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Justice Douglas
1,973
10
dissenting
Moor v. County of Alameda
https://www.courtlistener.com/opinion/108782/moor-v-county-of-alameda/
under some circumstances authorize a federal injunction against a municipal prosecution of an offender. Such being my understanding of and I would hold that the County of Alameda in this case is a "person" within the meaning of 1983 for a narrow group of equity actions and that therefore the District Court did not lack jurisdiction. Although the complaint in the instant action asked for damages, it also prayed for any further relief that the court might deem just and proper. Since the complaint was dismissed at the threshold of the litigation, it is impossible to determine whether or not grounds for equitable *724 relief would have emerged during the normal course of the litigation. But the prayer for any "further relief" would embrace it. In any event an amended complaint could make the matter clear beyond peradventure. That raises the question as to the liability of the County of Alameda, by reason of 42 U.S. C. 1988, which reads: "The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty." Under California law "[a] public entity may sue and be sued." (Govt. Code 945), although a public entity has a general immunity from suit involving injury. 815. Moreover, an officer, while generally immune, may become liable in damages, if he uses unreasonable force against a citizen, in which event the municipality loses its immunity. That at least is the way I read Since 1983 does not allow damages against the municipality *725 in a federal suit, federal laws "are not adapted to the object," and are "deficient in the provisions necessary to furnish suitable remedies," within
Justice Douglas
1,973
10
dissenting
Moor v. County of Alameda
https://www.courtlistener.com/opinion/108782/moor-v-county-of-alameda/
"deficient in the provisions necessary to furnish suitable remedies," within the meaning of 1988. While it is "inconsistent" with the "laws of the United States," as those words were used in 1988, to enforce a federal cause of action for damages against the County of Alameda, it arguably is within the scheme of the state cause of action. This is not to allow state law to enlarge the scope of 1983. Section 1983 by reason of its equity provision merely gives "jurisdiction" to the District Court, while 1988 allows the District Court to apply state law. As we said in : "This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts." The federal right here is not to obtain damages but to obtain some kind of equitable relief. Application by the federal court of a state cause of action for damages is therefore in harmony with both 1983 and 1988. As we stated in "This means, as we read 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." The federal right here is the alleged "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" as these words are used in 1983.
Justice Stevens
1,994
16
dissenting
Central Bank of Denver , NA v. First Interstate Bank of Denver , NA
https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/
The main themes of the Court's opinion are that the text of 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S. C. 78j(b), does not expressly mention aiding and abetting liability, and that Congress knows how to legislate. Both propositions are unexceptionable, but neither is reason to eliminate the private right of action against aiders and abettors of violations of 10(b) and the Securities and Exchange Commission's (SEC's) Rule 10b—5. Because the majority gives short shrift to a long history of aider and abettor liability under 10(b) and Rule 10b—5, and because its rationale imperils other well-established forms of secondary liability not expressly addressed in the securities laws, I respectfully dissent. In hundreds of judicial and administrative proceedings in every Circuit in the federal system, the courts and the SEC have concluded that aiders and abettors are subject to liability under 10(b) and Rule 10b—5. See 5B A. Jacobs, Litigation and Practice Under Rule 10b—5 40.02 (citing cases). While we have reserved decision on the legitimacy of the theory in two cases that did not present it, all 11 Courts of Appeals to have considered the question have recognized a private cause of action against aiders and abettors under 10(b) and Rule 10b—5.[1] The early aiding *193 and abetting decisions relied upon principles borrowed from tort law; in those cases, judges closer to the times and climate of the 73d Congress than we concluded that holding aiders and abettors liable was consonant with the Exchange Act's purpose to strengthen the antifraud remedies of the common law.[2] One described the aiding and abetting theory, grounded in "general principles of tort law," as a "logical and natural complement" to the private 10(b) action that furthered the Exchange Act's purpose of "creation and maintenance of a post-issuance securities market that is free from fraudulent practices." (borrowing *194 formulation from the Restatement of Torts 876(b) (1939)), later opinion, aff'd, cert. denied, See also The Courts of Appeals have usually applied a familiar three-part test for aider and abettor liability, patterned on the Restatement of Torts formulation, that requires (i) the existence of a primary violation of 10(b) or Rule 10b—5, (ii) the defendant's knowledge of (or recklessness as to) that primary violation, and (iii) "substantial assistance" of the violation by the defendant. See, e. g., ; IIT, An Int'l Investment If indeed there has been "continuing confusion" concerning the private right of action against aiders and abettors, that confusion has not concerned its basic structure, still less its "existence." See ante, at 170. Indeed, in this case, petitioner assumed the existence
Justice Stevens
1,994
16
dissenting
Central Bank of Denver , NA v. First Interstate Bank of Denver , NA
https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/
at 170. Indeed, in this case, petitioner assumed the existence of a right of action against aiders and abettors, and sought review only of the subsidiary questions whether an indenture trustee could be found liable as an aider and abettor absent a breach of an indenture agreement or other duty under state law, and whether it could be liable as an aider and abettor based only on a showing of recklessness. These questions, it is true, have engendered genuine disagreement in the Courts of Appeals.[3] But instead of simply addressing the questions presented by the parties, on which the law really was unsettled, the Court sua sponte directed *195 the parties to address a question on which even the petitioner justifiably thought the law was settled, and reaches out to overturn a most considerable body of precedent.[4] Many of the observations in the majority's opinion would be persuasive if we were considering whether to recognize a private right of action based upon a securities statute enacted recently. Our approach to implied causes of action, as to other matters of statutory construction, has changed markedly since the Exchange Act's passage in 1934. At that time, and indeed until quite recently, courts regularly assumed, in accord with the traditional common-law presumption, that a statute enacted for the benefit of a particular class conferred on members of that class the right to sue violators of that statute.[5] Moreover, shortly before the Exchange Act was passed, this Court instructed that such "remedial" legislation should receive "a broader and more liberal interpretation than that to be drawn from mere dictionary definitions of the words employed by Congress." Piedmont & Northern R. 6 U.S. 299, There is a risk of anachronistic error in applying our current approach to implied causes of action, ante, at 176— 177, to a statute enacted when courts commonly read statutes *196 of this kind broadly to accord with their remedial purposes and regularly approved rights to sue despite statutory silence. Even had 10(b) not been enacted against a backdrop of liberal construction of remedial statutes and judicial favor toward implied rights of action, I would still disagree with the majority for the simple reason that a "settled construction of an important federal statute should not be disturbed unless and until Congress so decides." See Blue Chip[6] A policy of respect for consistent judicial and administrative interpretations leaves it to elected representatives to assess settled law and to evaluate the merits and demerits of changing it.[7] Even when there is no affirmative evidence of ratification, *197 the Legislature's failure to reject a
Justice Stevens
1,994
16
dissenting
Central Bank of Denver , NA v. First Interstate Bank of Denver , NA
https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/
evidence of ratification, *197 the Legislature's failure to reject a consistent judicial or administrative construction counsels hesitation from a court asked to invalidate it. Cf. 5 U.S. 393, Here, however, the available evidence suggests congressional approval of aider and abettor liability in private 10(b) actions. In its comprehensive revision of the Exchange Act in 1975, Congress left untouched the sizable body of case law approving aiding and abetting liability in private actions under 10(b) and Rule 10b—5.[8] The case for leaving aiding *198 and abetting liability intact draws further strength from the fact that the SEC itself has consistently understood 10(b) to impose aider and abettor liability since shortly after the rule's promulgation. See Ernst & In short, one need not agree as an original matter with the many decisions recognizing the private right against aiders and abettors to concede that the right fits comfortably within the statutory scheme, and that it has become a part of the established system of private enforcement. We should leave it to Congress to alter that scheme. The Court would be on firmer footing if it had been shown that aider and abettor liability "detracts from the effectiveness of the 10b—5 implied action or interferes with the effective operation of the securities laws." See Musick, & 508 U.S. 6, However, the line of decisions recognizing aider and abettor liability suffers from no such infirmities. The language of both 10(b) and Rule 10b—5 encompasses "any person" who violates the Commission's antifraud rules, whether "directly or indirectly"; we have read this "broad" language "not technically and restrictively, but flexibly to effectuate its remedial purposes." Affiliated Ute Citizens of U.S. 1, In light of the encompassing language of 10(b), and its acknowledged purpose to strengthen the antifraud remedies of the common law, it was certainly no wild extrapolation for courts to conclude that aiders and abettors should be subject to the *199 private action under 10(b).[9] Allowing aider and abettor claims in private 10(b) actions can hardly be said to impose unfair legal duties on those whom Congress has opted to leave unregulated: Aiders and abettors of 10(b) and Rule 10b—5 violations have always been subject to criminal liability under 18 U.S. C. 2. See 15 U.S. C. 78ff (criminal liability for willful violations of securities statutes and rules promulgated under them). Although the Court canvasses policy arguments against aider and abettor liability, ante, at 188-190, it does not suggest that the aiding and abetting theory has had such deleterious consequences that we should dispense with it on those grounds.[10] The agency charged with primary responsibility for
Justice Stevens
1,994
16
dissenting
Central Bank of Denver , NA v. First Interstate Bank of Denver , NA
https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/
on those grounds.[10] The agency charged with primary responsibility for enforcing the securities laws does not perceive such drawbacks, and urges retention of the private right to sue aiders and abettors. See Brief for SEC as Amicus Curiae 5-17. As framed by the Court's order redrafting the questions presented, this case concerns only the existence and scope of aiding and abetting liability in suits brought by private parties under 10(b) and Rule 10b—5. The majority's rationale, *200 however, sweeps far beyond even those important issues. The majority leaves little doubt that the Exchange Act does not even permit the SEC to pursue aiders and abettors in civil enforcement actions under 10(b) and Rule 10b—5. See ante, at 177 (finding it dispositive that "the text of the 1934 Act does not itself reach those who aid and abet a 10(b) violation"). Aiding and abetting liability has a long pedigree in civil proceedings brought by the SEC under 10(b) and Rule 10b—5, and has become an important part of the SEC's enforcement arsenal.[11] Moreover, the majority's approach to aiding and abetting at the very least casts serious doubt, both for private and SEC actions, on other forms of secondary liability that, like the aiding and abetting theory, have long been recognized by the SEC and the courts but are not expressly spelled out in the securities statutes.[12]*201 The principle the Court espouses today—that liability may not be imposed on parties who are not within the scope of 10(b)'s plain language—is inconsistent with longestablished SEC and judicial precedent. As a general principle, I agree, "the creation of new rights ought to be left to legislatures, not courts." Musick, But judicial restraint does not always favor the narrowest possible interpretation of rights derived from federal statutes. While we are now properly reluctant to recognize private rights of action without an instruction from Congress, we should also be reluctant to lop off rights of action that have been recognized for decades, even if the judicial methodology that gave them birth is now out of favor. Caution is particularly appropriate here, because the judicially recognized right in question accords with the longstanding construction of the agency Congress has assigned to enforce the securities laws. Once again the Court has refused to build upon a "`secure foundation laid by others,' " (quoting B. Cardozo, The Nature of the Judicial Process 149 (1921)). I respectfully dissent.
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
Petitioner Jess H. Hisquierdo in 1975 sued to dissolve his marriage with respondent Angela Hisquierdo. The Supreme Court of California, in applying the State's community property rules, awarded respondent an interest in petitioner's expectation of ultimately receiving benefits under the Railroad Retirement Act of 45 U.S. C. 231 et seq. The issue here is whether the Act prohibits this allocation and division of benefits. I The Railroad Retirement Act, first passed in 1934, provides a system of retirement and disability benefits for persons who pursue careers in the railroad industry. Its sponsors felt that the Act would encourage older workers to retire by providing them with the means "to enjoy the closing days of their lives with peace of mind and physical comfort," and so would "assure more rapid advancement in the service" *574 and also more jobs for younger workers.[1] Both employees and carriers pay a federal tax[2] which funds a Railroad Retirement Account. The Railroad Retirement Board, provided for by the Act, 45 U.S. C. 231f, disburses benefits from the account to each eligible "individual," 45 U.S. C. 231a. In its modern form,[3] the Act resembles both a private pension program and a social welfare plan. It provides two tiers of benefits. The upper tier, like a private pension, is tied to earnings and career service. An employee, to be eligible for benefits, must work in the industry 10 years. Absent disability, no benefit is paid, however, until the employee either reaches age 62 or is at least 60 years old and has completed 30 years of service. 45 U.S. C. 231a (a) (1). Like a social welfare or insurance scheme, the taxes paid by *575 and on behalf of an employee do not necessarily correlate with the benefits to which the employee may be entitled. Since 1950, the Railroad Retirement Account has received substantial transfers from the social security system, and legislative changes made in were expected to require a one-time infusion of $7 billion in general tax revenues.[4] The lower, and larger, tier of benefits corresponds exactly to those an employee would expect to receive were he covered by the Social Security Act. 45 U.S. C. 231b (a) (1). The Act provides special benefits for the children or parent of a worker who dies. 231a (d) (1) (iii) and (iv). It also makes detailed provision for a worker's spouse; the spouse qualifies for an individual benefit if the spouse lives with the employee, and receives regular contributions from the employee for support, or is entitled to support from the employee pursuant to a court order. 231a
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
support from the employee pursuant to a court order. 231a (c) (3) (i). The benefits terminate, however, when the spouse and the employee are absolutely divorced. 231d (c) (3).[5] Like Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even eliminate, them at any time.[6] This vulnerability to congressional edict contrasts strongly with the protection Congress has afforded recipients from creditors, *576 taxgatherers, and all those who would "anticipate" the receipt of benefits: "Notwithstanding any other of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated" 45 U.S. C. 231m.[7] In 1975, Congress made an exception to 231m and similar provisions in all other federal benefit plans. Concerned about recipients who were evading support obligations and thereby throwing children and divorced spouses on the public dole, Congress amended the Social Security Act by adding a new provision, 459, to the effect that, notwithstanding any contrary federal benefits may be reached to satisfy a legal obligation for child support or alimony. 42 U.S. C. 659.[8] In shortly before the issuance of the Supreme Court of California's opinion in this case, Congress added to the Social Security Act a definitional statute, 462 (c), which relates to 459 and limits "alimony" to its traditional *5 common- meaning of spousal support. That statute states specifically that "alimony" "does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." Tit. V, 501 (d),[9] II Petitioner and respondent, who are California residents, were married in Nevada in 1958. They separated in 1972. In 1975 petitioner instituted this proceeding in the Superior Court of California, County of Los Angeles, for dissolution of the marriage. California, like seven other States, by statute has a form of community property brought to our shores by the Spanish. In California the "statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after *578 dissolution, in case of surviving the other."[10] Community property includes the property earned by either
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
the other."[10] Community property includes the property earned by either spouse during the union, as well as that given to both during the marriage. See Cal. Civ. Code Ann. 687 (West 1954). It contrasts with separate property, which includes assets owned by a spouse before marriage or acquired separately by a spouse during marriage through gift. In community property States, ownership turns on the method and timing of acquisition, while the traditional view in common- States is that ownership depends on title.[11] On the theory that petitioner acquired an expectation of receiving Railroad Retirement Act benefits due in part to his labors while married, respondent (but not petitioner) in the California divorce proceeding listed that expectation as an item of community property subject to division upon dissolution of the marriage. App. 2, 3. At the time, petitioner, a railroad machinist, was aged 55. He had worked from 1942 to 1975 for the Atchison, Topeka & Santa Fe Railway, and subsequently entered the employ of the Los Angeles Union Passenger Terminal. Both jobs fell within the Act. Because petitioner had 30 years' service, the statute would permit him to receive benefits if and when he attained age 60. Respondent calculated that she was entitled to half the benefits attributable to his labor during the 14 years of their marriage, or, by her estimates, 19.6% of the total benefits to be received.[12] The couple has no children. *579 Respondent in 1975 was 53. She had worked for the preceding eight years in a factory. She had been gainfully employed for 35 years and had an expectation that upon her retirement she would be entitled to benefits under the Social Security Act. Neither petitioner nor respondent claimed that her expectation of receiving those benefits was community property. App. 2, 3. Respondent, and petitioner, too, waived their claims to spousal support. Tr. of Oral Arg. 5, 33. After its hearing, the Superior Court awarded petitioner the couple's home, in which they had a $12,828 equity, and its furnishings. Respondent was awarded an automobile and a small interest in a mutual fund. The court, however, ordered petitioner to reimburse respondent, by installment payments, for her half of the equity in the home and protected this obligation with an imposed lien in her favor on the real estate. The court ruled that no community interest existed either in petitioner's prospect of receiving Railroad Retirement Act benefits or in respondent's anticipation of benefits under the Social Security Act. App. 4. The California Court of Appeal affirmed. In re Hisquierdo, The court, noting that under this Court's Supremacy
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
re Hisquierdo, The court, noting that under this Court's Supremacy Clause cases Congress has the power to determine the character of a federally created benefit, rejected respondent's claim that petitioner's expectation of receiving Railroad Retirement Act benefits was community property. The court reasoned that, because federal pension programs may be terminated by Congress at any time, petitioner had no enforceable contract right. Respondent contended that the state court, under the decision in In re cert. denied, could determine the expected value of her interest and award her a compensating amount of other property available for distribution. The court held, however, that such a remedy would be contrary to 231m, which provides that *580 benefits are not to be "anticipated," and would frustrate the explicit and detailed terms of the Act that grant the employee a benefit separate and distinct from the nonemployee spouse's benefit that terminates upon absolute divorce. See also In re Nizenkoff, ; In re Kelley, Review was granted by the Supreme Court of California. Respondent there argued that "there is absolutely no evidence that Congress ever intended to prevent a community property state from recognizing a spouse's community interest in a Railroad Retirement Act retirement plan."[13] In a unanimous opinion that court reversed the Court of Appeal. In re Hisquierdo, Relying on its recent case[14] the Supreme Court of California held that because the benefits would flow in part from petitioner's employment during marriage, they were community property even though under federal petitioner had no enforceable contract right. Congress' decision to terminate benefits for divorced spouses, the court believed, was evidence that Congress intended to rely on traditional state- doctrines to protect them. The court rejected petitioner's contention that 231m barred respondent's claim. The court reasoned that it was intended to bar creditors, and respondent was not a creditor but a present owner. The then very recent amendment to the Social Security Act (mentioned above as the new *581 462 (c) of that Act) was not discussed. The question of remedy was left open for decision on remand. The court indicated that by awarding respondent compensating property under the doctrine of In re a court could avoid any infringement on the Act's designation of petitioner as the "individual" recipient. We granted certiorari to consider whether, under the standard of this Court's decided Supremacy Clause cases, the award to respondent impermissibly conflicts with the Railroad Retirement Act.[15] III Insofar as marriage is within temporal control, the States lay on the guiding hand. "The whole subject of the domestic relations of husband and wife, parent and child, belongs to
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
relations of husband and wife, parent and child, belongs to the s of the States and not to the s of the United States." In re Burrus, Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question. See, e. g., Ohio ex rel. On the rare occasion when state family has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has "positively required by direct enactment" that state be pre-empted. A mere conflict in words is not sufficient. State family and family-property must do "major damage" to "clear and substantial" federal interests before the Supremacy Clause will demand that state be overridden. United *582 Nevertheless, on at least four prior occasions this Court has found it necessary to forestall such an injury to federal rights by state based on community property concepts. In federal homestead which permitted a widow to patent federal land that had been entered by her husband, prevailed over a daughter's asserted inheritance of her father's expectancy that the patent would issue to him. And in a trilogy of cases, the Court held that the survivorship rules in federal savings bond and military life insurance programs override community property absent fraud or breach of trust by the decedent. ; ; This case, like those four, has to do with a conflict between federal and state rules for the allocation of a federal entitlement. The manipulation problem that concerned the Court in and however, cases in which savings bonds were purchased with community property, is not present here. Railroad Retirement Act benefits from their very inception have federal overtones. Compulsory federal taxes finance them and not just the taxes that fall on the employee. The benefits more closely parallel the land homesteaded in Because the United States owned the land, title to it could not pass in a manner contrary to federal even though a matter of that kind normally is left to the States. Here, California must defer to the federal statutory scheme for allocating Railroad Retirement Act benefits insofar as the terms of federal require. The critical terms here include a specified beneficiary protected by a flat prohibition against attachment and anticipation. In the Court interpreted a somewhat similar provision[16] to preclude *583 a division for community property -660, even though Congress had not spoken with the specificity that characterizes the Social Security Act amendments that inform our decision here. The approach must be practical. The federal nature of the benefits does not by itself proscribe the entire field
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
the benefits does not by itself proscribe the entire field of state control. Petitioner contends, as the California Court of Appeal held, that the States may not create rights to these benefits that do not exist under federal Petitioner accordingly says that, because not even petitioner "owns" benefits until Congress has determined that they be paid, the Supreme Court of California erred in describing respondent as a present owner of an expectancy in those benefits. Such rights in the abstract, however, do not necessarily cause the injury to federal that the Supremacy Clause forbids. The pertinent questions are whether the right as asserted conflicts with the express terms of federal and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition. A The first way in which respondent seeks to vindicate her community property interest, one particularly pressed at oral argument, Tr. of Oral Arg. 32, 44, is that the Superior Court would retain jurisdiction and order petitioner to pay her an appropriate portion of his benefit, or its monetary equivalent, as petitioner receives it. See In re Brown, That course, however, runs contrary to the language and purpose of 231m and would mechanically deprive petitioner of a portion of the benefit Congress, in 231d (c) (3), indicated was designed for him alone. Section 231m plays a most important role in the statutory *584 scheme. Like anti-attachment provisions generally, see ; it ensures that the benefits actually reach the beneficiary. It pre-empts all state that stands in its way. It protects the benefits from legal process "[n]otwithstanding any other of any State." Even state tax-collection s must bow to its command, for Congress added that phrase in an amendment designed in part to ensure that neither federal nor state tax collectors would encroach on the distribution of benefits.[17] It prevents the vagaries of state from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy. Congress carefully targeted the benefits created by the Railroad Retirement Act. It even embodied a community concept to an extent. The Act provides a benefit for a spouse, but the spouse need not have worked for a carrier. The spouse's sole contribution is to the marital community that supports the employee who has made railroad employment a career. Congress purposefully abandoned that theory, however, in allocating benefits upon absolute divorce. In direct language the spouse is cut off: "The entitlement of a spouse of an individual to an annuity shall end on the last day of the month preceding *585 the month in which the
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
of the month preceding *585 the month in which the spouse and the individual are absolutely divorced." 45 U.S. C. 231d (c) (3). The choice was deliberate. When the Act was revised in a proposal was made to award a divorced spouse a benefit like that available to a divorced spouse under the Social Security Act. The labor-management negotiation committee, however, rejected that proposal, and Congress ratified its decision. It based its conclusion on the perilous financial state of the Railroad Retirement Account, and the need to devote funds to other[18] Congress has made a choice, and 231m protects it. It is for Congress to decide how these finite funds are to be allocated. The statutory balance is delicate. Congress has fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire. Any automatic diminution of that amount frustrates the congressional objective. By reducing benefits received, it discourages the divorced employee from retiring. And it provides the employee with an incentive to keep working, because the former spouse has no community property claim to salary earned after the marital community is dissolved. Section 231m shields the distribution of benefits from state decisions that would actually reverse the flow of incentives Congress originally intended. Respondent contends that this interpretation of the Act is manifestly unjust, and could not have been intended by *586 Congress. She suggests that her contribution to the marital community merits recompense, and she argues that, as a logical matter, Congress would not have terminated the spouse's benefit upon absolute divorce if it had thought that a divorced spouse would be totally unable to assert a state- claim against the benefits received by the employee spouse. She urges that, at least with respect to spousal claims, the Court should hold that 231m does no more than restate the Government's sovereign immunity from burdensome garnishment suits, and so has no effect on her right to require petitioner to reimburse her as he receives benefits. She notes that several courts have adopted this construction in holding that an errant spouse could be forced to pay child and spousal support upon receipt of Railroad Retirement Act payments.[19] We, however, cannot so lightly discard the settled view that anti-assignment statutes have substantive meaning. Section 231m goes far beyond garnishment. It states that the annuity shall not be subject to any "legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." Its terms make no exception for a spouse. The judicial construction on which respondent relies is a child of equity, not of
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
which respondent relies is a child of equity, not of In the Court held that a similar line of authority did not apply to community property claims: "Venerable and worthy as this community is, it is not, we think, as likely to justify an exception to the congressional language as specific judicial recognition of particular *587 needs, in the alimony and support cases." Now Congress has written into the same distinction drew as a matter of policy. The amendments to the Social Security Act, by way of amending the existing 459 and adding a new 462, expressly override 231m, and even facilitate garnishment for claims based on spousal support. They decline to do so, however, for community property claims. The legislative history is sparse and does not mention[20] We know, however, that the purpose of 459 was to help children and divorced spouses get off welfare. It is therefore logical to conclude that Congress, in adopting 462 (c), thought that a family's need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so. *588 B Respondent contends that she can vindicate her interest and leave the benefit scheme intact by pursuing her remedy under In re She seeks an offsetting award of presently available community property to compensate her for her interest in petitioner's expected benefits. As petitioner's counsel bluntly put it, respondent wants the house. Tr. of Oral Arg. 5. The expected value of the benefits is such that she could get it if this remedy were adopted. An offsetting award, however, would upset the statutory balance and impair petitioner's economic security just as surely as would a regular deduction from his benefit check. The harm might well be greater. Section 231m provides that payments are not to be "anticipated." Legislative history throws little light on the meaning of this word.[21] In the of trusts, however, a prohibition against anticipation is commonly understood to mean that "the interest of a sole beneficiary shall not be paid to him before a certain date." E. Griswold, Spendthrift Trusts 512, p. 583 (2d ed. 1947).[22] The *589 Railroad Retirement Act resembles a trust in certain respects. If that definition is applied here, then the offsetting award respondent seeks would improperly anticipate payment by allowing her to receive her interest before the date Congress has set for any interest to accrue. Any such anticipation threatens harm to the employee, and corresponding frustration to federal policy, over and above the mere loss
Justice Blackmun
1,979
11
majority
Hisquierdo v. Hisquierdo
https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/
frustration to federal policy, over and above the mere loss of wealth caused by the offset. If, for example, a nonemployee spouse receives offsetting property, and then the employee spouse dies before collecting any benefits, the employee's heirs or beneficiaries suffer to the extent that the offset exceeds the lump-sum death benefits the Act provides. See 45 U.S. C. 231e. Similarly, if the employee leaves the industry before retirement, and so fails to meet the "current connection with the railroad industry" requirement for certain supplemental benefits, see 45 U.S. C. 231a (b) (1) (iv), the employee never will fully regain the amount of the offset. A third possibility, of course, is that Congress might alter the terms of the Act. In Congress eliminated certain double benefits accruing after 1982.[23] If past California property settlements had been based on those benefits, then the change in the Act would have worked a multiple penalty on future recipients. By barring lump-sum community property settlements based on mere expectations, the prohibition against anticipation prevents such an obvious frustration of congressional purpose. It also preserves congressional freedom to amend the Act, and so serves much the same function as the frequently stated understanding that programs of this nature convey no future rights and so may be changed without *590 taking property in violation of the Fifth Amendment. See ; ; (CA7), cert. denied, IV We are mindful that retirement benefits are increasingly important in American life and that divorce is becoming more frequent. The burden of marital dissolution may be particularly onerous for a spouse who, unlike respondent, has no expectation of receiving his or her own social security benefits. The 1975 and amendments, however, both permit and encourage garnishment of Railroad Retirement Act benefits for the of spousal support, and those benefits will be claimed by those who are in need. Congress may find that the distinction it has drawn is undesirable. Indeed, Congress recently has passed special legislation to allow garnishment of Civil Service Retirement benefits for community property See Stat. 600. For the present, however, the community property interest that respondent seeks conflicts with 231m, promises to diminish that portion of the benefit Congress has said should go to the retired worker alone,[24] and threatens to penalize one whom Congress has sought to protect. It thus causes the kind of injury to federal interests that the Supremacy Clause forbids. It is not the province of state courts to strike a balance different from the one Congress has struck. *591 The judgment of the Supreme Court of California is reversed, and the case
Justice Ginsburg
1,996
5
concurring
Montana v. Egelhoff
https://www.courtlistener.com/opinion/118043/montana-v-egelhoff/
The Court divides in this case on a question of characterization. The State's law, (1995), *57 prescribes that voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense." For measurement against federal restraints on state action, how should we type that prescription? If 45-2-203 is simply a rule designed to keep out "relevant, exculpatory evidence," Justice O'Connor maintains, post, at 7, Montana's law offends due process. If it is, instead, a redefinition of the mentalstate element of the offense, on the other hand, Justice O'Connor's due process concern "would not be at issue," post, at 71, for "[a] state legislature certainly has the authority to identify the elements of the offenses it wishes to punish," post, at 4, and to exclude evidence irrelevant to the crime it has defined. Beneath the labels (rule excluding evidence or redefinition of the offense) lies the essential question: Can a State, without offense to the Federal Constitution, make the judgment that two people are equally culpable where one commits an act stone sober, and the other engages in the same conduct after his voluntary intoxication has reduced his capacity for self-control? For the reasons that follow, I resist categorizing 45-2-203 as merely an evidentiary prescription, but join the Court's judgment refusing to condemn the Montana statute as an unconstitutional enactment. Section 45-2-203 does not appear in the portion of Montana's Code containing evidentiary rules (Title 2), the expected placement of a provision regulating solely the admissibility of evidence at trial. Instead, Montana's intoxication statute appears in Title 45 ("Crimes"), as part of a chapter entitled "General Principles of Liability." Mont. Code Ann., Tit. 45, ch. 2 (1995). No less than adjacent provisions governing duress and entrapment, 45-2-203 embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions. *58 As urged by Montana and its amici, 45-2-203 "extract[s] the entire subject of voluntary intoxication from the mens rea inquiry," Reply Brief for Petitioner 2, thereby rendering evidence of voluntary intoxication logically irrelevant to proof of the requisite mental state. Thus, in a prosecution for deliberate homicide, the State need not prove that the defendant "purposely or knowingly cause[d] the death of another," Mont. Code Ann. 45-5-102(a) (1995), in a purely subjective sense. To obtain a conviction, the prosecution must prove only that (1) the defendant caused the death of another with actual knowledge or purpose, or (2) that the defendant killed "under circumstances that would otherwise establish knowledge or purpose `but for' [the
Justice Ginsburg
1,996
5
concurring
Montana v. Egelhoff
https://www.courtlistener.com/opinion/118043/montana-v-egelhoff/
that would otherwise establish knowledge or purpose `but for' [the defendant's] voluntary intoxication." Brief for American Alliance for Rights and Responsibilities et al. as Amici Curiae See also Brief for Petitioner 35-3; Brief for United States as Amicus Curiae 10-12. Accordingly, 45-2-203 does not "lighte[n] the prosecution's burden to prove [the] mentalstate element beyond a reasonable doubt," as Justice O'Connor suggests, post, at 4, for "[t]he applicability of the reasonable-doubt standard has always been dependent on how a State defines the offense that is charged," Comprehended as a measure redefining mens rea, 45-2-203 encounters no constitutional shoal. States enjoy wide latitude in defining the elements of criminal offenses, see, e. g., ; -202, particularly when determining "the extent to which moral culpability should be a prerequisite to conviction of a crime," When a State's power to define criminal conduct is challenged under the Due Process Clause, we inquire only whether the law "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Defining mens *59 rea to eliminate the exculpatory value of voluntary intoxication does not offend a "fundamental principle of justice," given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. See ante, at 43-49; see also post, at 73 (Souter, J., dissenting) ("[A] State may so define the mental element of an offense that evidence of a defendant's voluntary intoxication at the time of commission does not have exculpatory relevance and, to that extent, may be excluded without raising any issue of due process."). Other state courts have upheld statutes similar to 45-2-203, not simply as evidentiary rules, but as legislative redefinitions of the mental-state element. See ; 48 P.2d 119, ; 454 A.2d 1, (quoting 392 U. S., at 53 ) ("Redefinition of the kind and quality of mental activity that constitutes the mens rea element of crimes is a permissible part of the legislature's role in the `constantly shifting adjustment between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.' "). Legislation of this order, if constitutional in Arizona, Hawaii, and Pennsylvania, ought not be declared unconstitutional by this Court when enacted in Montana. If, as the plurality, Justice O'Connor, and Justice Souter agree, it is within the legislature's province to instruct courts to treat a sober person and a voluntarily intoxicated person as equally responsible for conduct—to place a voluntarily intoxicated person on a level with a sober person— then the Montana law is
Justice Stewart
1,976
18
majority
Greer v. Spock
https://www.courtlistener.com/opinion/109406/greer-v-spock/
The Fort Dix Military Reservation is a United States Army post located in a predominantly rural area of central New Jersey. Its primary mission is to provide basic combat training for newly inducted Army personnel. Accordingly, most of its 55 square miles are devoted to military training activities. The Federal Government exercises exclusive jurisdiction over the entire area within Fort Dix, including the state and county roads that pass through it.[1] Civilian vehicular traffic is permitted on paved roads within the reservation, and civilian pedestrian traffic is permitted on both roads and footpaths. Military police regularly patrol the roads within the reservation, and they occasionally stop civilians and ask them the reason for their presence. Signs posted on the roads leading into the reservation state: "All vehicles are subject to search while on the Fort Dix Military Reservation" and "Soliciting prohibited unless approved by the commanding general." The main entrances to Fort Dix are not normally guarded, and a sign at one of the entrances says "Visitors Welcome." Civilians are freely permitted to visit unrestricted areas of the reservation. *831 Civilian speakers have occasionally been invited to the base to address military personnel. The subjects of their talks have ranged from business management to drug abuse. Visiting clergymen have, by invitation, participated in religious services at the base chapel. Theatrical exhibitions and musical productions have also been presented on the base. Speeches and demonstrations of a partisan political nature, however, are banned by Fort Dix Reg. 210-26 (1968), which provides that "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation." The regulation has been rigidly enforced: Prior to this litigation, no political campaign speech had ever been given at Fort Dix. Restrictions are also placed on another type of expressive activity. Fort Dix Reg. 210-27 (1970) provides that "[t]he distribution or posting of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters."[2] *832 In 1972, the respondents Benjamin Spock and Julius Hobson were the candidates of the People's Party for the offices of President and Vice President of the United States, and Linda Jenness and Andrew Pulley were the candidates of the Socialist Workers Party for the same offices. On September 9, 1972, Spock, Hobson, Jenness, and Pulley wrote a joint letter to Major General Bert A. David, then commanding officer of Fort
Justice Stewart
1,976
18
majority
Greer v. Spock
https://www.courtlistener.com/opinion/109406/greer-v-spock/
Major General Bert A. David, then commanding officer of Fort Dix, informing him of their intention to enter the reservation on September 23, 1972, for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. On September 18, 1972, General David rejected the candidates' *833 request, relying on Fort Dix Regs. 210-26 and 210-27.[3] Four of the other respondents, Ginaven, Misch, Hardy, and Stanton, were evicted from Fort Dix on various occasions between 1968 and 1972 for distributing literature not previously approved pursuant to Fort Dix Reg. 210-27. Each was barred from re-entering Fort Dix and advised that re-entry could result in criminal prosecution.[4] On September 29, 1972, the respondents filed this suit in the United States District Court for the District of *834 New Jersey to enjoin the enforcement of the Fort Dix regulations governing political campaigning and the distribution of literature, upon the ground that the regulations violated the First and Fifth Amendments of the Constitution. The District Court denied a preliminary injunction, but the Court of Appeals reversed that order and directed that preliminary injunctive relief be granted to the respondents Spock, Hobson, Jenness, and Pulley.[5] Pursuant to this judgment the respondent Spock conducted a campaign rally at a Fort Dix parking lot on November 4, 1972. The District Court subsequently issued a permanent injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public,[6] and the Court of Appeals affirmed this final judgment. We granted certiorari to consider the important federal questions presented. In reaching the conclusion that the respondents could not be prevented from entering Fort Dix for the purpose of making political speeches or distributing leaflets, the Court of Appeals relied primarily on this Court's per curiam opinion in *835 In the Flower case the Court summarily reversed the conviction of a civilian for entering a military reservation after his having been ordered not to do so. At the time of his arrest the petitioner in that case had been "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas." The Court's decision reversing the conviction, made without the benefit of briefing or oral argument, rested upon the premise that " `New Braunfels Avenue was a completely open street,' " and that the military had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." Under those circumstances, the
Justice Stewart
1,976
18
majority
Greer v. Spock
https://www.courtlistener.com/opinion/109406/greer-v-spock/
or distributes leaflets on the avenue." Under those circumstances, the "base commandant" could "no more order petitioner off this public street because he was distributing leaflets than could the city police order any leaflete[e]r off any public street." The decision in Flower was thus based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers—"any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue." That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in 515-516: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been *836 used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." See, e. g., ; 561 n. 2; ; ; ; The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." "The State, no less than a private
Justice Stewart
1,976
18
majority
Greer v. Spock
https://www.courtlistener.com/opinion/109406/greer-v-spock/
wherever they please." "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." See also Cf. The Court of Appeals in the present case did not find, and the respondents do not contend, that the Fort Dix authorities had abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation. The record is, in fact, indisputably to the contrary.[7] The Flower decision thus does not support the judgment of the Court of Appeals in this case. Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had "abandoned any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue," then the implication surely is that a different result must obtain on a military reservation where the authorities have not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history. One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence,"[8] and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable.[9] In short, it *838 is "the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum. A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command." Cafeteria The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false. The respondents, therefore, had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix, and it follows that Fort Dix Regs. 210-26 and 210-27 are not constitutionally invalid on their face. These regulations, moreover, were not unconstitutionally applied in the circumstances disclosed by the record in the present case.[10] With respect to Reg. 210-26,
Justice Stewart
1,976
18
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Greer v. Spock
https://www.courtlistener.com/opinion/109406/greer-v-spock/
record in the present case.[10] With respect to Reg. 210-26, there is no claim that the military authorities discriminated in any way among candidates for public office based upon the candidates' *839 supposed political views.[11] It is undisputed that, until the appearance of the respondent Spock at Fort Dix on November 4, 1972, as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there. What the record shows, therefore, is a considered Fort Dix policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with partisan political campaigns of any kind. Under such a policy members of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates. Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history.[12] And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue. *840 With respect to Reg. 210-27, it is to be emphasized that it does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The only publications that a military commander may disapprove are those that he finds constitute "a clear danger to [military] loyalty, discipline, or morale," and he "may not prevent distribution of a publication simply because he does not like its contents," or because it "is critical—even unfairly critical—of government policies or officials"[13] There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command. It is possible, of course, that Reg. 210-27 might in the future be applied irrationally, invidiously, or arbitrarily. But none of the respondents in the present case even submitted any material for review. The noncandidate respondents were excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution. This case, therefore, simply does not raise any question of unconstitutional application of the regulation to any specific situation. Cf. Rescue For the reasons set out in this opinion the judgment is reversed. It is so ordered. MR. JUSTICE STEVENS took no part
Justice Stevens
1,990
16
majority
North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
The Uited ad the State of North Dakota exercise cocurret jurisdictio over the Grad Forks Air Force Base ad the Miot Air Force Base. Each sovereig has its ow separate regulatory objectives with respect to the area over which it has authority. The Departmet of Defese (DoD), which operates clubs ad package stores located o those bases, has sought to reduce the price that it pays for alcoholic beverages sold o the bases by istitutig a system of competitive biddig. The State, which has established a liquor distributio system i order to promote temperace ad esure orderly market coditios, wishes to protect the itegrity of that system by requirig out-of-state shippers to file mothly reports ad to affix a label to each bottle of liquor sold to a federal eclave for domestic cosumptio. The clash betwee the State's iterest i prevetig the diversio of liquor ad the federal iterest i obtaiig the lowest possible price forms the basis for the Federal Govermet's Supremacy Clause ad pre-emptio challeges to the North Dakota regulatios. *427 The Uited sells alcoholic beverages to military persoel ad their families at clubs ad package stores o its military bases. The military uses reveue from these sales to support a morale, welfare, ad recreatio program for persoel ad their families. See ; DoD Directive 1015.1 (Aug. 19, ). Before December 195, o federal statute govered the purchase of liquor for these establishmets. From December 19, 195, to October 19, 196, federal law required military bases to purchase alcoholic beverages oly withi their home State. See Effective October 30, 196, Cogress elimiated the requiremet that the military purchase liquor from withi the State ad directed that distilled spirits be "procured from the most competitive source, price ad other factors cosidered." 10 U.S. C. 24(a).[1] accordace with this statute, the DoD has developed a joit-military purchasig program to buy liquor i bulk directly from the Natio's primary distributors who offer the lowest possible prices. Purchases are made pursuat to a DoD regulatio which provides: " `The Departmet of Defese shall cooperate with local, state, ad federal officials to the degree that their duties relate to the provisios of this chapter. However, the purchase of all alcoholic beverages for resale at ay camp, post, statio, base, or other DoD istallatio withi the Uited shall be i such a maer ad uder such coditios as shall obtai for the govermet the most advatageous cotract, price ad other cosidered factors. These other factors shall ot be costrued as meaig ay submissio to state cotrol, or shall cooperatio *42 be costrued or represeted
Justice Stevens
1,990
16
majority
North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
state cotrol, or shall cooperatio *42 be costrued or represeted as a admissio of ay legal obligatio to submit to state cotrol, pay state or local taxes, or purchase alcoholic beverages withi geographical boudaries or at prices or from suppliers prescribed by ay state.' " 32 CFR 261.4 Sice log before the eactmet of the most recet procuremet statute, the State of North Dakota has regulated the importatio ad distributio of alcoholic beverages withi its borders. See N. D. Cet. Code ch. 5 Uder the State's regulatory system, there are three levels of liquor distributors: out-of-state distillers/suppliers, state-licesed wholesalers, ad state-licesed retailers. Distillers/suppliers may sell to oly licesed wholesalers or federal eclaves. N. D. Admi. Code 4-02-01-05(2) (196). Licesed wholesalers, i tur, may sell to licesed retailers, other licesed wholesalers, ad federal eclaves. N. D. Cet. Code 5-03-01 Taxes are imposed at both levels of distributio. N. D. Cet. Code 5-03-07 ; N. D. Cet. Code ch. 57-39.2 order to moitor the importatio of liquor, the State sice 197 has required all persos brigig liquor ito the State to file mothly reports documetig the volume of liquor they have imported. The reportig regulatio provides: "All persos sedig or brigig liquor ito North Dakota shall file a North Dakota Schedule A Report of all shipmets ad returs for each caleder moth with the state treasurer. The report must be postmarked o or before the fifteeth day of the followig moth." N. D. Admi. Code 4-02-01-05(1) (196). Sice 196, the State has also required out-of-state distillers who sell liquor directly to a federal eclave to affix labels to each idividual item, idicatig that the liquor is for domestic cosumptio oly withi the federal eclave. The labels may be purchased from the state treasurer for a small sum or prited by the distillers/suppliers themselves accordig *429 to a state-approved format. App. 34. The labelig regulatio provides: "All liquor destied for delivery to a federal eclave i North Dakota for domestic cosumptio ad ot trasported through a licesed North Dakota wholesaler for delivery to such boa fide federal eclave i North Dakota shall have clearly idetified o each idividual item that such shall be for cosumptio withi the federal eclave exclusively. Such idetificatio must be i a form ad maer prescribed by the state treasurer." N. D. Admi. Code 4-02-01-05(7) (196). Withi the State of North Dakota, the Uited operates two military bases: Grad Forks Air Force Base ad Miot Air Force Base. The State ad Federal Govermet exercise cocurret jurisdictio over both.[2] Shortly after the effective date of the procuremet statute permittig the
Justice Stevens
1,990
16
majority
North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
after the effective date of the procuremet statute permittig the military to make purchases from out of state, the state treasurer coducted a meetig with out-of-state suppliers to explai the labelig ad reportig requiremets. App. 34. Five out-of-state distillers ad importers thereupo iformed federal military procuremet officials that they would ot ship liquor to the North Dakota bases because of the burde of complyig with the North Dakota regulatios.[3] A sixth supplier, Kobrad mporters, c., icreased its prices from betwee $0.5 ad $20.50 per case to reflect the cost of labelig ad reportig. *430 The Uited istituted this actio i the Uited District Court for the District of North Dakota seekig declaratory ad ijuctive relief agaist the applicatio of the State's regulatios to liquor destied for federal eclaves. The District Court deied the Uited ' cross-motio for summary judgmet ad grated the ' motio. The court reasoed that there was o coflict betwee the state ad federal regulatios because the state regulatios did ot prevet the Govermet from obtaiig beverages at the "lowest cost." A divided Uited Court of Appeals for the Eighth Circuit reversed. While recogizig that "othig i the record compels us to believe that the regulatios are a pretext to require i-state purchases," the majority held that the regulatios impermissibly made out-of-state distillers less competitive with local wholesalers. Chief Judge Lay argued i disset that the effect o the Federal Govermet was a permissible icidet of regulatios passed pursuat to the State's powers uder the Twety-first Amedmet. We oted probable jurisdictio, ad ow reverse. The Court has cosidered the power of the to pass liquor cotrol regulatios that burde the Federal Govermet i four cases sice the ratificatio of the Twety-first Amedmet.[4] See ; ; Uited ; Uited ; see also each of those cases, we cocluded that the State has o authority to regulate i a area or over a trasactio that fell outside of its jurisdictio. Collis, we held that the Twety-first Amedmet did ot give the the power to regulate the use of alcohol withi a atioal park over which the Federal Govermet had exclusive jurisdictio. Hostetter, we held that the Twety-first Amedmet coferred o authority to licese the sale of tax-free liquors at a airport for delivery to foreig destiatios made uder the supervisio of the Uited Bureau of Customs. Mississippi Tax Comm' held that the State had o authority to regulate a trasactio betwee a out-of-state liquor supplier ad a federal military base withi the exclusive federal jurisdictio. Ad, i Mississippi Tax Comm' we held that the State has o authority to
Justice Stevens
1,990
16
majority
North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
Comm' we held that the State has o authority to tax directly a federal istrumetality o a eclave over which the Uited exercised cocurret jurisdictio. At the same time, however, withi the area of its jurisdictio, the State has "virtually complete cotrol" over the importatio ad sale of liquor ad the structure of the liquor distributio system. See Califoria Retail Liquor Dealers ; see also Capital Cities ; Califoria Board of The Court has made clear that the have the power to cotrol shipmets of liquor durig their passage through their territory ad to take appropriate steps to prevet the ulawful diversio of liquor ito their regulated itrastate markets. Hostetter, we stated that our decisio i Collis, strikig dow the Califoria Alcoholic Beverage Cotrol Act as applied to a exclusive federal reservatio, might have bee otherwise if "Califoria had sought to regulate or cotrol the trasportatio of the liquor there ivolved from the time of its etry ito the State util its delivery at the atioal park, i the iterest of prevetig *432 ulawful diversio ito her territory." We foud that the state licesig law there uder attack was ulawful because New York "ha[d] ot sought to regulate or cotrol the passage of itoxicats through her territory i the iterest of prevetig their ulawful diversio ito the iteral commerce of the State. As the District Court emphasized, this case does ot ivolve `measures aimed at prevetig ulawful diversio or use of alcoholic beverages withi New York.'" Mississippi Tax Comm' after holdig that the State could ot impose its ormal markup o sales to the military bases, we added that "a State may, i the absece of coflictig federal regulatio, properly exercise its police powers to regulate ad cotrol such shipmets durig their passage through its territory isofar as ecessary to prevet the `ulawful diversio' of liquor `ito the iteral commerce of the State.' " -37 The two North Dakota regulatios fall withi the core of the State's power uder the Twety-first Amedmet. the iterest of promotig temperace, esurig orderly market coditios, ad raisig reveue, the State has established a comprehesive system for the distributio of liquor withi its borders. That system is uquestioably legitimate. See ; Califoria Board of The requiremets that a out-of-state supplier which trasports liquor ito the State affix a label to each bottle of liquor destied for delivery to a federal eclave ad that it report the volume of liquor it has trasported are ecessary compoets of the regulatory regime. Because liquor sold at Grad Forks ad Miot Air Force Bases has bee purchased directly from
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North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
ad Miot Air Force Bases has bee purchased directly from out-of-state suppliers, either the markup or the state taxes paid by liquor wholesalers ad retailers i North Dakota is reflected i the military purchase price. Moreover, the federal eclaves are ot govered by *433 state laws with respect to the sale of itoxicats; the military establishes the type of liquor it sells, the miimum age of buyers, ad the days ad times its package stores will be ope. The risk of diversio ito the retail market ad disruptio of the liquor distributio system is thus both substatial ad real.[5] t is ecessary for the State to record the volume of liquor shipped ito the State ad to idetify those products which have ot bee distributed through the State's liquor distributio system. The labelig ad reportig requiremets uquestioably serve valid state iterests.[6] Give the special protectio afforded to state liquor cotrol policies by the Twety-first Amedmet, they are supported by a strog presumptio of validity ad should ot be set aside lightly. See, e. g., Capital Cities *434 State law may ru afoul of the Supremacy Clause i two distict ways: The law may regulate the Govermet directly or discrimiate agaist it, see or it may coflict with a affirmative commad of Cogress. See ; see also Hillsborough Couty v. Automated Medical Laboratories, c., -713 The Federal Govermet's attack o the regulatios is based o both grouds of ivalidity. The Govermet argues that the state provisios goverig the distributio of liquor by out-of-state shippers "regulate" govermetal actios ad are therefore ivalid directly uder the Supremacy Clause. The argumet is uavailig. State tax laws, licesig provisios, cotract laws, or eve "a statute or ordiace regulatig the mode of turig at the corer of streets," o less tha the reportig ad labelig regulatios at issue i this case, regulate federal activity i the sese that they make it more costly for the Govermet to do its busiess. At oe time, the Court struck dow may of these state regulatios, see Pahadle Oil ; ; ; o the theory that they iterfered with "the costitutioal meas which have bee legislated by the govermet of the Uited to carry ito effect its powers." Over 50 years ago, however, the Court decisively rejected the argumet that ay state regulatio which idirectly regulates the Federal Govermet's activity is ucostitutioal, see ad that view has ow bee "thoroughly *435 repudiated." South ; see also Califoria Board of Equalizatio v. Sierra Summit, c., ; Cotto Petroleum The Court has more recetly adopted a fuctioal approach to claims of govermetal
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North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
more recetly adopted a fuctioal approach to claims of govermetal immuity, accommodatig of the full rage of each sovereig's legislative authority ad respectful of the primary role of Cogress i resolvig coflicts betwee the Natioal ad State Govermets. See Uited ; cf. Whatever burdes are imposed o the Federal Govermet by a eutral state law regulatig its suppliers "are but ormal icidets of the orgaizatio withi the same territory of two govermets." ; see also South 45 U. S., at -521; Pe Dairies, c. v. Milk Cotrol Comm' of Pesylvaia, ; A state regulatio is ivalid oly if it regulates the Uited directly or discrimiates agaist the Federal Govermet or those with whom it deals. South ; Couty of additio, the questio whether a state regulatio discrimiates agaist the Federal Govermet caot be viewed i isolatio. Rather, the etire regulatory system should be aalyzed to determie whether it is discrimiatory "with regard to the ecoomic burdes that result." Claims to ay further degree of immuity must be resolved uder priciples of cogressioal pre-emptio. See, e. g., Pe Dairies, c. v. Milk Cotrol Comm', 31 U. S., at ;[7] *436 Applicatio of these priciples to the North Dakota regulatios demostrates that they do ot violate the itergovermetal immuity doctrie. There is o claim i this case, or could there be, that North Dakota regulates the Federal Govermet directly. See Uited ; Hacock v. Trai, ; Mississippi Tax Comm' -610; Mayo v. Uited Both the reportig requiremet ad the labelig regulatio operate agaist suppliers, ot the Govermet, ad cocers about direct iterferece with the Federal Govermet, see City of (opiio of Frakfurter, J.), therefore are ot implicated. this respect, the regulatios caot be distiguished from the price cotrol regulatios ad taxes imposed o Govermet cotractors that we have repeatedly upheld agaist costitutioal challege. See Uited ; Pe Dairies, c., -20; Alabama v. Kig & Boozer,[] Nor ca it be said that the regulatios discrimiate agaist the Federal Govermet or those with whom it deals. The odiscrimiatio rule fids its reaso i the priciple that the may ot directly obstruct the activities of the Federal *43 Govermet. 4 Wheat., at[9] Sice a regulatio imposed o oe who deals with the Govermet has as much potetial to obstruct govermetal fuctios as a regulatio imposed o the Govermet itself, the Court has required that the regulatio be oe that is imposed o some basis urelated to the object's status as a Govermet cotractor or supplier, that is, that it be imposed equally o other similarly situated costituets of the State. See, e. g., Uited -464.
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North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
situated costituets of the State. See, e. g., Uited -464. Moreover, i aalyzig the costitutioality of a state law, it is ot appropriate to look to the most arrow provisio addressig the Govermet or those with whom it deals. A state provisio that appears to treat the Govermet differetly o the most specific level of aalysis may, i its broader regulatory cotext, ot be discrimiatory. We have held that "[t]he State does ot discrimiate agaist the Federal Govermet ad those with whom it deals uless it treats someoe else better tha it treats them." 460 U. S., at -545.[10] The North Dakota liquor cotrol regulatios, the regulatory regime of which the Govermet complais, do ot disfavor the Federal Govermet but actually favor it. The *439 labelig ad reportig regulatios are compoets of a extesive system of statewide regulatio that furthers legitimate iterests i promotig temperace ad cotrollig the distributio of liquor, i additio to raisig reveue. The system applies to all liquor retailers i the State. this system, the Federal Govermet is favored over all those who sell liquor i the State. All other liquor retailers are required to purchase from state-licesed wholesalers, who are legally boud to comply with the State's liquor distributio system. N. D. Cet. Code 5-03-01.1 The Govermet has the optio, like the civilia retailers i the State, to purchase liquor from licesed wholesalers. However, aloe amog retailers i the State, the Govermet also has the optio to purchase liquor from out-of-state wholesalers if those wholesalers comply with the labelig ad reportig regulatios. The system does ot discrimiate "with regard to the ecoomic burdes that result." Washigto, 460 U. S., at A regulatory regime which so favors the Federal Govermet caot be cosidered to discrimiate agaist it. V The coclusio that the labelig regulatio does ot violate the itergovermetal immuity doctrie does ot ed the iquiry ito whether the regulatio impermissibly iterferes with federal activities. Cogress has the power to cofer immuity from state regulatio o Govermet suppliers beyod that coferred by the Costitutio aloe, see, e. g., Uited v. New -73; Pe Dairies, c., 31 U. S., at 275, eve whe the state regulatio is eacted pursuat to the State's powers uder the Twety-first Amedmet. Capital Cities But whe the Court is asked to set aside a regulatio at the core of the State's powers uder the Twety-first Amedmet, as whe it is asked to recogize a implied exemptio from state taxatio, see Rockford Life *440 s. v. lliois Dept. of Reveue, 42 U.S. 12, it must proceed with particular care. Capital Cities Cogress has
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North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
it must proceed with particular care. Capital Cities Cogress has ot here spoke with sufficiet clarity to pre-empt North Dakota's attempt to protect its liquor distributio system. The Govermet's claim that the regulatios are pre-empted rests upo a federal statute ad federal regulatio. The federal statute is 10 U.S. C. 24, which govers the procuremet of alcoholic beverages by oappropriated fud istrumetalities. t provides simply that purchases of alcoholic beverages for resale o military istallatios "shall be made from the most competitive source, price ad other factors cosidered," 24(a)(1), but that malt beverages ad wie shall be purchased from sources withi the State i which the istallatio is located. t may be iferred from the latter provisio as well as from the provisio, elsewhere i the Code, that alcoholic beverages purchased for resale i Alaska ad Hawaii must be purchased i state, Act of Oct. 30, 196, Pub. L. 99-591, 9090, -116, that Cogress iteded for the military to be free i the other 4 to purchase liquor from out-of-state wholesalers. t follows that the may ot directly restrict the military from purchasig liquor out of state. That is the cetral lesso of our decisios i Paul v. Uited ; Uited v. Georgia Public Service Comm', 371 U.S. 25 ; Public Utilities Comm' of Califoria v. Uited ; ad Leslie Miller, c. v. Arkasas, 352 U.S. 17 (19), i which we ivalidated state regulatios that prohibited what federal law required. We stated i Paul that there was a "collisio clear ad acute," betwee the federal law which required competitive biddig amog suppliers ad the state law which directly limited the extet to which suppliers could compete. t is oe thig, however, to say that the State may ot pass regulatios which directly obstruct federal law; it is quite *441 aother to say that they caot pass regulatios which icidetally raise the costs to the military. Ay umber of state laws may make it more costly for the military to purchase liquor. As Chief Judge Lay observed i disset, "[c]ompliace with regulatios regardig the importatio of raw materials, geeral operatios of the distillery or brewery, treatmet of employees, bottlig, ad shippig ecessarily icrease the cost of liquor." F.2d, at 1116. Highway tax laws ad safety laws may make it more costly for the military to purchase from out-of-state shippers. The laguage used i the 196 procuremet statute does ot expressly pre-empt ay of these state regulatios or address the problem of ulawful diversio of liquor from military bases ito the civilia market. t simply states that covered alcoholic beverages shall be
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North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
market. t simply states that covered alcoholic beverages shall be obtaied from the most competitive source, price ad other factors cosidered. As the District Court observed, however, " `[l]owest cost' is a relative term." 675 F. Supp., at The fact that the reportig ad labelig regulatios, like safety laws or miimum wage laws, icrease the costs for out-of-state shippers does ot prevet the Govermet from obtaiig liquor at the most competitive price, but simply raises that price. The procuremet statute does ot cut such a wide swath through state law as to ivalidate the reportig ad labelig regulatios. this case the most competitive source for alcoholic beverages are out-of-state distributors whose prices are lower tha those charged by North Dakota wholesalers regardless of whether the labelig ad reportig requiremets are eforced. The North Dakota regulatios, which do ot restrict the parties from whom the Govermet may purchase liquor or its ability to egage i competitive biddig, but at worst raise the costs of sellig to the military for certai shippers, do ot directly coflict with the federal statute. *442 V The DoD regulatio restates, i slightly differet laguage,[11] the statutory requiremet that distilled spirits be "procured from the most competitive source, price ad other factors cosidered," but it does ot purport to carry a greater pre-emptive power tha the statutory commad itself. t is Cogress — ot the DoD — that has the power to pre-empt otherwise valid state laws, ad there is o laguage i the relevat statute that either pre-empts state liquor distributio laws or delegates to the DoD the power to pre-empt such state laws.[12] Nor does the text of the DoD regulatio itself purport to pre-empt ay state laws. See Califoria Coastal Comm' v. Graite Rock 40 U.S. 572, 53 ; Hillsborough Couty v. Automated Medical Laboratories, c., -71. t directs the military to cosider various factors i determiig "the most advatageous cotract, price ad other cosidered factors," but that commad caot be uderstood to pre-empt state laws that have the icidetal effect of raisig costs for the military. deed, the regulatio specifically evisios some regulatio by state law, for it provides that the Departmet "shall cooperate with local [ad] state officials to the degree that their duties relate to the provisios of this chapter." The regulatio *443 does admoish that such cooperatio should ot be costrued as a admissio that the military is obligated to submit to state cotrol or required to buy from suppliers located withi the State or prescribed by the State. The North Dakota regulatios, however, do ot require the military to
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North Dakota v. United States
https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/
North Dakota regulatios, however, do ot require the military to submit to state cotrol or to purchase alcoholic beverage from suppliers withi the State or prescribed by the State. The DoD regulatio has othig to say about labelig or reportig by out-of-state suppliers. Whe the Court is cofroted with questios relatig to military disciplie ad military operatios, we properly defer to the judgmet of those who must lead our Armed Forces i battle. But i questios relatig to the allocatio of power betwee the Federal ad State Govermets o civilia commercial issues, we heed the commad of Cogress without ay special deferece to the military's iterpretatio of that commad. The preset record does ot establish the precise burdes the reportig ad labelig regulatios will impose o the Govermet, but there is o evidece that they will be substatial. The reportig requiremet has bee i effect sice 197 ad there is o evidece that it has caused ay supplier to raise its costs or stop supplyig the military. Although the labelig regulatio has caused a few suppliers either to adjust their prices or to cease direct shipmets to the bases, there has bee o showig that there are ot other suppliers willig to eter the market ad there is o idicatio that the Govermet has made ay attempt to secure other out-of-state suppliers. The cost of the labels is approximately three to five cets if purchased from the state treasurer, ad the distillers have the right to prit their ow labels if they prefer. App. 34. Eve i the iitial stage of eforcig the requiremet for the two bases i North Dakota, various distillers ad suppliers have already otified the state treasurer that they ited to comply with the ew regulatios. *444A Ad, eve if its worst predictios are fulfilled, the military will still be the most favored customer i the State. t is Cogress, ot this Court, which is best situated to evaluate whether the federal iterest i procurig the most iexpesive liquor outweighs the State's legitimate iterest i prevetig diversio. Cogress has already effected a compromise by excludig beer ad wie ad the of Hawaii ad Alaska from the 196 statute. t may also decide to prohibit labels etirely or prescribe their use o a atiowide basis. t would be both a uwise ad a uwarrated extesio of the itergovermetal immuity doctrie for this Court to hold that the burdes associated with the labelig ad reportig requiremets — o matter how trivial they may prove to be — are sufficiet to make them ucostitutioal. The judgmet of the Court
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Michigan v. Jackson
https://www.courtlistener.com/opinion/111622/michigan-v-jackson/
In we held that an accused person in custody who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." In we reiterated that "Edwards established a bright-line rule to safeguard pre-existing rights," at 646: "once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him." The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment. In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained — and the Sixth Amendment violated — because the defendants had "requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations." We agree with that holding. I The relevant facts may be briefly stated. Respondent Bladel was convicted of the murder of three railroad employees at the Amtrak Station in Jackson, Michigan, on December *627 31, 1978. Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him. Prior to that questioning, the officers properly advised Bladel of his Miranda rights.[1] Although he had inquired about his representation several times since the arraignment, Bladel was not told that a law firm had been appointed to represent him. The trial court overruled Bladel's objection to the admissibility of all four statements. On appeal from his conviction and sentence, Bladel challenged only the postarraignment confession. The Michigan Court of Appeals first rejected that challenge and affirmed the conviction, but, after reconsideration in the light of a recent decision by the State Supreme Court, it reversed and remanded for a new trial. The Michigan Supreme Court then granted
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Michigan v. Jackson
https://www.courtlistener.com/opinion/111622/michigan-v-jackson/
for a new trial. The Michigan Supreme Court then granted the prosecutor's application for leave to appeal and considered the case with respondent Jackson's appeal of his conviction. *628 Respondent Jackson was convicted of second-degree murder and conspiracy to commit second-degree murder. He was one of four participants in a wife's plan to have her husband killed on July 12, 1979. Arrested on an unrelated charge on July 30, 1979, he made a series of six statements in response to police questioning prior to his arraignment at 4:30 p.m. on August 1. During the arraignment, Jackson requested that counsel be appointed for him. The police involved in his investigation were present at the arraignment. On the following morning, before he had an opportunity to consult with counsel, two police officers obtained another statement from Jackson to "confirm" that he was the person who had shot the victim. As was true of the six prearraignment statements, the questioning was preceded by advice of his Miranda rights and Jackson's agreement to proceed without counsel being present. The Michigan Court of Appeals held that the seventh statement was properly received in evidence. It distinguished Edwards on the ground that Jackson's request for an attorney had been made at his arraignment whereas Edwards' request had been made during a custodial interrogation by the police. Accordingly, it affirmed Jackson's conviction of murder, although it set aside the conspiracy conviction on unrelated grounds. The Michigan Supreme Court held that the postarraignment statements in both cases should have been suppressed. Noting that the Sixth Amendment right to counsel attached at the time of the arraignments, the court concluded that the Edwards rule "applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. The police cannot simply ignore a defendant's unequivocal request for counsel." -67, 365 N. W. 2d, at 68- *629 (footnote omitted). We granted certiorari, and we now affirm.[2] II The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, ; The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals "the initiation of adversary judicial proceedings" and thus the attachment of the Sixth Amendment,
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Michigan v. Jackson
https://www.courtlistener.com/opinion/111622/michigan-v-jackson/
judicial proceedings" and thus the attachment of the Sixth Amendment, United ;[3] thereafter, *630 government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the Sixth Amendment applies. ; United ; ; The question in these cases is whether respondents validly waived their right to counsel at the postarraignment custodial interrogations. In Edwards, the request for counsel was made to the police during custodial interrogation, and the basis for the Court's holding was the Fifth Amendment privilege against compelled self-incrimination. The Court noted the relevance of various Sixth Amendment n. 8, but found it unnecessary to rely on the possible applicability of the Sixth Amendment. In these cases, the request for counsel was made to a judge during arraignment, and the basis for the Michigan Supreme Court opinion was the Sixth Amendment's guarantee of the assistance of counsel.[4] The State argues that the Edwards rule should not apply to these circumstances because there are legal differences in the basis for the claims; because there are *631 factual differences in the contexts of the claims; and because respondents signed valid waivers of their right to counsel at the postarraignment custodial interrogations. We consider these contentions in turn. The State contends that differences in the legal principles underlying the Fifth and Sixth Amendments compel the conclusion that the Edwards rule should not apply to a Sixth Amendment claim. Edwards flows from the Fifth Amendment's right to counsel at custodial interrogations, the State argues; its relevance to the Sixth Amendment's provision of the assistance of counsel is far less clear, and thus the Edwards principle for assessing waivers is unnecessary and inappropriate. In our opinion, however, the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. The State's argument misapprehends the nature of the pretrial protections afforded by the Sixth Amendment. In United we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel: "[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings `is far from a mere formalism.' Kirby v. It is only at that time `that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the
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Michigan v. Jackson
https://www.courtlistener.com/opinion/111622/michigan-v-jackson/
is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.' " *632 As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a `medium' between him and the State." Thus, the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation. Indeed, after a formal accusation has been made — and a person who had previously been just a "suspect" has become an "accused" within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, see United or the electronic surveillance of conversations with third parties, see may violate the defendant's Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment.[5] Far from undermining the Edwards rule, the difference between the legal basis for the rule applied in Edwards and the Sixth Amendment claim asserted in these cases actually provides additional support for the application of the rule in these circumstances. The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their request *633 for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in a case involving an alleged waiver of a defendant's Sixth Amendment right to counsel, the Court explained that we should "indulge every reasonable presumption against waiver of fundamental constitutional rights." For that reason, it is the State that has the burden of establishing a valid Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel — we presume that the defendant requests the lawyer's services at every critical stage of the prosecution.[6] We thus reject the State's suggestion that respondents' requests for the appointment of counsel should be construed to apply
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Michigan v. Jackson
https://www.courtlistener.com/opinion/111622/michigan-v-jackson/
for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.[7] *634 The State points to another factual difference: the police may not know of the defendant's request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual.[8] One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court). The State also argues that, because of these factual differences, the application of Edwards in a Sixth Amendment context will generate confusion. However, we have frequently emphasized that one of the characteristics of Edwards is its clear, "bright-line" quality. See, e. g., Smith v. 4 U.S. 91, ; ; (13) ; We do not agree that applying the rule when the accused requests counsel at an arraignment, rather than in the police station, somehow diminishes that clarity. To the extent that there may have been any doubts about interpreting a request *635 for counsel at an arraignment, or about the police responsibility to know of and respond to such a request, our opinion today resolves them. Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect's request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases.[9] Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.[10] *636 III Edwards is grounded in the understanding that "the assertion of the right to counsel [is] a significant event," and that "additional safeguards are necessary when the accused asks for counsel." We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at
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second_dissenting
Will v. Michigan Dept. of State Police
https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/
Legal doctrines often flourish long after their raison d'etre has perished.[1] The doctrine of sovereign immunity rests on the fictional premise that the "King can do no wrong."[2] Even though the plot to assassinate James I in 1605, the execution *88 of Charles I in 1649, and the Colonists' reaction to George III's stamp tax made rather clear the fictional character of the doctrine's underpinnings, British subjects found a gracious means of compelling the King to obey the law rather than simply repudiating the doctrine itself. They held his advisers and his agents responsible.[3] In our administration of 1983, we have also relied on fictions to protect the illusion that a sovereign State, absent consent, may not be held accountable for its delicts in federal court. Under a settled course of decision, in contexts ranging from school desegregation to the provision of public *89 assistance benefits to the administration of prison systems and other state facilities, we have held the States liable under 1983 for their constitutional violations through the artifice of naming a public officer as a nominal party. Once one strips away the Eleventh Amendment overlay applied to actions in federal court, it is apparent that the Court in these cases has treated the State as the real party in interest both for the purposes of granting prospective and ancillary relief and of denying retroactive relief. When suit is brought in state court, where the Eleventh Amendment is inapplicable, it follows that the State can be named directly as a party under 1983. An official-capacity suit is the typical way in which we have held States responsible for their duties under federal law. Such a suit, we have explained, " `generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.' " ; see also Pennhurst State School and In the peculiar Eleventh Amendment analysis we have applied to such cases, we have recognized that an official-capacity action is in reality always against the State and balanced interests to determine whether a particular type of relief is available. The Court has held that when a suit seeks equitable relief or money damages from a state officer for injuries suffered in the past, the interests in compensation and deterrence are insufficiently weighty to override the State's sovereign immunity. See ; ; 6 On the other hand, although prospective relief awarded against a state officer also "implicate[s] Eleventh Amendment concerns," 474 U. S., at the interests in "end[ing] a continuing violation of federal law," ibid., outweigh the interests in state sovereignty and
Justice Stevens
1,989
16
second_dissenting
Will v. Michigan Dept. of State Police
https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/
federal law," ibid., outweigh the interests in state sovereignty and justify *90 an award under 1983 of an injunction that operates against the State's officers or even directly against the State itself. See, e. g., ; ; In for example, a unanimous Court upheld a federal-court order requiring the State of Michigan to pay $5,800,000 to fund educational components in a desegregation decree "notwithstanding [its] direct and substantial impact on the state treasury." at[4] As Justice Powell stated in his opinion concurring in the judgment, "the State [had] been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate." Subsequent decisions have adhered to the position that equitable relief — even "a remedy that might require the expenditure of state funds," — may be awarded to ensure future compliance by a State with a substantive federal question determination. See also 440 U. S., at Our treatment of States as "persons" under 1983 is also exemplified by our decisions holding that ancillary relief, such as attorney's fees, may be awarded directly against the State. We have explained that "liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity *91 or on the merits, 1988 does not authorize a fee award against that defendant." at Nonetheless, we held in a case challenging the administration of the Arkansas prison system, that a Federal District Court could award attorney's fees directly against the State under 1988,[5]id., at 700; see and could assess attorney's fees for bad-faith litigation under 1983 " `to be paid out of Department of Corrections funds.' " In Supreme Court of JUSTICE WHITE reaffirmed for a unanimous Court that an award of fees could be entered against a State or state agency, in that case a State Supreme Court, in an injunctive action under 1983.[6] In suits commenced in state court, in which there is no independent reason to require parties to sue nominally a state officer, we have held that attorney's *92 fees can be awarded against the State in its own name. See[7] The Civil Rights Act of 1871 was "intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights." -701. Our holdings that a 1983 action can be brought against state officials in their official capacity for constitutional violations properly recognize and are faithful to that profound mandate. If prospective relief can be awarded against state officials under 1983 and the State
Justice Stevens
1,989
16
second_dissenting
Will v. Michigan Dept. of State Police
https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/
be awarded against state officials under 1983 and the State is the real party in interest in such suits, the State must be a "person" which can be held liable under 1983. No other conclusion is available. Eleventh Amendment principles may limit the State's capacity to be sued as such in federal court. See But since those principles are not applicable to suits in state court, see ; there is no need to resort to the fiction of an official-capacity suit and the State may and should be named directly as a defendant in a 1983 action. The Court concludes, however, that "a state official in his or her official capacity, when sued for injunctive relief, would be a person under 1983," ante, at 71, n. 10, while that same party sued in the same official capacity is not a person when the plaintiff seeks monetary relief. It cites in support of this proposition cases such as in which the Court through Chief Justice Marshall held that an action against a state auditor to recover taxes illegally collected did not constitute an action against the State. This line of authority, the Court states, "would *93 not have been foreign to the 19th-century Congress that enacted 1983." Ante, at 71, n. 10. On the Court's supposition, the question would be whether the complaint against a state official states a claim for the type of relief sought, not whether it will have an impact on the state treasury. See, e. g., Governor of At least for actions in state court, as to which there could be no constitutional reason to look to the effect on the State, see the Court's analysis would support actions for the recovery of chattel and real property against state officials both of which were well known in the 19th century. See ; United Although the conclusion that a state officer sued for damages in his or her official capacity is not a "person" under 1983 would not quite follow,[8] it might nonetheless be permissible to assume that the 1871 Congress did not contemplate an action for damages payable not by the officer personally but by the State. The Court having constructed an edifice for the purposes of the Eleventh Amendment on the theory that the State is always the real party in interest in a 1983 official-capacity action against a state officer, I would think the majority would be impelled to conclude that the State is a "person" under 1983. As JUSTICE BRENNAN has demonstrated, there is also a compelling textual argument that States are persons under
Justice Burger
1,977
12
concurring
Wainwright v. Sykes
https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/
I concur fully in the judgment and in the Court's opinion. I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the *92 "deliberate bypass" standard enunciated in was never designed for, and is inapplicable to, errors—even of constitutional dimension—alleged to have been committed during trial. In the Court applied the "deliberate bypass" standard to a case where the critical procedural decision— whether to take a criminal appeal—was entrusted to a convicted defendant. Although Noia, the habeas petitioner, was represented by counsel, he himself had to make the decision whether to appeal or not; the role of the attorney was limited to giving advice and counsel. In giving content to the new deliberate-bypass standard, Fay looked to the Court's decision in a case where the defendant had been called upon to make the decision whether to request representation by counsel in his federal criminal trial. Because in both Fay and Zerbst, important rights hung in the balance of the defendant's own decision, the Court required that a waiver impairing such rights be a knowing and intelligent decision by the defendant himself. As Fay put it: "If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts then it is open to the federal court on habeas to deny him all relief" The touchstone of Fay and Zerbst, then, is the exercise of volition by the defendant himself with respect to his own federal constitutional rights. In contrast, the claim in the case before us relates to events during the trial itself. Typically, habeas petitioners claim that unlawfully secured evidence was admitted, but see or that improper testimony was adduced, or that an improper jury charge was given, but see *93 or that a particular line of examination or argument by the prosecutor was improper or prejudicial. But unlike Fay and Zerbst, preservation of this type of claim under state procedural rules does not generally involve an assertion by the defendant himself; rather, the decision to assert or not to assert constitutional rights or constitutionally based objections at trial is necessarily entrusted to the defendant's attorney, who must make on-the-spot decisions at virtually all stages of a criminal trial. As a practical matter, a criminal defendant is rarely, if ever, in a position to decide, for example, whether certain testimony is hearsay and, if so, whether it implicates interests protected by the Confrontation Clause; indeed, it is because "`[e]ven the intelligent and educated layman
Justice Burger
1,977
12
concurring
Wainwright v. Sykes
https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/
indeed, it is because "`[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law'" that we held it constitutionally required that every defendant who faces the possibility of incarceration be afforded counsel. ; Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate—and ultimate—responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.[1] The trial process simply does not permit the type of frequent and protracted interruptions which would be necessary if it were required that clients give knowing and intelligent approval to each of the myriad tactical decisions as a trial proceeds.[2] *94 Since trial decisions are of necessity entrusted to the accused's attorney, the Fay-Zerbst standard of "knowing and intelligent waiver" is simply inapplicable. The dissent in this case, written by the author of implicitly recognizes as much. According to the dissent, Fay imposes the knowing-and-intelligent-waiver standard "where possible" during the course of the trial. In an extraordinary modification of Fay, MR. JUSTICE BRENNAN would now require "that the lawyer actually exercis[e] his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible"; he does not intimate what guidelines would be used to decide when or under what circumstances this would actually be "possible." Post, at 116. (Emphasis supplied.) What had always been thought the standard governing the accused's waiver of his own constitutional rights the dissent would change, in the trial setting, into a standard of conduct imposed upon the defendant's attorney. This vague "standard" would be unmanageable to the point of impossibility. The effort to read this expanded concept into Fay is to no avail; that case simply did not address a situation where the defendant had to look to his lawyer for vindication of constitutionally based interests. I would leave the core holding of Fay where it began, and reject this illogical uprooting of an otherwise defensible doctrine. MR.
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
This case requires us to consider whether disclosure of the home addresses of federal civil service employees by their employing agency pursuant to a request made by the employees' collective-bargaining representative under the Federal Service Labor-Management Relations Statute, U.S. C. 7101-713 (1988 ed. and Supp. IV), would constitute a "clearly unwarranted invasion" of the employees' personal privacy within the meaning of the Freedom of Information Act, U.S. C. 2. Concluding that it would, we reverse the judgment of the Court of Appeals. *490 I The controversy underlying this case arose when two local unions[1] requested the petitioner federal agencies[2] to provide them with the names and home addresses of the agency employees in the bargaining units represented by the unions. The agencies supplied the unions with the employees' names and work stations, but refused to release home addresses. In response, the unions filed unfair labor practice charges with respondent Federal Labor Relations Authority (Authority), in which they contended that the Federal Service Labor-Management Relations Statute (Labor Statute), U.S. C. 7101-713 (1988 ed. and Supp. IV), required the agencies to divulge the addresses. The Labor Statute generally provides that agencies must, "to the extent not prohibited by law," furnish unions with data that are necessary for collective-bargaining purposes. 7114(b)(4). The agencies argued that disclosure of the home addresses was prohibited by the Privacy Act of 1974 (Privacy Act), U.S. C. 2a (1988 ed. and Supp. IV). Relying on its earlier decision in Department of Navy, Portsmouth Naval Shipyard, Ports-mouth, N. H., 37 F. L. R. A. 1 (Portsmouth), application for enforcement denied and cross-petition for review granted sub nom. the Authority rejected that argument and ordered the agencies to divulge the addresses. Department of Defense, Army *491 and Air Force Exchange Serv., Dallas, Tex., 37 F. L. R. A. 930 ; Department of Navy, 37 F. L. R. A. 62 A divided panel of the United States Court of Appeals for the Fifth Circuit granted enforcement of the Authority's orders. The panel majority agreed with the Authority that the unions' requests for home addresses fell within a statutory exception to the Privacy Act. That Act does not bar disclosure of personal information if disclosure would be "required under section 2 of this title [the Freedom of Information Act (FOIA)]." U.S. C. 2a(b)(2). The court below observed that FOIA, with certain enumerated exceptions, generally mandates full disclosure of information held by agencies. In the view of the Court of Appeals, only one of the enumerated exceptions— the provision exempting from FOIA's coverage personnel files "the disclosure of which would constitute a clearly
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
personnel files "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," U.S. C. 2(b)(6) (Exemption 6)—potentially applied to this In determining whether Exemption 6 applied, the Fifth Circuit balanced the public interest in effective collective bargaining embodied in the Labor Statute against the interest of employees in keeping their home addresses private. The court recognized that, in light of our decision in Department of other Courts of Appeals had concluded that the only public interest to be weighed in the Exemption 6 balancing analysis is the extent to which FOIA's central purpose of opening agency action to public scrutiny would be served by disclosure.[3] Rejecting that view, however, the *492 panel majority reasoned that Reporters Committee "has absolutely nothing to say about. the situation that arises when disclosure is initially required by some statute other than the FOIA, and the FOIA is employed only secondarily." In such cases, the court ruled that "it is proper for the federal court to consider the public interests embodied in the statute which generates the disclosure request." Applying this approach, the court concluded that, because the weighty interest in public sector collective bargaining identified by Congress in the Labor Statute would be advanced by the release of the home addresses, disclosure "would not constitute a clearly unwarranted invasion of privacy." In the panel majority's view, because Exemption 6 would not apply, FOIA would require disclosure of the addresses; in turn, therefore, the Privacy Act did not forbid the agencies to divulge the addresses, and the Authority's orders were binding. The dissenting judge argued that Reporters Committee controlled the case and barred the agencies from disclosing their employees' addresses to the unions. -1119 We granted certiorari, to resolve a conflict among the Courts of Appeals concerning whether the Privacy Act forbids the disclosure of employee addresses to collective-bargaining representatives pursuant to information requests made under the Labor Statute. II Like the Court of Appeals, we begin our analysis with the terms of the Labor Statute, which governs labor-management relations in the federal civil service. Consistent with the congressional finding that "labor organizations and collective bargaining in the civil service are in the public interest," U.S. C. 7101(a), the Labor Statute requires an agency to accord exclusive recognition to a labor union that *493 is elected by employees to serve as the representative of a bargaining unit. 7111(a). An exclusive representative must represent fairly all employees in the unit, regardless of whether they choose to become union members. 7114(a)(1). The Labor Statute also imposes a duty on the agency and the exclusive
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
also imposes a duty on the agency and the exclusive representative to negotiate in good faith for the purpose of arriving at a collective-bargaining agreement. 7114(a)(4). To fulfill its good-faith bargaining obligation, an agency must, inter alia, "furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data. (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." 7114(b)(4)(B) (emphasis added). The Authority has determined that the home addresses of bargaining unit employees constitute information that is "necessary" to the collective-bargaining process because through them, unions may communicate with employees more effectively than would otherwise be possible. See Portsmouth, 37 F. L. R. A., at 32 ("In the home environment, the employee has the leisure and the privacy to give the full and thoughtful attention to the union's message that the workplace generally does not permit"); Farmers Home Admin. Finance Office, 23 F. L. R. A. 788, 796-797 (1986). This determination, which has been upheld by several Courts of Appeals,[4] is not before us. Nor is there any dispute that the addresses are "reasonably available." Therefore, unless disclosure is "prohibited by law," agencies such as petitioners must release home addresses to exclusive representatives upon request. Petitioners contend that the Privacy Act prohibits disclosure. This statute provides in part: *494 "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be (2) required under section 2 of this title [FOIA]." U.S. C. 2a(b)(2) (1988 ed. and Supp. IV). The employee addresses sought by the unions are "records" covered by the broad terms of the Privacy Act. Therefore, unless FOIA would require release of the addresses, their disclosure is "prohibited by law," and the agencies may not reveal them to the unions.[] We turn, then, to FOIA. As we have recognized previously, FOIA reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Department of Air See also Thus, while "disclosure, not secrecy, is the dominant objective of [FOIA]," there are a number of exemptions from the statute's broad reach. The exemption potentially applicable to employee addresses is Exemption 6, which provides that FOIA's disclosure requirements do not *49 apply to "personnel and medical files and similar files the
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." U.S. C. 2(b)(6). Thus, although this case requires us to follow a somewhat convoluted path of statutory cross-references, its proper resolution depends upon a discrete inquiry: whether disclosure of the home addresses "would constitute a clearly unwarranted invasion of [the] personal privacy" of bargaining unit employees within the meaning of FOIA. For guidance in answering this question, we need look no further than to our decision in Department of Reporters Committee involved FOIA requests addressed to the Federal Bureau of Investigation that sought the "rap sheets" of several individuals. In the process of deciding that the FBI was prohibited from disclosing the contents of the rap sheets, we reaffirmed several basic principles that have informed our interpretation of FOIA. First, in evaluating whether a request for information lies within the scope of a FOIA exemption, such as Exemption 6, that bars disclosure when it would amount to an invasion of privacy that is to some degree "unwarranted," "a court must balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect." See also Second, the only relevant "public interest in disclosure" to be weighed in this balance is the extent to which disclosure would serve the "core purpose of the FOIA," which is "contribut[ing] significantly to public understanding of the operations or activities of the government." Reporters We elaborated on this point at some length: "[FOIA's] basic policy of `full agency disclosure unless information is exempted under clearly delineated statutory language' indeed focuses on the citizens' right to be informed about what their government is up to. Official *496 information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." (quoting at ) (other internal quotation marks and citations omitted). See also Third, "whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made." Reporters Because "Congress `clearly intended' the FOIA `to give any member of the public as much right to disclosure as one with a special interest [in a particular document],'" ), except in certain cases involving claims of privilege, "the identity of the requesting party has no bearing on the merits of his or her FOIA request,"[6] *497 III The principles that we followed
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
her FOIA request,"[6] *497 III The principles that we followed in Reporters Committee can be applied easily to this We must weigh the privacy interest of bargaining unit employees in nondisclosure of their addresses against the only relevant public interest in the FOIA balancing analysis—the extent to which disclosure of the information sought would "she[d] light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to." Reporters The relevant public interest supporting disclosure in this case is negligible, at best. Disclosure of the addresses might allow the unions to communicate more effectively with employees, but it would not appreciably further "the citizens' right to be informed about what their government is up to." Indeed, such disclosure would reveal little or nothing about the employing agencies or their activities. Even the Fifth *498 Circuit recognized that "[r]elease of the employees' addresses would not in any meaningful way open agency action to the light of public scrutiny." Apparently realizing that this conclusion follows ineluctably from an application of the FOIA tenets we embraced in Reporters Committee, respondents argue that Reporters Committee is largely inapposite here because it dealt with an information request made directly under FOIA, whereas the unions' requests for home addresses initially were made under the Labor Statute, and implicated FOIA only incidentally through a chain of statutory cross-references. In such a circumstance, contend respondents, to give full effect to the three statutes involved and to allow unions to perform their statutory representational duties, we should import the policy considerations that are made explicit in the Labor Statute into the FOIA Exemption 6 balancing analysis. If we were to do so, respondents are confident we would conclude that the Labor Statute's policy favoring collective bargaining easily outweighs any privacy interest that employees might have in nondisclosure. We decline to accept respondents' ambitious invitation to rewrite the statutes before us and to disregard the FOIA principles reaffirmed in Reporters Committee. The Labor Statute does not, as the Fifth Circuit suggested, merely "borro[w] the FOIA's disclosure calculus for another purpose." 97 F.2d, Rather, it allows the disclosure of information necessary for effective collective bargaining only "to the extent not prohibited by law." U.S. C. 7114(b)(4). Disclosure of the home addresses is prohibited by the Privacy Act unless an exception to that Act applies. The terms of the Labor Statute in no way suggest that the Privacy Act should be read in light of the purposes of the Labor Statute. If there is an exception, therefore, it must be found within the Privacy Act
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
exception, therefore, it must be found within the Privacy Act itself. Congress could have enacted an exception to the Privacy Act's coverage for information "necessary" for collective-bargaining purposes, but it * did not do so. In the absence of such a provision, respondents rely on the exception for information the disclosure of which would be "required under [FOIA]." 2a(b)(2). No-where, however, does the Labor Statute amend FOIA's disclosure requirements or grant information requesters under the Labor Statute special status under FOIA.[7] Therefore, because all FOIA requesters have an equal, and equally qualified, right to information, the fact that respondents are seeking to vindicate the policies behind the Labor Statute is irrelevant to the FOIA analysis. Cf. Reporters -772. In her concurring opinion in cert. denied, then-Judge Ginsburg cogently explained why we must reject respondents' central argument: "The broad cross-reference in U.S. C. 7114(b)(4)—`to the extent not prohibited by law'—picks up the Privacy Act unmodified; that Act, in turn, shelters personal records absent the consent of the person to whom the record pertains, unless disclosure would be required under the [FOIA]. "Once placed wholly within the FOIA's domain, the union requesting information relevant to collective bargaining stands in no better position than members of the general public. True, unions have a special interest in identifying and communicating with persons in the bargaining *00 unit, an interest initially accommodated by [the Labor Statute]. The bargaining process facilitation interest is ultimately unavailing, however, because it `falls outside the ambit of the public interest that the FOIA was enacted to serve,' i. e., the interest in advancing `public understanding of the operation or activities of the government.'" (quoting Reporters ). Against the virtually nonexistent FOIA-related public interest in disclosure, we weigh the interest of bargaining unit employees in nondisclosure of their home addresses. Cf. Department of ; 42 U. S., Because a very slight privacy interest would suffice to outweigh the relevant public interest, we need not be exact in our quantification of the privacy interest. It is enough for present purposes to observe that the employees' interest in nondisclosure is not insubstantial. It is true that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but "[i]n an organized society, there are few facts that are not at one time or another divulged to another." Reporters The privacy interest protected by Exemption 6 "encompass[es] the individual's control of information concerning his or her person." 489 U.S., An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
personal matters does not dissolve simply because that information may be available to the public in some form. Here, for the most part, the unions seek to obtain the addresses of nonunion employees who have decided not to reveal their addresses to their exclusive representative. See n. Perhaps some of these individuals have failed to join the union that represents them due to lack of familiarity with the union or its services. Others may be opposed to their union or to unionism in general on practical or ideological grounds. *01 Whatever the reason that these employees have chosen not to become members of the union or to provide the union with their addresses, however, it is clear that they have some non-trivial privacy interest in nondisclosure, and in avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure.[8] Many people simply do not want to be disturbed at home by work-related matters. Employees can lessen the chance of such unwanted contacts by not revealing their addresses to their exclusive representative. Even if the direct union/ employee communication facilitated by the disclosure of home addresses were limited to mailings, this does not lessen the interest that individuals have in preventing at least some unsolicited, unwanted mail from reaching them at their homes. We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions. Cf. ; Moreover, when we consider that other parties, such as commercial advertisers and solicitors, must have the same access under FOIA as the unions to the employee address lists sought in this case, see it is clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant. *02 Because the privacy interest of bargaining unit employees in nondisclosure of their home addresses substantially out-weighs the negligible FOIA-related public interest in disclosure, we conclude that disclosure would constitute a "clearly unwarranted invasion of personal privacy." U.S. C. 2(b)(6). FOIA, thus, does not require the agencies to divulge the addresses, and the Privacy Act, therefore, prohibits their release to the unions. IV Respondents argue that our decision will have a number of untoward effects. First, they contend that without access to home addresses, public sector unions will be unable to communicate with, and represent effectively, all bargaining unit employees. Such a result, they believe, thwarts the collective-bargaining policies explicitly embodied in the Labor Statute. See, e. g., U.S. C. 7101(a) (congressional finding that "labor organizations and collective bargaining in the civil service are in the public interest").
Justice Thomas
1,994
1
majority
Department of Defense v. FLRA
https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/
bargaining in the civil service are in the public interest"). According to respondents, it is illogical to believe that Congress intended the Privacy Act and FOIA to be interpreted in a manner that hinders the effectuation of the purposes motivating the Labor Statute. Respondents, however, place undue emphasis on what they perceive to be the impulses of the Congress that enacted the Labor Statute, and neglect to consider the language in that statute that calls into play the limitations of the Privacy Act. Speculation about the ultimate goals of the Labor Statute is inappropriate here; the statute plainly states that an agency need furnish an exclusive representative with information that is necessary for collective-bargaining purposes only "to the extent not prohibited by law." U.S. C. 7114(b)(4). Disclosure of the addresses in this case is prohibited "by law," the Privacy Act. By disallowing disclosure, we do no more than give effect to the clear words of the provisions we *03 construe, including the Labor Statute. Cf. Connecticut Nat. 03 U.S. 249, 23 Second, respondents fear that our ruling will allow agencies, acting pursuant to the Privacy Act, to refuse to provide unions with other employee records, such as disciplinary reports and performance appraisals, that the unions need in order to perform their duties as exclusive bargaining representatives. This concern is not presented in this case, however, and we do not address it. Finally, respondents contend that our decision creates an unnecessary and unintended disparity between public and private sector unions. While private sector unions assertedly are entitled to receive employee home address lists from employers under the National Labor Relations Act, as interpreted by the National Labor Relations Board,[9] respondents claim that federal sector unions now will be needlessly barred from obtaining this information, despite the lack of any indication that Congress intended such a result. See Department of Treasury, 884 F. 2d, at 147-1461 (R. Ginsburg, J., concurring). We do not question that, as a general matter, private sector labor law may provide guidance in parallel public sector matters. This fact has little relevance here, however, for unlike private sector employees, federal employees enjoy the protection of the Privacy Act, and that statute prohibits the disclosure of the address lists sought in this To the extent that this prohibition leaves public sector unions in a position different from that of their private sector counterparts, Congress may correct the disparity. Cf. Sedima, S. P. R. (198). *04 V For the foregoing reasons, the judgment of the Court of Appeals is reversed. So ordered.
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
Section 172 of the Internal Revenue Code of 1954, as amended, provides that a "net operating loss" experienced by a corporate taxpayer in one year may be carried as a deduction to the preceding three years and the succeeding *34 five years to offset taxable income of those years.[1] The entire loss must be carried to the earliest possible year; any of the loss that is not "absorbed" by that first year *35 may then be carried in turn to succeeding years. The respondent, Foster Lumber Co., sustained a net operating loss of some $42,000 in 1968, which it carried back to 1966. In 1966 the respondent had had ordinary income of about $7,000 and a capital gain of about $167,000. The question presented is whether a loss carryover is "absorbed" by capital gain as well as ordinary income or is instead limited to offsetting only ordinary income. The taxpayer filed a refund suit in Federal District Court challenging the Commissioner's *36 disallowance of its claim that the $35,000 of the 1968 loss not used to offset its 1966 ordinary income survived to reduce its 1967 tax liability. The trial court and the Court of Appeals for the Eighth Circuit agreed with the taxpayer. We granted certiorari to resolve a Circuit conflict on a recurring question of statutory interpretation.[2] I The dispute in this case centers on the meaning of "taxable income" as used in 172 (b) (2) to govern the amount of carrybacks and carryovers that can be successively transferred from one taxable year to another. In relevant part, 172 (b) (2) requires the net operating loss to be carried in full to the earliest taxable year possible, and provides: "The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." Thus when the loss has been carried back to the first year to which it is applicable, the loss "survives" for carryover to a succeeding taxable year only to the extent that it exceeds the taxable income of the earlier year. "Taxable income" is defined in 63 (a) of the Code to mean "gross income, minus the deductions allowed *37 by this chapter." Gross income is in turn defined by 61 (a) of the Code as "all income from whatever source derived," and specifically includes "[g]ains derived from dealings in property." On its face the concept of "taxable income" thus
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
property." On its face the concept of "taxable income" thus includes capital gains as well as ordinary income. In the absence of a specific provision excluding capital gains,[3] it thus appears that both capital gain and ordinary income must be included in the taxable income that 172 directs must be offset by the loss deduction before any loss excess can be found to be available for transfer forward to the succeeding taxable year. The respondent argues that the Code's prescribed method for calculating the taxes due on its taxable income conflicts with this natural reading of 172. The Code provides two methods for computing taxes due on corporate income, and a corporation is under a statutory duty to employ the method that results in the lower tax. 26 U.S. C. 1201 (a). Under 11, the "regular method," ordinary income and capital gains income are added together to produce taxable income; during the period at issue a 22% tax rate was then imposed on the first $25,000 of taxable income and the remainder was taxed at a 48% rate. Section 1201 (a) of the Code prescribes the "alternative tax," calculated in two steps and applied when resulting in a lower tax liability for the corporation. The first step computes a partial tax on the taxable income reduced by the net long-term capital gain[4] at the *38 regular corporate rates imposed by 11. This step effectively subjects only ordinary income to the partial tax. The second step imposes a 25% tax on the net long-term capital gain. The alternative tax is the sum of the partial tax and the tax on capital gain. In practical terms, the alternative tax does not redefine taxable income, but it does result in a much lower effective tax rate for corporations whose income is in whole or substantial part composed of capital gain. It thus extends to corporations the longstanding statutory policy of taxing income from capital gain at a lower rate than that applicable to ordinary income. The problem from the respondent's point of view is that the mechanics of the alternative tax work in such a way that the potential benefit of the loss deduction may not be fully reflected in reduced tax liability for the taxable year to which the loss is carried. The problem arises when, as in 1966 for the respondent, the "alternative method" governs the calculation of tax liability, and the ordinary income effectively subject to the partial tax under the first step is less than the loss deduction subtracted from it. The Code does not permit the excess loss
Justice Stewart
1,976
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majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
from it. The Code does not permit the excess loss to be subtracted from the capital gain income before the second step is carried out.[5] Under the alternative method, therefore, the tax benefit of the loss deduction is effectively lost for the carryover year to the extent that it exceeds the ordinary income in that year. This can be seen simply by considering the taxpayer's circumstances in this case. Subtracting the loss deduction of $42,203.12 from the 1966 ordinary income of *39 $7,236.05 under Step 1[6] resulted in a negative balance of $34,967.07; no partial tax was imposed and the 25% rate on the $166,634.81 of capital gains under Step 2 produced a tax of $41,658.70. If the loss deduction had been merely $7,236.05, and thus exactly offset the $7,236.05 of ordinary income, however, the tax due would still have been $41,658.70. The taxpayer therefore asserts that only $7,236.05 of the loss deduction was actually "used" in 1966 and that $34,967.07 remained to be carried forward to reduce its tax liability in 1967. There can be no doubt that if the "regular method" had been applicable to the respondent's taxes in 1966, the loss deduction ($42,203.12) would have been fully "used" to offset capital gains ($166,634.81) as well as ordinary income *40 ($7,236.05), leaving $131,667.74 to be taxed, and a tax bill of $58,200.52.[7] It is clear that the alternative tax produced the lower tax liability despite the inability to fully "use" the loss deduction; the lower tax resulted directly from the favorable rate of taxation of capital gain income prescribed by the alternative method. The question is whether the two "tax benefit" provisions relied on by the respondent— low capital gain taxation under the alternative method and the loss carryback provision—must each be maximized independently of the other or whether Congress instead anticipated that the benefit provided by the loss deduction might on occasion be subsumed in the greater benefit provided by the alternative tax computation method. Section 172 does not explicitly address the question of fit between these two tax benefits, providing simply that "[t]he portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." The respondent contends, and the Tax Court in Chartier Real Estate aff'd per curiam, (CA1), held, that the phrase *41 "to which such loss may be carried" modifies "taxable income" as well as "each of
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
be carried" modifies "taxable income" as well as "each of the prior taxable years." The Tax Court in the Chartier case further held that " `taxable income' in this context (as modified by the above phrase) means that taxable income to which the loss is actually applied in computing actual tax liability." -358. In other words, it was held, taxable income refers only to that ordinary income offset by a loss deduction that produces an additional reduction in tax liability under the alternative tax computation method. It is, of course, not unusual in statutory construction to find that a defined term's meaning is substantially modified by an attached clause. But reading "taxable income to which such loss may be carried" as equivalent to "taxable income to which such loss may be carried and deducted, resulting in a reduction of tax liability" gives these phrases a synergistic effect that goes well beyond their natural import. Such a construction subtly redefines "taxable income" in terms of the tax impact of a particular method of tax calculation. It thus implicitly departs from the "term of art" definition of taxable income given in 63 (a), while discovering a significance in the word "carry" that goes well beyond its usual connotation of a transfer of a loss from the year in which it occurred. Standing alone, this strained reading of the statute's terms falls considerably short of the explicit statutory support the Court has previously required of taxpayers seeking a tax benefit from losses suffered in other years. See, e. g., Woolford Realty[8] If Congress had intended to allow a loss deduction to offset only ordinary income when the alternative tax calculation method is used, it could easily have said so. *42 II The respondent further asserts that the legislative history and the broad policy behind the loss deduction section of the Code support its interpretation of "taxable income" under 172 (b). Although, for the reasons stated above, it can hardly be said that the benefit claimed by the respondent is fairly within the statutory language, it is not inappropriate to consider this contention—to consider, in short, whether "the construction sought is in harmony with the statute as an organic whole." See Lewyt The respondent relies on the Court's opinion in Libson Shops, for a description of the legislative purpose in allowing loss carryovers. In that case the Court said that the net operating loss carryover and carryback provisions "were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year." There were, in fact, several policy considerations behind the decision to allow averaging of income over a number of years. Ameliorating the timing consequences of the annual accounting period makes it possible for shareholders in companies with fluctuating as opposed to stable incomes to receive more nearly equal tax treatment. Without loss offsets, a firm experiencing losses in some periods would not be able to deduct all the expenses of earning income. The consequence would be a tax on capital, borne by shareholders who would pay higher taxes on net income than owners of businesses with stable income.[9] Congress also sought *43 through allowance of loss carryovers to stimulate enterprise and investment, particularly in new businesses or risky ventures where early losses can be carried forward to future more prosperous years.[10] The respondent focuses on the equalizing purposes of 172 to argue that the Commissioner's insistence on the absorption of the loss deduction by capital gain income is inconsistent with 172's primary purpose of avoiding the subjection of similarly situated taxpayers to significantly different treatment solely on the basis of arbitrary timing. This argument is based on the observation that, unless it is accepted, the taxpayer's ability to fully benefit from the loss carryover deduction will turn on whether ordinary income in the first year to which the loss may be carried exceeds or is less than the loss deduction. If the ordinary income exceeds the loss, the taxpayer will get the full benefit of the deduction; if the ordinary income is less than the loss, the shortfall will be absorbed by capital gain income without providing an incremental tax reduction. Congress may, of course, be lavish or miserly in remedying perceived inequities in the tax structure. While there is no doubt that Congress through the loss carryover provisions did intend to reduce the arbitrariness inherent in a taxing system based on annual accounting, the history of the loss *44 offset provision does not support the respondent's vision of a Congress seeking perfection in the realization of its objective.[11] Over the years, Congress has shifted the definition of both the kinds of losses and the kinds of income that may be used in calculating the loss offset, indicating its ability in this area of the Internal Revenue Code as in others to make precise definitions and later to modify them in pursuing its broad policy goals.[12]
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
later to modify them in pursuing its broad policy goals.[12] For example, Congress in 1924 specifically provided that a noncorporate taxpayer could use the excess of a loss deduction over ordinary income to reduce the amount of capital gain subject to tax,[13] thus permitting full "use" of the loss deduction by the taxpayer. The inference can be drawn that Congress was aware of the potential "waste" of the deduction otherwise and acted to prevent it. That provision was in turn left out of the 1939 Code, leading to the contrary inference that Congress was aware of the "waste" of the deduction but decided not to remedy it. *45 The 1939 revision of the Code, in fact, tolerated even further "waste" of the loss deduction, providing not only that the loss must be offset against net income (ordinary income and capital gains),[14] but that tax-exempt interest income must also be included in income that the loss was required to offset. This provision had the same arbitrary policy consequences that the respondent decries under the alternative tax computation method applicable here. It required the loss deduction to be "used up" in offsetting tax-exempt income, thus "wasting" a portion of the loss deduction's capacity to reduce overall tax liability. And it made the utility of the loss deduction turn on the accidents of timing. The loss deduction would be "wasted" in offsetting tax-exempt income realized in an early year, while if the tax-exempt income were not realized until a later year the full tax benefit of the loss deduction could have been garnered. Such results cut against any assertion that the loss-deduction provisions have consistently been used completely to minimize arbitrary timing consequences, and indicate that *46 Congress has not hesitated in this area to limit taxpayers to the enjoyment of one tax benefit even though it could have made them eligible for two. The 1954 Internal Revenue Code continued the 1939 Code's definition of ordinary and capital gain income as subject to setoff by the 172 loss deduction. Although several substantive changes in the loss-deduction section were made and commented on in the legislative reports accompanying the 1954 Code,[15] there was no indication that the addition to 172 (b) of the phrase "to which such loss may be carried" was meant to signal a willingness to condition the loss deduction's life on its ability to produce full tax benefits for the taxpayer. In view of the predecessor statutes' tolerance of a taxpayer's inability to maximize the tax benefit of a loss deduction, and the complete failure of the Committee Reports in any
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
and the complete failure of the Committee Reports in any way to indicate the shift in policy the respondent claims to discern in the 1954 Code revision, the legislative history simply does not support the respondent's contention that the addition in 1954 of the phrase "to which such loss may be carried" was intended to eliminate the requirement that the loss deduction be used to offset capital gain under the alternative tax computation method. We turn finally to an examination of 172 (b) in the context of the statute as it exists today. If the statute could be viewed as consistently minimizing the arbitrariness of timing consequences, a construction of 172 (b) inconsistent with that approach might be suspect. Section 172 as a whole has not, however, been drafted with the singleminded devotion to reducing arbitrary timing consequences that the respondent urges should control the decision in this case. The most telling example of Congress' failure to remedy all timing accidents that "rob" a taxpayer of the full benefit *47 of the loss deduction can be found in 172 (c). That provision defines a "net operating loss" as "the excess of the deductions allowed by this chapter over the gross income." A taxpayer does not have a loss for a particular year unless its deductions exceed its ordinary income and its capital gains. When an ordinary income loss is experienced in a year of negligible capital gains it gives rise to a net operating loss that can be carried over to other years. If that same ordinary income loss comes in a year when the net capital gains exceed that loss, there is no net operating loss under the statute to carry to another year. Because the statute also forbids setting off that ordinary loss against the capital gains before the capital gain tax is computed under the alternative method,[16] the loss' potential tax benefit is arbitrarily "lost" to the taxpayer solely as a result of accidents of timing. Congress, of course, can and occasionally has in the past treated loss years differently from carryover years. But if Congress were intent on substantially eliminating accidents of timing from the calculation of income on an average basis, it would hardly have tolerated such a departure from that purpose at the very inception of the tax benefit provided by 172. The respondent's argument is further undercut by the holding in Chartier Real Estate Co., not challenged here,[17] that the statute forbids using a loss deduction to offset capital gain income in a loss carryover year. If such an *48 offset were permitted,
Justice Stewart
1,976
18
majority
United States v. Foster Lumber Co.
https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/
loss carryover year. If such an *48 offset were permitted, the taxpayer would benefit by a further reduction in its capital gain tax liability already calculated at a preferential rate. The respondent in effect asks this Court to infer from that deliberate denial of the limited tax benefit that would accrue from using the loss to offset preferentially taxed capital gains, that Congress implicitly meant to confer the even greater tax benefit of using the loss to offset ordinary income taxed at the higher regular rates. In a statutory section that part by part manages explicitly to detail loss calculations on one hand and deductions on the other,[18] such a leap in statutory construction must be much more firmly grounded in a consistently articulated and achieved congressional purpose than can be discerned here. The respondent's broad argument, in short, boils down to a contention that "harmony with the statute as an organic whole" can be achieved in this area only by reading the Code provision so as to give the greatest possible benefits to all taxpayers. For the reasons we have discussed, that is a contention that cannot be accepted. The judgment is Reversed. MR.
Justice Stevens
1,984
16
concurring
Pulley v. Harris
https://www.courtlistener.com/opinion/111092/pulley-v-harris/
While I agree with the basic conclusion of Part III of the Court's opinion — our case law does not establish a constitutional requirement that comparative proportionality review be conducted by an appellate court in every case in which the death penalty is imposed — my understanding of our decisions in ; ; ; and is sufficiently different from that reflected in Part III to prevent me from joining that portion of the opinion. While the cases relied upon by respondent do not establish that comparative proportionality review is a constitutionally required element of a capital sentencing system, I believe the case law does establish that appellate review plays an essential role in eliminating the systemic arbitrariness and capriciousness which infected death penalty schemes invalidated by and hence that some form of meaningful appellate review is constitutionally required. *55 The systemic arbitrariness and capriciousness in the imposition of capital punishment under statutory schemes invalidated by Furman resulted from two basic defects in those schemes. First, the systems were permitting the imposition of capital punishment in broad classes of offenses for which the penalty would always constitute cruel and unusual punishment. Second, even among those types of homicides for which the death penalty could be constitutionally imposed as punishment, the schemes vested essentially unfettered discretion in juries and trial judges to impose the death sentence. Given these defects, arbitrariness and capriciousness in the imposition of the punishment were inevitable, and given the extreme nature of the punishment, constitutionally intolerable. The statutes we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of these defects. Each scheme provided an effective mechanism for categorically narrowing the class of offenses for which the death penalty could be imposed and provided special procedural safeguards including appellate review of the sentencing authority's decision to impose the death penalty. In Gregg, the opinion of Justices Stewart, POWELL, and STEVENS indicated that some form of meaningful appellate review is required, see and that opinion, as well as JUSTICE WHITE's opinion, see focused on the proportionality review component of the Georgia statute because it was a prominent, innovative, and noteworthy feature that had been specifically designed to combat effectively the systemic problems in capital sentencing which had invalidated the prior Georgia capital sentencing scheme. But observations that this innovation is an effective safeguard do not mean that it is the only method of ensuring that death sentences are not imposed capriciously or that it is the only acceptable form of appellate review. In Proffitt, the joint opinion of Justices Stewart, POWELL, and STEVENS explicitly recognized that
Justice Stevens
1,984
16
concurring
Pulley v. Harris
https://www.courtlistener.com/opinion/111092/pulley-v-harris/
opinion of Justices Stewart, POWELL, and STEVENS explicitly recognized that the Florida "law differs from that of Georgia in that it does not require the court to conduct any specific form of review." 428 U. S., at *56 250-251. The opinion observed, however, that "meaningful appellate review" was made possible by the requirement that the trial judge justify the imposition of a death sentence with written findings, and further observed that the Supreme Court of Florida had indicated that death sentences would be reviewed to ensure that they are consistent with the sentences imposed in similar cases. Under the Florida practice as described in the Proffitt opinion, the appellate review routinely involved an independent analysis of the aggravating and mitigating circumstances in the particular case. Later in the opinion, in response to Proffitt's argument that the Florida appellate review process was "subjective and unpredictable," we noted that the State Supreme Court had "several times" compared the circumstances of a case under review with those of previous cases in which the death sentence had been imposed and that by "following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute." We did not, however, indicate that the particular procedure that had been followed "several times" was either the invariable routine in Florida,[*] or that it was an indispensable feature of meaningful appellate review. *57 The Texas statute reviewed in Jurek, like the Florida statute reviewed in Proffitt, did not provide for comparative review. We nevertheless concluded "that Texas' capital-sentencing *58 procedures, like those of Georgia and Florida," were constitutional because they assured that "sentences of death will not be `wantonly' or `freakishly' imposed." That assurance rested in part on the statutory guarantee of meaningful appellate review. As we stated: "By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law." Thus, in all three cases decided on the same day, we relied in part on the guarantee of meaningful appellate review, and we found no reason to differentiate among the three statutes in appraising the quality of the review that was mandated. Last Term in we again reviewed the Georgia sentencing scheme. The Court observed that the appellate review of every death penalty proceeding "to determine whether the sentence was arbitrary or disproportionate" was one of the two primary features upon which the Gregg joint opinion's approval of the Georgia scheme rested. While the Court did not focus on the
Justice Stevens
1,984
16
concurring
Pulley v. Harris
https://www.courtlistener.com/opinion/111092/pulley-v-harris/
scheme rested. While the Court did not focus on the comparative review element of the scheme in reaffirming the constitutionality of the Georgia statute, appellate review of the sentencing decision was deemed essential to upholding its constitutionality. and n. 15. The fact that the Georgia Supreme Court had reviewed the sentence in question "to determine whether it was arbitrary, excessive, or disproportionate" *59A was relied upon to reject a contention that the statute was invalid as applied because of the absence of standards to guide the jury in weighing the significance of aggravating circumstances, and the mandatory appellate review was also relied upon in rejecting the argument that the subsequent invalidation of one of the aggravating circumstances found by the jury required setting aside the death sentence, Once again, proportionality review was viewed as an effective, additional safeguard against arbitrary and capricious death sentences. While we did not hold that comparative proportionality review is a mandated component of a constitutionally acceptable capital sentencing system, our decision certainly recognized what was plain from Gregg, Proffitt, and Jurek: that some form of meaningful appellate review is an essential safeguard against the arbitrary and capricious imposition of death sentences by individual juries and judges. To summarize, in each of the statutory schemes approved in our prior cases, as in the scheme we review today, meaningful appellate review is an indispensable component of the Court's determination that the State's capital sentencing procedure is valid. Like the Court, however, I am not persuaded that the particular form of review prescribed by statute in Georgia — comparative proportionality review — is the only method by which an appellate court can avoid the danger that the imposition of the death sentence in a particular case, or a particular class of cases, will be so extraordinary as to violate the Eighth Amendment. Accordingly, I join in all but Part III of the Court's opinion and concur in the judgment.
per_curiam
1,982
200
per_curiam
California Ex Rel. Cooper v. Mitchell Brothers' Santa Ana Theater
https://www.courtlistener.com/opinion/110580/california-ex-rel-cooper-v-mitchell-brothers-santa-ana-theater/
The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.[1] The Santa Ana City Attorney brought this action against respondents to abate a public nuisance pursuant to Cal. Civ. Proc. Code Ann. 731[2] The complaint *91 alleged that numerous films shown by the respondents were obscene and thus constituted a public nuisance as defined by Cal. Civ. Code Ann. 3479, 3480[3] The complaint sought, inter alia, court approval of a resolution passed by the Santa Ana City Council revoking all of respondents' operating licenses and permits, a permanent injunction forbidding respondents to show the films named in the complaint, and a 1-year closure of respondents' theater. The trial court determined that the complaint presented both equitable and legal issues and ordered that a jury trial be held on the issues of obscenity, public nuisance, and damages prior to resolution of the equitable issues by the court. The jury trial was divided into liability and damages stages. After the evidence pertaining to obscenity and public nuisance had been presented, the jury was instructed that they could find the films at issue to be obscene only if they were persuaded of such "beyond a reasonable doubt." The jury found 11 films obscene, 4 not obscene, and was unable to reach a verdict on 2 others. Following a jury determination of damages, the court issued *92 findings of fact and conclusions of law with respect to the equitable issues. The court found, independently from the jury verdict and based upon its own viewing, that the same 11 films were obscene beyond a reasonable doubt as the term obscene is defined in Cal. Penal Code Ann. 311(a)[4] There were cross-appeals, the city asserting, among other things, that the trial court erred in imposing the beyond-reasonable-doubt burden of proof. The California Court of Appeal affirmed on this issue. Relying on this Court's observation that "the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance," and JUSTICE BRENNAN's statement that "the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt," the court concluded that "one of the required procedures is that obscenity be proved beyond a reasonable doubt."[5]People ex
per_curiam
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200
per_curiam
California Ex Rel. Cooper v. Mitchell Brothers' Santa Ana Theater
https://www.courtlistener.com/opinion/110580/california-ex-rel-cooper-v-mitchell-brothers-santa-ana-theater/
is that obscenity be proved beyond a reasonable doubt."[5]People ex rel. We reverse. The purpose of a standard of proof is "to instruct the factfinder concerning the degree of confidence our society * thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Three standards of proof are generally recognized, ranging from the "preponderance of the evidence" standard employed in most civil cases, to the "clear and convincing"[6] standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved "beyond a reasonable doubt" in a criminal prosecution. See This Court has, on several occasions, held that the "clear and convincing" standard or one of its variants is the appropriate standard of proof in a particular civil case. See ; ; ; ; However, the Court has never required the "beyond a reasonable doubt" standard to be applied in a civil case. "This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the `moral force of the criminal law,' In re and we should hesitate to apply it too broadly or casually in noncriminal cases." Thus while a State may require proof beyond reasonable doubt in an obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not *94 require such a standard. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.
Justice Douglas
1,972
10
dissenting
Andrews v. Louisville & Nashville R. Co.
https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/
I If this employee wanted reinstatement and back pay, there would be merit in remitting him to the remedies under the Railway Labor Act. But he does not want that relief. Rather, he desires to quit the railroad, to have no further jobs with it, and to be compensated in dollars for his wrongful discharge. The cases on which the Court relies to overrule are quite different. Brotherhood of Railroad involved claims of existing employees, not for damages for wrongful discharge, but for "additional compensation" and for "reinstatement," and involved a "minor" dispute, that is, a controversy "over the meaning of an existing collective bargaining agreement." also involved reinstatement "without loss of seniority and with back pay." In Republic Steel the aggrieved employee wanted "severance pay" allegedly owed under the collective-bargaining agreement. In the dispute basically involved an issue of seniority, though the opinion does not disclose it.[1] *327 The complaint in this case alleges that following an automobile accident, in which the petitioner-employee was involved, the company refused to allow him to go to work on the ground he had not recovered sufficiently to perform his former duties. No issue involving the collective-bargaining agreement was tendered. Petitioner —rightly or wrongly—claimed this was a discharge and that under Georgia law, governing the place where he worked, he had been deprived of wages from the time he recovered from the accident, and that he was deprived "of the expectancy of future earnings until the date of his scheduled retirement." In other words, he asks for no relief under the collective agreement, he does not ask for reinstatement or severance pay, he does not ask for continued employment. He is finished with this railroad, and turns to other activities; he seeks no readmission to the collective group that works for the railroad. He leaves it completely and seeks damages for having been forced out.[2] *328 To remit him to the National Railroad Adjustment Board is to remit him to an agency that has no power to act on this claim. We said as much in That case involved a grievance that "concerned interpretation of an existing bargaining agreement." We therefore held that the employee first had to exhaust his remedies before the Adjustment Board. We distinguished the case from Moore as follows: "Our holding here is not inconsistent with our holding in Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to *329
Justice Douglas
1,972
10
dissenting
Andrews v. Louisville & Nashville R. Co.
https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/
action in discharging him as final, thereby ceasing to *329 be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board." (Emphasis added.) The Adjustment Board has considerable expertise in construing and applying collective-bargaining agreements, as respects severance pay, seniority, disciplinary actions by management, and the various aspects of reinstatement. But the body of law governing the discharge of employees who do not want or seek reinstatement is not found in customs of the shop or in the collective agreement but in the law of the place where the employee works. The Adjustment Board is not competent to apply that law. In the first place the members of the four divisions of the Adjustment Board authorized by 45 U.S. C. 153 First (b) presumably do not know the local law governing the employee-employer relationships in all of the States where railroads run. In the second place, the personnel of these divisions of the Adjustment Board may occasionally have lawyers on them but law-trained members are the exception, not the rule. In the third place, an employee seeking damages for reinstatement is normally entitled to a jury trial; and no division of the Adjustment Board ever pretends to serve in that role. The Board, we now know, is made up of laymen; those laymen have no insight into the nuances of Georgia *330 law on the question of damages, and they obviously cannot even purport to give the remedy in damages which a "court suit" entails. The regime of mediation and arbitration under collective-bargaining agreements, such as the one we upheld in Textile and those we have cited under the Railway Labor Act, are important in stabilizing relations between unions and employers. See U. S. Bulk But where the collective-bargaining agreement is not directly involved, and certainly where the individual employee, who tenders his grievance, wants to quit the railroad scene and go elsewhere and sever his communal relation with union and railroad, the case falls out of the ambit of authority given to the mediation or arbitration agencies. The courthouse is the forum for that litigant and I
Justice Douglas
1,972
10
dissenting
Andrews v. Louisville & Nashville R. Co.
https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/
The courthouse is the forum for that litigant and I would never close its door to him, unless the mandate of Congress were clear. Even then I do not see how the Seventh Amendment could be circumvented: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Though the case is in the federal courts, this employee sues to enforce a common-law right recognized by the State of Georgia. The only place he can get a trial by jury is in a court. If he sues under a collective-bargaining agreement, he does not sue at common law but under a statutory federal regime. Yet that is not this case. Everyone who joins a union does not give up his civil rights. If he wants to leave the commune and assert his common-law rights, I had supposed that no one could stop him. I think it important under our constitutional regime to leave as much initiative as possible to the individual. What the Court does today is ruthlessly *331 to regiment a worker and force him to sacrifice his constitutional rights in favor of a union. I would give him a choice to pursue such rights as he has under the collective agreement and stay with the union,[3] or to quit it and the railroad and free himself from a regime which he finds oppressive. I would construe the federal law as giving the employee that choice. The choice imposed by the Court today raises serious constitutional questions[4] on which we have not had the benefit of any argument. This is a plain, ordinary, common-law suit not dependent on any term or provision of a collective-bargaining agreement. I cannot, therefore, join those who would close the courthouse door to him. Under the First Amendment, as applied to the States by the Fourteenth, he is petitioning the Government "for a redress of grievances" in the traditional manner of suitors at common law; and by the Seventh Amendment is entitled to a jury trial. II As noted, my basic disagreements with the majority concern the validity of the two assumptions implicit in its holding: (a) that the collective agreement will be sufficiently implicated in this dispute to warrant the application of federal substantive law, and (b) that Congress has vested the Board with jurisdiction to entertain *332 nonreinstatement grievances such as Andrews' complaint. But, even taking these assumptions as correct for purposes of argument, I believe the Court has erred. The majority does not hold that Congress has mandated that
Justice Douglas
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Andrews v. Louisville & Nashville R. Co.
https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/
The majority does not hold that Congress has mandated that the statutory procedure be the exclusive route for adjusting Andrews' grievance. Indeed, that path was foreclosed by our decision in holding that prior to the 1966 amendments Congress had evinced no such purpose, and by the fact that nothing in the 1966 amendments themselves evidences an intention to render the statutory channel exclusive for nonreinstatement claims.[5] Rather, today's result is grounded in the authority of the federal courts to fashion the substantive law to be applied to collective agreements. ; see also Textile Even under that assumption, I would not impose the exhaustion requirement upon this narrow and readily identifiable group of discharges. There is no equation of the substantive law to govern agreements under 301 of the Labor Management Relations Act, into which exclusive arbitration clauses may voluntarily be inserted by the parties and the substantive law to govern railroad contracts, onto which the statutory grievance procedure is superimposed by law. One would not suppose that every doctrine developed under the Labor Management Relations Act, should be carried over into the apparatus created by the Railway Labor Act. A salutary doctrine under one measure may serve no worthwhile purpose under the other. Yet today the majority transplants *333 the rule in the foreign soil of the railroad world without any discussion of the ends to be served. Even cautioned against that result, stating that any overruling of Moore should come only after "the various distinctive features of the administrative remedies provided by [the Railway Labor] Act can be appraised in context, e. g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit." n. 14. It is said that the fact that Congress (rather than private parties as in ) fashioned the instant adjustment procedure somehow reinforces a presumption of exclusivity. Yet it is difficult to perceive how that can be when it is also conceded, as mentioned earlier, that Congress itself has never designed its prescription to be the sole avenue of redress for this limited class of claimants. Rather, the significance of the statutory source of this procedure lies in its inflexibility and immunity from modification through collective bargaining. Unlike the rule, what is done today cannot be undone tomorrow through contract negotiation.[6] That difference would seem to warrant caution to ensure that more is to be gained than lost by closing the court-house door. One clear disadvantage counsels against today's holding. Given the nature of
Justice Douglas
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dissenting
Andrews v. Louisville & Nashville R. Co.
https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/
clear disadvantage counsels against today's holding. Given the nature of permanent dischargees' weak positions vis-à-vis their former unions, the personnel manning the adjustment mechanism, its haphazard decisional process, and the absence of judicial review of Board decisions, the risk is substantial that valid complaints *334 of permanent discharges such as Andrews will be unfairly treated. The machinery erected by the Railway Labor Act was not meant to be judicial in nature. Rather, it was designed as an arbitration process in which the union and the carrier occupy opposite sides of a bargaining table. As a substitute for the economic battleground, the process envisions decisionmaking on the basis of strength and accountability to the interests represented. Unions will often press one grievance at the expense of another. If Andrews were a continuing union member perhaps he would receive equal representation. But because the union will not have to answer to him if his claim is lost the union may yield its merit in the logrolling process carried on with management. I now have doubt that the reasoning of was sound insofar as we opined that a union agent will have sufficient interest in faithfully prosecuting the complaint of a former member who "has lost his job and is most likely outside the union door looking in instead of on hand to push for his claim." and 668 (Black, J., dissenting). Indeed, only this Term in Chemical we refused to permit a union to represent nonvoting pensioners, holding that under the National Labor Relations Act, as amended, 29 U.S. C. 151 et seq., the company was not required to bargain with respect to pension plans affecting inactive retirees. We reasoned that "the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits."[7] at 173. *335 Beyond the inherent risk of compromise of a dischargee's claim there lie still further obstacles to fair treatment. First, the internal procedures used by the Board are far afield from those normally associated with impartial adjudication. The Board is exempt from the Administrative Procedure Act, 2 (a) (1), 5 U.S. C. 551 (1). One account of its ad hoc procedures leaves little doubt that before that forum Andrews will have no means of proving his allegations: "As the Board has operated in practice, the procedures followed in holding hearings have been quite informal and have differed from the trial-type hearings conducted by other agencies established and maintained by the Federal Government. Disputes are referred to the Adjustment Board
Justice Douglas
1,972
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dissenting
Andrews v. Louisville & Nashville R. Co.
https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/
the Federal Government. Disputes are referred to the Adjustment Board by the filing of written submissions. Each submission contains a statement of claim, accompanied by a statement of facts. If the parties can agree, a joint statement of facts is filed; if they cannot agree, separate submissions are filed, stating the facts separately. All submissions are in writing. Parties may be heard in person, by counsel, or by other representatives as they elect. It would be most extraordinary for live testimony to be given by witnesses. There is no requirement that a factual submission or other *336 written statement be sworn. There is no cross-examination of witnesses and no record or transcript of the proceedings. There is no provision for issuance of subpenas or compulsory attendance of witnesses." Hearing on H. R. 706 [1966 Railway Labor Act amendments] before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 89th Cong., 2d Sess., 49 (1966). All of this might be made tolerable if at some point in his journey Andrews could look forward to a judge's inquiry into the affair. But the fact is that whatever order by whatever process the Board may enter will be virtually immune from any judicial review because an award, either of the Adjustment Board or of a special board, is reviewable only for fraud or for lack of jurisdiction. 45 U.S. C. 153 (p) (proviso). On the other side of the balance, it could not be claimed that permitting a judicial remedy (in addition to an administrative one) would risk economic warfare, especially in light of the estranged relationship of permanent dischargees to their former unions. Nor could it be claimed that a judicial remedy would risk nonuniformity in interpretation of collective agreements inasmuch as courts as well as the Board would be obliged to apply a single body of federal common law. See at 658 n. 15. In summary, the danger of unfair treatment of the clearly identifiable class of dischargees represented by Andrews is so great, without any compensating advantages, that I would not confine these claimants to the administrative remedy.
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Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
We granted certiorari in this case to decide whether "the University of Michigan's use of racial preferences in undergraduate *250 admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S. C. d), or 42 U.S. C. 1981." Brief *251 for Petitioners i. Because we find that the manner in which the University considers the of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court's decision upholding the guidelines. I A Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University's determination that, although Gratz was "`well qualified,'" she was "`less competitive than the students who ha[d] been admitted on first review.'" App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999. Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his "`academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.'" Hamacher's application was subsequently denied in April 1997, and he enrolled at Michigan State University.[1] *252 In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University, the LSA,[2] James Duderstadt, and Lee Bollinger.[3] Petitioners' complaint was a class-action suit alleging "violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment, and for racial discrimination in violation of 42 U.S. C. 1981, 1983 and d et seq." App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners' "rights to nondiscriminatory treatment," an injunction prohibiting respondents from "continuing to discriminate on the basis of in violation of the Fourteenth Amendment," and an order requiring the LSA to offer Hamacher admission as a transfer student.[4] at 40. The District Court granted petitioners' motion for class certification after determining that
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Gratz v. Bollinger
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Court granted petitioners' motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of "those individuals who applied for and were not granted admission to the College of *253 Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of in considering their application for admission." App. 70-71. And Hamacher, whose claim the District Court found to challenge a "`practice of racial discrimination pervasively applied on a classwide basis,'" was designated as the class representative. The court also granted petitioners' motion to bifurcate the proceedings into a liability and damages phase. The liability phase was to determine "whether [respondents'] use of as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."[5] B The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University's Office of Undergraduate Admissions (OUA) oversees the LSA admissions process.[6] In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines. OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers During all periods relevant to this litigation, the University *254 has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities," and it is undisputed that the University admits "virtually every qualified applicant" from these groups. App. to Pet. for Cert. 111a. During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the "SCUGA" factors. These factors included the quality of an applicant's high school (S), the strength of an applicant's high school curriculum (C), an applicant's unusual circumstances (U), an applicant's geographical residence (G), and an applicant's alumni relationships (A). After these scores were combined to produce an applicant's "GPA 2" score, the reviewing admissions counselors referenced a set of "Guidelines" tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay
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Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration. In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status.[7] For example, as a Caucasian in-state applicant, Gratz's GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz's scores would have fallen within a cell calling for admission. *255 In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant's GPA 2 score was restructured to include additional point values under the "U" category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher's GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted. Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a "selection index," on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject). Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant's high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a "miscellaneous" category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the "`development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how and ethnicity [were] considered in admissions.'" App. to Pet. for Cert. 116a. *256 In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the University's belief that such applicants were more likely to enroll if promptly notified of their admission.
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Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of "protected seats." Specific groups—including athletes, foreign students, ROTC candidates, and underrepresented minorities—were "protected categories" eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list. During 1999 and the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, "flag" an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University,[8] (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the University's composition *257 of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented ethnicity, or geography. After reviewing "flagged" applications, the ARC determines whether to admit, defer, or deny each applicant. C The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA's use of as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 42 U.S. C. d, and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell's opinion in Regents of Univ. of to respond to petitioners' arguments. As discussed in greater detail in the Court's opinion in Grutter v. Bollinger, post, at 323-325, Justice Powell, in expressed the view that the consideration of as a factor in admissions might in some cases serve a compelling government interest. See Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University's
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Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
the LSA had a compelling interest in remedying the University's past and current discrimination against minorities.[9] *258 The District Court began its analysis by reviewing this Court's decision in See Although the court acknowledged that no decision from this Court since has explicitly accepted the diversity rationale discussed by Justice Powell, see -821, it also concluded that this Court had not, in the years since ruled out such a justification for the use of -821. The District Court concluded that respondents and their amici curiae had presented "solid evidence" that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See The court next considered whether the LSA's admissions guidelines were narrowly tailored to achieve that interest. See Again relying on Justice Powell's opinion in the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University's interest in the educational benefits that flow from a racially and ethnically diverse student body. See The court emphasized that the LSA's current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See The award of 20 points for membership in an underrepresented minority group, in the District Court's view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See Likewise, the court rejected the assertion that the LSA's program operates like the two-track system Justice Powell found objectionable in on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, -829. The court also dismissed petitioners' assertion that the LSA's current system is nothing more than a means by which to achieve racial balancing. See The court explained that the LSA does not seek to *259 achieve a certain proportion of minority students, let alone a proportion that represents the community. See The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court's view, the University's prior practice of "protecting" or "reserving" seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell's opinion in[10] See 122 F. Supp. 2d, Based on these findings, the court granted petitioners' motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and respondents' motion
Justice Rehnquist
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Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
programs in existence from 1995 through 1998, and respondents' motion with respect to the LSA's admissions programs for 1999 and See Accordingly, the District Court denied petitioners' request for injunctive relief. See The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U.S. C. 1292(b). Both parties appealed aspects of the District Court's rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as *260 well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of in university admissions in a wider range of circumstances. We did so. See II As they have throughout the course of this litigation, petitioners contend that the University's consideration of in its undergraduate admissions decisions violates 1 of the Equal Protection Clause of the Fourteenth Amendment,[11] Title VI,[12] and 42 U.S. C. 1981.[13] We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims. A Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the University's use of in undergraduate admissions. He first contends that because Hamacher did not "actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best `conjectural or hypothetical' rather than `real and immediate.'" Post, at 285 (dissenting opinion). But whether Hamacher "actually applied" for admission as a transfer student is not *261 determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher "intends to transfer to the University of Michigan when defendants cease the use of as an admissions preference." App. 67.[14] It is well established that intent may be relevant to standing in an equal
Justice Rehnquist
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Gratz v. Bollinger
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that intent may be relevant to standing in an equal protection challenge. In for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the "automatic resignation" provision they were challenging. ; accord, ; Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of we considered whether an association challenging an ordinance that gave preferential treatment to certain *262 minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the `injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of contract." We concluded that in the face of such a barrier, "[t]o establish standing, a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." In bringing his equal protection challenge against the University's use of in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of in undergraduate admissions. JUSTICE STEVENS raises a second argument as to standing. He contends that the University's use of in undergraduate transfer admissions differs from its use of in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 286-287 (dissenting opinion). *263 As an initial matter, there is a question whether the relevance
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Gratz v. Bollinger
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an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.[15] From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University's use of in undergraduate admissions and its asserted justification of promoting "diversity." See, e. g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondents "from continuing to discriminate on the basis of" App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative *264 for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see and found "the record utterly devoid of the presence of antagonism between the interests of Hamacher, and the members of the class which [he] seek[s] to represent," Finally, the District Court concluded that petitioners' claim was appropriate for class treatment because the University's "`practice of racial discrimination pervasively applied on a classwide basis.'" The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70. JUSTICE STEVENS cites in arguing that the District Court erred. Post, at 289. In Blum, we considered a class-action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State's Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher
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Gratz v. Bollinger
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could not represent absent class members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that "[n]othing in the record suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers." And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. *265 In the present case, the University's use of in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of in undergraduate freshman admissions. Respondents challenged Hamacher's standing at the certification stage, but never did so on the grounds that the University's use of in undergraduate transfer admissions involves a different set of concerns than does its use of in freshman admissions. Respondents' failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled "COLLEGE OF LITERATURE, SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS," which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e. g., 2 App. in No. 01-1333 etc. (CA6), pp. 507-542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University's stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled "CONTRIBUTION TO A DIVERSE STUDENT BODY." 2 This section explained that any transfer applicant who could "contribut[e] to a diverse student body" should "generally be admitted" even with substantially lower qualifications than those required of other transfer applicants. To determine whether a transfer applicant was capable of "contribut[ing] to a diverse student body," admissions counselors were instructed to determine whether that transfer applicant met the "criteria as defined in Section IV of the `U' category of [the] SCUGA" factors used to assess *266 freshman applicants. Section IV of the "U" category, entitled "Contribution to a Diverse Class," explained that "[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the
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Gratz v. Bollinger
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a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class." 1 These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicant's contribution to diversity. See 3 Indeed, the only difference between the University's use of in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the of its undergraduate applicants.[16] *267 Particularly instructive here is our statement in General Telephone of that "[i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the requirements of Rule 23(a)." Here, the District Court found that the sole rationale the University had provided for any of its -based preferences in undergraduate admissions was the interest in "the educational benefits that result from having a diverse student body." App. to Pet. for Cert. 8a. And petitioners argue that an interest in "diversity" is not a compelling state interest that is ever capable of justifying the use of in undergraduate admissions. See, e. g., Brief for Petitioners 11-13. In sum, the same set of concerns is implicated by the University's use of in evaluating all undergraduate admissions applications under the guidelines.[17] We therefore agree with the District Court's *268 carefully considered decision to certify this class-action challenge to the University's consideration of in undergraduate admissions. See App. 67 ("`It is a singular policy. applied on a classwide basis'"); cf. Coopers & Indeed, class-action treatment was particularly important in this case because "the claims of the individual students run the risk of becoming moot" and the "[t]he class action vehicle provides a mechanism for ensuring that a justiciable claim is before the Court." App. 69. Thus, we think it clear that Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain this class-action challenge to the University's use of in undergraduate admissions. B Petitioners argue, first and foremost, that the
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Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
undergraduate admissions. B Petitioners argue, first and foremost, that the University's use of in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that "diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means." But for the reasons set forth today in Grutter v. Bollinger, post, at 327-333, the Court has rejected these arguments of petitioners. *269 Petitioners alternatively argue that even if the University's interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University's use of in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not "remotely resemble the kind of consideration of and ethnicity that Justice Powell endorsed in" Brief for Petitioners 18. Respondents reply that the University's current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell.[18] They claim that their program "hews closely" to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondent Bollinger et al. 32. Specifically, respondents contend that the LSA's policy provides the individualized consideration that "Justice Powell considered a hallmark of a constitutionally appropriate admissions program." For the reasons set out below, we do not agree. *270 It is by now well established that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Constructors, This "`standard of review. is not dependent on the of those burdened or benefited by a particular classification.' " ). Thus, "any person, of whatever has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny." 515 U. S., at To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of in its current admissions program employs "narrowly tailored measures that further compelling governmental interests." Because "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," our review of whether such requirements have been met must entail "`a most searching examination.' " ). We find that the University's policy, which automatically distributes 20 points,
Justice Rehnquist
2,003
19
majority
Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program. In Justice Powell reiterated that "[p]referring members of any one group for no reason other than or ethnic origin is discrimination for its own sake." He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which " or ethnic background may be *271 deemed a `plus' in a particular applicant's file." He explained that such a program might allow for "[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." Such a system, in Justice Powell's view, would be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant." Justice Powell's opinion in emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See See also Metro Broadcasting, (concluding that the Federal Communications Commission's policy, which "embodie[d] the related notions that a particular applicant, by virtue of or ethnicity alone, is more valued than other applicants because [the applicant is] `likely to provide [a] distinct perspective,'" "impermissibly value[d] individuals" based on a presumption that "persons think in a manner associated with their "). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application. The current LSA policy does not provide such individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the University. The only consideration that accompanies this distribution of *272 points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the of a "particular black applicant" could be considered without being decisive, see 438 U. S., the LSA's automatic distribution of 20
Justice Rehnquist
2,003
19
majority
Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
see 438 U. S., the LSA's automatic distribution of 20 points has the effect of making "the factor of decisive" for virtually every minimally qualified underrepresented minority applicant. [19] Also instructive in our consideration of the LSA's system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in The example was included to "illustrate the kind of significance attached to " under the Harvard College program. It provided as follows: "The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently-abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent * upon but sometimes associated with it." This example further demonstrates the problematic nature of the LSA's admissions system. Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA's system. See App. 234-235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants the individualized selection process described in Harvard's example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his "extraordinary talent."[20] Respondents emphasize the fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This
Justice Rehnquist
2,003
19
majority
Gratz v. Bollinger
https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/
the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant "with promise of superior academic performance," would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University *274 would never consider student A's individual background, experiences, and characteristics to assess his individual "potential contribution to diversity," Instead, every applicant like student A would simply be admitted. It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the "review committee can look at the applications individually and ignore the points," once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA's admissions program. See App. to Pet. for Cert. 117a ("The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG").[21] Additionally, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes a decisive factor for virtually every minimally qualified underrepresented minority applicant. *275 Respondents contend that "[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the admissions system" upheld by the Court today in Grutter. Brief for Respondent Bollinger et al. 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson (rejecting "`administrative convenience' " as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell's opinion in signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis. We conclude, therefore, that because the University's use of in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
Congress prohibits the States from imposing taxes on income derived from "business activities" in interstate commerce and limited to the "solicitation of orders" under certain conditions. 15 U.S. C. 381(a). The question we face is whether Wrigley has this important tax immunity for its business activities in the State of Wisconsin. I agree with the Court that the statutory phrase "solicitation of orders" is but a subset of the phrase "business activities." ; ante, at 225-226. I submit with all respect, though, that the Court does not allow its own analysis to take the proper course. The Court instead devises a test that excludes business activities with a close relation to the solicitation of orders, activities that advance the purpose of the statute and its immunity. The Court is correct, in my view, to reject the two polar arguments urged upon us: one, that ordinary and necessary business activities surrounding the solicitation of orders are *237 part of the exempt solicitation itself; and the other, that the only exempt activities are those essential to the sale. Ante, at 225, 227. Having done so, however, the Court exits a promising avenue of analysis and adopts a test with little relation to the practicalities of solicitation. The Court's rule will yield results most difficult to justify or explain. My submission is that the two polarities suggest the proper analysis and that the controlling standard lies between. It is difficult to formulate a complete test in one case, but the general rule ought to be that the statute exempts business activities performed in connection with solicitation if reasonable buyers would consider them to be a part of the solicitation itself and not a significant and independent service or component of value. I begin with the statute. Section 381(a) provides as follows: "No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following: "(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and "(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1)." 15 U.S. C. 381(a). *238 The key phrases, as recognized by the Court, are "business activities" and "solicitation of orders." Ante, at 225-226. By using "solicitation of orders" to define a subset of "business activities," the text suggests that the immunity to be conferred encompasses more than a specific request for a purchase; it includes the process of solicitation, as distinguished from manufacturing, warehousing, or distribution. Congress could have written 381(a) to exempt "acts" of "solicitation" or "solicitation of orders," but it did not. The decision to use the phrase "business activities," while not unambiguous, suggests that the statute must be read to accord with the practical realities of interstate sales solicitations, which, after all, Congress acted to protect. The textual implication I find draws support from legal and historical context. Even those who approach legislative history with much trepidation must acknowledge that the statute was a response to three specific court decisions: Northwestern States Portland Cement Shoe cert. denied, and Brown-Forman Distillers appeal dism'd, S. Rep. No. 658, 86th Cong., 1st Sess., 2-3 (hereinafter S. Rep.); H. R. Rep. No. 936, 86th Cong., 1st Sess., 1-2 (hereinafter H. R. Rep.). See ante, at 220— 223, and n. 1. These decisions departed from what had been perceived as a well-settled rule, stated in Norton that solicitation in interstate commerce was protected from taxation in the State where the solicitation took place. "Where a corporation chooses to stay at home in all respects except to send abroad advertising or drummers to solicit orders which are sent directly to the home office for acceptance, filling, and delivery back to the buyer, it is obvious that the State of the buyer has no local grip on the seller. Unless some local incident occurs *239 sufficient to bring the transaction within its taxing power, the vendor is not taxable." Firm expectations within the business community were built upon the rule as restated in Norton. Companies engaging in interstate commerce conformed their activities to the limits our cases seemed to have endorsed. To be sure, the decision to stay at home might have derived in some respects from independent business concerns. The expense and commitment of an in-state sales office, for example, might have informed a decision to send salesmen into a State without further staff support. Some interstate operations, though, carried the
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
without further staff support. Some interstate operations, though, carried the unmistakable mark of a legal, rather than business, justification. The technical requirement that orders be approved at the home office, unless approval required judgment or expertise (for example, if the order depended on an ancillary decision to give credit or to name an official retailer), was no doubt the product of the legal rule. These settled expectations were upset in 1959, their continuing vitality put in doubt by Northwestern States, Shoe, and Brown-Forman. In Northwestern States, the Court upheld state income taxation against two companies whose in-state operations included a sales staff and sales -455. Our disposition was consistent with prior law, since both companies maintained offices within the taxing State. But the Court's opinion was broader than the holding itself and marked a departure from prior law. "We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same." In the absence of case law giving meaning to "sufficient nexus," the Court's use of this indeterminate phrase created *240 concern and apprehension in the business community. S. Rep., at 2-4; H. R. Rep., at 1. Apprehension increased after our denial of certiorari in Shoe and Brown-Forman, where the Louisiana Supreme Court upheld the taxation of companies whose business activities within the State were limited to solicitation by salespeople. S. Rep., at 3; H. R. Rep., at 2. The concern stemmed not only from the prospect for tax liability in an increasing number of States, but also from the uncertainty of its amount and apportionment, the burdens of compliance, a lack of uniformity under state law, the withdrawal of small businesses from States where the cost and complexity of compliance would be great, and the extent of liability for back taxes. S. Rep., at 2-4. As first drafted by the Senate Finance Committee, 381(a) would have addressed the decisions in Northwestern States, Shoe, and Brown-Forman. S. Rep., at 2-3; H. R. Rep., at 3; 105 Cong. Rec. 16378, 16934 The Committee recommended a bill defining "business activities" in three subsections, with one subsection corresponding to the facts in each of the three cases. S. 2524, 86th Cong., 1st Sess. Before the bill was enacted, however, the Senate rejected the third of these subsections, corresponding to Northwestern States, which would have extended protection to companies with in-state sales offices. 105 Cong. Rec. 16469-16477 (Senate debate on an amendment proposed by
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
Cong. Rec. 16469-16477 (Senate debate on an amendment proposed by Sen. Talmadge (Ga.)). But the other two subsections, those dealing with the state-court decisions in Shoe and Brown-Forman, were retained. 105 Cong. Rec., at 16367, 16376, 16471, 16934; H. R. Rep., at 3. Thus, while Northwestern States provided the first impetus for the enactment of 381(a), it does not explain the statute in its final form. By contrast, the history of enactment makes clear that 381(a) exempts from state income taxation at least those business activities at issue in *241 Shoe and Brown-Forman. These cases must inform any attempt to give meaning to 381(a). Shoe manufactured shoes in St. Louis, Missouri. Its only activity within the State of Louisiana consisted of regular and systematic solicitation by 15 salespeople. No office or warehouse was maintained inside Louisiana, and orders were accepted and shipped from outside the State. The salespeople carried product samples, drove in company-owned automobiles, and rented hotel rooms or rooms of public buildings in order to make displays. Shoe, ; Hartman, "Solicitation" and "Delivery" Under : An Uncharted Course, Brown-Forman distilled and packaged whiskey in Louisville, Kentucky, for sale in Louisiana and elsewhere. Itsolicited orders in Louisiana with the assistance of an in-state sales staff. All orders were approved and shipped from outside the State. There was no in-state office of any kind. Brown-Forman salespeople performed two functions: they solicited orders from wholesalers, who were direct customers of Brown-Forman; and they accompanied the wholesalers' own sales force on visits to retailers, who were solicited by the wholesalers. The Brown-Forman salespeople did not solicit orders at all when visiting retailers, nor could they sell direct to them. They did assist in arranging suitable displays of the distiller's merchandise in the retail establishments. Brown-Forman, The activities in Shoe and Brown-Forman extended beyond specific acts of entreaty; they included merchandising and display, as well as other simple acts of courtesy from buyer to seller, such as arranging product displays and calling on the customer of a customer. The activities considered in Shoe and Brown-Forman are by no means exceptional. Checking inventories, displaying products, replacing stale product, and verifying credit are all *242 normal acts of courtesy from seller to buyer. J. Hellerstein, 1 State Taxation: Corporate Income and Franchise Taxes ¶ 6.11[2], p. 245 (1983). A salesperson cannot solicit orders with any degree of effectiveness if he is constrained from performing small acts of courtesy. Note, State Taxation of Interstate Commerce: 46 Va. L. Rev. 297, 315 (1960). The business activities of Wrigley within Wisconsin have substantial parallels to those considered in
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
Wrigley within Wisconsin have substantial parallels to those considered in Shoe and Brown-Forman. Wrigley has no manufacturing facility in the State. It maintains no offices or warehouses there. The only product it owns in the State is the small amount necessary for its salespeople to call upon their accounts. All orders solicited by its salespeople are approved or rejected outside of the State. All orders are shipped from outside of the State. Other activities, such as intervening in credit disputes, hiring salespeople, or holding sales meetings in hotel rooms, do not exceed the scope of 381(a); I agree with the Court that these too are the business activities of solicitation. Ante, at 234-235; App. 10-13. The Department of Revenue, in an apparent concession of the point, does not contend that the business activities of Wrigley exceed the normal scope of solicitation; instead the Department relies on a distinction between business activities undertaken before and after the sale. Brief for Petitioner 18, 21. Under the Department's submission, acts leading to the sale are within the statutory safe harbor, while any act following the sale is beyond it. I agree with the Court, as well as with the Supreme Court of Wisconsin, that this distinction is unworkable in the context of a continuing business relation with many repeat sales. Ante, at 230-231; App. to Pet. for Cert. A-41. As the Court indicates, the case really turns upon our assessment of two practices: replacing stale product and providing gum in display racks. Ante, at 233. If the retailers relied on the Wrigley sales force to replace all stale product *243 and that service was itself significant, say on the magnitude of routine deliveries of fresh bread, then a separate service would seem to be involved. But my understanding of the record is that replacement of stale gum took place only during the course of regular solicitation. App. 27-28, 41, 58, 117-118. There was no contract to perform this service. There is no indication in the record that this was the only method dealers relied upon to remove stale product. It is not plausible to believe that by enacting 381(a) Congress insisted that every sales representative in every industry would be prohibited from doing just what Wrigley did. Acceptance of the stale gum replacement does not allow industry practices to replace objective statutory inquiry. The existence of a contract to perform this service, or an indication in the record that this service provided an independent component of significant value, would alter the case's disposition, regardless of the seller's intentions. The test I propose does
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
regardless of the seller's intentions. The test I propose does not depend on the sellers' intentions or motives whatsoever; rather it requires an objective assessment from the vantage point of a reasonable buyer. If a reasonable buyer would consider the replacement of stale gum to provide significant independent value, then this service would subject Wrigley to taxation. The majority appears to concede the point in part when it observes Wrigley replaced stale gum free of charge, ante, at 234, n. 9, which 9, stale provides a strong indication that the replacement of gum is valuable to Wrigley, not its customers, as an assurance of quality given in the course of an ongoing solicitation. I agree with the Court's approach, which is to provide guidance by some general rule that is faithful to the precise language of the statute. But it ought not to do so without recognition of some of the most essential aspects of solicitation techniques. No responsible company would expect its sales force to decline giving minimal assistance to a retailer in replacing damaged or stale product. In enacting 381(a), Congress recognized the importance of interstate solicitation *244 to the strength of our national economy. The statute must not to be interpreted to repeal the rules of good sales techniques or to forbid common solicitation practices under the threat of forfeiting this important tax exemption. Congress acted to protect interstate solicitation, not to mandate inefficiency. Even accepting the majority's test on its own terms, the business activities which the Court finds to be within the safe harbor of the federal statute are less ancillary to a real sales solicitation than are the activities it condemns. The credit adjustment techniques and the training sessions the Court approves are not related to a particular sales call or to a particular sales solicitation, but the condemned display and replacement practices are. I do not understand why the Court thinks that a credit dispute over an old transaction, handled by telephone weeks or months later is exempt because it "ingratiate[s] the salesman with the customer, thereby facilitating requests for purchases," ante, at 235, but that this same process of ingratiation does not occur when a salesperson who is on the spot to solicit an order refuses to harm the company by leaving the customer with bad product on the shelf. If there were any distinction between the two, I should think we would approve the replacement and condemn the credit adjustment. The majority fails to address this anomaly under its test, responding instead that my observation of it suggests ambiguity in my
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
instead that my observation of it suggests ambiguity in my own. Ante, at 229, n. 5. In my view, both the gum replacement and credit adjustment are within the scope of solicitation. I would agree with the Court that the furnishing of racks with gum that is sold to the customer presents a problem of a different order, ante, at 233, but here too I think it adds no independent value apart from the solicitation itself. To begin with, I think it rather well accepted that the setting up of display racks and the giving of advice on sales presentation is central to the salesperson's role in cultivating customers. There are dangers for the manufacturer, however, *245 if the salesperson spends the time to set up a display and then stocks it with free goods, because this could create either the fact or the perception that retailers were not receiving the same price. Free goods lower the per unit cost of all goods purchased. The simplest policy to avoid this problem is to charge for the goods displayed, and that is what occurred here. Moreover, I cannot ignore, as the Court appears to do, that a minuscule amount of gum, no more than 0.00007% (seven one-hundred thousands of one percent) of Wrigley's in-state sales, was stocked into display racks in this fashion. Brief for Respondent 5; App. to Pet. for Cert. A-43. Indeed, the testimony is that Wrigley salespeople would stock these display racks out of their own supply of samples only as a matter of last resort, in instances where the retailer possessed an inadequate supply of gum and could not await delivery in the normal course. "Q Well, I take it that if you put in the stand and it was a new stand, you took the gum out of your vehicle and transferred it to him there; is that correct? "A No, I would not say that's correct. "Q Well, did you ever stock new stands from your vehicle? "A I would say possibly on some—on a few occasions. "Q And how many few occasions were there during your tenure as a field representative in 1978? "A Boy. I would just be guessing. Maybe a dozen times. "Q And just what would—what all happened in that circumstance that you wound up putting in a new stand and taking the gum out of your vehicle and transferring it to the retailer? "A Well, like I said, primarily I wanted to get a stand in and then he wanted to get that order through his wholesaler; but if he
Justice Kennedy
1,992
4
dissenting
Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.
https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/
to get that order through his wholesaler; but if he couldn't wait, if he said my wholesaler was just in yesterday or something or he was not going to be in for a week, he didn't want a stand *246 sitting around, so we would then fill it and then bill the wholesaler." App. 37-38. Under the circumstances described here, I fail to see why the stocking of a gum display does not "ingratiate the salesman with the customer, thereby facilitating requests for purchases," ante, at 235, as is required under the rule formulated by the Court. The small amount of gum involved in stocking a display rack, no more than $15—$20 worth, belies any speculation, ante, at 234, n. 9, that Wrigley was driven by a profit motive in charging customers for this gum. App. 38. The Court pursues a laudable effort to state a workable rule, but in the attempt condemns business activities that are bound to solicitation and do not possess independent value to the customer apart from what often accompanies a successful solicitation. The business activities of Wrigley in Wisconsin, just as those considered in Shoe and Brown-Forman, are the solicitation of orders. The swapping of stale gum and the infrequent stocking of fresh gum into new displays are not services that Wrigley was under contract to perform; they are not activities that can be said to have provided their own component of significant value; rather they are activities conducted in the course of solicitation and whose legal effect should be the same. My examination of the language of the statute, considered in the context of its enactment, demonstrates that the concerns to which 381(a) was directed, and for which its language was drafted, are misapprehended by the Court's decision today. I would affirm the judgment of the Wisconsin Supreme Court.
Justice Kennedy
1,999
4
majority
Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
Two questions relating to a criminal defendant's Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts *317 about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant's silence. We hold a sentencing court may not draw the adverse inference. I Petitioner Amanda Mitchell and 22 other defendants were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown, Pennsylvania, from to 1994. According to the indictment, the leader of the conspiracy, Harry Riddick, obtained large quantities of cocaine and resold the drug through couriers and street sellers, including petitioner. Petitioner was charged with one count of conspiring to distribute five or more kilograms of cocaine, in violation of 21 U.S. C. 846, and with three counts of distributing cocaine within 1,000 feet of a school or playground, in violation of 860(a). In 1995, without any plea agreement, petitioner pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing. Before accepting the plea, the District Court made the inquiries required by Rule 11 of the Federal Rules of Criminal Procedure. Informing petitioner of the penalties for her offenses, the District Judge advised her, "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in." App. 39. The judge told petitioner she faced a mandatory minimum of one year in prison under 860 for distributing cocaine near a school or playground. She also faced "serious punishment depending on the quantity involved" for the conspiracy, with a mandatory minimum of 10 years in prison under 841 if she could be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine. By pleading guilty, the District Court explained, * petitioner would waive various rights, including "the right at trial to remain silent under the Fifth Amendment." After the Government explained the factual basis for the charges, the judge, having put petitioner under oath, asked her, "Did you do that?"
Justice Kennedy
1,999
4
majority
Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
put petitioner under oath, asked her, "Did you do that?" Petitioner answered, "Some of it." She indicated that, although present for one of the transactions charged as a substantive cocaine distribution count, she had not herself delivered the cocaine to the customer. The Government maintained she was liable nevertheless as an aider and abettor of the delivery by another courier. After discussion with her counsel, petitioner reaffirmed her intention to plead guilty to all the charges. The District Court noted she might have a defense to one count on the theory that she was present but did not aid or abet the transaction. Petitioner again confirmed her intention to plead guilty, and the District Court accepted the plea. In 9 of petitioner's original 22 codefendants went to trial. Three other codefendants had pleaded guilty and agreed to cooperate with the Government. They testified petitioner was a regular seller for ringleader Riddick. At petitioner's sentencing hearing, the three adopted their trial testimony, and one of them furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling 1½ to 2 ounces of cocaine a day, from April to August Then, from August to December she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. On cross-examination, the codefendant conceded he had not seen petitioner on a regular basis during the relevant period. Both petitioner and the Government referred to trial testimony by one Alvitta Mack, who had made a series of drug buys under the supervision of law enforcement agents, including three purchases from petitioner totaling two ounces *319 of cocaine in Petitioner put on no evidence at sentencing, nor did she testify to rebut the Government's evidence about drug quantity. Her counsel argued, however, that the three documented sales to Mack constituted the only evidence of sufficient reliability to be credited in determining the quantity of cocaine attributable to her for sentencing purposes. After this testimony at the sentencing hearing the District Court ruled that, as a consequence of her guilty plea, petitioner had no right to remain silent with respect to the details of her crimes. The court found credible the testimony indicating petitioner had been a drug courier on a regular basis. Sales of 1½ to 2 ounces twice a week for a year and a half put her over the 5-kilogram threshold, thus mandating a minimum sentence of 10 years. "One of the things" persuading the court to rely
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
years. "One of the things" persuading the court to rely on the testimony of the codefendants was petitioner's "not testifying to the contrary." The District Judge told petitioner: "`I held it against you that you didn't come forward today and tell me that you really only did this a couple of times. I'm taking the position that you should come forward and explain your side of this issue. "`Your counsel's taking the position that you have a Fifth Amendment right not to. If he's—if it's determined by a higher Court that he's right in that regard, I would be willing to bring you back for resentencing. And if you—if—and then I might take a closer look at the [codefendants'] testimony.' " The District Court sentenced petitioner to the statutory minimum of 10 years of imprisonment, 6 years of supervised release, and a special assessment of $200. The Court of Appeals for the Third Circuit affirmed the sentence. According to the Court of Appeals: "By voluntarily and knowingly pleading guilty to *320 the offense Mitchell waived her Fifth Amendment privilege." The court acknowledged other Circuits have held a witness can "claim the Fifth Amendment privilege if his or her testimony might be used to enhance his or her sentence," at 190 (citing United and n. 8 (CA10), cert. denied, ), but it said this rule "does not withstand analysis," The court thought it would be illogical to "fragment the sentencing process," retaining the privilege against self-incrimination as to one or more components of the crime while waiving it as to others. Petitioner's reservation of the right to contest the amount of drugs attributable to her did not change the court's analysis. In the Court of Appeals' view: "Mitchell opened herself up to the full range of possible sentences for distributing cocaine when she was told during her plea colloquy that the penalty for conspiring to distribute cocaine had a maximum of life imprisonment. While her reservation may have put the government to its proof as to the amount of drugs, her declination to testify on that issue could properly be held against her." The court acknowledged a defendant may plead guilty and retain the privilege with respect to other crimes, but it observed: "Mitchell does not claim that she could be implicated in other crimes by testifying at her sentencing hearing, nor could she be retried by the state for the same offense." a statute that bars, with certain exceptions, a state prosecution following a federal conviction based on the same conduct). Judge Michel concurred, reasoning that any error by the
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
conduct). Judge Michel concurred, reasoning that any error by the District Court in drawing an adverse factual inference from petitioner's silence was harmless because "the evidence amply supported [the judge's] finding on quantity" even without *321 consideration of petitioner's failure to Other Circuits to have confronted the issue have held that a defendant retains the privilege at sentencing. See, e. g., United ; United ; United ; United ; Bank One of Cleveland, N. ; United ; United We granted certiorari to resolve the apparent Circuit conflict created by the Court of Appeals' decision, and we now reverse. II The Government maintains that petitioner's guilty plea was a waiver of the privilege against compelled selfincrimination with respect to all the crimes comprehended in the plea. We hold otherwise and rule that petitioner retained the privilege at her sentencing hearing. A It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination," "The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry," Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended *322 within its scope, but for now it suffices to note the general rule. The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule "would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony," It would, as we said in Brown, "make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell," The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing crossexamination when testimony is given without invoking the privilege. We may assume for purposes of this opinion, then, that if petitioner had pleaded not guilty and, having taken the stand at a trial, testified she did "some of it," she could have been cross-examined on the frequency of her drug
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
could have been cross-examined on the frequency of her drug deliveries and the quantity of cocaine involved. The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled selfincrimination upon entry of a guilty plea, including the right to remain silent at sentencing. There is no convincing reason why the narrow inquiry at the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who "cannot reasonably claim that the Fifth Amendment gives him an immunity from cross-examination on the matters *323 he has himself put in dispute," -156, the defendant who pleads guilty puts nothing in dispute regarding the essentials of the offense. Rather, the defendant takes those matters out of dispute, often by making a joint statement with the prosecution or confirming the prosecution's version of the facts. Under these circumstances, there is little danger that the court will be misled by selective disclosure. In this respect a guilty plea is more like an offer to stipulate than a decision to take the stand. Here, petitioner's statement that she had done "some of" the proffered conduct did not pose a threat to the integrity of factfinding proceedings, for the purpose of the District Court's inquiry was simply to ensure that petitioner understood the charges and that there was a factual basis for the Government's case. Nor does Federal Rule of Criminal Procedure 11, which governs pleas, contemplate the broad waiver the Government envisions. Rule 11 directs the district court, before accepting a guilty plea, to ascertain the defendant understands he or she is giving up "the right to be tried by a jury and at that trial the right against compelled selfincrimination." Rule 11(c)(3). The transcript of the plea colloquy in this case discloses that the District Court took care to comply with this and the other provisions of Rule 11. The District Court correctly instructed petitioner: "You have the right at trial to remain silent under the Fifth Amendment, or at your option, you can take the stand and tell the jury your side of this controversy. If you plead guilty, all of those rights are gone." App. 45. Neither the Rule itself nor the District Court's explication of it indicates that the defendant consents to take the stand in the sentencing phase or to suffer adverse
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
the stand in the sentencing phase or to suffer adverse consequences from declining to do so. Both the Rule and the District Court's admonition were to the effect that by entry of the plea petitioner would surrender the right "at trial" to invoke the privilege. As there was to be no trial, the warning would not have brought home to petitioner that she was also *324 waiving the right to self-incrimination at sentencing. The purpose of Rule 11 is to inform the defendant of what she loses by forgoing the trial, not to elicit a waiver of the privilege for proceedings still to follow. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial. Of course, a court may discharge its duty of ensuring a factual basis for a plea by "question[ing] the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded." Rule 11(c)(5). We do not question the authority of a district court to make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis. A defendant who withholds information by invoking the privilege against self-incrimination at a plea colloquy runs the risk the district court will find the factual basis inadequate. At least once the plea has been accepted, statements or admissions made during the preceding plea colloquy are later admissible against the defendant, as is the plea itself. A statement admissible against a defendant, however, is not necessarily a waiver of the privilege against self-incrimination. Rule 11 does not prevent the defendant from relying upon the privilege at sentencing. Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants. At oral argument, we asked counsel for the United States whether, on the facts of this case, if the Government had no reliable evidence of the amount of drugs involved, the prosecutor "could say, well, we can't prove it, but we'd like to put her on the stand and cross-examine her and see if we can't get her to admit it." Tr. of Oral Arg. 45. Counsel answered: "[T]he waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that." Over 90% of federal criminal defendants *325 whose cases are not dismissed enter
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
federal criminal defendants *325 whose cases are not dismissed enter pleas of guilty or nolo contendere. U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics p. 448 Were we to accept the Government's position, prosecutors could indict without specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the drug quantity. The result would be to enlist the defendant as an instrument in his or her own condemnation, undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. We reject the position that either petitioner's guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing. B The centerpiece of the Third Circuit's opinion is the idea that the entry of the guilty plea completes the incrimination of the defendant, thus extinguishing the privilege. Where a sentence has yet to be imposed, however, this Court has already rejected the proposition that "`incrimination is complete once guilt has been adjudicated,' " and we reject it again today. The Court of Appeals cited Wigmore on Evidence for the proposition that upon conviction "`criminality ceases; and with criminality the privilege.' " ). The passage relied upon does not support the Third Circuit's narrow view of the privilege. The full passage is as follows: "Legal criminality consists in liability to the law's punishment. When that liability is removed, criminality ceases; and with the criminality the privilege." It could be argued that liability for punishment continues until *326 sentence has been imposed, and so does the privilege. Even if the Court of Appeals' interpretation of the treatise were correct, however, and it means the privilege ceases upon conviction but before sentencing, we would respond that the suggested rule is simply wrong. A later supplement to the treatise, indeed, states the proper rule that, "[a]lthough the witness has pleaded guilty to a crime charged but has not been sentenced, his constitutional privilege remains unimpaired." J. Wigmore, Evidence 2279, p. 991, n. 1 It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final. See, e. g., If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
convicted person by reason of further testimony, then there is no further incrimination to be feared. Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." Estelle was a capital case, but we find no reason not to apply the principle to noncapital sentencing hearings as well. "The essence of this basic constitutional principle is `the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' " at ). The Government itself makes the implicit concession that the acceptance of a guilty plea does not eliminate the possibility of further incrimination. In its brief to the Court, the Government *327 acknowledges that a defendant who awaits sentencing after having pleaded guilty may assert the privilege against self-incrimination if called as a witness in the trial of a codefendant, in part because of the danger of responding "to questions that might have an adverse impact on his sentence or on his prosecution for other crimes." Brief for United States 31. The Fifth Amendment by its terms prevents a person from being "compelled in any criminal case to be a witness against himself." U. S. Const., Amdt. 5. To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the law and to common sense. As to the law, under the Federal Rules of Criminal Procedure, a court must impose sentence before a judgment of conviction can issue. See Rule 32(d)(1) ("A judgment of conviction must set forth the plea and the sentence"); cf. As to common sense, it appears that in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment. Petitioner faced imprisonment from one year upwards to life, depending on the circumstances of the crime. To say that she had no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of view, it was most important. Our rule is applicable whether or not the sentencing hearing is deemed a proceeding separate from the Rule
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Mitchell v. United States
https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/
sentencing hearing is deemed a proceeding separate from the Rule 11 hearing, an issue we need not resolve. III The Government suggests in a footnote that even if petitioner retained an unwaived privilege against selfincrimination in the sentencing phase of her case, the District Court was entitled, based on her silence, to draw an adverse inference with regard to the amount of drugs attributable to her. Brief for United States 31-32, n. 18. The *328 normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted. We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime. This Court has recognized "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them," at least where refusal to waive the privilege does not lead "automatically and without more to [the] imposition of sanctions," In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that "the stakes are higher" in criminal cases, where liberty or even life may be at stake, and where the government's "sole interest is to convict." Baxter, 425 U. S., at -319. Baxter itself involved state prison disciplinary proceedings which, as the Court noted, "are not criminal proceedings" and "involve the correctional process and important state interests other than conviction for crime." Cf. Ohio Adult Parole Unlike a prison disciplinary proceeding, a sentencing hearing is part of the criminal case—the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth Amendment, we *329 must accord the privilege the same protection in the sentencing phase of "any criminal case" as that which is due in the trial phase of the same case, see The concerns which mandate the rule against negative inferences at a criminal trial apply with equal force at sentencing. Without question, the stakes are high: Here, the inference drawn by the District Court from petitioner's silence may have resulted in decades of added imprisonment. The Government often has a motive to demand a