechnical sense unless it said so. Nor does the Court's distinction between "the state" and "a State" have any force. The suggestion, I take it, is that the phrase "bodies politic and corporate" refers only to nations rather than to |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | politic and corporate" refers only to nations rather than to the states within a nation; but then the Court must explain why so many of the sources I have quoted refer to states in addition to nations. In an opinion so utterly devoted to the rights of the States as sovereigns, moreover, it is surprising indeed to find the Court distinguishing between our sovereign States and our sovereign Nation. In deciding what the phrase "bodies politic and corporate" means, furthermore, I do not see the relevance of the meaning of the term "public corporation." See ante, at 69-70, n. 9. That is not the phrase chosen by Congress in the Dictionary Act, and the Court's suggestion that this phrase is coterminous with the phrase "bodies politic and corporate" begs the question whether the latter one includes the States. Nor do I grasp the significance of this Court's decision in United in which the question was whether the State of New York, by including "persons" and "corporations" within the class of those to whom land could be devised, had intended to authorize devises to the United States. Ante, at 69-70, n. 9. Noting that "[t]he question is to be determined by the laws of [New York]," the *81 Court held that it would require "an express definition" to hold that the word "persons" included the Federal Government, and that under state law the term "corporations" applied only to corporations created under the laws of New York. -321. The pertinence of these state-law questions to the issue before us today escapes me. Not only do we confront an entirely different, federal statute, but we also have an express statement, in the Dictionary Act, that the word "person" in 1 includes "bodies politic and corporate." See also Pfizer n. 15. The relevance of the fact that 2 of the Civil Rights Act of 6, the model for 1 of the 1871 Act was passed before the Dictionary Act, see ante, at 69, similarly eludes me. Congress chose to use the word "person" in the 1871 Act even after it had passed the Dictionary Act, presumptively including "bodies politic and corporate" within the category of "persons." Its decision to do so and its failure to indicate in the 1871 Act that the Dictionary Act's presumption was not to apply demonstrate that Congress did indeed intend "persons" to include bodies politic and corporate. In addition, the Dictionary Act's definition of "person" by no means dropped from the sky. Many of the authorities cited above predate both the Dictionary Act and the |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | authorities cited above predate both the Dictionary Act and the 6 Act, indicating that the word "persons" in 6 ordinarily would have been thought to include "bodies politic and corporate," with or without the Dictionary Act. This last point helps to explain why it is a matter of small importance that the Dictionary Act's definition of "person" as including bodies politic and corporate was retroactively withdrawn when the federal statutes were revised in 1874. See T. Durant, Report to Joint Committee on Revision of Laws 2 (1873). Only two months after presumptively designating bodies politic and corporate as "persons," Congress chose the word "person" for 1 of the Civil Rights Act. For the purpose of determining Congress' intent in using this *82 term, it cannot be decisive that, three years later, it withdrew this presumption. In fact, both the majority and dissent in Monell emphasized the 1871 version of the Dictionary Act, but neither saw fit even to mention the 1874 revision of this statute. -689, and nn. 51, 53 (opinion for the Court); at Even in cases, moreover, where no statutory definition of the word "persons" is available, we have not hesitated to include bodies politic and corporate within that category. See ; ; United 359 U.S. Thus, the question before us is whether the presumption that the word "person" in 1 of the Civil Rights Act of 1871 included bodies politic and corporate and hence the States is overcome by anything in the statute's language and history. Certainly nothing in the statutory language overrides this presumption. The statute is explicitly directed at action taken "under color of" state law, and thus supports rather than refutes the idea that the "persons" mentioned in the statute include the States. Indeed, for almost a century until 365 U.S. 7 it was unclear whether the statute applied at all to action not authorized by the State, and the enduring significance of the first cases construing the Fourteenth Amendment, pursuant to which 1 was passed, lies in their conclusion that the prohibitions of this Amendment do not reach private action. See Civil Rights Cases, U.S. 3 (3). In such a setting, one cannot reasonably deny the significance of 1983's explicit focus on state action. Unimpressed by such arguments, the Court simply asserts that reading "States" where the statute mentions "person" would be "decidedly awkward." Ante, at 64. The Court does not describe the awkwardness that it perceives, but I take it that its objection is that the under-color-of-law *83 requirement would be redundant if States were included in the |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | requirement would be redundant if States were included in the statute because States necessarily act under color of state law. But 1983 extends as well to natural persons, who do not necessarily so act; in order to ensure that they would be liable only when they did so, the statute needed the under-color-of-law requirement. The only way to remove the redundancy that the Court sees would have been to eliminate the catchall phrase "person" altogether, and separately describe each category of possible defendants and the circumstances under which they might be liable. I cannot think of a situation not involving the Eleventh Amendment, however, in which we have imposed such an unforgiving drafting requirement on Congress. Taking the example closest to this case, we might have observed in Monell that 1983 was clumsily written if it included municipalities, since these, too, may act only under color of state authority. Nevertheless, we held there that the statute does apply to Similarly, we have construed the statutory term "white persons" to include " `corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,' " see quoting 1 U.S. C. 1, despite the evident awkwardness in doing so. Indeed, virtually every time we construe the word "person" to include corporate or other artificial entities that are not individual, flesh-and-blood persons, some awkwardness results. But given cases like Monell and Wilson, it is difficult to understand why mere linguistic awkwardness should control where there is good reason to accept the "awkward" reading of a statute. The legislative history and background of the statute confirm that the presumption created by the Dictionary Act was not overridden in 1 of the 1871 Act, and that, even without such a presumption, it is plain that "person" in the 1871 Act must include the States. I discussed in detail the legislative history of this statute in my opinion concurring in the judgment *84 in -365, and I shall not cover that ground again here. Suffice it to say that, in my view, the legislative history of this provision, though spare, demonstrates that Congress recognized and accepted the fact that the statute was directed at the States themselves. One need not believe that the statute satisfies this Court's heightened clear-statement principle, reserved for Eleventh Amendment cases, in order to conclude that the language and legislative history of 1983 show that the word "person" must include the States. As to the more general historical background of 1, we too easily forget, I think, the circumstances existing in this country when the early civil rights statutes were |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | in this country when the early civil rights statutes were passed. "[V]iewed against the events and passions of the time," United I have little doubt that 1 of the Civil Rights Act of 1871 included States as "persons." The following brief description of the Reconstruction period is illuminating: "The Civil War had ended in April 5. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 `unreconstructed' States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 8. Six of the 10 States fulfilled Congress' requirements in 8, the other four by 1870. "For a few years `radical' Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 6 and a similar organization appeared with the romantic title of the Knights of the *85 White Camellia. In 8 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls. The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man. "Within the Congress pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 5, Congress, on April 9, 6, enacted the Civil Rights Act of 6 On June 13, 6, the Fourteenth Amendment was proposed, and it was ratified in July 8. In February 9 the Fifteenth Amendment was proposed, and it was ratified in February 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted." at -805 This was a Congress in the midst of altering the " `balance between the States and the Federal Government.' " Ante, at 65, quoting State 473 U. S., at It was fighting to save the Union, and in doing so, it transformed our federal system. It is difficult, therefore, to believe that this same Congress did not intend to include States among those who might be liable under 1983 for the very deprivations that were threatening this Nation at that time. III To describe the breadth of the Court's holding is to demonstrate its unwisdom. If States are |
Justice Brennan | 1,989 | 13 | dissenting | Will v. Michigan Dept. of State Police | https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/ | Court's holding is to demonstrate its unwisdom. If States are not "persons" within the meaning of 1983, then they may not be sued under that statute regardless of whether they have consented to suit. Even if, in other words, a State formally and explicitly consented to suits against it in federal or state court, no 1983 plaintiff could proceed against it because States are not within the statute's category of possible defendants. *86 This is indeed an exceptional holding. Not only does it depart from our suggestion in that a State could be a defendant under 1983 if it consented to suit, see also but it also renders ineffective the choices some States have made to permit such suits against them. See, e. g., Della I do not understand what purpose is served, what principle of federalism or comity is promoted, by refusing to give force to a State's explicit consent to suit. The Court appears to be driven to this peculiar result in part by its view that "in enacting 1983, Congress did not intend to override well-established immunities or defenses under the common law." Ante, at 67. But the question whether States are "persons" under 1983 is separate and distinct from the question whether they may assert a defense of common-law sovereign immunity. In our prior decisions involving common-law immunities, we have not held that the existence of an immunity defense excluded the relevant state actor from the category of "persons" liable under 1983, see, e. g., and it is a mistake to do so today. Such an approach entrenches the effect of common-law immunity even where the immunity itself has been waived. For my part, I would reverse the judgment below and remand for resolution of the question whether Michigan would assert common-law sovereign immunity in defense to this suit and, if so, whether that assertion of immunity would preclude the suit. Given the suggestion in the court below that Michigan enjoys no common-law immunity for violations of its own Constitution, there is certainly a possibility that that court would hold that the State also lacks immunity against 1983 suits for violations of the Federal Constitution. *87 Moreover, even if that court decided that the State's waiver of immunity did not apply to 1983 suits, there is a substantial question whether Michigan could so discriminate between virtually identical causes of action only on the ground that one was a state suit and the other a federal one. Cf. ; v. Finally, even if both of these questions were resolved in favor of an immunity defense, there would |
Justice Ginsburg | 1,995 | 5 | second_dissenting | Gustafson v. Alloyd Co. | https://www.courtlistener.com/opinion/117902/gustafson-v-alloyd-co/ | A seller's misrepresentation made "by means of a prospectus or oral communication" is actionable under 12(2) of the Securities Act of 1933, 15 U.S. C. 77l (2). To limit the scope of this civil liability provision, the Court maintains that a communication qualifies as a prospectus only if made during a public offering.[1] Communications during either secondary trading or a private placement are not "prospectuses," the Court declares, and thus are not covered by 12(2). As Justice Thomas persuasively demonstrates, the statute's language does not support the Court's reading. Section 12(2) contains no terms expressly confining the provision to public offerings, and the statutory definition of "prospectus""any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," 2(10), 15 U.S. C. 77b(10)is capacious. The Court presents impressive policy reasons for its construction, but drafting history and the longstanding scholarly and judicial understanding of 12(2) caution against judicial resistance to the statute's defining text. I would leave any alteration to Congress. *597 I To construe a legislatively defined term, courts usually start with the defining section. Section 2(10) defines prospectus capaciously as "any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," 15 U.S. C. 77b(10). The items listed in the defining provision, notably "letters" and "communications," are common in private and secondary sales, as well as in public offerings. The 2(10) definition thus does not confine the 12(2) term "prospectus" to public offerings. The Court bypasses 2(10), and the solid support it gives the Court of Appeals' disposition. Instead of beginning at the beginning, by first attending to the definition section, the Court starts with 10, 15 U.S. C. 77j, a substantive provision. See ante, at 568-569. The Court correctly observes that the term "prospectus" has a circumscribed meaning in that context. A prospectus within the contemplation of 10 is a formal document, typically a document composing part of a registration statement; a 10 prospectus, all agree, appears only in public offerings. The Court then proceeds backward; it reads into the literally and logically prior definition section, 2(10), the meaning "prospectus" has in 10. To justify its backward readingproceeding from 10 to 2(10) and not the other way roundthe Court states that it "cannot accept the conclusion that [the operative word `prospectus'] means one thing in one section of the Act and something quite different in another." See ante, at 573. Our decisions, however, constantly recognize that |
Justice Ginsburg | 1,995 | 5 | second_dissenting | Gustafson v. Alloyd Co. | https://www.courtlistener.com/opinion/117902/gustafson-v-alloyd-co/ | See ante, at 573. Our decisions, however, constantly recognize that "a characterization fitting in certain contexts may be unsuitable in others." Nations Bank of N. C., N. A. v. Variable Annuity Life Ins. Co., ante, at 262. In Atlantic Cleaners & Dyers, we held that the word "trade" has a more encompassing meaning in *598 3 than in 1 of the Sherman Act, see and explained: "Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning. But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent. "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." See also Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against."). According "prospectus" discrete meanings in 10 and 12(2) is consistent with Congress' specific instruction in 2 that definitions apply "unless the context otherwise requires," 15 U.S. C. 77b. As the Court of Appeals construed the Act, 2(10)'s definition of "prospectus" governs 12(2), which accommodates without strain the definition's broad reach; by contrast, the specific context of 10 requires a correspondingly specific reading of "prospectus." Indeed, in the Investment Company Act of 1940, Congress explicitly recognized that the Securities Act uses "prospectus" in two different sensesone in 10, and another in the rest of the Act: *599 "`Prospectus,' as used in [ 22 of the Investment Company Act], means a written prospectus intended to meet the requirements of section 10(a) of the Securities Act of 1933and currently in use. As used elsewhere, `prospectus' means a prospectus as defined in the Securities Act of 1933." 2(31), as amended, 15 U.S. C. 80a-2(31).[2] II Most provisions of the Securities Act govern only public offerings, and the legislative history pertaining to the Act as a whole shares this orientation. See ante, at |
Justice Ginsburg | 1,995 | 5 | second_dissenting | Gustafson v. Alloyd Co. | https://www.courtlistener.com/opinion/117902/gustafson-v-alloyd-co/ | Act as a whole shares this orientation. See ante, at 580 (citing H. R. Rep. No. 85, 73d Cong., 1st Sess., 5 (1933)). Section 17(a) of the Act, 15 U.S. C. 77q(a), however, is not limited to public offerings; that enforcement provision, this Court has recognized, also covers secondary trading. See United The drafting history is at least consistent with the conclusion that 12(2), like 17(a), is not limited to public offerings. The drafters of the Securities Act modeled this federal legislation on the British Companies Act, 19 & 20 Geo. 5, ch. 23 (1929). See Landis, The Legislative History of the Securities Act of 1933, ; see also 6 U.S. 119, The Companies Act defined "prospectus" as "any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company," 19 & 20 Geo. 5, ch. 23, 380(1) (1929) (emphasis added). Though the drafters of the Securities Act borrowed the first four *600 terms of this definition, they did not import from the British legislation the language limiting prospectuses to communications "offering [securities] to the public." This conspicuous omission suggests that the drafters intended the defined term "prospectus" to reach beyond communications used in public offerings.[3] The House Conference Report, which explains the Act in its final form, describes 12(2) in broad terms, and nowhere suggests that the provision is limited to public offerings: "The House bill (sec. 12) imposes civil liability for using the mails or the facilities of interstate commerce to sell securities (including securities exempt, under section 3, from other provisions of the bill) by means of representations which are untrue or are misleading by reason of omissions of material facts." H. R. Conf. Rep. No. 152, 73d Cong., 1st Sess., 26-27 (1933) (emphasis added). Nor does the Report mention the word "prospectus," even though one would expect that word to figure prominently if it were the significant limitation the Court describes. See also The Proper Role of Securities Act Section 12(2) as an After market Remedy for Disclosure Violations, 47 Bus. Law. 711, 719-724 (offering detailed analysis of legislative history).[4] *601 Commentators writing shortly after passage of the Act understood 12(2) to cover resales and private sales, as well as public offerings. Felix Frankfurter, organizer of the team that drafted the statute, firmly stated this view. See Frankfurter, The Federal Securities Act: II, 8 Fortune 53, 108 (1933) (Act "seeks to terminate the facilities of the mails and of interstate commerce for dishonest or unfair dealings in the sale of all private or foreign government |
Justice Ginsburg | 1,995 | 5 | second_dissenting | Gustafson v. Alloyd Co. | https://www.courtlistener.com/opinion/117902/gustafson-v-alloyd-co/ | dealings in the sale of all private or foreign government securities, new or old ") (emphasis added). William O. Douglas expressed the same understanding. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171, 183 (1933) (noting that, except for transactions involving securities exempt under 3(a)(2), 15 U.S. C. 77c(a)(2), no securities or transactions are exempt from 12(2)). Most subsequent commentators have agreed that 12(2), like 17(a), is not confined to public offerings. See, e. g., H. Securities Law Handbook 14.05, pp. 14-13, 14-38 (1991); 2 A. Bromberg & L. Lowenfels, Securities Fraud and Commodities Fraud 5.2(600) ; 1 T. Hazen, Law of Securities Regulation 7.5, p. 318 ; 17A J. Hicks, Civil Liabilities: Enforcement and Litigation under the 1933 Act 6.01[3], pp. 6-12 to 6-39 (1994); 9 L. Loss & J. Seligman, Securities Regulation 4217-4222 ; Maynard, Section 12(2) of the Securities Act of 1933: A *602 Remedy for Fraudulent Post distribution Trading?, 20 Sec. Reg. L. J. 152 ; ; Comment, Applying Section 12(2) of the 1933 Securities Act to the After market, But see Weiss, The Courts Have It Right: Securities Act Section 12(2) Applies Only to Public Offerings, 48 Bus. Law. 1 While Courts of Appeals have divided on 12(2)'s application to secondary transactions,[5] every Court of Appeals to consider the issue has ruled that private placements are subject to 12(2). See Metromedia cert. denied, ; ; Nor-Tex Agencies, ; Pacific Dunlop Holdings (exemptions in 4, 15 U.S. C. 77d, do not limit 12(2)'s reach); see also (applying 12(2) to private sale). "[L]ongstanding acceptance by the courts [of a judicial interpretation], coupled with Congress' failure to reject" that interpretation, "argues significantly in favor of accept[ing]" it. Blue Chip The drafters of the Uniform Securities Act, in 1956, modeled 410(a)(2) of that Act[6] on 12(2) of the federal Securities *603 Act. Notably, the Uniform Act drafters did not read 12(2) as limited to public offerings. Accordingly, they did not so limit 410(a)(2). 14.05, at 1438 to 14-39; see also 410(a)(2) comment, 7B U. L. A. 644 (1985) (describing as comparable scope of 410(a)(2) and scope of Uniform Securities Act 101, the Uniform Act's analog to Securities Act 17(a)).[7] Section 410, it is true, does not contain the "prospectus or oral communication" language, perhaps because "prospectus" is not a defined term in the Uniform Securities Act. See 401, 7B U. L. A. 578-581 (1985) (listing definitions). There is scant doubt, however, that the drafters of Uniform Act 410(a)(2) intended the provision to have the same meaning as Securities Act 12(2). See 410(a)(2) comment, |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U.S. C. The Court Interpreters Act amended that statute to include “compensation of interpreters.” see also The question pre- sented in this case is whether “compensation of interpret- ers” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation. I This case arises from a personal injury action brought by petitioner Kouichi Taniguchi, a professional baseball player in Japan, against respondent Kan Pacific Saipan, Ltd., the owner of a resort in the Northern Mariana Is- lands. Petitioner was injured when his leg broke through a wooden deck during a tour of respondent’s resort prop- erty. Initially, petitioner said that he needed no medical 2 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court attention, but two weeks later, he informed respondent that he had suffered cuts, bruises, and torn ligaments from the accident. Due to these alleged injuries, he claimed damages for medical expenses and for lost income from contracts he was unable to honor. After discovery concluded, both parties moved for summary judgment. The United States District Court for the Northern Ma- riana Islands granted respondent’s motion on the ground that petitioner offered no evidence that respondent knew of the defective deck or otherwise failed to exercise rea- sonable care. In preparing its defense, respondent paid to have vari- ous documents translated from Japanese to English. After the District Court granted summary judgment in respond- ent’s favor, respondent submitted a bill for those costs. Over petitioner’s objection, the District Court awarded the costs to respondent as “compensation of interpreters” under Explaining that interpreter services “can- not be separated into ‘translation’ and ‘interpretation,’ ” App. to Pet. for Cert. 25a, the court held that costs for document translation “fal[l] within the meaning of ‘compensation of an interpreter,’ ” Finding that it was necessary for respondent to have the documents translated in order to depose petitioner, the court con- cluded that the translation services were properly taxed as costs. The United States Court of Appeals for the Ninth Cir- cuit affirmed both the District Court’s grant of summary judgment and its award of costs. The court rejected peti- tioner’s argument that the cost of document translation services is not recoverable as “compensation of interpret- ers.” The court explained that “the word ‘interpreter’ |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | of interpret- ers.” The court explained that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech Cite as: 566 U. S. (2012) 3 Opinion of the Court versus written documents.” “More importantly,” the court stressed, this construction of the statute “is more compatible with Rule 54 of the Fed- eral Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” The court thus concluded that “the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language, so long as interpretation of the items is neces- sary to the litigation.” at –1222. Because there is a split among the Courts of Appeals on this issue,1 we granted certiorari. 564 U. S. II A Although the taxation of costs was not allowed at com- mon law, it was the practice of federal courts in the early years to award costs in the same manner as the courts of the relevant forum State. Alyeska Service In 1793, Congress enacted a statute that authorized the awarding of certain costs to prevailing parties based on state law: “That there be allowed and taxed in the supreme, cir- cuit and district courts of the United States, in favour of the parties obtaining judgments therein, such com- pensation for their travel and attendance, and for at- —————— 1 Compare BDT Products, 419 (CA6 2005) (holding that document translation costs are taxable under because the “definition of interpret expressly includes to ‘translate into intelligible or familiar language’ ” (quoting Webster’s Third New International Dictionary 1182 (1981))), with Extra Equi pamentos E Exportação –728 (CA7 2008) (holding that document translation costs are not taxable under because an interpreter is “normally understood [as] a person who translates living speech from one language to another”). 4 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court tornies and counsellors’ fees as are allowed in the supreme or superior courts of the respective states.” Act of Mar. 1, 1793, Although twice reenacted, this provision expired in 1799. Alyeska ; Crawford Yet even in the absence of express legislative authorization, the practice of referring to state rules for the taxation of costs persisted. See Alyeska Not until 1853 did Congress enact legislation specifying the costs allowable in federal court. The impetus for a uniform federal rule was largely the conse- quence of two developments. First, a “great diversity in |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | conse- quence of two developments. First, a “great diversity in practice among the courts” had emerged. Second, “losing litigants were being unfairly saddled with exorbi- tant fees for the victor’s attorney.” Against this backdrop, Congress passed the 1853 Fee Act, which we have described as a “far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts.” –252. The substance of this Act was transmitted through the Revised Statutes of 4 and the Judicial Code of 1911 to the Revised Code of 1948, where it was codified, “without any apparent intent to change the controlling rules,” as 28 U.S. C. 421 U.S., at 255. Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d)(1). We have held that defines the term ‘costs’ as used in Rule 54(d).” Crawford In so doing, we rejected the view that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in Cite as: 566 U. S. (2012) 5 Opinion of the Court ” As originally configured, contained five categories of taxable costs: (1) “[f]ees of the clerk and marshal”; (2) “[f ]ees of the court reporter for all or any part of the steno- graphic transcript necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and wit- nesses”; (4) “[f]ees for exemplification and copies of papers necessarily obtained for use in the case”; and (5) “[d]ocket fees under section 1923 of this title.” In 1978, Congress enacted the Court Interpreters Act, which amended to add a sixth category: “Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” 28 U.S. C. see also We are concerned here with this sixth category, specifically the item of tax- able costs identified as “compensation of interpreters.” B To determine whether the item “compensation of inter- preters” includes costs for document translation, we must look to the meaning of “interpreter.” That term is not defined in the Court Interpreters Act or in any other relevant statutory provision. When a term goes undefined in a statute, we give the term its ordinary meaning. As grow Seed The question here is: What is the ordinary meaning of “interpreter”? Many dictionaries in use when Congress enacted the Court Interpreters Act |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined “interpreter” as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as “[o]ne who translates orally from one language into another.” American Heritage Dictionary 685 (1978). The Scribner-Bantam English Dictionary defined the related word “interpret” as “to translate orally.” Scribner- 6 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of “interpret” as “to translate what is said in a foreign lan- guage.” Random House Dictionary of the English Lan- guage 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined “interpreter” as “[o]ne who translates languages,” but then divided that defini- tion into two senses: “a. [a] translator of books or writ- ings,” which it designated as obsolete, and “b. [o]ne who translates the communications of persons speaking differ- ent languages; spec. one whose office it is to do so orally in the presence of the persons; a dragoman.” 5 Oxford Eng- lish Dictionary 416 (1933); see also Concise Oxford Dic- tionary of Current English 566 (6th ed. 1976) (“One who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence”); Chambers Twentieth Century Dictionary 686 (1973) (“one who translates orally for the benefit of two or more parties speaking different languages: a transla- tor (obs.)”). Pre-1978 legal dictionaries also generally defined the words “interpreter” and “interpret” in terms of oral trans- lation. The then-current edition of Black’s Law Diction- ary, for example, defined “interpreter” as “[a] person sworn at a trial to interpret the evidence of a foreigner to the court,” and it defined “interpret” in relevant part as “to translate orally from one tongue to another.” Black’s Law Dictionary 954, 953 (rev. 4th ed. 1968); see also W. Anderson, A Dictionary of Law 565 (1888) (“One who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury”); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 639 (8) (“one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language”). But see Ballentine’s Law Dictionary 655, 654 (3d ed. 1969) (defining “inter- Cite as: 566 U. S. (2012) 7 Opinion of the Court preter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language,” and “interpret” as “to translate from a foreign |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | foreign language,” and “interpret” as “to translate from a foreign language”). Against these authorities, respondent relies almost exclusively on Webster’s Third New International Diction- ary (hereinafter Webster’s Third). The version of that dictionary in print when Congress enacted the Court Interpreters Act defined “interpreter” as “one that trans- lates; esp: a person who translates orally for parties con- versing in different tongues.” Webster’s Third 1182 (1976).2 The sense divider esp (for especially) indicates that the most common meaning of the term is one “who translates orally,” but that meaning is subsumed within the more general definition “one that translates.” See 12,000 Words: A Supplement to Webster’s Third 15a (1986) (explaining that esp “is used to introduce the most common meaning included in the more general preceding definition”). For respondent, the general definition suf- fices to establish that the term “interpreter” ordinarily includes persons who translate the written word. Explain- ing that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ ” the Court of Appeals reached the same 633 F.3d, at We disagree. That a definition is broad enough to encompass one sense of a word does not establish that the word is ordi narily understood in that sense. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. —————— 2 A handful of other contemporaneous dictionaries used a similar formulation. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 665 (1977) (“One who interprets or translates; specifically, one who serves as oral translator between people speaking different languages”); 1 World Book Dictionary 1103 (C. Barnhart & R. Barnhart eds. 1977) (“a person whose business is translating, especially orally, from a foreign language”); Cassell’s English Dictionary 617 (4th ed. 1969) (“One who interprets, esp. one employed to translate orally to persons speaking a foreign language”). 8 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court 296, 301 (1989) (relying on the “most common meaning” and the “ordinary and natural signification” of the word “request,” even though it may sometimes “double for ‘de- mand’ or ‘command’ ”). The fact that the definition of “interpreter” in Webster’s Third has a sense divider denot- ing the most common usage suggests that other usages, although acceptable, might not be common or ordinary. It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. See at 5–7. Although the Oxford English Dictionary, one of the most authoritative on the |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | Oxford English Dictionary, one of the most authoritative on the English language, recognized that “interpreter” can mean one who translates writings, it expressly designated that meaning as obsolete. See Were the meaning of “interpreter” that respondent advocates truly common or ordinary, we would expect to see more support for that meaning. We certainly would not expect to see it designated as obsolete in the Oxford English Dictionary. Any definition of a word that is absent from many diction- aries and is deemed obsolete in others is hardly a common or ordinary meaning. Based on our survey of the relevant dictionaries, we conclude that the ordinary or common meaning of “inter- preter” does not include those who translate writings. Instead, we find that an interpreter is normally under- stood as one who translates orally from one language to another. This sense of the word is far more natural. As the Seventh Circuit put it: “Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no one would refer to him as an English- language ‘interpreter’ of these works.” Extra Equipamen tos E Exportação (2008). To be sure, the word “interpreter” can encompass per- Cite as: 566 U. S. (2012) 9 Opinion of the Court sons who translate documents, but because that is not the ordinary meaning of the word, it does not control unless the context in which the word appears indicates that it does. Nothing in the Court Interpreters Act or in however, even hints that Congress intended to go beyond the ordinary meaning of “interpreter” and to embrace the broadest possible meaning that the definition of the word can bear. If anything, the statutory context suggests the opposite: that the word “interpreter” applies only to those who translate orally. As previously mentioned, Congress en- acted as part of the Court Interpreters Act. The main provision of that Act is codified in 28 U.S. C. and 1828. See –2042. Par- ticularly relevant here is As it now reads, that statute provides for the establishment of “a program to facilitate the use of certified and otherwise qualified inter- preters in judicial proceedings instituted by the United States.” Subsection (d) directs courts to use an interpreter in any criminal or civil action instituted by the United States if a party or witness “speaks only or primar- ily a language other than the English language” or “suffers from a hearing impairment” “so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness’ |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | presiding judicial officer, or so as to inhibit such witness’ comprehension of questions and the presen- tation of such testimony.” As originally enacted, subsection (k) mandated that the “interpretation provided by certified interpreters shall be in the con- secutive mode except that the presiding judicial officer may authorize a simultaneous or summary interpreta- tion.” (1976 ed., Supp. II); see also —————— 3 This provision remains substantially the same as it appeared when first enacted. See 28 U.S. C. (1976 ed., Supp. II); see also 10 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court In its current form, subsection (k) provides that interpre- tation “shall be in the simultaneous mode for any party and in the consecutive mode for witnesses,” unless the court directs otherwise. The simultaneous, consecutive, and summary modes are all methods of oral interpretation and have nothing to do with the translation of writings.4 Taken together, these provisions are a strong contextual clue that Congress was dealing only with oral translation in the Court Interpreters Act and that it intended to use the term “interpreter” throughout the Act in its ordinary sense as someone who translates the spoken word. As we have said before, it is a “ ‘normal rule of statutory con- struction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” (quoting Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 342 (1994)).5 The references to technical terminology in the Court Interpreters Act further suggest that Congress used “in- —————— 4 The simultaneous mode requires the interpreter “to interpret and to speak contemporaneously with the individual whose communication is being translated.” H. R. Rep. No. 95–1687, p. 8 (1978). The consecutive mode requires the speaker whose communication is being translated to pause so that the interpreter can “convey the testimony given.” And the summary mode “allow[s] the interpreter to condense and distill the speech of the speaker.” ; see generally Attorneys Guide to the Use of Court Interpreters, 8 U. C. D. L. Rev. 471, 477–478 5 The dissent agrees that context should help guide our analysis, but instead of looking to the Court Interpreters Act, it looks to “the practice of federal courts both before and after ’s enactment.” Post, at 4 (opinion of GINSBURG, J.). The practice of federal courts after the Act’s enactment tells us nothing about what Congress intended at the time of enactment. And federal court practice before the Act under other provisions of tells us little, if anything, about what Congress intended when it added |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | little, if anything, about what Congress intended when it added subsection (6). We think the statutory context in which the word “interpreter” appears is a more reliable guide to its meaning. Cite as: 566 U. S. (2012) 11 Opinion of the Court terpreter” in a technical sense, and it is therefore signifi- cant that relevant professional literature draws a line between “interpreters,” who “are used for oral conversa- tions,” and “translators,” who “are used for written com- munications.” at 477; see also M. Frankenthaler, Skills for Bilingual Legal Personnel 67 (1982) (“While the translator deals with the written word, the interpreter is concerned with the spoken language”); Brislin, Introduction, in Translation: Applications and Research 1 (R. Brislin ed. 1976) (explaining that when both terms are used together, translation “refers to the processing [of] written input, and interpretation to the processing of oral input” (emphasis deleted)); J. Herbert, Interpreter’s Handbook 1 (2d ed. 1952) (“In the present- day jargon of international organisations, the words trans- late, translations, translator are used when the immediate result of the work is a written text; and the words inter- pret, interpreter, interpretation when it is a speech deliv- ered orally”). That Congress specified “interpreters” but not “translators” is yet another signal that it intended to limit to the costs of oral, instead of written, translation.6 In sum, both the ordinary and technical meanings of “interpreter,” as well as the statutory context in which the word is found, lead to the conclusion that does not apply to translators of written materials.7 —————— 6 Some provisions within the United States Code use both “inter- preter” and “translator” together, thus implying that Congress under- stands the terms to have the distinct meanings described above. See, e.g., 8 U.S. C. (providing that appropriations for the Immigra- tion and Naturalization Service “shall be available for payment of interpreters and translators who are not citizens of the United States”); 28 U.S. C. (providing that Department of Justice funds may be used for “[p]ayment of interpreters and translators who are not citizens of the United States”). 7 Our conclusion is buttressed by respondent’s concession at oral ar- gument that there is no provision in the United States Code where it is 12 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court C No other rule of construction compels us to depart from the ordinary meaning of “interpreter.” The Court of Ap- peals reasoned that a broader meaning is “more compat- ible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | which includes a decided preference for the award of costs to the prevailing party.” 633 F.3d, at But we have never held that Rule 54(d) creates a presumption of statu- tory construction in favor of the broadest possible reading of the costs enumerated in To the contrary, we have made clear that the “discretion granted by Rule 54(d) is not a power to evade” the specific categories of costs set forth by Congress. Crawford “Rather,” we have said, “it is solely a power to decline to tax, as costs, the items enumerated in ” Rule 54(d) thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of “interpreter.” Our decision is in keeping with the narrow scope of taxable costs. “Although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure pp. 202– 203 (3d ed. 1998) (hereinafter Wright & Miller). Taxable costs are limited to relatively minor, incidental expenses as is evident from which lists such items as clerk —————— clear that the word extends to those who translate documents. Tr. of Oral Arg. 39; see also Brief for Petitioner 32 (“And the Code is wholly devoid of any corresponding definition of ‘interpreter’ extending to the translation of written documents”). As respondent acknowledged, either the word is used in a context that strongly suggests it applies only to oral translation or its meaning is unclear. See Tr. of Oral Arg. 38. Cite as: 566 U. S. (2012) 13 Opinion of the Court fees, court reporter fees, expenses for printing and wit- nesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. In- deed, “the assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hair line Creations, (CA7 1981). Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consult- ants, and investigators. It comes as little surprise, there- fore, that “costs almost always amount to less than the successful litigant’s total expenses in connection with a lawsuit.” 10 Wright & Miller at 203. Because taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in As for respondent’s extratextual arguments, they are more |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | authorized in As for respondent’s extratextual arguments, they are more properly directed at Congress. Respondent contends that documentary evidence is no less important than testimonial evidence and that it would be anomalous to require the losing party to cover translation costs for spoken words but not for written words. Brief for Re- spondent 20. Respondent also observes that some transla- tion tasks are not entirely oral or entirely written. at 20–24. One task, called “ ‘sight translation,’ ” involves the oral translation of a document. Another task involves the written translation of speech. And a third task, called “ ‘document comparison,’ ” involves com- paring documents in the source and target language to verify that the two are identical. –22. Respond- ent argues that a narrow definition cannot account for these variations and that a bright-line definition of “inter- preter” as someone who translates spoken and written words would avoid complication and provide a simple, administrable rule for district courts. Neither of these arguments convinces us that Congress must have intended to dispense with the ordinary mean- 14 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court ing of “interpreter” in First, Congress might have distinguished between oral and written translation out of a concern that requiring losing parties to bear the potentially sizable costs of translating discovery docu- ments, as opposed to the more limited costs of oral tes- timony, could be too burdensome and possibly unfair, especially for litigants with limited means. Cf. Fleischmann Distilling (1967) (noting the argument “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel”). Congress might also have concluded that a document translator is more akin to an expert or consultant retained by a party to decipher documentary evidence—like, for instance, a forensic ac- countant—than to an interpreter whose real-time oral translation services are necessary for communication between litigants, witnesses, and the court.8 Second, respondent has not shown that any of the hy- brid translation/interpretation tasks to which it points actually arise with overwhelming frequency or that the problem of drawing the line between taxable and nontax- able costs in such cases will vex the trial courts. It cer- tainly has not shown that any such problems will be more troublesome than the task of sifting through translated —————— 8 The dissent contends that document translation, no less than oral translation, is essential “to equip the |
Justice Alito | 2,012 | 8 | majority | Taniguchi v. Kan Pacific Saipan, Ltd. | https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/ | no less than oral translation, is essential “to equip the parties to present their case clearly and the court to decide the merits intelligently.” Post, at 5. But a document translator is no more important than an expert or consult- ant in making sense of otherwise incomprehensible documentary evidence, yet expenses for experts and consultants are generally not taxable as costs. To be sure, forgoing document translation can impair a litigant’s case, but document translation is not indispensable, in the way oral translation is, to the parties’ ability to communicate with each other, with witnesses, and with the court. Cite as: 566 U. S. (2012) 15 Opinion of the Court discovery documents to ascertain which can be taxed as necessary to the litigation. In any event, the present case does not present a hybrid situation; it involves purely written translation, which falls outside the tasks per- formed by an “interpreter” as that term is ordinarily understood. * * * Because the ordinary meaning of “interpreter” is some- one who translates orally from one language to another, we hold that the category “compensation of interpreters” in does not include costs for document transla- tion. We therefore vacate the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. (2012) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–1472 KOUICHI TANIGUCHI, PETITIONER v. KAN PACIFIC SAIPAN, LTD., |
Justice Rehnquist | 1,983 | 19 | dissenting | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | Today we learn from the Court that a State runs afoul of the First Amendment proscription of laws "abridging the freedom of speech, or of the press" where the State structures its taxing system to the advantage of newspapers. This seems very much akin to protecting something so overzealously that in the end it is smothered. While the Court purports to rely on the intent of the "Framers of the First Amendment," I believe it safe to assume that in 1791 "abridge" meant the same thing it means today: to diminish or curtail. Not until the Court's decision in this case, nearly two centuries after adoption of the First Amendment, has it been read to prohibit activities which in no way diminish or curtail the freedoms it protects. I agree with the Court that the First Amendment does not per se prevent the State of Minnesota from regulating the press even though such regulation imposes an economic burden. It is evident from the numerous cases relied on by the *597 Court, which I need not repeat here, that this principle has been long settled. Ante, at 581. I further agree with the Court that application of general sales and use taxes to the press would be sanctioned under this line of cases. Ante, at 586-587, n. 9. Therefore, I also agree with the Court to the extent it holds that any constitutional attack on the Minnesota scheme must be aimed at the classifications used in that taxing scheme. Ante, at 583. But it is at this point that I part company with my colleagues. The Court recognizes in several parts of its opinion that the State of Minnesota could avoid constitutional problems by imposing on newspapers the 4% sales tax that it imposes on other retailers. Ante, at 586-590, and nn. 9, 13. Rather than impose such a tax, however, the Minnesota Legislature decided to provide newspapers with an exemption from the sales tax and impose a 4% use tax on ink and paper; thus, while both taxes are part of one "system of sales and use taxes," newspapers are classified differently within that system.[*] The problem the Court finds too difficult to deal with is whether this difference in treatment results in a significant burden on newspapers. The record reveals that in 1974 the Minneapolis Star & Tribune had an average daily circulation of 489,345 copies. at -204, nn. 4 and 5. Using the price we were informed of at argument of 25¢ per copy, see Tr. of Oral Arg. 46, gross sales revenue for the year would be |
Justice Rehnquist | 1,983 | 19 | dissenting | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | Arg. 46, gross sales revenue for the year would be $38,168,910. The Sunday circulation for 1974 was 640,756; even assuming that it did not sell for more than the daily paper, gross sales revenue for the year would be at least $8,329,828. Thus, total sales revenues in 1974 would be $46,498,738. Had a 4% sales tax *598 been imposed, the Minneapolis Star & Tribune would have been liable for $1,859,950 in 1974. The same "complexities of factual economic proof" can be analyzed for 1975. Daily circulation was 481,789; at 25¢ per copy, gross sales revenue for the year would be $37,579,542. The Sunday circulation for 1975 was 619,154; at 25¢ per copy, gross sales revenue for the year would be $8,049,002. Total sales revenues in 1975 would be $45,628,544; at a 4% rate, the sales tax for 1975 would be $1,825,142. Therefore, had the sales tax been imposed, as the Court agrees would have been permissible, the Minneapolis Star & Tribune's liability for 1974 and 1975 would have been $3,685,092. The record further indicates that the Minneapolis Star & Tribune paid $608,634 in use taxes in 1974 and $636,113 in 1975 a total liability of $1,244,747. See 314 N.W.2d, at -204, nn. 4 and 5. We need no expert testimony from modern day Euclids or Einsteins to determine that the $1,224,747 paid in use taxes is significantly less burdensome than the $3,685,092 that could have been levied by a sales tax. A fortiori, the Minnesota taxing scheme which singles out newspapers for "differential treatment" has benefited, not burdened, the "freedom of speech, [and] of the press." Ignoring these calculations, the Court concludes that "differential treatment" alone in Minnesota's sales and use tax scheme requires that the statutes be found "presumptively unconstitutional" and declared invalid "unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation." Ante, at 585. The "differential treatment" standard that the Court has conjured up is unprecedented and unwarranted. To my knowledge this Court has never subjected governmental action to the most stringent constitutional review solely on the basis of "differential treatment" of particular groups. The case relied on by the Court, Police Department of certainly does not stand for this proposition. In Mosley all picketing except "peaceful picketing" was prohibited within a particular public area. *599 Thus, "differential treatment" was not the key to the Court's decision; rather the essential fact was that unless a person was considered a "peaceful picketer" his speech through this form of expression would be totally abridged within the area. Of course, all governmentally |
Justice Rehnquist | 1,983 | 19 | dissenting | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | be totally abridged within the area. Of course, all governmentally created classifications must have some "rational basis." See ; Railway Express Agency, The fact that they have been enacted by a presumptively rational legislature, however, arms them with a presumption of rationality. We have shown the greatest deference to state legislatures in devising their taxing schemes. As we said in Allied Stores of Ohio, : "The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. [Citations omitted.] `To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our Government' " ). See also ; Independent Warehouses, ; ; ; New York Rapid Transit *600 Where the State devises classifications that infringe on the fundamental guarantees protected by the Constitution the Court has demanded more of the State in justifying its action. But there is no infringement, and thus the Court has never required more, unless the State's classifications significantly burden these specially protected rights. As we said in Massachusetts Board of (emphasis added), "equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right." See also California Medical ; ; ; American Party of ; San Antonio Independent School To state it in terms of the freedoms at issue here, no First Amendment issue is raised unless First Amendment rights have been infringed; for if there has been no infringement, then there has been no "abridgment" of those guarantees. See Today the Court departs from this rule, refusing to look at the record and determine whether the classifications in the Minnesota use and sales tax statutes significantly burden the First Amendment rights of appellant and its fellow newspapers. The Court offers as an explanation for this failure the self-reproaching conclusion that "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation. The complexities of factual economic proof always present a certain potential |
Justice Rehnquist | 1,983 | 19 | dissenting | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | complexities of factual economic proof always present a certain potential for error, and courts have little familiarity with the process of evaluating the relative economic burden of taxes. In sum, the possibility of error inherent in the proposed rule poses too great a threat to concerns at the heart of the First Amendment, and we cannot tolerate that possibility. Minnesota, *601 therefore, has offered no adequate justification for the special treatment of newspapers." Ante, at 589-590 (footnotes omitted). Considering the complexity of issues this Court resolves each Term, this admonition as a general rule is difficult to understand. Considering the specifics of this case, this confession of inability is incomprehensible. Wisely not relying solely on its inability to weigh the burdens of the Minnesota tax scheme, the Court also says that even if the resultant burden on the press is lighter than on others "the very selection of the press for special treatment threatens the press not only with the current differential treatment, but also with the possibility of subsequent differentially more burdensome treatment. Thus, even without actually imposing an extra burden on the press, the government might be able to achieve censorial effects, for `[t]he threat of sanctions may deter [the] exercise [of First Amendment rights] almost as potently as the actual application of sanctions.' " Ante, at 5. Surely the Court does not mean what it seems to say. The Court should be well aware from its discussion of that this Court is quite capable of dealing with changes in state taxing laws which are intended to penalize newspapers. As Justice Holmes aptly put it: "[T]his Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits." Panhandle Oil Furthermore, the Court itself intimates that if the State had employed "the same method of taxation but applied a lower rate to the press, so that there could be no doubt that the legislature was not singling out the press to bear a more burdensome *602 tax" the taxing scheme would be constitutionally permissible. Ante, at 590, n. 13. This obviously has the same potential for "the threat of sanctions," because the legislature could at any time raise the taxes to the higher rate. Likewise, the newspapers' absolute exemption from the sales tax, which the Court acknowledges is used by many other States, would be subject to the same attack; the exemption could be taken |
Justice Rehnquist | 1,983 | 19 | dissenting | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | subject to the same attack; the exemption could be taken away. The State is required to show that its taxing scheme is rational. But in this case that showing can be made easily. The Court states that "[t]he court below speculated that the State might have been concerned that collection of a [sales] tax on such small transactions would be impractical." Ante, at 587. But the Court finds this argument "unpersuasive," because "sales of other low-priced goods" are subject to the sales tax. I disagree. There must be few such inexpensive items sold in Minnesota in the volume of newspaper sales. Minneapolis Star & Tribune alone, as noted above, sold approximately 489,345 papers every weekday in 1974 and sold another 640,756 papers every Sunday. In 1975 it had a daily circulation of 481,789 and a Sunday circulation of 619,154. Further, newspapers are commonly sold in a different way than other goods. The legislature could have concluded that paperboys, corner newsstands, and vending machines provide an unreliable and unsuitable means for collection of a sales tax. Must everyone buying a paper put 26¢ in the vending machine rather than 25¢; or should the price of a paper be raised to 30¢, giving the paper 4¢ more profit; or should the price be kept at 25¢ with the paper absorbing the tax? In summary, so long as the State can find another way to collect revenue from the newspapers, imposing a sales tax on newspapers would be to no one's advantage; not the newspaper and its distributors who would have to collect the tax, not the State who would have to enforce collection, and not the consumer who would have to pay for the paper in odd amounts. The reasonable alternative Minnesota chose was to impose the use tax on ink and paper. "There is no reason *603 to believe that this legislative choice is insufficiently tailored to achieve the goal of raising revenue or that it burdens the first amendment in any way whatsoever." Cf. The Court finds in very summary fashion that the exemption newspapers receive for the first $100,000 of ink and paper used also violates the First Amendment because the result is that only a few of the newspapers actually pay a use tax. I cannot agree. As explained by the Minnesota Supreme Court, the exemption is in effect a $4,000 credit which benefits all newspapers. 314 N.W.2d, at Minneapolis Star & Tribune was benefited to the amount of $16,000 in the two years in question; $4,000 each year for its morning paper and $4,000 each year for |
Justice Rehnquist | 1,983 | 19 | dissenting | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | year for its morning paper and $4,000 each year for its evening paper. Absent any improper motive on the part of the Minnesota Legislature in drawing the limits of this exemption, it cannot be construed as violating the First Amendment. See Oklahoma Press Publishing Cf. The Minnesota Supreme Court specifically found that the exemption was not a "deliberate and calculated device" designed with an illicit There is nothing in the record which would cast doubt on this conclusion. The Minnesota court further explained: "[I]t is necessary for the legislature to construct economically sound taxes in order to raise revenue. In order to do so, the legislature must classify or grant exemptions to insure that the burden upon the taxpayer in paying the tax or upon the state in collecting the tax does not outweigh the benefit of the revenues to the state. `Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden.'" *604 There is no reason to conclude that the State, in drafting the $4,000 credit, acted other than reasonably and rationally to fit its sales and use tax scheme to its own local needs and usages. To collect from newspapers their fair share of taxes under the sales and use tax scheme and at the same time avoid abridging the freedoms of speech and press, the Court holds today that Minnesota must subject newspapers to millions of additional dollars in sales tax liability. Certainly this is a hollow victory for the newspapers, and I seriously doubt the Court's conclusion that this result would have been intended by the "Framers of the First Amendment." For the reasons set forth above, I would affirm the judgment of the Minnesota Supreme Court. |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | In this case we decide whether the Uintah Indian Reservation was diminished by Congress when it was opened to non-Indian settlers at the turn of the century. If the reservation has been diminished, then the town of Myton, Utah, which lies on opened lands within the historical boundaries of the reservation, is not in "Indian country," see 18 U.S. C. *402 1151, and the Utah state courts properly exercised criminal jurisdiction over petitioner, an Indian who committed a crime in Myton. I On October 3, 1861, President Lincoln reserved about 2 million acres of land in the Territory of Utah for Indian settlement. Executive Order No. 38-1, reprinted in 1 C. Kappler, Indian Affairs: Laws and Treaties 900 (1904). Congress confirmed the President's action in 1864, creating the Uintah Valley Reservation. Act of May 5, 1864, ch. 77, According to the 1864 Act, the lands were "set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same." The present-day Ute Indian Tribe includes the descendants of the Indians who settled on the Uintah Reservation. In the latter part of the 19th century, federal Indian policy changed. See F. Cohen, Handbook of Federal Indian Law 127-139 (1982 ed.). Indians were no longer to inhabit communally owned reservations, but instead were to be given individual parcels of land; any remaining lands were to be opened for settlement by non-Indians. The General Allotment Act, Act of Feb. 8, 1887, ch. 119, granted the President authority "to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to [non-Indian] settlers, with the proceeds of these sales being dedicated to the Indians' benef" Pursuant to the General Allotment Act, Congress in 1894 directed the President to appoint a commission to negotiate with the Indians for the allotment of Uintah Reservation lands and the "relinquishment to the United States" of all unallotted Act of Aug. 15, 1894, ch. 290, 22, That effort did not succeed, and in 1898 Congress directed the President to appoint another commission to negotiate *403 an agreement for the allotment of Uintah Reservation lands and the "cession" of unallotted lands to the United States. Act of June 4, 1898, ch. 376, The Indians resisted those efforts as well. Various bills that would have opened the reservation unilaterally (i. e., without the consent of the Indians) were subsequently introduced in the Senate but were not enacted into law. See Leasing of Indian Lands, Hearings before the Senate Committee on |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | Leasing of Indian Lands, Hearings before the Senate Committee on Indian Affairs, S. Doc. No. 212, 57th Cong., 1st Sess., 3 (1902). In 1902, Congress passed an Act which provided that if a majority of the adult male members of the Uintah and White River Indians consented, the Secretary of the Interior should make allotments by October 1, 1903, out of the Uintah Reservation. Act of May 27, 1902, ch. 888,[1] The allotments under the 1902 Act were to be 80 acres for each head of a family and 40 acres for each other member of *404 the Tribes. The Act also provided that when the deadline for allotments passed, "all the unallotted lands within said reservation shall be restored to the public domain" and subject to homesteading at $1.25 per acre. The proceeds from the sale of lands restored to the public domain were to be used for the benefit of the Indians. A month after the passage of the 1902 Act, Congress directed the Secretary of the Interior to set apart sufficient land to serve the grazing needs of the Indians remaining on the reservation. J. Res. 31, 57th Cong., 1st Sess. (1902),[2] The resolution clarified that $70,000 appropriated by the 1902 Act was to be paid to the Indians "without awaiting their action upon the proposed allotment in severalty of lands in that reservation and the restoration of the surplus lands to the public domain." In January 1903, this Court held that Congress can unilaterally alter reservation boundaries. Lone On Mar. 3, 1903, Congress directed the Secretary to allot the Uintah lands unilaterally if the Indians did not give their consent by June 1 of that year, and deferred the opening of the unallotted lands "as provided by the [1902 Act]" until October 1, 1904. Act of Mar. 3, 1903, *405 ch. 994,[3] The 1903 Act also specified that the grazing lands specified in the 1902 Joint Resolution would be limited to 250,000 acres south of the Strawberry River. In 1904, Congress passed another statute that appropriated additional funds to "carry out the purposes" of the 1902 Act, and deferred the opening date "as provided by the [1902 and 1903 Acts]" until Mar. 10, 1905. Act of Apr. 21, 1904, ch. 1402,[4] *406 In 1905, Congress again deferred the opening date, this time until September 1, 1905, unless the President were to establish an earlier date. Act of Mar. 3, 1905, ch. 1479,[5] The 1905 Act repealed the provision of the 1903 Act limiting the grazing lands to areas south of the Strawberry River. The Act further |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | to areas south of the Strawberry River. The Act further provided: "[T]he manner of opening [reservation] lands for settlement and entry, and for disposing of the same, shall be as follows: That the said unallotted lands shall be *407 disposed of under the general provisions of the homestead and town-site laws of the United States, and shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof." All lands remaining open but unsettled after five years were to be sold for cash, in parcels up to 640 acres. The "proceeds of the sale of such lands" were to be "applied as provided in the [1902 Act] and the Acts amendatory thereof and supplemental thereto." The Government once again failed to obtain the consent of the Indians. On July 14, 1905, President Roosevelt issued the following Proclamation: "Whereas it was provided by the [1902 Act], among other things, that on October first, 1903, the unallotted lands in the Uintah Indian Reservation, in the State of Utah, `shall be restored to the public domain: Provided, That persons entering any of said lands under the homestead laws shall pay therefor at the rate of [$1.25] per acre.' "And, whereas, the time for the opening of said unallotted lands was extended to October 1, 1904, by the [1903 Act], and was extended to March 10, 1905, by the [1904 Act], and was again extended to not later than September 1, 1905, by the [1905 Act], which last named act provided, among other things: ['That the said unallotted lands shall be disposed of under the general provisions of the homestead and townsite laws of the United States.'] "Now, therefore, I, Theodore Roosevelt, President of the United States of America, by virtue of the power in me vested by said Acts of Congress, do hereby declare and make known that all the unallotted lands in said *408 reservation will on and after the 28th day of August, 1905, in the manner hereinafter prescribed, and not otherwise, be opened to entry, settlement and disposition under the general provisions of the homestead and townsite laws of the United States." -3120. The Proclamation went on to detail a lottery scheme for the allocation of the lands to settlers. II In 1989, petitioner was charged in Utah state court with distribution of a controlled substance. The offense occurred in the town of Myton, which was established within the original boundaries of the Uintah Indian Reservation |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | established within the original boundaries of the Uintah Indian Reservation when the reservation was opened to non-Indian settlement in 1905. Petitioner initially pleaded guilty, but subsequently filed a motion to withdraw his guilty plea. The basis of the motion was that the Utah state courts lacked jurisdiction over petitioner because he was an Indian and the crime had been committed in Indian country. The trial court denied the motion, finding that petitioner is not an Indian. The state appellate court reversed. It concluded that petitioner is an Indian, a determination that is not at issue in this Court. The court also held that Myton is in Indian country, relying on Ute Indian cert. denied, in which the Tenth Circuit held that the Uintah Indian Reservation was not diminished when it was opened to settlement in 1905. Because Congress has not granted criminal jurisdiction to the State of Utah to try crimes committed by Indians in Indian country, cf. ; the appellate court held that the state courts lacked jurisdiction over petitioner. The court accordingly vacated petitioner's conviction. *409 The Utah Supreme Court reversed on the authority of in which the court had held (on the same day as the decision in petitioner's case) that the reservation had been diminished and that Myton was outside its boundaries, and thus that petitioner's offense was subject to state criminal jurisdiction. ; see The court accordingly reinstated petitioner's conviction. We granted certiorari, to resolve the direct conflict between these decisions of the Tenth Circuit and the Utah Supreme Court on the question whether the Uintah Reservation has been diminished. III We first address a threshold question: whether the State of Utah, which was a party to the Tenth Circuit proceedings, should be collaterally estopped from relitigating the reservation boundaries. In Perank, the Utah Supreme Court noted that "neither Perank, the Department of Justice, nor the Tribe suggests that the Tenth Circuit's en banc decision in Ute Indian Tribe has res judicata effect in this case." Because "[r]es judicata is an affirmative defense in both criminal and civil cases and therefore is waivable," the court went on to consider the merits of the State's claim. Petitioner's only recourse would have been to attack the judgment in Perank on the ground that the Utah Supreme Court failed to give effect sua sponte to the prior determination in Ute Indian Tribe that the reservation had not been diminished. Although that issue is one of federal law, see Restatement (Second) of Judgments 86 (1982), it was not presented in the petition for a writ of certiorari. It therefore |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | in the petition for a writ of certiorari. It therefore *410 is not properly before us. ; see Izumi Seimitsu Kogyo Kabushiki Moreover, petitioner disavowed the collateral estoppel argument at the petition stage, in response to a brief filed by the Ute Indian Tribe: "The question presented in the petition was whether the reservation had been diminished by acts of congress. [This Court's Rule 14.1(a)] does not appear to allow different issues to be raised. The Ute Indian Tribe argues that the Supreme Court of the State of Utah should have reached a different decision in [Perank] based on the doctrine of collateral estoppel Regardless of the opinion held by the Ute Indian Tribe of the Perank decision, the decision has been made and is controlling in petitioner's case." Supplemental Brief for Petitioner 2 Because we see no reason to consider an argument that petitioner not only failed to raise, but also expressly refused to rely upon in seeking a writ of certiorari, we turn to the merits. IV In we recognized: "It is settled law that some surplus land Acts diminished reservations, see, e. g., Sioux ; and other surplus land Acts did not, see, e. g., ; The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage." In determining whether a reservation has been diminished, "[o]ur precedents in the area have established a fairly clean *411 analytical structure," directing us to look to three factors. The most probative evidence of diminishment is, of course, the statutory language used to open the Indian We have also considered the historical context surrounding the passage of the surplus land Acts, although we have been careful to distinguish between evidence of the contemporaneous understanding of the particular Act and matters occurring subsequent to the Act's passage. Finally, "[o]n a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reservation." Throughout the inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find 472; see also South )). The Solicitor General, appearing as amicus in support of petitioner, argues that our cases establish a "clear-statement rule," pursuant to which a finding of diminishment would require both explicit language of cession or other language evidencing the surrender of tribal interests and an unconditional commitment from Congress to compensate the Indians. See Brief for United States as Amicus Curiae 7-8. We disagree. First, although the statutory language must "establis[h] an express congressional |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | First, although the statutory language must "establis[h] an express congressional purpose to diminish," we have never required any particular form of words before finding diminishment, see Sioux Second, we noted in that a statutory expression of congressional intent to diminish, coupled with the provision of a sum certain payment, would establish a nearly conclusive presumption that the reservation had been diminished. 465 *412 U. S., -. While the provision for definite payment can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. In fact, the statutes at issue in which we held to have effected a diminishment, did not provide for the payment of a sum certain to the Indians. See and n. 18. We thus decline to abandon our traditional approach to diminishment cases, which requires us to examine all the circumstances surrounding the opening of a reservation. A The operative language of the 1902 Act provided for allocations of reservation land to Indians, and that "all the unallotted lands within said reservation shall be restored to the public domain." The public domain was the land owned by the Government, mostly in the West, that was "available for sale, entry, and settlement under the homestead laws, or other disposition under the general body of land laws." E. Peffer, The Closing of the Public Domain 6 (1951). "[F]rom an early period in the history of the government it [was] the practice of the President to order, from time to time, parcels of land belonging to the United States to be reserved from sale and set apart for public uses." This power of reservation was exercised for various purposes, including Indian settlement, bird preservation, and military installations, "when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain." United It follows that when lands so reserved were "restored" to the public domaini. e., once again opened to sale or settlementtheir previous public use was extinguished. See Sioux ; United Statutes of the period indicate that Congress considered Indian reservations as separate from the public domain. See, e. g., Act of June 25, 1910, 6, ). Likewise, in we emphasized the distinction between reservation and public domain lands: "That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the `public domain.'" In the Court held that an Act which authorized the Secretary of the Interior |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | that an Act which authorized the Secretary of the Interior to "`sell and dispose of'" unallotted reservation lands merely opened the reservation to non-Indian settlement and did not diminish -474. Elsewhere in the same statute, Congress had granted the Indians permission to harvest timber on the opened lands "`as long as the lands remain part of the public domain.'" We recognized that this reference to the public domain "support[ed]" the view that a reservation had been diminished, but that it was "hardly dispositive." We noted that "even without diminishment, unallotted opened lands could be conceived of as being in the `public domain' inasmuch as they were available for settlement." n. 17. The Act in however, did not "restore" the lands to the public domain. More importantly, the reference to the public domain did not appear in the operative language of the statute opening the reservation lands for settlement, which is the relevant point of reference for the diminishment inquiry. Our cases considering operative language of restoration have uniformly equated it with a congressional purpose to terminate reservation status. *414 In of Wash. State Penitentiary, for example, the question was whether the Colville Reservation, in the State of Washington, had been diminished. The Court noted that an 1892 Act which "`vacated and restored to the public domain'" about one-half of the reservation lands had diminished the reservation as to that half. As to the other half, Congress in 1906 had provided for allotments to the Indians, followed by the sale of mineral lands and entry onto the surplus lands under the homestead laws. This Court held that the 1906 Act did not result in diminishment: "Nowhere in the 1906 Act is there to be found any language similar to that in the 1892 Act expressly vacating the South Half of the reservation and restoring that land to the public domain." This Court subsequently characterized the 1892 Act at issue in Seymour as an example of Congress' using "clear language of express termination when that result is desired." n. 22. And in all nine Justices agreed that a statute which "`restored to the public domain'" portions of a reservation would result in and n. 5; In light of our precedents, we hold that the restoration of unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status. Thus, the existence of such language in the operative section of a surplus land Act indicates that the Act diminished the reservation. Indeed, we have found only one case in which a Federal |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | we have found only one case in which a Federal Court of Appeals decided that statutory restoration language did not terminate a reservation, Ute Indian Tribe, 773 F. 2d, at 1092, a conclusion the Tenth Circuit has since disavowed as "unexamined and unsupported." Pittsburg & Midway Coal Mining *415 Until the Ute Indian Tribe litigation in the Tenth Circuit, every court had decided that the unallotted lands were restored to the public domain pursuant to the terms of the 1902 Act, with the 1905 Act simply extending the time for opening and providing for a few details. ; United ; Uintah and White River Bands of Ute ; Petitioner argues, however, that the 1905 Act changed the "manner" in which the lands were to be opened. That Act specified that the homestead and townsite laws would apply, and so superseded the "restore to the public domain" language of the 1902 Act, language that was not repeated in the 1905 Act. We disagree, because the baseline intent to diminish the reservation expressed in the 1902 Act survived the passage of the 1905 Act. Every congressional action subsequent to the 1902 Act referred to that statute. The 1902 Joint Resolution provided an appropriation prior to the restoration of surplus reservation lands to the public domain. The 1903 and 1904 Acts simply extended the deadline for opening the reservations in order to allow more time for surveying the lands, so that the "purposes" of the 1902 Act could be carried out. ; And the 1905 Act recognized that they were all tied together when it provided that the proceeds of the sale of the unallotted lands "shall be applied as provided in the [1902 Act] and the Acts amendatory thereof and supplementary thereto." The Congress that passed the 1905 Act clearly viewed the 1902 statute as the basic legislation upon which subsequent Acts were built. Furthermore, the structure of the statutes requires that the 1905 Act and the 1902 Act be read together. Whereas the 1905 Act provided for the disposition of unallotted lands, it was the 1902 Act that provided for allotments to the Indians. *416 The 1902 Act also established the price for which the unallotted lands were to be sold, and what was to be done with the proceeds of the sales. The 1905 Act did not repeat these essential features of the opening, because they were already spelled out in the 1902 Act. The two statutesas well as those that came in betweenmust therefore be read together. Finally, the general rule that repeals by implication are disfavored is especially |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | general rule that repeals by implication are disfavored is especially strong in this case, because the 1905 Act expressly repealed the provision in the 1903 Act concerning the siting of the grazing lands; if Congress had meant to repeal any part of any other previous statute, it could easily have done so. Furthermore, the predicate for finding an implied repeal is not present in this case, because the opening provisions of the two statutes are not inconsistent: The 1902 Act also provided that the unallotted lands restored to the public domain could be sold pursuant to the homestead laws. Other surplus land Acts which we have held to have effected diminishment similarly provided for initial entry under the homestead and townsite laws. See ; B Contemporary historical evidence supports our conclusion that Congress intended to diminish the Uintah Reservation. As we have noted, the plain language of the 1902 Act demonstrated the congressional purpose to diminish the Uintah Reservation. Under the 1902 Act, however, the consent of the Indians was required before the reservation could be diminished; that consent was withheld by the Indians living on the reservation. After this Court's Lone Wolf decision in 1903, Congress authorized the Secretary of the Interior to proceed unilaterally. The Acting Commissioner for Indian Affairs in the Department of the Interior directed Indian Inspector James McLaughlin to travel to the Uintah Reservation to "endeavor to obtain [the Indians'] consent to the *417 allotment of lands as provided in the law, and to the restoration of the surplus " Letter from A. C. Tonner to James McLaughlin (Apr. 27, 1903), reprinted in S. Doc. No. 58th Cong., 3d Sess., 9 (1905). The Acting Commissioner noted, however, that the effect of the 1903 Act was that "if the [Indians] do not consent to the allotments by the first of June next the allotments are to be made notwithstanding, and the unallotted lands are to be opened to entry" according to the terms of the 1902 Act. Inspector McLaughlin explained the effect of these recent developments to the Indians living on the Reservation: "`By that decision of the Supreme Court, Congress has the legal right to legislate in regard to Indian lands, and Congress has enacted a law which requires you to take your allotments. "`You say that [the Reservation boundary] line is very heavy and that the reservation is nailed down upon the border. That is very true as applying to the past many years and up to now, but congress has provided legislation which will pull up the nails which hold down that line |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | will pull up the nails which hold down that line and after next year there will be no outside boundary line to this reservation.'" Minutes of Councils Held by James McLaughlin, U. S. Indian Inspector, with the Uintah and White River Ute Indians at Uintah Agency, Utah, from May 18 to May 23, 1903, excerpted in App. to Brief for Respondent 4a-5a Inspector McLaughlin's picturesque phrase reflects the contemporaneous understanding, by him conveyed to the Indians, that the reservation would be diminished by operation of the 1902 and 1903 Acts notwithstanding the failure of the Indians to give their consent. The Secretary of the Interior informed Congress in February 1904 that the necessary surveying could not be completed before the date set for the opening, and requested *418 that the opening be delayed. Letter from E. A. Hitchcock to the Chairman of the Senate Committee on Indian Affairs (Feb. 6, 1904), reprinted in S. Doc. No. In the 1904 Act, Congress accordingly extended the time for opening until March 10, 1905, and appropriated additional funds "to enable the Secretary of the Interior to do the necessary surveying" of the reservation The Secretary of the Interior subsequently informed Congress that a further extension would be necessary because the surveying and allotments could not be completed during the winter. Letter from E. A. Hitchcock to the Chairman of the House Committee on Indian Affairs (Dec. 10, 1904), reprinted in S. Doc. No. The House of Representatives took up the matter on January 21, 1905. The bill on which debate was held provided that "so much of said lands as will be under the provisions of said acts restored to the public domain shall be open to settlement and entry by proclamation of the President of the United States, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered." H. R. 17474, quoted in 39 Cong. Rec. 1180 (1905). Representative Howell of Utah offered as an amendment "[t]hat for one year immediately following the restoration of said lands to the public domain said lands shall be subject to entry only under the homestead, town-site, and mining laws of the United States." Significantly, Representative Howell offered his amendment as an addition to, not a replacement for, the language in the bill that explicitly referred to the lands' restoration to the public domain. He explained: "In the pending bill these lands, when restored to the public domain, are subject to entry under the general land laws of the United States, coupled with such rules and regulations as the |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | United States, coupled with such rules and regulations as the President may prescribe. In my humble judgment there should be some provision such as is embodied in my amendment, limiting the lands in the reservation to entry under the homestead, town-site, *419 and mining laws alone for one year from the date of the opening. "Congress should see to it that until such time as those lands easy of access, reclamation, and irrigation are settled by actual home makers the provisions of the homestead law alone shall prevail. This policy is in accord with the dominant sentiment of the time, viz, that the public lands shall be reserved for actual homes for the people." Although the amendment was rejected in the House of Representatives, the Senate substituted the current version of the 1905 Act, which is similar to the amendment offered by Representative Howell but omits the restoration language of the House version. In the hearings on the Senate bill, Senator Teller of Colorado had stated that "I am not going to agree to any entry of that land except under the homestead and town-site entries," because "I am not going to consent to any speculators getting public land if I can help " Indian Appropriation Bill, 1906, Hearings before the Senate Subcommittee of the Committee on Indian Affairs, 58th Cong., 3d Sess., 30 (1905). Thus, although we have no way of knowing for sure why the Senate decided to limit the "manner" of opening, it seems likely that Congress wanted to limit land speculation. That objective is not inconsistent with the restoration of the unallotted lands to the public domain: Once the lands became public, Congress could of course place limitations on their entry, sale, and settlement. The Proclamation whereby President Roosevelt actually opened the reservation to settlement makes clear that the 1905 Act did not repeal the restoration language of the 1902 Act. In that document, the President stated that the 1902 Act provided that the unallotted lands were to be restored to the public domain, that the 1903, 1904, and 1905 Acts extended the time for the opening, and that those lands were *420 now opened for settlement under the homestead laws "by virtue of the power in [him] vested by said Acts of Congress." President Roosevelt thus clearly understood the 1905 Act to incorporate the 1902 Act, and specifically the restoration language. This "unambiguous, contemporaneous, statement, by the Nation's Chief Executive," is clear evidence of the understanding at the time that the Uintah Reservation would be diminished by the opening of the unallotted lands to non-Indian |
Justice O'Connor | 1,994 | 14 | majority | Hagen v. Utah | https://www.courtlistener.com/opinion/112929/hagen-v-utah/ | diminished by the opening of the unallotted lands to non-Indian settlement. The subsequent history is less illuminating than the contemporaneous evidence. Since 1905, Congress has repeatedly referred to the Uintah Reservation in both the past and present tenses, reinforcing our longstanding observation that "[t]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United The District Court in the Ute Indian Tribe case extensively cataloged these congressional references, and we agree with that court's conclusion: "Not only are the references grossly inconsistent when considered together, they are merely passing references in text, not deliberate expressions of informal conclusions about congressional intent in 1905." Because the textual and contemporaneous evidence of diminishment is clear, however, the confusion in the subsequent legislative record does nothing to alter our conclusion that the Uintah Reservation was diminished. C Finally, our conclusion that the statutory language and history indicate a congressional intent to diminish is not controverted by the subsequent demographics of the Uintah Valley area. We have recognized that "[w]hen an area is predominately populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains *421 Indian country seriously burdens the administration of state and local governments." 465 U. S., -472, n. 12. Of the original 2 million acres reserved for Indian occupation, approximately 400,000 were opened for non-Indian settlement in 1905. Almost all of the non-Indians live on the opened The current population of the area is approximately 85 percent non-Indian. Census of Population and Housing, Summary Population and Housing Characteristics: Utah, CPH-1-46, Table 17, p. 73. The population of the largest city in the areaRoosevelt City, named for the President who opened the reservation for settlement is about 93 percent non-Indian. Table 3, p. 13. The seat of Ute tribal government is in Fort Duchesne, which is situated on Indian trust By contrast, we found it significant in that the seat of tribal government was located on opened The State of Utah exercised jurisdiction over the opened lands from the time the reservation was opened until the Tenth Circuit's Ute Indian Tribe decision. That assumption of authority again stands in sharp contrast to the situation in where "tribal authorities and Bureau of Indian Affairs personnel took primary responsibility for policing the opened lands during the years following [the opening in] 1908." This "jurisdictional history," as well as the current population situation in the Uintah Valley, demonstrates a practical acknowledgment that the Reservation was diminished; a contrary conclusion would seriously disrupt the justifiable expectations of the people living in |
Justice Rehnquist | 1,982 | 19 | dissenting | Hathorn v. Lovorn | https://www.courtlistener.com/opinion/110743/hathorn-v-lovorn/ | The provisions of 5, 12(f), and 14(b) of the Voting Rights Act, referred to in the opinion of the Court, ante, at 265-268, convince me that Congress did not intend the state courts to play a role in the enforcement of that Act. In Gulf Offshore upon which the Court heavily relies for its contrary conclusion, we said: "The factors generally recommending exclusive federal court jurisdiction over an area of federal law include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims." It seems to me that each of these factors counsels in favor of exclusive federal-court jurisdiction, and I do not understand the Court to contend otherwise. From a practical point of view, I think the Court's decision is bound to breed conflicts between the state courts and the federal district courts sitting within the States, each of which may now determine whether or not a particular voting change must be precleared with the Attorney General before being enforced in a covered jurisdiction. Indeed, the precursor of such conflict may well be found in the Court's concluding observations that the District Court for the Northern District of Mississippi, in which the United States has pending a suit pertaining to the change involved in this case, should proceed to make determinations under the Voting *272 Rights Act before the state court whose judgment we are reviewing renders further remedy in this case. Exactly what is to be left to the States under this construction is more than a little problematical. I do not think that the goals of the Voting Rights Act will be materially advanced by the Court's somewhat tortured effort to make the state courts a third line of enforcement for the Act, after the District Court for the District of Columbia and other federal district courts. The principal effect of today's decision will be to enable one or the other of parties such as those involved in this case, neither of whom were intended to be primary beneficiaries of the Voting Rights Act, to employ the Act as another weapon in their arsenal of litigation strategies. |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | Today's decision departs drastically from the norms that inform the proper judicial function. Without even the most casual admission that it is discarding longstanding legal principles, the Court radically redefines the content of the "abuse of the writ" doctrine, substituting the strict-liability "cause and prejudice" standard of for the good-faith "deliberate abandonment" standard of This doctrinal innovation, which repudiates a line of judicial decisions codified by Congress in the governing statute and procedural rules, was by no means foreseeable when the petitioner in this case filed his first federal habeas application. Indeed, the new rule announced and applied today was not even requested by respondent at any point in this litigation. Finally, rather than remand this case for reconsideration in light of its new standard, the majority performs an independent reconstruction of the record, disregarding the factual findings of the District Court and applying its new rule in a *507 manner that encourages state officials to conceal evidence that would likely prompt a petitioner to raise a particular claim on habeas. Because I cannot acquiesce in this unjustifiable assault on the Great Writ, I dissent. I Disclaiming innovation, the majority depicts the "cause and prejudice" test as merely a clarification of existing law. Our decisions, the majority explains, have left "[m]uch confusion. on the standard for determining when a petitioner abuses the writ." Ante, at 477. But amidst this "confusion," the majority purports to discern a trend toward the cause-and-prejudice standard and concludes that this is the rule that best comports with "our habeas corpus precedents," ante, at 490; see ante, at 495, and with the "complex and evolving body of equitable principles" that have traditionally defined the abuse-of-the-writ doctrine, This attempt to gloss over the break between today's decision and established precedents is completely unconvincing. Drawing on the practice at common law in England, this Court long ago established that the power of a federal court to entertain a second or successive petition should turn not on "the inflexible doctrine of res judicata" but rather on the exercise of "sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject." Wong ; accord, Thus, in Wong the Court held that the District Court acted within its discretion in dismissing a petition premised on a ground that was raised but expressly abandoned in an earlier petition. "The petitioner had full opportunity," the Court explained, "to offer proof [of the abandoned ground] at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | to rely on that ground, good faith required that he produce the proof then." Noting that the evidence supporting the abandoned ground had been "accessible *508 all the time," the Court inferred that petitioner, an alien seeking to forestall his imminent deportation, had split his claims in order to "postpone the execution of the [deportation] order." In in contrast, the Court held that the District Court abused its discretion by summarily dismissing a petition that raised a claim not asserted in any of three previous petitions filed by the same prisoner. Whereas it had been clear from the record that the petitioner in Wong had possessed access to the facts supporting his abandoned claim, the District Court in Price had no basis for assuming that the prisoner had "acquired no new or additional information since" the disposition of his earlier petitions. "[E]ven if it [had been] found that petitioner did have prior knowledge of all the facts concerning the allegation in question," the Court added, the District Court should not have dismissed the petition before affording the prisoner an opportunity to articulate "some justifiable reason [why] he was previously unable to assert his rights or was unaware of the significance of relevant facts." In the Court crystallized the various factors bearing on a district court's discretion to entertain a successive petition.[1] The Court in distingnished successive petitions raising previously asserted grounds from those raising previously unasserted grounds. With regard to the former class of petitions, the Court explained, the district court may give "[c]ontrolling weight to [the] denial of a prior application" unless "the ends of justice would be served by reaching the merits of the subsequent application." With regard to the *509 latter, however, the district court must reach the merits of the petition unless "there has been an abuse of the writ." In determining whether the omission of the claim from the previous petition constitutes an abuse of the writ, the judgment of the district court is to be guided chiefly by the "`[equitable] principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Ib quoting "Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong the prisoner |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | same may be true if, as in Wong the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." What emerges from and its predecessors is essentially a good-faith standard. As illustrated by Wong the principal form of bad faith that the "abuse of the writ" doctrine is intended to deter is the deliberate abandonment of a claim the factual and legal basis of which are known to the petitioner (or his counsel) when he files his first petition. The Court in stressed this point by equating its analysis with that of which established the then-prevailing "deliberate bypass" test for the cognizability of claims on which a petitioner procedurally defaulted in state proceedings. See A petitioner also abuses the writ under when he uses the writ to achieve some end other than expeditious relief from unlawful confinement such as "to vex, harass, or delay." However, so long *510 as the petitioner's previous application was based on a good-faith assessment of the claims available to him, see ; Wong ; the denial of the application does not bar the petitioner from availing himself of "new or additional information," in support of a claim not previously raised. Accord, Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427. "Cause and prejudice"the standard currently applicable to procedural defaults in state proceedings, see imposes a much stricter test. As this Court's precedents make clear, a petitioner has cause for failing effectively to present his federal claim in state proceedings only when "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule" Under this test, the state of mind of counsel is largely irrelevant. Indeed, this Court has held that even counsel's reasonable perception that a particular claim is without factual or legal foundation does not excuse the failure to raise that claim in the absence of an objective, external impediment to counsel's efforts. See In this sense, the cause component of the test establishes a strict-liability standard.[2] *511 Equally foreign to our abuse-of-the-writ jurisprudence is the requirement that a petitioner show "prejudice." Under a petitioner who articulates a justifiable reason for failing to present a claim in a previous habeas application is not required in addition to demonstrate any particular degree of prejudice before the habeas court must consider his claim. If the petitioner demonstrates that his claim has merit, it is |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | the petitioner demonstrates that his claim has merit, it is the State that must show that the resulting constitutional error was harmless beyond a reasonable doubt. See L. Postconviction Remedies 133, p. 503 (1981).[3] *512 II The real question posed by the majority's analysis is not whether the cause-and-prejudice test departs from the principles of for it clearly does but whether the majority has succeeded in justifying this departure as an exercise of this Court's common-lawmaking discretion. In my view, the majority does not come close to justifying its new standard. A Incorporation of the cause-and-prejudice test into the abuse-of-the-writ doctrine cannot be justified as an exercise of this Court's common-lawmaking discretion, because this Court has no discretion to exercise in this area. Congress has affirmatively ratified the good-faith standard in the governing statute and procedural rules, thereby insulating that standard from judicial repeal. The abuse-of-the-writ doctrine is embodied in 28 U.S. C. 2244(b) and in Habeas Corpus Rule 9(b). Enacted three years after 2244(b) recodified the statutory authority of a district court to dismiss a second or successive petition, amending the statutory language to incorporate the criteria: "[A] subsequent application for a writ of habeas corpus. need not be entertained by a court unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S. C. 2244(b). Consistent with the purpose of the recodification was to spare a district court the obligation to entertain a petition "containing allegations identical to those asserted in a previous application that has been denied, or predicated upon grounds obviously well known to [the petitioner] when [he] *513 filed the preceding application." S. Rep. No. 7, 89th Cong., 2d Sess., 2 (1966) (emphasis added). Rule 9(b) likewise adopts ' terminology: "A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." There can be no question that 2244(b) and Rule 9(b) codify The legislative history of, and Advisory Committee's Notes to, Rule 9(b) expressly so indicate, see 28 U.S. C., pp. 426-427; H. R. Rep. No. 94-71, pp. 5-6 (1976), and |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | 426-427; H. R. Rep. No. 94-71, pp. 5-6 (1976), and such has been the universal understanding of this Court, see of the lower courts, see, e. g., ; cert. denied, sub nom. ; ; ; cert. denied, ; United ; United States ex rel. n. 4A (CA3), cert. denied, and of commentators, see, e. g., 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 4267, pp. 477-478 ; L. 154.[4] *5 The majority concedes that 2244(b) and Rule 9(b) codify see ante, at 487, but concludes nonetheless that Congress did "not answer" all of the "questions" concerning the abuse-of-the-writ doctrine, The majority emphasizes that 2244(b) refers to second or successive petitions from petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ" without exhaustively cataloging the ways in which the writ may "otherwise" be "abused." See ante, at 486, 489-490. From this "silenc[e]," the majority infers a congressional delegation of lawmaking power broad enough to encompass the engrafting of the cause-and-prejudice test onto the abuse-of-the-writ doctrine. Ante, at 487. It is difficult to take this reasoning seriously. Because "cause" under makes the mental state of the petitioner (or his counsel) irrelevant, "cause" completely subsumes "deliberate abandonment." See ; see also Thus, if merely failing to raise a claim without "cause" that is, without some external impediment to raising it necessarily constitutes an abuse of the writ, the statutory reference to deliberate withholding of a claim would be rendered superfluous. Insofar as was primarily concerned with limiting dismissal of a second or subsequent petition to instances in which the petitioner had deliberately abandoned the new claim, see the suggestion that Congress invested courts with the discretion to read this language out of the statute is completely irreconcilable with the proposition that 2244(b) and Rule 9(b) codify To give content to "otherwise abus[e] the writ" as used in 2244(b), we must look to As I have explained, *515 the Court in identified two broad classes of bad-faith conduct that bar adjudication of a claim not raised in a previous habeas application: the deliberate abandonment or withholding of that claim from the first petition; and the filing of a petition aimed at some purpose other than expeditious relief from unlawful confinement, such as "to vex, harass, or delay." See By referring to second or successive applications from habeas petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ," 2244(b) tracks this division. Congress may well have selected the phrase "otherwise abused the writ" with the expectation that courts would continue to elaborate |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | writ" with the expectation that courts would continue to elaborate upon the types of dilatory tactics that, in addition to deliberate abandonment of a known claim, constitute an abuse of the writ. But consistent with Congress' intent to codify ' good-faith test, such elaborations must be confined to circumstances in which a petitioner's omission of an unknown claim is conjoined with his intentional filing of a petition for an improper purpose, such as "to vex, harass or delay." The majority tacitly acknowledges this constraint on the Court's interpretive discretion by suggesting that "cause" is tantamount to "inexcusable neglect." This claim, too, is untenable. The majority exaggerates when it claims that the "inexcusable neglect" formulationwhich this Court has never applied in an abuse-of-the-writ decisionfunctions as an independent standard for evaluating a petitioner's failure to raise a claim in a previous habeas application. It is true that compared its own analysis to the analysis in which established that a district court should deny an evidentiary hearing if the habeas petitioner inexcusably neglected to develop factual evidence in state proceedings. See Townsend, however, expressly equated "inexcusable neglect" with the "deliberate bypass" test of See 372 U. S., at *516 317.[5] But even if "inexcusable neglect" does usefully describe a class of abuses separate from deliberate abandonment, the melding of "cause and prejudice" into the abuse-of-the-writ doctrine cannot be defended as a means of "giving content" to "inexcusable neglect." Ante, at 490. For under ' strict-liability standard, mere attorney negligence is never excusable. See 477 U. S., at Confirmation that the majority today exercises legislative power not properly belonging to this Court is supplied by Congress' own recent consideration and rejection of an amendment to 2244(b). It is axiomatic that this Court does not function as a backup legislature for the reconsideration of failed attempts to amend existing statutes. See ; ; see also North Haven Bd. of Yet that is exactly the effect of today's decision. As reported out of the House Committee on the Judiciary, 1303 of H. R. 5269, 101st Cong., 2d Sess. would have required dismissal of any second or subsequent application by a habeas petitioner under sentence of death unless the petitioner *517 raised a new claim "the factual basis of [which] could not have been discovered by the exercise of reasonable diligence," H. R. Rep. No. 101-681, pt. 1, p. 29 (emphasis added).[6] The Committee Report accompanying this legislation explained that "courts have properly construed section 2244(b) and Rule 9(b) as codifications of the guidelines the [Supreme] Court itself prescribed in" The Report justified adoption of the tougher |
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