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Justice Roberts | 2,014 | 0 | dissenting | Kaley v. United States | https://www.courtlistener.com/opinion/2654756/kaley-v-united-states/ | to trial strategy—perhaps to an even greater extent than the Government, given that defendants bear comparatively few discovery obligations at a criminal trial. In light of the low bar of the probable cause stand- ard, many defendants likely conclude that the possible benefits of the hearing are not worth the candle. For those hearings that do occur, they are by all appear- ances ably controlled by district judges to keep them man- ageable and to limit the potential for excess or abuse. See Brief for New York Council of Defense Lawyers as Amicus Curiae 6–8. In addition, where such hearings are allowed, prosecutors and defense counsel often reach agreements concerning the scope and conditions of any protective order that accommodate the interests of both sides. See at 8–9. When the right at stake is as fundamental as hiring one’s counsel of choice—the “root meaning” of the Sixth Amendment, – 148—the Government’s interest in saving the time and expense of a limited number of such proceedings is not particularly compelling. Cite as: 571 U. S. (2014) 15 ROBERTS, C. J., dissenting The Government does have legitimate interests that are served by forfeiture of allegedly tainted assets. Caplin & Drysdale, (1989). And imposing a pretrial restraint on such assets does increase the likelihood that they will be available if the defendant is convicted.5 But that interest is protected in other ways that mitigate the concern that defendants will successfully divert forfeitable assets from the Gov- ernment’s reach if afforded a hearing. The relation-back provision in 21 U.S. C. §8(c) provides that title to for- feitable assets, once adjudged forfeitable, vests in the Government as of the time the offense was committed. Section 8(c) then provides that the Government may seek a “special verdict of forfeiture” as to any forfeited property that was subsequently transferred to a third party. The Government protests that recovery of such assets will often be complicated and subject to the vagar- ies of state law. Tr. of Oral Arg. 49–50. But such com- plaints of administrative inconvenience carry little weight in this particular context, when the Government knows exactly where the money has gone: to an attorney who is, after all, an officer of the court, and on notice that the Government claims title to the assets. And we are not talking about all of a defendant’s assets that are subject to forfeiture—only those that the defend- ant can show are necessary to secure his counsel of choice. —————— 5 The Government and the majority place particular emphasis on the use of forfeited assets to provide restitution to |
Justice Roberts | 2,014 | 0 | dissenting | Kaley v. United States | https://www.courtlistener.com/opinion/2654756/kaley-v-united-states/ | on the use of forfeited assets to provide restitution to victims of crime. See Brief for United States 41–42, and n. 14; ante, at 2, n. 1. It is worth noting in this respect that in prosecuting the other sales representa- tives that participated with the Kaleys in the allegedly fraudulent conduct, the Government’s position as to who exactly is the “victim” has shifted frequently. See Brief for Petitioners 9–11 (hospitals); 21–23 (their employers); Tr. of Oral Arg. 43–44 (hospitals). As one prosecutor forthrightly acknowledged at the sentencing hearing of an alleged co-conspirator, “we can’t make restitution.” Brief for Petition- ers 11. 16 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Here, for example, the Kaleys have identified as needed to pay counsel only a discrete portion of the assets the Gov- ernment seeks. The statistics cited by the Court on the total amount of assets recovered by the Government and provided as restitution for victims, ante, at 2, n. 1, are completely beside the point. The majority ultimately concludes that a pretrial hear- ing of the sort the Kaleys seek would be a waste of time. Ante, at 17–20. No. It takes little imagination to see that seizures based entirely on ex parte proceedings create a heightened risk of error. Common sense tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hear- ing from both sides. We have thus consistently recognized that the “fundamental instrument for judicial judgment” is “an adversary proceeding in which both parties may par- ticipate.” In the present context, some defendants (like the Kaleys) may be able to show that the theory of prosecution is legally defective through an argument that almost certainly was not presented to the grand jury. And as discussed at 13–15, prosecutors in some cases elect not to freeze needed assets, or they negotiate tailored protective orders to serve the interests of both sides—something they would be unlikely to do if the hearings were rote exercises. Given the risk of an erroneous restraint of assets needed to retain chosen counsel, the “probable value” of the “addi- tional safeguard” a pretrial hearing would provide is significant. That is because the right to counsel of choice is inherently transient, and the deprivation of that right effectively permanent. In our cases suggesting that little would be gained by requiring an adversary hearing on probable cause or imposing stricter evidentiary require- ments in grand jury proceedings, we have noted that the grand jury is not where the ultimate question of “the guilt |
Justice Roberts | 2,014 | 0 | dissenting | Kaley v. United States | https://www.courtlistener.com/opinion/2654756/kaley-v-united-states/ | jury is not where the ultimate question of “the guilt Cite as: 571 U. S. (2014) 17 ROBERTS, C. J., dissenting or innocence of the accused is adjudicated.” United States v. Calandra, ; see United States v. Williams, (explaining that the grand jury hears only from the prosecutor because “ ‘the finding of an indictment is only in the nature of an en- quiry or accusation, which is afterwards to be tried and determined’ ” (quoting 4 W. Blackstone, Commentaries 300 (1769)). If the grand jury considers incomplete or incom- petent evidence in deciding to return an indictment, the defendant still has the full trial on the merits, with all its “formalities and safeguards,” Gerstein v. Pugh, 420 U.S. 103, 122 to prove his innocence. Here, by contrast, the Government seeks to use the grand jury’s probable cause determination to strip the Kaleys of their counsel of choice. The Kaleys can take no comfort that they will be able to vindicate that right in a future adversarial proceeding. Once trial begins with someone other than chosen counsel, the right is lost, and it cannot be restored based on what happens at trial. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” ). If the Kaleys are to have any opportunity to meaningfully challenge that deprivation, they must have it before the trial begins. * * * The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 18 KALEY v. UNITED STATES ROBERTS, C. J., dissenting The trial is governed by rules designed to ensure that, whatever the ultimate verdict, we can be confident to the extent possible that justice was done, within the bounds of the Constitution. That confidence is grounded in our belief in the adversary system. “The very premise of our adversary system of criminal justice is that partisan advo- cacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” 422 U.S. 8, Today’s decision erodes that confidence by permitting the Government to deprive a criminal defendant of his right to counsel of choice, without so much as |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | The issue in this federal income tax case is whether the respondent, Chicago, Burlington & Quincy Railroad Company (CB&Q), an interstate common carrier railroad, may depreciate the cost of certain facilities paid for prior to June 22, 1954, not by it or by its shareholders, but from public funds. Starting about 1930, CB&Q entered into a series of contracts with various Midwestern States. By these agreements the States were to fund some or all of the costs of construction of specified improvements, and the railroad apparently was to bear, at least in part, the costs of maintenance and replacement of the improvements once they had been installed. In 1933, as part of the program of the National Industrial Recovery Act, Congress authorized federal reimbursement to the States of the shares of the costs the States incurred in the construction of those improvements that inured to the benefit of public safety and improved highway traffic control.[1] In Congress went further and authorized reimbursement, with stated limitations, to the States for the entire cost of the improvements, subject to the condition *403 that a railroad that received a benefit from a facility so constructed was liable to the Government for up to 10% of the cost of the project pro rata in relation to the benefit received by the railroad.[2] Under these programs CB&Q received, at public expense, highway undercrossings and overcrossings having a cost of $1,538,543; crossing signals, signs, and floodlights having a cost of $548,877; and jetties and bridges having a cost of $58,721.[3] These improvements, aggregating $2,146,141, were carried on the railroad's books as capital assets even though most of the agreements between CB&Q and the several States did not expressly convey title to the railroad. CB&Q instituted a timely suit in the Court of Claims alleging, among other things, that it had overpaid its 1955 federal income tax because it had failed to assert, as a deduction on its return as filed, allowable depreciation on the subsidized assets.[4] By a 4-to-3 decision on this issue (only one of several in the case), the Court of Claims concluded that, under 167 of the Internal Revenue Code of 1954, 26 U.S. C. 167, CB&Q was entitled to the depreciation deduction it claimed. This was on the theory that the subsidies qualified as contributions to the railroad's capital under 362 and 1052 (c) of that *404 Code, 26 U.S. C. 362 and 1052 (c), and under 113 (a) (8) of the Internal Revenue Code of 1939. In arriving at this conclusion, the Court of Claims majority relied on Brown Shoe and |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | the Court of Claims majority relied on Brown Shoe and reasoned that, even though the governmental payments for the facilities may not have been intended as contributions to the railroad's capital, the "principal purpose" being, instead, "to benefit the community-at-large," 455 F. 2d, at 1000, the facilities did in fact enlarge the railroad's working capital, were used in its business, and produced economic benefits for it, thereby qualifying as contributions to its capital under the cited section of the 1939 Code. The three dissenting judges disagreed with this interpretation of Brown Shoe, and, instead, relied on Detroit Edison They concluded that the critical features were the donor's attitude, purpose, and intent, and that, with governmental payments, there could be no intention to confer a benefit upon CB&Q. Instead, as the findings revealed,[5] the intention was to expedite traffic flow and to improve public safety at highway-railroad crossings. 1026. Because the Court of Claims decision apparently would afford a precedent for the tax treatment of substantial sums,[6] we granted certiorari. *405 I Section 23 (l) of the 1939 Code and its successor, 167 (a) of the 1954 Code, 26 U.S. C. 167 (a), allow a taxpayer "as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear of property used in the trade or business." In the usual situation the taxpayer himself incurs cost in acquiring the assets as to which the depreciation deduction is asserted.[7] But there are other and different situations formally recognized in the governing tax statutes. A familiar example is gift property.[8] Another is property acquired by a corporation *406 from its shareholders as paid-in surplus or as a contribution to capital.[9] Another, and the one that is pertinent here, is covered by 113 (a) (8)[10] of the 1939 Code and by the contrasting provisions of 362 (a) and (c) of the 1954 Code, 26 U.S. C. 362 (a) and (c).[11]*407 This concerns a contribution to capital by a nonshareholder. See Treas. Reg. 111, 29.113 (a) (8)-1 Under 113 (a) (8) and 114 (a) of the earlier Code, the nonshareholder-contributed asset in the hands of the receiving corporation had the same basis, subject to adjustment, for depreciation purposes as it had in the hands of the transferer; under the 1954 Code, however, its basis for the transferee is zero. Pertinent to all this is the Court's decision in The Court there held that subsidies granted by the Cuban Government to a railroad to promote construction in Cuba "were not profits or gains from the use or operation of the railroad," and did not constitute income |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | or operation of the railroad," and did not constitute income to the receiving corporation. The holding in Edwards, taken with 113 (a) (8) of the 1939 Code, produced a seemingly anomalous result, for it meant that a corporate taxpayer receiving property from a nonshareholder as a contribution to capital not only received the property free from income tax but was allowed to assert a deduction for depreciation on the asset so received tax free. This result also ensued under the Court's holding in Brown Shoe and led to the enactment of the zero-basis *408 provision, referred to above, in 362 (c) of the 1954 Code, 26 U.S. C. 362 (c). Veterans CB&Q argues that this very result should follow here. It is said that the railroad received no taxable income and incurred no income tax liability when it received, at governmental expense prior to June 22, 1954, the facilities as to which CB&Q now asserts depreciation. And, in providing the facilities, CB&Q argues, the Government intended to make a contribution to the railroad's capital, within the meaning of 113 (a) (8), thereby permitting CB&Q to depreciate the Government's cost in the assets. Whether the governmental subsidies qualified as income to the railroad is an issue not raised in this case, and we intimate no opinion with respect to it. The United States, however, asserts that the subsidies did not constitute a "contribution to capital" under 113 (a) (8), and that, accordingly, the transferee railroad's tax basis is zero and no depreciation deduction is available. Our inquiry, therefore, is a narrow one: whether the nonshareholder payment in this case constituted a "contribution to capital," within the meaning of 113 (a) (8). Because both Detroit Edison and Brown Shoe bear upon the issue, we turn to those two decisions. II Detroit Edison concerned customers' payments to a utility for the estimated costs of construction of service facilities (primary power lines) that the utility otherwise was not obligated to provide. For its tax years 1936 and 1937, to which the Revenue Act of 1936, applied, the utility claimed the full cost of the facilities in its base for computing depreciation. The Commissioner disallowed, for depreciation purposes, that portion of the cost paid by customers and not refundable. The Board of Tax Appeals, 45 B. T. A. 358 (1941), and the *409 Court of Appeals, sustained the Commissioner. This Court affirmed. Mr. Justice Jackson, speaking for a unanimous Court (the Chief Justice not participating), observed. "The end and purpose of it all [depreciation] is to approximate and reflect the financial consequences to the taxpayer |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | to approximate and reflect the financial consequences to the taxpayer of the subtle effects of time and use on the value of his capital assets." The statute, 113 (a) of the 1936 Act, it was said, "means cost to the taxpayer," even though the property "may have a cost history quite different from its cost to the taxpayer." Also, the "taxpayer's outlay is the measure of his recoupment through depreciation accruals." The utility's attempt to avoid this result by its contention that the payments were gifts or contributions to its capital, and entitled to the transferors' bases, was rejected. "It is enough to say that it overtaxes imagination to regard the farmers and other customers who furnished these funds as makers either of donations or contributions to the Company. The transaction neither in form nor in substance bore such a semblance. "The payments were to the customer the price of the service. They have not been taxed as income. But it does not follow that the Company must be permitted to recoup through untaxed depreciation accruals on investment it has refused to make." Detroit Edison, by itself, would appear almost to foreclose CB&Q's claims here, for there is an obvious parallel between the customers' payment for the utility service facilities in Detroit Edison, and the governmental payments for improvements to the railroad's service facilities in the case before us. *410 But Detroit Edison was not the last word. Brown Shoe was decided seven years later, and the opposite tax result was reached by an 8-1 vote of the Court, with Mr. Justice Black in dissent without opinion. Brown Shoe concerned a corporate taxpayer's excess profits tax, under the Second Revenue Act of 1940, as amended, for its fiscal years and 1943. Community groups paid cash or transferred property to the taxpayer as an inducement for the location or expansion of factory operations in their communities. Contracts were entered into, and in each instance the taxpayer obligated itself to locate or enlarge a facility in the community and to operate it for at least a minimum term. The value of the payments and transfers was the focus of the controversy between the taxpayer and the Commissioner, for depreciation on the transferred assets was claimed and their inclusion in equity invested capital was asserted. The Tax Court overruled the Commissioner's disallowance with respect to the acquisitions paid for with cash, but sustained the Commissioner with respect to buildings transferred. The Court of Appeals upheld the Commissioner on both items. This Court reversed. Mr. Justice Clark, writing the opinion for the majority of |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | Mr. Justice Clark, writing the opinion for the majority of the Court, concluded that the assets transferred by the community groups to the taxpayer were contributions to capital, within the meaning of 113 (a) (8) of the 1939 Code. The Court noted that in time they would wear out and, if the taxpayer continued in business, the physical plant eventually would have to be replaced. Detroit Edison was cited and recognized, but was considered not to be controlling. In Brown Shoe there were "neither customers nor payments for service," and therefore the Court "may infer a different purpose in the transactions between petitioner and the community groups." The only expectation of the groups *411 was that "such contributions might prove advantageous to the community at large." Thus, it was said, "the transfers manifested a definite purpose to enlarge the working capital of the " The Court thus professed to distinguish and not at all to overrule Detroit Edison. It did so on an analysis of the purposes behind the respective transfers in the two cases. Where the facts were such that the transferors could not be regarded as having intended to make contributions to the corporation, as in Detroit Edison, the assets transferred were not depreciable. But where the transfers were made with the purpose, not of receiving direct service or recompense, but only of obtaining advantage for the general community, as in Brown Shoe, the result was a contribution to capital. III It seems fair to say that neither in Detroit Edison nor in Brown Shoe did the Court focus upon the use to which the assets transferred were applied, or upon the economic and business consequences for the transferee corporation. Instead, the Court stressed the intent or motive of the transferor and determined the tax character of the transaction by that intent or motive. Thus, the decisional distinction between Detroit Edison and Brown Shoe rested upon the nature of the benefit to the transferor, rather than to the transferee, and upon whether that benefit was direct or indirect, specific or general, certain or speculative.[12] These factors, of course, are simply indicia of the transferor's intent or motive. *412 That this line of inquiry, and these distinctions, have relatively little to do with the economic and business consequences of the transaction seems self-evident.[13] In both cases the assets transferred were actually used in the transferee's trade or business for the production of income. In neither case did the transferee provide the investment for the assets sought to be depreciated. Yet in both cases, the assets in question were transferred |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | Yet in both cases, the assets in question were transferred for a consideration pursuant to an agreement. If, at first glance, Detroit Edison and Brown Shoe seem somewhat inconsistent, they may be reconciled, and indeed must be, on the ground that in Detroit Edison the transferor intended no contribution to the transferee's capital, whereas in Brown Shoe the transferors did have that intent. The statutory phrase "contribution to capital" is nowhere expressly defined in either the 1939 Code or the 1954 Code, and our prior decisions provide only limited guidance as to its precise meaning. Detroit Edison might be said to be only a holding that a payment for services is not a contribution to capital. Brown Shoe sheds little additional light, for the Court stated only that because the community payments were not compensation for specific services rendered, and did not constitute *413 gifts, they must have been made in order to enlarge the working capital of the But other characteristics of a contribution to capital are implicit in the two cases and become apparent when viewed in the light of the facts presently before us. In Brown Shoe, for example, the contributed funds were intended to benefit not only the transferors but the transferee as well, for the assets were put to immediate use by the taxpayer for the generation of additional income. Without benefit to the taxpayer, the agreement certainly would not have been made. Perhaps to some extent this was true in Detroit Edison; that taxpayer, however, was a public utility, and the anticipated revenue from the service lines to the customers would not have warranted the investment by the utility Its benefit, therefore, was marginal. We can distill from these two cases some of the characteristics of a nonshareholder contribution to capital under the Internal Revenue Codes. It certainly must become a permanent part of the transferee's working capital structure. It may not be compensation, such as a direct payment for a specific, quantifiable service provided for the transferor by the transferee. It must be bargained for. The asset transferred foreseeably must result in benefit to the transferee in an amount commensurate with its value. And the asset ordinarily, if not always, will be employed in or contribute to the production of additional income and its value assured in that respect. By this measure, the assets with which this case is concerned clearly do not qualify as contributions to capital. Although the assets were not payments for specific, quantifiable services performed by CB&Q for the Government as a customer, other characteristics of *414 the transaction |
Justice Blackmun | 1,973 | 11 | majority | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | Government as a customer, other characteristics of *414 the transaction lead us to the conclusion that, despite this, the assets did not qualify as contributions to capital. The facilities were not in any real sense bargained for by CB&Q. Indeed, except for the orders by state commissions and the governmental subsidies, the facilities most likely would not have been constructed at all.[14] See Nashville, C. & St. L. R. The transaction in substance was unilateral: CB&Q would accept the facilities if the Government would require their construction and would pay for them. Any incremental economic benefit to CB&Q from the facilities was marginal; its extent and importance were indicated and accounted for by the requirement that the railroad pay not to exceed 10% of the cost in relation to its own benefit.[15] The facilities were peripheral to its business and did not materially contribute to the production of further income by the railroad. They simply replaced existing facilities or provided new, better, and safer ones where none otherwise would have been deemed necessary. As the Court of Claims found, the facilities were constructed "primarily for the benefit of the public to improve safety and to expedite highway traffic flow,"[16] and the need of the railroad for capital funds was not considered, While some incremental benefit from lower accident rates, from reduced expenses of operating crossing facilities, and from possibly higher train speed might have resulted, these were incidental and insubstantial in relation to the value now sought to be depreciated, and they *415 were presumably considered in computing the railroad's maximum 10% liability under the Act. In our view, no substantial incremental benefit in terms of the production of income was foreseeable or taken into consideration at the time the facilities were transferred. Accordingly, no contribution to capital was effected. CB&Q nevertheless contends that it is entitled to depreciate the facilities because of its obligation to maintain and replace them. Whatever may be the desirability of creating a depreciation reserve under these circumstances, as a matter of good business and accounting practice, the answer is, as Judge Davis of the Court of Claims observed in dissent, 455 F. 2d, at 1025, "Depreciation reflects the cost of an existing capital asset, not the cost of a potential replacement." See United ; ; ; Massey ; Fribourg Nav. We conclude that the governmental subsidies did not constitute contributions to CB&Q's capital, within the meaning of 113 (a) (8) of the 1939 Code; that the assets in question in the hands of CB&Q have a zero basis, under 113 and 114 of that |
per_curiam | 1,971 | 200 | per_curiam | Connor v. Johnson | https://www.courtlistener.com/opinion/108353/connor-v-johnson/ | On May 14, 1971, a three-judge District Court, convened in the Southern District of Mississippi, invalidated the Mississippi Legislature's latest reapportionment statute as allowing impermissibly large variations among House and Senate districts. The parties were requested by the court to submit suggested plans, and the applicants did so on May 17. All four plans suggested by applicants utilized single-member districts exclusively *691 in Hinds County. The following day, May 18, the court issued its own plan, which included single-and multi-member districts in each House; Hinds County was constituted as a multi-member district electing five senators and 12 representatives. The court expressed some reluctance over use of multi-member districts in counties electing four or more senators or representatives, saying: "[I]t would be ideal if [such counties] could be divided into districts, for the election of one member [from] the district." However, in view of the June 4, 1971, deadline for filing notices of candidacy, the court concluded that: "[W]ith the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or the House in time for the elections of 1971." The court promised to appoint a special master in January 1972 to investigate the possibility of single-member districts for the general elections of 1975 and 1979. Applicants moved the District Court to stay its order. The motion was denied on May 24. Applicants have now applied to this Court for a stay of the District Court's order and for an extension of the June 4 filing deadline until the District Court shall have provided single-member districts in Hinds County, or until the Attorney General or the District Court for the District of Columbia approves the District Court's apportionment plan under Section 5 of the Voting Rights Act of 1965, 42 U.S. C. 1973c (1964 ed., Supp. V). Insofar as applicants ask relief under the Voting Rights Act the motion for stay is denied. A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. However, other reasons lead us to grant the motion to the extent indicated below. *692 In failing to devise single-member districts, the court was under the belief that insufficient time remained until June 4, the deadline for the filing of notices of candidacy. Yet at that time June 4 was 17 days away and, according to an uncontradicted statement in the brief supporting this motion, the applicants were able |
per_curiam | 1,971 | 200 | per_curiam | Connor v. Johnson | https://www.courtlistener.com/opinion/108353/connor-v-johnson/ | in the brief supporting this motion, the applicants were able to formulate and offer to the court four single-member district plans for Hinds County in the space of three days. Also according to uncontradicted statements, these plans were based on data which included county maps showing existing political subdivisions, the supervisory districts used by the Census Bureau for the taking of the 1970 census, official 1970 Census Bureau "final population counts," and "computer print-out from Census Bureau official computer tapes showing total and white/Negro population by census enumeration districts." Applicants also assert that no other population figures will subsequently become available. The District Court's judgment was that single-member districting would be "ideal" for Hinds County. We agree that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter. Furthermore, given the census information apparently available and the dispatch with which the applicants devised suggested plans for the District Court, it is our view that, on this record, the District Court had ample time to devise single-member districts for Hinds County prior to the June 4 filing deadline. While meeting the June 4 date is no longer possible, there is nothing before us to suggest any insurmountable barrier to devising such a plan by June 14, 1971. Therefore the motion for stay is granted and the judgment below is stayed until June 14. The District Court is instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County by that date. *693 In light of this disposition, the District Court is directed to extend the June 4 filing date for legislative candidates from Hinds County to an appropriate date so that those candidates and the State of Mississippi may act in light of the new districts into which Hinds County will be divided. It is so ordered. THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN dissent and reserve the right to file an opinion to that effect. MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. |
per_curiam | 1,975 | 200 | per_curiam | MTM, Inc. v. Baxley | https://www.courtlistener.com/opinion/109226/mtm-inc-v-baxley/ | The State of Alabama brought suit against appellant MTM in state court under the Alabama nuisance law, Ala. Code, Tit. 7, 1081-1108 (1958),[1] seeking to enjoin the continued operation of a nuisance by MTM. It alleged that because of convictions for violations of *800 local obscenity laws by the Pussycat Adult Theater, an enterprise owned by MTM in Birmingham, Ala., the theater constituted a nuisance under this statute.[2] After a hearing on the complaint, the state court issued a temporary injunction under the nuisance law, closing the theater.[3] After issuance of the temporary injunction and while action on the request for a permanent injunction was pending in state court, appellant filed this action in the United States District Court for the Northern District of Alabama under the Civil Rights Act of 1871, 42 U.S. C. 1983. It asked the federal court to enjoin enforcement of the state-court temporary injunction and to declare the Alabama nuisance law unconstitutional. Appellant claimed that the challenged statutory provisions and the state-court temporary injunction infringed its First, Fifth, and Fourteenth Amendment rights. A three-judge federal court was convened pursuant to 28 U.S. C. 2281 to consider appellant's complaint. Without resolving the constitutional merits of the complaint, the three-judge court dismissed the complaint without prejudice.[4] In view of the pendency of the state proceedings, the three-judge District Court applied *801 the test enunciated in[5] and concluded that federal intervention as requested by appellant would be improper. Appellant has brought the case directly to this Court, asserting that jurisdiction exists under 28 U.S. C. 1253, and arguing that the requirements of did not preclude relief on these facts. We noted probable jurisdiction over this appeal and set this case for argument in tandem with Unless jurisdiction over this direct appeal from the three-judge court decision below is conferred by 28 U.S. C. 1253, we are without authority to entertain it.[6] Section 1253 provides: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil *802 action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." Appellant argues that its complaint presented a "suit required to be heard" by a three-judge court[7] and that the dismissal of its complaint seeking injunctive relief constituted "an order denying an interlocutory or permanent injunction" within the meaning of 1253. In we recently discussed in some detail the question of what constitutes an order "denying" injunctive relief for purposes |
per_curiam | 1,975 | 200 | per_curiam | MTM, Inc. v. Baxley | https://www.courtlistener.com/opinion/109226/mtm-inc-v-baxley/ | of what constitutes an order "denying" injunctive relief for purposes of 1253. There we held that direct appeal to this Court under 1253 did not lie from the order of a three-judge court dismissing a complaint because of an absence of standing where the three-judge court did not reach the merits of the constitutional claim presented. Although our decision rested at least partially on the ground that a three-judge court was not "required" where the ground for decision below was an absence of standing, we also explored the question of whether an order of a three-judge court "denies" an injunction, for purposes of 1253, where there is no adverse resolution of the constitutional claims presented. Although noting that certain decisions of this Court and a literal reading of 1253 might be taken to support the notion that a denial of injunctive relief on any basis by a three-judge court is within the purview of 1253, we concluded that stare decisis is entitled to *803 less than its usual weight in this area, and that "the opaque terms and prolix syntax" of this statute were not capable of literal -97. In focusing on the question of whether direct review by this Court under 1253 is available in the absence of a three-judge court decision resting on resolution of the constitutional merits of a complaint, we stated: "Mercantile argues that 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court's jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the meritssuch as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstentionare often of more than trivial consequence, that alone does not argue for our reviewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion." The conflicting decisions of this Court on the question of whether 1253 jurisdiction attaches where a three-judge federal court fails to reach the merits of a constitutional claim for injunctive relief do not provide a consistent answer to this question. Compare with ; ; See Gonzalez v. *804 Employees Credit at 95 n. 11; 9 J. Moore, Federal Practice ¶ 110.03 [3], pp. 76-79 |
per_curiam | 1,975 | 200 | per_curiam | MTM, Inc. v. Baxley | https://www.courtlistener.com/opinion/109226/mtm-inc-v-baxley/ | 9 J. Moore, Federal Practice ¶ 110.03 [3], pp. 76-79 (2d ed. 1973). It is certain that the congressional policy behind the three-judge court and direct-review apparatus the saving of state and federal statutes from improvident doom at the hands of a single judgewill not be impaired by a narrow construction of 1253. A broad construction of the statute, on the other hand, would be at odds with the historic congressional policy of minimizing the mandatory docket of this Court in the interest of sound judicial administration. ; In light of these factors, we conclude that a direct appeal will lie to this Court under 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merits of the constitutional claim presented below. In the instant case, the three-judge court below did not reach the merits of appellant's constitutional attack on the Alabama statute and instead based its order on the impropriety of federal intervention under our decision in In such circumstances, we are without jurisdiction to consider this appeal. The correctness of the application of Younger on these facts by the District Court is for the Court of Appeals to determine. Accordingly, we vacate the order before us and remand this case to the District Court so that a fresh order may be entered and a timely appeal prosecuted to the Court of Appeals.[8] It is so ordered. *805 MR. JUSTICE WHITE, concurring in the result. The Court holds that dismissing a suit on grounds is not an order denying an injunction for the purposes of 28 U.S. C. 1253 and is therefore not appealable directly to this Court, even assuming that the order could be issued only by a three-judge court. I agree with the result but not with this mode of achieving it. If only a three-judge court may order such a dismissal, I have great difficulty in excluding such an order from the reach of the plain terms of 1253. The sole justification for so manhandling the language of the section is to avoid our hearing a direct appeal on a nonconstitutional issue of federal law that has little if any connection with the reasons for requiring either three-judge courts or direct review of their decisions. That procedure was adopted to protect state statutes from improvident injunctions issued by a single federal judge on federal constitutional grounds. The more straightforward approach to this case would be to hold that decisions on issues other than requests for injunctive relief challenging the constitutionality of state |
per_curiam | 1,975 | 200 | per_curiam | MTM, Inc. v. Baxley | https://www.courtlistener.com/opinion/109226/mtm-inc-v-baxley/ | than requests for injunctive relief challenging the constitutionality of state statutes need not be made by three judges but rather are to be made or deemed to be made by single-judge courts whose decisions are appealable only to the courts of appeals. Proceeding in this manner would require no more than construing 28 U.S. C. 2281 and 2284 (3) and (4), in the light of their original purpose, as applying only to orders granting or denying interlocutory or permanent injunctions where the constitutionality of state statutes is involved. This approach may appear to be at odds with Idlewild Liquor There the Court held that a three-judge court is required where a statute was challenged on constitutional grounds but where a single judge ordered abstention pending presentation *806 of the issues to a state court. The court ruled that as long as the constitutional issue was substantial, a basis for equitable relief was at least alleged in the complaint, and the other requirements for three-judge-court juristiction were satisfied, a three-judge court must be convened. But even within this holding, if it appears on the face of the complaint that there is no ground for equitable relief, there would be no necessity for convening a three-judge court. A single judge should be able to dismiss such a case, therefore, if the pleadings show that there is litigation pending in the state court in which the constitutional challenge could be presented and nothing is alleged to excuse federal intervention.[1] Even if grounds for equitable relief are alleged in a complaint, a single judge should be able to rule on a motion to dismiss based on grounds. Much water has gone over the dam since Idlewild was decided. For one thing, in Swift & the Court made very plain that the three-judge-court requirement applied only to injunction suits depending entirely upon a substantive provision of the Constitution; injunctions by a single judge could be granted or denied where the claim of invalidity rested on a conflict with a federal statute. In Swift, the "statutory" claim was joined with the constitutional issue, but *807 the latter was deemed frivolous, leaving only the statutory issue for which three judges were not required. But in we held that even where the statutory claim is joined with a substantial constitutional claim, the former could be, and should be, decided first by a single judge. The plain import of these cases is that three judges are not required merely because a complaint states a cause of action for an injunction based on a constitutional challenge to a state statute. |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | The police in this case arrested a man suspected of possessing a firearm in violation of New York law. Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation. Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The majority concludes that the State may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this Court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions. I dissent. I Shortly after midnight on September 11, Officer Kraft and three other policemen entered an A & P supermarket in search of respondent Quarles, a rape suspect who was reportedly armed. After a brief chase, the officers cornered Quarles in the back of the store. As the other officers trained their guns on the suspect, Officer Kraft frisked Quarles and discovered an empty shoulder holster. Officer Kraft then handcuffed Quarles, and the other officers holstered their guns. With Quarles' hands manacled behind *675 his back and the other officers standing close by, Officer Kraft questioned Quarles: "Where is the gun?" Gesturing towards a stack of liquid-soap cartons a few feet away, Quarles responded: "The gun is over there." Behind the cartons, the police found a loaded revolver. The State of New York subsequently failed to prosecute the alleged rape, and charged Quarles on a solitary count of criminal possession of a weapon in the third degree.[1] As proof of the critical element of the offense, the State sought to introduce Quarles' response to Officer Kraft's question as well as the revolver found behind the cartons. The Criminal Term of the Supreme Court of the State of New York ordered both Quarles' statement and the gun suppressed. The suppression order was affirmed first by the Appellate Division, and again by the New York Court of Appeals, The majority's entire analysis rests on the factual assumption that the public was at risk during Quarles' interrogation. This assumption is completely in conflict with the facts as found by New York's highest court. Before the interrogation began, |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | found by New York's highest court. Before the interrogation began, Quarles had been "reduced to a condition of physical powerlessness." Contrary to the majority's speculations, ante, at 657, Quarles was not believed to have, nor did he in fact have, an accomplice to come to his rescue. When the questioning began, the arresting officers were sufficiently confident of their safety to put away their guns. As Officer Kraft acknowledged at the suppression hearing, "the situation was under control." App. 35a. Based on Officer Kraft's own testimony, the New York Court of Appeals found: "Nothing *676 suggests that any of the officers was by that time concerned for his own physical safety." The Court of Appeals also determined that there was no evidence that the interrogation was prompted by the arresting officers' concern for the public's safety. The majority attempts to slip away from these unambiguous findings of New York's highest court by proposing that danger be measured by objective facts rather than the subjective intentions of arresting officers. Ante, at 6-656. Though clever, this ploy was anticipated by the New York Court of Appeals: "[T]here is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety" The New York court's conclusion that neither Quarles nor his missing gun posed a threat to the public's safety is amply supported by the evidence presented at the suppression hearing. Again contrary to the majority's intimations, ante, at 657, no customers or employees were wandering about the store in danger of coming across Quarles' discarded weapon. Although the supermarket was open to the public, Quarles' arrest took place during the middle of the night when the store was apparently deserted except for the clerks at the check-out counter. The police could easily have cordoned off the store and searched for the missing gun. Had they done so, they would have found the gun forthwith. The police were well aware that Quarles had discarded his weapon somewhere near the scene of the arrest. As the State acknowledged before the New York Court of Appeals: "After Officer Kraft had handcuffed and frisked the defendant in the supermarket, he knew with a high degree of certainty that the defendant's gun was within the immediate vicinity of the encounter. He undoubtedly would have searched for it in the carton a few feet away without the defendant having looked in that direction and saying that it was there." Brief for Appellant in No. 2512/80 (N. Y. Ct. App.), p. 11 (emphasis added). *677 Earlier this Term, four Members of the |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | (emphasis added). *677 Earlier this Term, four Members of the majority joined an opinion stating: "[Q]uestions of historical fact must be determined, in the first instance, by state courts and deferred to, in the absence of `convincing evidence' to the contrary, by the federal courts." In this case, there was convincing, indeed almost overwhelming, evidence to support the New York court's conclusion that Quarles' hidden weapon did not pose a risk either to the arresting officers or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. More cynical observers might well conclude that a state court's findings of fact "deserv[e] a `high measure of deference,' " ), only when deference works against the interests of a criminal defendant. II The majority's treatment of the legal issues presented in this case is no less troubling than its abuse of the facts. Before today's opinion, the Court had twice concluded that, under police officers conducting custodial interrogations must advise suspects of their rights before any questions concerning the whereabouts of incriminating weapons can be asked. Rhode ;[2] Now the majority departs from these cases and rules that police may withhold *678 Miranda warnings whenever custodial interrogations concern matters of public safety.[3] The majority contends that the law, as it currently stands, places police officers in a dilemma whenever they interrogate a suspect who appears to know of some threat to the public's safety. Ante, at 657. If the police interrogate the suspect without advising him of his rights, the suspect may reveal information that the authorities can use to defuse the threat, but the suspect's statements will be inadmissible at trial. If, on the other hand, the police advise the suspect of his rights, the suspect may be deterred from responding to the police's questions, and the risk to the public may continue unabated. According to the majority, the police must now choose between establishing the suspect's guilt and safeguarding the public from danger. The majority proposes to eliminate this dilemma by creating an exception to for custodial interrogations concerning matters of public safety. Ante, at 658-659. Under the majority's exception, police would be permitted to interrogate suspects about such matters before the suspects have been advised of their constitutional rights. Without being "deterred" by the knowledge that they have a constitutional right not to respond, these suspects will be likely to answer the questions. Should the answers also be incriminating, the State would be free to introduce them as evidence in a criminal prosecution. Through this "narrow exception to |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | evidence in a criminal prosecution. Through this "narrow exception to the Miranda rule," ante, at 658, the majority proposes to protect the public's safety without jeopardizing the prosecution of criminal defendants. I find in this reasoning an unwise and unprincipled departure from our Fifth Amendment precedents. *679 Before today's opinion, the procedures established in had "the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible." ; see cert. denied, In a chimerical quest for public safety, the majority has abandoned the rule that brought 18 years of doctrinal tranquility to the field of custodial interrogations. As the majority candidly concedes, ante, at 658, a public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred. This case is illustrative of the chaos the "public-safety" exception will unleash. The circumstances of Quarles' arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals, as previously noted, concluded that there was "no evidence in the record before us that there were exigent circumstances posing a risk to the public safety." Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: "So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety." Ante, at 657. If after plenary review two appellate courts so fundamentally differ over the threat to public safety presented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority's new rule in the confusion and haste of the real world. As THE CHIEF JUSTICE wrote in a similar context: "Few, if any, police officers are competent to make the kind *680 of evaluation seemingly contemplated" Rhode Not only will police officers have to decide whether the objective facts of an arrest justify an unconsented custodial interrogation, they will also have to remember to interrupt the interrogation and read the suspect his Miranda warnings once the focus of the inquiry shifts from protecting the public's safety to ascertaining the suspect's guilt. Disagreements of the scope of the "public-safety" exception and mistakes in its application are inevitable.[4] The end result, as JUSTICE O'CONNOR predicts, will be "a |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | The end result, as JUSTICE O'CONNOR predicts, will be "a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence." Ante, at 663-664. In the meantime, the courts will have to dedicate themselves to spinning this new web of doctrines, and the country's law enforcement agencies will have to suffer patiently through the frustrations of another period of constitutional uncertainty. III Though unfortunate, the difficulty of administering the "public-safety" exception is not the most profound flaw in the majority's decision. The majority has lost sight of the fact that and our earlier custodial-interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations, *681 and invites the government to prosecute through the use of what necessarily are coerced statements. A The majority's error stems from a serious misunderstanding of and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of "enlarged protection for the Fifth Amendment privilege" were weighed against "the cost to society in terms of fewer convictions of guilty suspects." Ante, at 656-657. Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority now proposes to return to the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when threats to the public's safety are added to the balance. The results of the majority's "test" are announced with pseudo-scientific precision: "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Ante, at 657. The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 516-517 the Miranda Court refused to allow such concerns to weaken the protections of the Constitution: "A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government *682 when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged." Whether |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | a witness against himself. That right cannot be abridged." Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned with the proscriptions of the Fifth Amendment, and, in particular, whether the Self-Incrimination Clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations. was the culmination of a century-long inquiry into how this Court should deal with confessions made during custodial interrogations. Long before Miranda, the Court had recognized that the Federal Government was prohibited from introducing at criminal trials compelled confessions, including confessions compelled in the course of custodial interrogations. In 1924, Justice Brandeis was reciting settled law when he wrote: "[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise." ). Prosecutors in state courts were subject to similar constitutional restrictions. Even before formally applied the Self-Incrimination Clause of the Fifth Amendment to the States, the Due Process Clause constrained the States from extorting confessions from criminal defendants. ; Indeed, by the time of Malloy, the constraints of the Due Process Clause were almost as stringent as the requirements of the Fifth Amendment -7; see, e. g., *683 When Miranda reached this Court, it was undisputed that both the States and the Federal Government were constitutionally prohibited from prosecuting defendants with confessions coerced during custodial interrogations.[5] As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations. See Note, Developments in the Law Confessions, Miranda dealt with these practical problems. After a detailed examination of police practices and a review of its previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive. The Court therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment and are thus inadmissible in criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | Court's decision in Miranda, a statement made during a custodial interrogation may be introduced as proof of a defendant's guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement.[6] The *684 now-familiar Miranda warnings offer law enforcement authorities a clear, easily administered device for ensuring that criminal suspects understand their constitutional rights well enough to waive them and to engage in consensual custodial interrogation. In fashioning its "public-safety" exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority's only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public's safety.[7] But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public-safety" exception and remain faithful to the logic of B The majority's avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend *685 that Officer Kraft's questioning of respondent Quarles was not coercive.[8] In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: "Where is the gun?" In the majority's phrase, the situation was "kaleidoscopic." Ante, at 656. Police and suspect were acting on instinct. Officer Kraft's abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. That the application of the "public-safety" exception in this case entailed coercion is no happenstance. The majority's ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court's strongest arguments in favor of a "public-safety" exception to Miranda is that the police would be better able to protect the public's safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The "public-safety" exception is efficacious precisely because it permits police officers to coerce |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements. Indeed, in the efficacy of the "public-safety" exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given "broad scope" "[w]here there has been genuine compulsion *686 of testimony." Coerced confessions were simply inadmissible in criminal prosecutions. The "public-safety" exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority's opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment's dictate that "[n]o person. shall be compelled in any criminal case to be a witness against himself." The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confession. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment's ban on introducing coerced self-incriminating statements at trial. Without a "public-safety" exception, there would be occasions when a defendant incriminated himself by revealing a threat to the *687 public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasion would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and |
Justice Marshall | 1,984 | 15 | dissenting | New York v. Quarles | https://www.courtlistener.com/opinion/111214/new-york-v-quarles/ | a police officer must necessarily choose between public safety and admissibility.[9] But however frequently or infrequently such cases arise their regularity is irrelevant. The Fifth Amendment prohibits compelled self-incrimination.[10] As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity and that the judiciary will avoid the taint of official lawlessness. See Murphy The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties. IV Having determined that the Fifth Amendment renders inadmissible Quarles' response to Officer Kraft's questioning, I have no doubt that our precedents require that the gun discovered as a direct result of Quarles' statement must be presumed inadmissible as well. The gun was the direct product of a coercive custodial interrogation. In Silverthorne Lumber and Wong this Court held that the Government may not introduce incriminating evidence derived from an illegally obtained source. This Court recently explained the extent of the Wong Sun rule: "Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the `fruit of the poisonous tree' doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United as well as of the Fifth Amendment." Nix v. ante, at 442 (footnote omitted). Accord, United[11] When they ruled on the issue, the New York courts were *689 entirely correct in deciding that Quarles' gun was the tainted fruit of a nonconsensual interrogation and therefore was inadmissible under our precedents. However, since the New York Court of Appeals issued its opinion, the scope of the Wong Sun doctrine has changed. In Nix v. this Court construed Wong Sun to permit the introduction into evidence of constitutionally tainted "fruits" that inevitably would have been discovered by the government. In its briefs before this Court and before the New York courts, petitioner has argued that the "inevitable-discovery" rule, if applied to this case, would permit the admission of Quarles' gun. Although I have not joined the Court's opinion in |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | The Court holds that WesternGeco’s lost profits claim does not offend the judicially created presumption against the extraterritorial application of statutes. With that much, I agree. But I cannot subscribe to the Court’s fur- ther holding that the terms of the Patent Act permit awards of this kind. In my view the Act’s terms prohibit the lost profits sought in this case, whatever the general presumption against extraterritoriality applicable to all statutes might allow. So while the Federal Circuit may have relied in part on a mistaken extraterritoriality anal- ysis, I respectfully submit it reached the right result in concluding that the Patent Act forecloses WesternGeco’s claim for lost profits. The reason is straightforward. A U. S. patent provides a lawful monopoly over the manufacture, use, and sale of an invention within this country only. Meanwhile, Western- Geco seeks lost profits for uses of its invention beyond our borders. Specifically, the company complains that it lost lucrative foreign surveying contracts because ION’s cus- tomers used its invention overseas to steal that business. In measuring its damages, WesternGeco assumes it could have charged monopoly rents abroad premised on a U. S. patent that has no legal force there. Permitting damages 2 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting of this sort would effectively allow U. S. patent owners to use American courts to extend their monopolies to foreign markets. That, in turn, would invite other countries to use their own patent laws and courts to assert control over our economy. Nothing in the terms of the Patent Act supports that result and much militates against it. Start with the key statutory language. Under the Pa- tent Act, a patent owner enjoys “the right to exclude oth- ers from making, using, offering for sale, or selling the invention throughout the United States.” 35 U.S. C. (emphasis added). Emphasizing the point, the Act proceeds to explain that to “infring[e] the patent” someone must “without authority mak[e], us[e], offe[r] to sell, or sel[l] [the] patented invention, within the United States.” (emphasis added). So making, using, or selling a patented invention inside the United States invites a claim for infringement. But those same acts outside the United States do not infringe a U. S. patent right. These principles work their way into the statutory measure of damages too. A patent owner who proves infringement is entitled to receive “damages adequate to compensate for the infringement.” (emphasis added). Because an infringement must occur within the United States, that means a plaintiff can recover damages for the making, using, or selling |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | plaintiff can recover damages for the making, using, or selling of its invention within the United States, but not for the making, using, or selling of its invention elsewhere. What’s the upshot for our case? The jury was free to award WesternGeco royalties for the infringing products ION produced in this country; indeed, ION has not chal- lenged that award either here or before the Federal Cir- cuit. If ION’s infringement had cost WesternGeco sales in this country, it could have recovered for that harm too. At the same time, WesternGeco is not entitled to lost profits caused by the use of its invention outside the United Cite as: 585 U. S. (2018) 3 Opinion G ORSUCHof GORSUCH J., J. dissenting States. That foreign conduct isn’t “infringement” and so under ’s plain terms isn’t a proper basis for awarding “compensat[ion].” No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that’s simply not the kind of harm for which our pa- tent laws provide compensation because a U. S. patent does not protect its owner from competition beyond our borders. This Court’s precedents confirm what the statutory text indicates. In the Court considered whether the use of an American inven- tion on the high seas could support a damages claim under the U. S. patent laws. It said no. The Court explained that “the use of [an invention] outside of the jurisdiction of the United States is not an infringement of [the patent owner’s] rights,” and so the patent owner “has no claim to any compensation for” that foreign use. at 195–196. A defendant must “compensate the patentee,” the Court continued, only to the extent that it has “com[e] in compe- tition with the [patent owner] where the [patent owner] was entitled to the exclusive use” of his invention— namely, within the United States. What held true there must hold true here. ION must compensate WesternGeco for its intrusion on WesternGeco’s exclusive right to make, use, and sell its invention in the United States. But WesternGeco “has no claim to any compensa- tion for” noninfringing uses of its invention “outside of the jurisdiction of the United States.” at 195–196.1 —————— 1 The Solicitor General disputes this reading of Duchesne. In his view, the Court indicated that, if a defendant “committed domestic infringement” by making the invention in the United States, the patent owner would have been entitled to recover for any subsequent use of the invention, including “ ‘the use of this improvement on the high seas.’ ” Brief for United States as |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | on the high seas.’ ” Brief for United States as Amicus Curiae 17 (quoting Duchesne, 19 How., ). I am unpersuaded. The Court proceeded to explain that the “only use” of the invention that might require compensation 4 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting Other precedents offer similar teachings. In Birdsall v. Coolidge, the Court explained that damages are supposed to compensate a patent owner for “the unlawful acts of the defendant.” To that end, the Court held, damages “shall be precisely commensurate with the injury suffered, neither more nor less.” (emphasis added). It’s undisputed that the only injury WesternGeco suffered here came from ION’s infringing activity within the United States. A damages award that sweeps much more broadly to cover third parties’ nonin- fringing foreign uses can hardly be called “precisely com- mensurate” with that injury. This Court’s leading case on lost profit damages points the same way. In Yale Mfg. Co. v. Sargent, 117 U.S. 536 (1886), the patent owner “availed himself of his exclu- sive right by keeping his patent a monopoly” and selling the invention himself. As damages for a com- petitor’s infringement of the patent, the patent owner could recover “the difference between his pecuniary condi- tion after the infringement, and what his condition would have been if the infringement had not occurred.” And that difference, the Court held, “is to be measured” by the additional profits the patent owner “would have real- ized from such sales if the infringement had not interfered with such monopoly.” –553. So, again, the Court tied the measure of damages to the degree of inter- ference with the patent owner’s exclusive right to make, use, and sell its invention. And, again, that much is miss- ing here because foreign uses of WesternGeco’s invention —————— was “in navigating the vessel into and out of [Boston] harbor, while she was within the jurisdiction of the United States.” (em- phasis added). With respect to uses outside the United States, the Court made clear that “compensation” was unavailable. at 195– 196. Tellingly, WesternGeco does not adopt the Solicitor General’s reading of Duchesne—or even cite the case. Cite as: 585 U. S. (2018) 5 Opinion G ORSUCHof GORSUCH J., J. dissenting could not have interfered with its U. S. patent monopoly.2 You might wonder whether )(2) calls for a special exception to these general principles. WesternGeco cer- tainly thinks it does. It’s true, too, that )(2) expressly refers to foreign conduct. The statute says that some- one who exports a specialized component, “intending that [it] will be |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | who exports a specialized component, “intending that [it] will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” From this language, you might wonder whether )(2) seeks to protect patent owners from the foreign conduct that occurred in this case. It does not. Section 271(f )(2) modifies the circumstances when the law will treat an invention as having been made within the United States. It permits an infringement claim—and the damages that come with it—not only when someone produces the complete invention in this country for export, but also when someone exports key components of the invention for assembly aboard. A person who ships components from the United States intending they be assembled across the border is “liable” to the patent owner for royalties and lost profits the same as if he made the entire invention here. )(2). But none of this changes —————— 2 WesternGeco claims this Court permitted recovery based on foreign sales of an invention in Manufacturing (1882), but the Court never mentioned, much less decided, the issue. It merely observed, in passing, that the only markets for the invention at issue were “the oil-producing regions of Pennsylvania and Canada.” The Court did not even say whether the Canada-bound products were actually sold in Canada (as opposed, say, to Canadian buyers in the United States). Meanwhile, in Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., the Court rejected “recovery of either profits or damages” for products sold in Canada. at 650. And while it distinguished Cowing on the ground that the defendants there had made the infringing articles in the United States, that hardly elevated Cowing’s failure to address the foreign sales issue into a reasoned decision on the question. 6 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting the bedrock rule that foreign uses of an invention (even an invention made in this country) do not infringe a U. S. patent. Nor could it. For after )(2)’s adoption, as before, patent rights exclude others from making, using, and selling an invention only “throughout the United States.” The history of the statute underscores the point. In Packing (1972), the Court held that a defendant did not “make” an invention within the United States when it produced the invention’s components here but sold them to foreign buyers for final assembly abroad. –528. The Court recognized that, if the defendant had assembled the parts in this country and then sold them to the foreign |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | in this country and then sold them to the foreign buyers, it would have unlawfully made and sold the inven- tion within the United States. But because what it made and sold in this country “fell short” of the complete invention, the Court held, the patent laws did not prohibit its conduct. The dissent, by contrast, argued that for all practical purposes the invention “was made in the United States” since “everything was accom- plished in this country except putting the pieces together.” Apparently Congress agreed, for it then added )(2) and made clear that someone who almost makes an invention in this country may be held liable as if he made the complete invention in this country. As the Solicitor General has explained, the new statute “effectively treat[ed] the domestic supply of the components of a patented invention for assembly abroad as tantamount to the domestic manufacture of the completed invention for export.” Brief for United States as Amicus Curiae 22 (emphasis added). Section 271(f )(2) thus expands what qualifies as making an invention in this country but does nothing to suggest that U. S. patents protect against—much less guarantee compensation for— uses abroad. Cite as: 585 U. S. (2018) 7 Opinion G ORSUCHof GORSUCH J., J. dissenting Any suggestion that )(2) provides protection against foreign uses would also invite anomalous results. It would allow greater recovery when a defendant exports a component of an invention in violation of )(2) than when a defendant exports the entire invention in violation of And it would threaten to “ ‘conver[t] a single act of supply from the United States into a springboard for liability.’ ” 456 (2007). Here, for example, supplying a single infring- ing product from the United States would make ION responsible for any foreseeable harm its customers cause by using the product to compete against WesternGeco worldwide, even though WesternGeco’s U. S. patent doesn’t protect it from such competition. It’s some spring- board, too. The harm flowing from foreign uses in this case appears to outstrip wildly the harm inflicted by ION’s domestic production: the jury awarded $93.4 million in lost profits from uses in 10 foreign surveys but only $12.5 million in royalties for 2,500 U. S.-made products. Even more dramatic examples are not hard to imagine. Suppose a company develops a prototype microchip in a U. S. lab with the intention of manufacturing and selling the chip in a foreign country as part of a new smartphone. Suppose too that the chip infringes a U. S. patent and that the patent owner sells its own phone |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | patent and that the patent owner sells its own phone with its own chip overseas. Under the terms of the Patent Act, the developer commits an act of infringement by creating the proto- type here, but the additional chips it makes and sells outside the United States do not qualify as infringement. Under WesternGeco’s approach, however, the patent owner could recover any profits it lost to that foreign competition—or even three times as much, see — effectively giving the patent owner a monopoly over for- eign markets through its U. S. patent. That’s a very odd role for U. S. patent law to play in foreign markets, as “foreign law alone, not United States law,” is supposed to 8 WESTERNGECO LLC v. ION GEOPHYSICAL CORP. Opinion G ORSUCHof GORSUCH J., J. dissenting govern the manufacture, use, and sale “of patented inven- tions in foreign countries.” Worse yet, the tables easily could be turned. If our courts award compensation to U. S. patent owners for foreign uses where our patents don’t run, what happens when foreign courts return the favor? Suppose our hypo- thetical microchip developer infringed a foreign patent in the course of developing its new chip abroad, but then mass produced and sold the chip in the United States. A foreign court might reasonably hold the U. S. company liable for infringing the foreign patent in the foreign coun- try. But if it followed WesternGeco’s theory, the court might then award monopoly rent damages reflecting a right to control the market for the chip in this country— even though the foreign patent lacks any legal force here. It is doubtful Congress would accept that kind of foreign “control over our markets.” And principles of comity counsel against an interpretation of our patent laws that would interfere so dramatically with the rights of other nations to regulate their own econo- mies. While Congress may seek to extend U. S. patent rights beyond our borders if it chooses, cf. (address- ing inventions made, used, and sold in outer space), noth- ing in the Patent Act fairly suggests that it has taken that step here. Today’s decision unfortunately forecloses further consid- eration of these points. Although its opinion focuses al- most entirely on why the presumption against extraterri- toriality applicable to all statutes does not forbid the damages sought here, the Court asserts in a few cursory sentences that the Patent Act by its terms allows recovery for foreign uses in cases like this. See ante, at 9. In doing so, the Court does not address the textual or doctrinal analysis offered |
Justice Gorsuch | 2,018 | 7 | dissenting | WesternGeco LLC v. ION Geophysical Corp. | https://www.courtlistener.com/opinion/4510027/westerngeco-llc-v-ion-geophysical-corp/ | Court does not address the textual or doctrinal analysis offered here. It does not explain why “damages adequate to compensate for the infringement” should include damages for harm from noninfringing uses. Cite as: 585 U. S. (2018) 9 Opinion G ORSUCHof GORSUCH J., J. dissenting (emphasis added). It does not try to reconcile its holding with the teachings of Duchesne, Birdsall, and Yale And it ignores ’s admonition that )(2) should not be read to create springboards for liability based on foreign conduct. Instead, the Court relies on two cases that do not come close to supporting its broad hold- ing. In General Motors (1983), the Court held that prejudgment interest should normally be awarded so as to place the patent owner “in as good a position as [it] would have been in had the in- fringer” not infringed. Allowing recovery for for- eign uses, however, puts the patent owner in a better position than it was before by allowing it to demand mo- nopoly rents outside the United States as well as within. In Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476 (1964), meanwhile, the Court simply applied Yale ’s rule that a patent owner may recover “ ‘the difference between his pecuniary condition after the in- fringement, and what his condition would have been if the infringement had not occurred.’ ” (quoting Yale 117 U. S., ). As we’ve seen, that test seeks to measure the interference with the patent owner’s lawful monopoly over U. S. markets alone. By failing to heed the plain text of the Patent Act and the lessons of our precedents, the Court ends up assuming that patent damages run (literally) to the ends of the earth. It allows U. S. patent owners to extend their patent monopolies far beyond anything Congress has authorized and shields them from foreign competition U. S. patents were never meant to reach. Because I cannot agree that the Patent Act requires that result, I respectfully dissent |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | This case concerns the Board of Immigration Appeals’ (BIA or Board) policy for deciding when resident aliens may apply to the Attorney General for relief from deporta- tion under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious. The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a rea- soned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it. I A Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted. Before 996, these two kinds of action occurred in different procedural settings, with an alien seeking entry (whether for the first time or upon return from a trip abroad) placed in an “exclusion 2 JUDULANG v. HOLDER Opinion of the Court proceeding” and an alien already here channeled to a “deportation proceeding.” See Landon v. Plasencia, 459 U.S. 2, 25–26 (982) (comparing the two). Since that time, the Government has used a unified procedure, known as a “removal proceeding,” for exclusions and de- portations alike. See 8 U.S. C. 229a. But the statutory bases for excluding and deporting aliens have always varied. Now, as before, the immigration laws provide two separate lists of substantive grounds, princi- pally involving criminal offenses, for these two actions. One list specifies what kinds of crime render an alien excludable (or in the term the statute now uses, “inadmis- sible”), see (2006 ed., Supp. IV), while another— sometimes overlapping and sometimes divergent—list specifies what kinds of crime render an alien deportable from the country, see An additional, historic difference between exclusion and deportation cases involved the ability of the Attorney General to grant an alien discretionary relief. Until re- pealed in 996, of the Immigration and Nationality Act, 8 U.S. C. (994 ed.), authorized the Attorney General to admit certain excludable aliens. See (926 ed.) (predecessor provision to ). The Attorney General could order this relief when the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, unless the alien was excludable on one of two specified grounds. See (994 ed.). But by its —————— Therelevant part of in the version of the exclusion statute all parties use, read as follows: “Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).” 8 U.S. C. (994 ed.). Cite as: 565 U. S. (20) 3 Opinion of the Court terms, did not apply when an alien was being deported. This discrepancy threatened to produce an odd result in a case called Matter of L-, leading to the first-ever grant of discretionary relief in a deporta- tion case. L- was a permanent resident of the United States who had been convicted of larceny. Although L-’s crime made him inadmissible, he traveled abroad and then returned to the United States without any immigra- tion official’s preventing his entry. A few months later, the Government caught up with L- and initiated a depor- tation action based on his larceny conviction. Had the Government apprehended L- at the border a short while earlier, he would have been placed in an exclusion pro- ceeding where he could have applied for discretionary relief. But because L- was instead in a deportation pro- ceeding, no such relief was available. Responding to this apparent anomaly, Attorney General Robert Jackson (on referral of the case from the BIA) determined that L- could receive a waiver: L-, Jackson said, “should be permitted to make the same appeal to discretion that he could have made if denied admission” when returning from his recent trip. In accord with this decision, the BIA adopted a policy of allowing aliens in deportation proceed- ings to apply for discretionary relief under when- ever they had left and reentered the country after be- coming deportable. See Matter of S-, 394–396 (954). But this approach created another peculiar asymmetry: Deportable aliens who had traveled abroad and returned could receive relief, while those who had never left —————— The parenthetical clause of this section prevented the Attorney Gen- eral from waiving exclusion for aliens who posed a threat to national security, (3), and aliens who engaged in international child abduction, (9)(C). 4 JUDULANG v. HOLDER Opinion of the Court could not. In the Court of Appeals for the Second Circuit concluded that this disparity violated equal protection. (“[A]n alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time”). The BIA acquiesced in the Second Circuit’s decision, see Matter of |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | BIA acquiesced in the Second Circuit’s decision, see Matter of Silva, 6 I. & N. Dec. 26 thus applying in deporta- tion proceedings regardless of an alien’s travel history. All this might have become academic when Congress repealed in 996 and substituted a new discretion- ary remedy, known as “cancellation of removal,” which is available in a narrow range of circumstances to excludable and deportable aliens alike. See 8 U.S. C. But in this Court con- cluded that the broader relief afforded by must remain available, on the same terms as before, to an alien whose removal is based on a guilty plea entered before ’s repeal. We reasoned that aliens had agreed to those pleas with the possibility of discretionary relief in mind and that eliminating this prospect would ill comport with “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” ). Accordingly, has had an afterlife for resident aliens with old criminal convictions. When the BIA is deciding whether to exclude such an alien, applying is an easy matter. The Board first checks the statutory ground that the Department of Homeland Security (DHS) has identified as the basis for exclusion; the Board may note, for example, that DHS has charged the alien with previously committing a “crime involving moral turpitude,” see 8 U.S. C. (2)(A)(i)(I). Unless the charged ground is one of the pair falling outside ’s scope, see n. the Cite as: 565 U. S. (20) 5 Opinion of the Court alien is eligible for discretionary relief. The Board then determines whether to grant that relief based on such factors as “the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces.” St. Cyr, 533 U.S., at 296, n. 5. By contrast, when the BIA is deciding whether to deport an alien, applying becomes a tricky business. Recall that applies on its face only to exclusion decisions. So the question arises: How is the BIA to de- termine when an alien should receive relief in the deportation context? One approach that the BIA formerly used considered how the alien would fare in an exclusion proceeding. To perform this analysis, the Board would first determine whether the criminal conviction making the alien deporta- ble fell within a statutory ground for exclusion. Almost all convictions did so, largely because the “crime involving moral turpitude” ground encompasses so many offenses.2 Assuming that threshold inquiry were met, the |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | so many offenses.2 Assuming that threshold inquiry were met, the Board would mimic its approach in exclusion cases—first making sure the statutory ground at issue was not excepted from and then conducting the multi-factor analysis. See Matter of Tanori, 5 I. & N. Dec. 566, ; In re Manzueta, No. A93 022 672, 2003 WL 29892 (BIA, Dec. 2003). A second approach is the one challenged here; definitive- ly adopted in (after decades of occasional use), it often is called the “comparable-grounds” rule. See, e.g., De la 579 F.3d 327, 332 —————— 2 Firearms offenses are the most significant crimes falling outside the statutory grounds for exclusion. See Matter of Hernandez-, 20 I. & N. Dec. 262, 282, n. 4 (990). 6 JUDULANG v. HOLDER Opinion of the Court That approach evaluates whether the ground for deportation charged in a case has a close ana- logue in the statute’s list of exclusion grounds. See In re ; In re3 If the deportation ground consists of a set of crimes “substantially equiva- lent” to the set of offenses making up an exclusion ground, then the alien can seek relief. 23 I. & N. Dec., at But if the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver. Such a divergence makes inapplicable even if the particular offense committed by the alien falls within an exclusion ground. Two contrasting examples from the BIA’s cases may help to illustrate this approach. Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has commit- ted an “aggravated felony” involving “illicit trafficking in a controlled substance.” 8 U.S. C. §§0(a)(43)(B), 227(a)(2)(A)(iii). Under the comparable-grounds rule, the immigration judge would look to see if that deportation ground covers substantially the same offenses as an exclu- sion ground. And according to the BIA in Matter of (99), the judge would find an ade- quate match—the exclusion ground applicable to aliens who have committed offenses “relating to a controlled substance,” 8 U.S. C. §(2)(A)(i)(II) and (a)(2)(C). Now consider an alien convicted of first-degree sexual abuse of a child, whom DHS wishes to deport on the ground that he has committed an “aggravated felony” —————— 3 and clarified a 2004 regulation issued by the BIA stating that an alien is ineligible for relief when deportable “on a ground which does not have a statutory counterpart in section 22.” 8 CFR §22.3(f)(5) (200). Cite as: 565 U. S. (20) 7 Opinion of the Court involving “sexual |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | U. S. (20) 7 Opinion of the Court involving “sexual abuse of a minor.” §§0(a)(43)(A), 227(a)(2)(A)(iii). May this alien seek relief ? According to the BIA, he may not do so—not because his crime is too serious (that is irrelevant to the analysis), but instead because no statutory ground of exclusion covers substantially the same offenses. To be sure, the alien’s own offense is a “crime involving moral turpitude,” 8 U.S. C. (2)(A)(i)(I), and so fits within an exclusion ground. Indeed, that will be true of most or all offenses included in this deportation category. See But on the BIA’s view, the “moral turpitude” exclusion ground “addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge.” 23 I. & N. Dec., at And the much greater sweep of the exclusion ground prevents the alien from seeking discretionary relief from deportation.4 Those mathematically inclined might think of the comparable-grounds approach as employing Venn dia- grams. Within one circle are all the criminal offenses com- posing the particular ground of deportation charged. Within other circles are the offenses composing the various exclu- sion grounds. When, but only when, the “deportation circle” sufficiently corresponds to one of the “exclusion circles” may an alien apply for relief. —————— 4 Careful readers may note that the example involving controlled substances offered in the last paragraph involves an exclusion ground that sweeps more broadly than the deportation ground charged. The deportation ground requires “trafficking” in a controlled substance, whereas the exclusion ground includes all possession offenses as well. The BIA nonetheless held in that the degree of overlap between the two grounds was sufficient to make the alien eligible for relief. That holding reveals the broad discretion that the BIA currently exercises in deciding when two statutory grounds are comparable enough. 8 JUDULANG v. HOLDER Opinion of the Court B Petitioner Joel Judulang is a native of the Philippines who entered the United States in 974 at the age of eight. Since that time, he has lived continuously in this country as a lawful permanent resident. In 988, Judulang took part in a fight in which another person shot and killed someone. Judulang was charged as an accessory and eventually pleaded guilty to voluntary manslaughter. He received a 6-year suspended sentence and was released on probation immediately after his plea. In after Judulang pleaded guilty to another crimi- nal offense (this one involving theft), DHS commenced an action to deport him. DHS charged Judulang with having committed an “aggravated felony” involving “a crime of violence,” based |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | committed an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction. 8 U.S. C. §§0(a)(43)(F), 227(a)(2)(A)(iii).5 The Immi- gration Judge ordered Judulang’s deportation, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for relief. It held that he could not do so because the “crime of violence” deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. App. to Pet. for Cert. 8a. The Court of Appeals for the Ninth Circuit denied Judulang’s petition for review in reliance on circuit precedent upholding the BIA’s comparable-grounds approach. ). We granted certiorari, 563 U. S. (20), to resolve a circuit split on the approach’s validity.6 We now reverse. —————— 5 DHS charged two other grounds for deportation, but the BIA did not rule on those grounds and they are not before us. 6 Compare v. Carbone, 03 (rejecting the BIA’s approach and holding instead that “[i]f the offense that renders [an alien] deportable would render a similarly situated [alien] excludable, the deportable [alien] is eligible for a waiver of deporta- Cite as: 565 U. S. (20) 9 Opinion of the Court II This case requires us to decide whether the BIA’s policy for applying in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U.S. C. The scope of our review under this standard is “narrow”; as we have often recog- nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, 43 (983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 40 U.S. 402, 46 (97). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking. When reviewing an agency action, we must assess, among other matters, “ ‘whether the decision was based on a consideration of the relevant factors and whether there —————— tion”), with 42–44 (upholding the comparable-grounds policy); Caroleo v. Gonzales, 476 F.3d 58, 62–63, 68 (same); Kim v. Gonzales, 468 F.3d 58, 62–63 (CA 2006) (same). 7 The Government urges us instead to analyze this case under the second step of the test we announced in Chevron U. S. A. (984), to govern judicial review of an agency’s statutory interpretations. See Brief for Respondent 9. Were we to do so, our analysis would be the same, because under Chevron step two, we ask whether an agency interpreta- |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | under Chevron step two, we ask whether an agency interpreta- tion is “ ‘arbitrary or capricious in substance.’ ” Mayo Foundation for Medical Ed. and Research v. United States, 562 U. S. (20) (slip op., at 7) (quoting Household Credit Services, Inc. v. Pfennig, 54 U.S. 232, 242 (2004)). But we think the more apt analytic framework in this case is standard “arbitrary [or] capricious” review under the APA. The BIA’s comparable-grounds policy, as articulated in In re and In re 23 I. & N. Dec. 766 is not an interpretation of any statutory language—nor could it be, given that does not mention deportation cases, see infra, –7, and n. 0 JUDULANG v. HOLDER Opinion of the Court has been a clear error of judgment.’ ” State 463 U.S., at 43 (quoting Bowman Transp., 49 U.S. 28, (974)). That task involves examining the reasons for agency deci- sions—or, as the case may be, the absence of such reasons. See 556 U.S. 55 (noting “the requirement that an agency pro- vide reasoned explanation for its action”). The BIA has flunked that test here. By hinging a de- portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner. A The parties here spend much time disputing whether the BIA must make discretionary relief available to de- portable and excludable aliens on identical terms. As this case illustrates, the comparable-grounds approach does not do so. If Judulang were seeking entry to this country, he would be eligible for relief; voluntary man- slaughter is “a crime involving moral turpitude,” and so his conviction falls within an exclusion ground. But Judu- lang cannot apply for relief from deportation because the “crime of violence” ground charged in his case does not match any exclusion ground (including the one for “turpi- tudinous” crimes). See infra, at 3. Judulang argues that this disparity is impermissible because any disparity between excludable and deportable aliens is impermissi- ble: If an alien may seek relief in an exclusion case, he must be able to seek such relief in a deporta- tion case. See Brief for Petitioner 47–5.8 But the Gov- —————— 8 Judulang argues that the BIA is making an impermissible dis- tinction between two groups of deportable aliens—those who have recently left and returned to the country and those who have not. Cite as: 565 U. S. (20) Opinion of the Court ernment notes that the immigration laws have always drawn distinctions between exclusion and |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | the immigration laws have always drawn distinctions between exclusion and deportation. See Brief for Respondent 5. And the Government presses a policy reason for making relief more readily available in exclusion cases. Doing so, it argues, will provide an incentive for some resident aliens (i.e., those eligible for a waiver from exclusion, but not deportation) to report themselves to immigration officials, by applying for advance permission to exit and reenter the country. In contrast, applying uniformly might lead all aliens to “try to evade immigration officials for as long as possi- ble,” because they could in any event “seek [discretionary] relief if caught.” 2. In the end, we think this dispute beside the point, and we do not resolve it. The BIA may well have legitimate reasons for limiting ’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “ ‘relevant factors,’ ” State —————— According to Judulang, the BIA is treating the former as if they were seeking admission, while applying the “comparable grounds” approach only to the latter. See Reply Brief for Petitioner 6–8. That is the kind of distinction the Second Circuit held in 532 F.2d 268 violated equal protection. See at 3–4. But the Government contends that it is drawing no such line—that it is apply- ing the comparable-grounds policy to all deportable aliens. Brief for Respondent 29. We think the available evidence tends to support the Government’s representation. See In re -Castillo, No. A09 366 529, WL 455596 (applying comparable-grounds analysis to a deportable alien who had left and returned to the coun- try); In re Valenzuela-Morales, No. A40 443 52, (BIA, Apr. 23, 2008) (same). But in light of our holding that the comparable-grounds approach is arbitrary and capricious, we need not resolve this dispute about the BIA’s practice. 2 JUDULANG v. HOLDER Opinion of the Court (quoting Bowman Transp., 49 U.S., at ), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi- gration laws or the appropriate operation of the immigra- tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for relief on other, more rational bases. The problem with the comparable-grounds policy is that it does not impose such a reasonable limitation. Rather than considering factors that might be thought germane to the deportation decision, that policy hinges eligi- bility on an irrelevant comparison between statutory provisions. Recall that the BIA asks whether the set of offenses in a particular deportation ground lines up with the set in an exclusion ground. But so what if it does? Does an alien charged with a particular deportation ground become more worthy of relief because that ground happens to match up with another? Or less worthy of relief because the ground does not? The comparison in no way changes the alien’s prior offense or his other attrib- utes and circumstances. So it is difficult to see why that comparison should matter. Each of these statutory grounds contains a slew of offenses. Whether each con- tains the same slew has nothing to do with whether a deportable alien whose prior conviction falls within both grounds merits the ability to seek a waiver.9 —————— 9 The case would be different if Congress had intended for relief to depend on the interaction of exclusion grounds and deportation grounds. But the Government has presented us with no evidence to this effect, nor have we found any. See 489 F.3d, at 02 (Con- gress never contemplated, in drafting the immigration laws, “that its grounds of deportation would have any connection with the grounds of Cite as: 565 U. S. (20) 3 Opinion of the Court This case well illustrates the point. In commencing Judulang’s deportation proceeding, the Government charged him with an “aggravated felony” involving a “crime of violence” based on his prior manslaughter con- viction. See App. to Pet. for Cert. a–2a. That made him ineligible for relief because the “crime of vio- lence” deportation ground does not sufficiently overlap with the most similar exclusion ground, for “crime[s] involving moral turpitude.” The problem, according to the BIA, is that the “crime of violence” ground includes a few offenses—simple assault, minor burglary, and unauthor- ized use of a vehicle—that the “moral turpitude” ground does not. See 23 I. & N. Dec., at ; Tr. of Oral Arg. 28–29, 40–4. But this statutory differ- ence in no way relates to Judulang—or to most other aliens charged with committing a “crime of violence.” Perhaps aliens like Judulang should be eligible for relief, or perhaps they should not. But that |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | eligible for relief, or perhaps they should not. But that determination is not sensibly made by establishing that simple assaults and minor burglaries fall outside a ground for exclusion. That fact is as extraneous to the merits of the case as a coin flip would be. It makes Judulang no less deserving of the opportunity to seek discretionary relief—just as its converse (the inclusion of simple assaults and burglaries in the “moral turpitude” exclusion ground) would make him no more so. Or consider a different headscratching oddity of the comparable-grounds approach—that it may deny eligibility to aliens whose deportation ground fits entirely inside an exclusion ground. The BIA’s decision, noted earlier, provides an example. See –7. The deportation ground charged was “aggravated felony” involving “sexual abuse of a minor”; the closest exclusion ground was, once again, a “crime [of] moral turpitude.” 23 —————— exclusion” in the application of ); see infra, –7. 4 JUDULANG v. HOLDER Opinion of the Court I. & N. Dec., at 727. Here, the BIA’s problem was not that the deportation ground covered too many offenses; all or virtually all the crimes within that ground are crimes of moral turpitude. Rather, the BIA objected that the deportation ground covered too few crimes—or put oppo- sitely, that “the moral turpitude ground of exclusion ad- dresses a much broader category of offenses.” at But providing relief in exclusion cases to a broad class of aliens hardly justifies denying relief in deportation cases to a subset of that group.0 (The better argument would surely be the reverse—that giving relief in the one context supports doing so in the other.) Again, we do not say today that the BIA must give all deportable aliens meeting ’s requirements the chance to apply for a waiver. See at –2. The point is instead that the BIA cannot make that opportunity turn on the meaning- less matching of statutory grounds. And underneath this layer of arbitrariness lies yet another, because the outcome of the Board’s comparable- grounds analysis itself may rest on the happenstance of an immigration official’s charging decision. This problem arises because an alien’s prior conviction may fall within a number of deportation grounds, only one of which corre- sponds to an exclusion ground. Consider, for example, an alien who entered the country in 984 and commit- ted voluntary manslaughter in 988. That person could be charged (as Judulang was) with an “aggravated fel- ony” involving a “crime of violence,” see 8 U.S. C. §§0(a)(43)(F), 227(a)(2)(A)(iii). If so, the alien could not seek a waiver because of the absence of a |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | not seek a waiver because of the absence of a comparable exclusion ground. But the alien could be charged —————— 0 Perhaps that is why the BIA declined to apply similar reasoning in —a case involving an exclusion ground that sweeps more broadly than a deportation ground (although not to the same extent as in ). See Cite as: 565 U. S. (20) 5 Opinion of the Court with “a crime involving moral turpitude committed within five years after the date of admission,” see §227(a)(2)(A)(i)(I). And if that were the deportation charge, the alien could apply for relief, because the ground corresponds to the “moral turpitude” ground used in ex- clusion cases. See In re Salmon, 6 I. & N. Dec. 734 (978). So everything hangs on the charge. And the Government has provided no reason to think that immi- gration officials must adhere to any set scheme in deciding what charges to bring, or that those officials are exercising their charging discretion with in mind. See Tr. of Oral Arg. 34–36. So at base everything hangs on the fortuity of an individual official’s decision. An alien ap- pearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country. In a foundational deportation case, this Court recog- nized the high stakes for an alien who has long resided in this country, and reversed an agency decision that would “make his right to remain here dependent on circumstan- ces so fortuitous and capricious.” 39 (947). We think the policy before us similarly flawed. The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distin- guishes among aliens—decides who should be eligible for discretionary relief and who should not—solely by compar- ing the metes and bounds of diverse statutory categories into which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in another early immigration case that deportation decisions cannot be made a “sport of chance.” See Di 58 F.2d 878, (CA2 947) (quoted in 455 (963)). That is what the comparable-grounds rule 6 JUDULANG v. HOLDER Opinion of the Court brings about, and that is what the APA’s “arbitrary and capricious” standard is designed to thwart. B The Government makes three arguments in defense of the comparable-grounds rule—the first based on statutory text, the next on history, the last on cost. We find none of |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | on history, the last on cost. We find none of them persuasive. The Government initially contends that the comparable- grounds approach is more faithful to “the statute’s lan- guage,” Brief for Respondent 2—or otherwise said, that “lifting that limit ‘would take immigration practice even further from the statutory text,’ ” (quoting Matter of Hernandez-, (990)). In the Government’s view, is “phrased in terms of waiving statutorily specified grounds of exclusion”; that phrasing, says the Government, counsels a comparative analysis of grounds when applying in the deporta- tion context. Brief for Respondent 2; see Tr. of Oral Arg. 34 (“[T]he reason [the comparable-grounds approach] makes sense is because the statute only provides for relief from grounds of exclusion”). The first difficulty with this argument is that it is based on an inaccurate description of the statute. Section 22(c) instructs that certain resident aliens “may be admitted in the discretion of the Attorney General” notwithstanding any of “the provisions of subsection (a) (other than paragraphs (3) and (9)(C)).” 8 U.S. C. (994 ed.). Subsection (a) contains the full list of exclusion grounds; paragraphs (3) and (9)(C) (which deal with national secu- rity and international child abduction) are two among these. What actually says, then, is that the Attor- ney General may admit any excludable alien, except if the alien is charged with two specified grounds. And that Cite as: 565 U. S. (20) 7 Opinion of the Court means that once the Attorney General determines that the alien is not being excluded for those two reasons, the ground of exclusion no longer matters. At that point, the alien is eligible for relief, and the thing the Attorney Gen- eral waives is not a particular exclusion ground, but the simple denial of entry. So the premise of the Govern- ment’s argument is wrong. And if the premise, so too the conclusion—that is, because ’s text is not “phrased in terms of waiving statutorily specified grounds of exclu- sion,” Brief for Respondent 2, it cannot counsel a search for corresponding grounds of deportation. More fundamentally, the comparable-grounds approach would not follow from even were the Government right about the section’s phrasing. That is because simply has nothing to do with deportation: The provision was not meant to interact with the statutory grounds for deportation, any more than those grounds were designed to interact with the provision. Rather, refers solely to exclusion decisions; its extension to deportation cases arose from the agency’s extra-textual view that some similar relief should be available in that context to avoid unreasonable distinctions. Cf., e.g., Matter of L-, I. & |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | avoid unreasonable distinctions. Cf., e.g., Matter of L-, I. & N. Dec., ; see at 3–4. Accordingly, the text of whether or not phrased in terms of “waiving grounds of exclusion,” cannot support the BIA’s use of the —————— Congress amended just five months before repealing it, to include a first-time reference to deportation cases. That amendment prohibited the Attorney General from granting discretionary relief to aliens deportable on several specified grounds. See Antiterrorism and Effective Death Penalty Act of 996, 0 Stat. 277 (effective Apr. 24, 996). The change does not affect our analysis, nor does the Govern- ment argue it should. As the Government notes, the amendment “did not speak to the viability of the Board’s” comparable-grounds rule, but instead made categorically ineligible for relief “those deportable by reason of certain crimes.” Brief for Respondent 20. Presumably, Congress thought those crimes particularly incompatible with an alien’s continued residence in this country. 8 JUDULANG v. HOLDER Opinion of the Court comparable-grounds rule—or, for that matter, any other method for extending discretionary relief to deportation cases. We well understand the difficulties of operating in such a text-free zone; indeed, we appreciate the Govern- ment’s yearning for a textual anchor. But no matter how many times read or parsed, does not provide one. 2 In disputing Judulang’s contentions, the Government emphasizes the comparable-grounds rule’s vintage. See Brief for Respondent 22–23, 30–43. As an initial matter, we think this a slender reed to support a signifi- cant government policy. Arbitrary agency action becomes no less so by simple dint of repetition. (To use a prior analogy, flipping coins to determine eligibility would remain as arbitrary on the thousandth try as on the first.) And longstanding capriciousness receives no special exemption from the APA. In any event, we cannot detect the consistency that the BIA claims has marked its ap- proach to this issue. To the contrary, the BIA has repeat- edly vacillated in its method for applying to de- portable aliens. Prior to 984, the BIA endorsed a variety of approaches. In Matter of T-, (953), for example, the BIA held that an alien was not eligible for relief because her “ground of deportation” did not appear in the exclusion statute. That decision anticipated the comparable-grounds approach that the BIA today uses. But in Tanori, the BIA pronounced that a deportable alien could apply for a waiver because “the same facts”—in that case, a marijuana conviction—would have allowed him to seek relief in an exclusion proceeding. 5 I. & N. Dec., 68. That approach is more nearly similar to the one Judulang |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | That approach is more nearly similar to the one Judulang urges here. And then, in Matter of Grana- dos, 6 I. & N. Dec. 726, (979), the BIA tried to have Cite as: 565 U. S. (20) 9 Opinion of the Court it both ways: It denied eligibility both because the deportation ground charged did not correspond to, and because the alien’s prior conviction did not fall within, a waivable ground of exclusion. In short, the BIA’s cases were all over the map. The Government insists that the BIA imposed order in Matter of Wadud, 9 I. & N. Dec. 82, 85–86 (984), when it held that a deportable alien could not seek relief unless the deportation ground charged had an “anal- ogous ground of inadmissibility.” See Brief for Respondent 40–4. But the BIA’s settlement, if any, was fleeting. Just seven years later, the BIA adopted a new policy entirely, extending eligibility to “aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 22(c).” Hernandez- That new rule turned the comparable-grounds approach inside-out, allowing aliens to seek relief in deportation cases except when the ground charged corresponded to an exclusion ground that could not be waived. To be sure, the Attorney General (on referral of the case from the BIA), disavowed this position in favor of the more standard version of the comparable- grounds rule. at But even while doing so, the Attorney General stated that “an alien subject to deporta- tion must have the same opportunity to seek discretionary relief as an alien subject to exclusion.” That assertion is exactly the one Judulang makes in this case; it is consonant not with the comparable-grounds rule the BIA here defends, but instead with an inquiry into wheth- er an alien’s prior conviction falls within an exclusion ground. Given these mixed signals, it is perhaps not surprising that the BIA continued to alternate between approaches in the years that followed. Immediately after the Attorney General’s opinion in Hernandez-, the BIA en- 20 JUDULANG v. HOLDER Opinion of the Court dorsed the comparable-grounds approach on several occa- sions. See ; Matter of Monte- negro, (992); Matter of Gabryelsky, (993); In re Esposito, 2, (995); In re Jimenez- Santillano, 2 I. & N. Dec. 567, 57–572 (996). But just a few years later, the BIA issued a series of unpublished opinions that asked only whether a deportable alien’s prior conviction fell within an exclusion ground. See, e.g., In re Manzueta, No. A93 022 672, 2003 WL 29892 (Dec. 2003). |
Justice Kagan | 2,011 | 3 | majority | Judulang v. Holder | https://www.courtlistener.com/opinion/618680/judulang-v-holder/ | Manzueta, No. A93 022 672, 2003 WL 29892 (Dec. 2003). Not until the BIA’s decisions in and did the pendulum stop swinging. That histo- ry hardly supports the Government’s view of a consistent agency practice.2 3 The Government finally argues that the comparable- grounds rule saves time and money. The Government claims that comparing deportation grounds to exclusion grounds can be accomplished in just a few “precedential decision[s],” which then can govern broad swaths of cases. See Brief for Respondent 46. By contrast, the Government argues, Judulang’s approach would force it to determine whether each and every crime of conviction falls within an exclusion ground. Further, the Government contends that Judulang’s approach would grant eligibility to a greater —————— 2 Because we find the BIA’s prior practice so unsettled, we likewise reject Judulang’s argument that and were imper- missibly retroactive. To succeed on that theory, Judulang would have to show, at a minimum, that in entering his guilty plea, he had reason- ably relied on a legal rule from which and departed. See (stating that retroactivity analysis focuses on “considerations of fair notice, reasonable reliance, and settled expectations”). The instability of the BIA’s prior practice prevents Judulang from making this showing: The BIA sometimes recognized aliens in Judulang’s position as eligible for relief, but sometimes did not. Cite as: 565 U. S. (20) 2 Opinion of the Court number of deportable aliens, which in turn would force the Government to make additional individualized assess- ments of whether to actually grant relief. Once again, the Government’s rationale comes up short. Cost is an important factor for agencies to consider in many contexts. But cheapness alone cannot save an arbi- trary agency policy. (If it could, flipping coins would be a valid way to determine an alien’s eligibility for a waiver.) And in any event, we suspect the Government exaggerates the cost savings associated with the comparable-grounds rule. Judulang’s proposed approach asks immigration officials only to do what they have done for years in exclu- sion cases; that means, for one thing, that officials can make use of substantial existing precedent governing whether a crime falls within a ground of exclusion. And Judulang’s proposal may not be the only alternative to the comparable-grounds rule. See at –2. In reject- ing that rule, we do not preclude the BIA from trying to devise another, equally economical policy respecting eligi- bility for relief, so long as it comports with every- thing held in both this decision and St. Cyr. III We must reverse an agency policy when we cannot discern a reason for it. |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | If the Court's Eleventh Amendment doctrine were grounded on principles essential to the structure of our federal system or necessary to protect the cherished constitutional liberties of our people, the doctrine might be unobjectionable; the interpretation of the text of the Constitution in light of changed circumstances and unforeseen events and with full regard for the purposes underlying the text has always been the unique role of this Court. But the Court's *248 Eleventh Amendment doctrine diverges from text and history virtually without regard to underlying purposes or genuinely fundamental interests. In consequence, the Court has put the federal judiciary in the unseemly position of exempting the States from compliance with laws that bind every other legal actor in our Nation. Because I believe that the doctrine rests on flawed premises, misguided history, and an untenable vision of the needs of the federal system it purports to protect, I believe that the Court should take advantage of the opportunity provided by this case to reexamine the doctrine's historical and jurisprudential foundations. Such an inquiry would reveal that the Court, in Professor Shapiro's words, has taken a wrong turn.[1] Because the Court today follows this mistaken path, I respectfully dissent. I I first address the Court's holding that Congress did not succeed in abrogating the States' sovereign immunity when it enacted 504 of the Rehabilitation Act, 29 U.S. C. 94. If this holding resulted from the Court's examination of the statute and its legislative history to determine whether Congress intended in 504 to impose an obligation on the States enforceable in federal court, I would confine my dissent to the indisputable evidence to the contrary in the language and history of 504. Section 504 imposes an obligation not to discriminate against the handicapped in "any program or activity receiving Federal financial assistance." This language is general and unqualified, and contains no indication whatsoever that an exemption for the States was intended. Moreover, state governmental programs and activities are undoubtedly the recipients of a large percentage of federal funds.[2] Given this *249 widespread state dependence on federal funds, it is quite incredible to assume that Congress did not intend that the States should be fully subject to the strictures of 504. The legislative history confirms that the States were among the primary targets of 504. In introducing the predecessor of 504 as an amendment to Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d, Representative Vanik clearly indicated that governments would be among the primary targets of the legislation: "Our Governments tax [handicapped] people, their parents |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | of the legislation: "Our Governments tax [handicapped] people, their parents and relatives, but fail to provide services for them. The opportunities provided by the Government almost always exclude the handicapped." 11 Cong. Rec. 4594 (191). He further referred approvingly to a federal-court suit against the State of Pennsylvania raising the issue of educational opportunities for the handicapped. See at 4594-4595 and characterizing it as a "suit against the State"). Two months later, Representative Vanik noted the range of state actions that could disadvantage the handicapped. He said that state governments "lack funds and facilities" for medical care for handicapped children and "favor the higher income families" in tuition funding. 118 Cong. Rec. 4341 He pointed out that "the States are unable to define and deal with" the illnesses of the handicapped child, and that "[e]xclusion of handicapped children [from public schools] is illegal in some States, but the States plead lack of funds." Similarly, Senator Humphrey, the bill's sponsor in the Senate, focused particularly on a suit against a state-operated institution for the mentally retarded as demonstrating the need for the bill. See The language used in the statute ("any program or activity receiving Federal financial assistance") has long been used *250 to impose obligations on the States under other statutory schemes. For example, Title VI, enacted in 1964, bans discrimination on the basis of race, color, or national origin by "any program or activity receiving Federal financial assistance." 42 U.S. C. 2000d. Soon after its enactment, seven agencies promulgated regulations that defined a recipient of federal financial assistance to include "any State, political subdivision of any State or instrumentality of any State or political subdivision." See, e. g., 15.2(e) See generally Guardians Over 40 federal agencies and every Cabinet Department adopted similar regulations. As Senator Javits remarked in the debate on Title VI, "[w]e are primarily trying to reach units of government, not individuals." 110 Cong. Rec. 1300 Similarly Title IX of the Education Amendments of 20 U.S. C. 1681(a), prohibits discrimination on the basis of sex by "any education program or activity receiving Federal financial assistance." The regulations governing Title IX use the same definition of "recipient" which explicitly includes the States as do the Title VI regulations. See 34 CFR 106.2(h) (15). The Congress that enacted 504 had the examples of Titles VI and IX before it, and plainly knew that the language of the statute would include the States.[3] *251 Implementing regulations promulgated for 504 included the same definition of "recipient" that had previously been used to implement Title VI and Title IX. See |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | been used to implement Title VI and Title IX. See 45 CFR 84.3(f) In 19, Congress held hearings on the implementation of 504, and subsequently produced amendments to the statute enacted in 198. Stat. 22, 505(a)(2), 29 U.S. C. 94a. The Senate Report accompanying the amendments explicitly approved the implementing regulations. S. Rep. No. 95-890, p. 19 (11). No Member of Congress questioned the reach of the regulations. In describing another section of the 198 amendments which brought the Federal Government within the reach of 504, Representative Jeffords noted that the section "applies 504 to the Federal Government as well as State and local recipients of Federal dollars." 124 Cong. Rec. 13901[4] Representative Sarasin emphasized that "[n]o one should discriminate against an individual because he or she suffers from a handicap not private employers, not State and local governments, and most certainly, not the Federal Government." The 198 amendments also addressed the remedies for violations of 504: "The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S. C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 94 of this title." 29 U.S. C. 94a(a)(2). Again, the amendment referred in general and unqualified terms to "any recipient of Federal assistance." An additional *252 provision of the 198 amendments made available attorney's fees to prevailing parties in actions brought to enforce 504. Discussing these two provisions, Senator Cranston presupposed that States would be subject to suit under this section: "[W]ith respect to State and local bodies or State and local officials, attorney's fees, similar to other items of cost, would be collected from the official, in his official capacity from funds of his or her agency or under his or her control; or from the State or local government regardless of whether such agency or Government is a named party." 124 Cong. Rec. 3034 Given the unequivocal legislative history, the Court's conclusion that Congress did not abrogate the States' sovereign immunity when it enacted 504 obviously cannot rest on an analysis of what Congress intended to do or on what Congress thought it was doing. Congress intended to impose a legal obligation on the States not to discriminate against the handicapped. In addition, Congress fully intended that whatever remedies were available against other entities including the Federal Government itself after the 198 amendments be equally available against the States. There is simply not a shred of |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | against the States. There is simply not a shred of evidence to the contrary. II Rather than an interpretation of the intent of Congress, the Court's decision rests on the Court's current doctrine of Eleventh Amendment sovereign immunity, which holds that "the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. " of the Constitution. Pennhurst State School and Despite the presence of the most clearly lawless behavior by the state government, the Court's doctrine holds that the judicial authority of the United States *253 does not extend to suits by an individual against a State in federal court. The Court acknowledges that the supposed lack of judicial power may be remedied, either by the State's consent,[5] or by express congressional abrogation pursuant to the Civil War Amendments, see ; City of (10), or perhaps pursuant to other congressional powers. But the Court has raised formidable obstacles to congressional efforts to abrogate the States' immunity; the Court has put in place a series of special rules of statutory draftsmanship that Congress *254 must obey before the Court will accord recognition to its act. held that Congress must make its intention "clear" if it sought to lift the States' sovereign immunity conditional on their participation in a federal program. made it still more difficult for Congress to act, stating that "we will find waiver only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction." Pennhurst State School and required "an unequivocal expression of congressional intent." Finally, the Court today tightens the noose by requiring "that Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Ante, at 243 (emphasis added). These special rules of statutory drafting are not justified (nor are they justifiable) as efforts to determine the genuine intent of Congress; no reason has been advanced why ordinary canons of statutory construction would be inadequate to ascertain the intent of Congress. Rather, the special rules are designed as hurdles to keep the disfavored suits out of the federal courts. In the Court's words, the test flows from the need to maintain "the usual constitutional balance between the States and the Federal Government." Ante, at 242.[6] The doctrine is thus based on a fundamental policy decision, vaguely attributed to the Framers of Article or the Eleventh Amendment, that the federal courts ought not to hear suits brought by individuals against States. This Court executes the policy by making it difficult, but not impossible, *255 |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | the policy by making it difficult, but not impossible, *255 for Congress to create private rights of action against the States.[] Reliance on this supposed constitutional policy reverses the ordinary role of the federal courts in federal-question cases. Federal courts are instruments of the National Government, seeing to it that constitutional limitations are obeyed while interpreting the will of Congress in enforcing the federal laws. In the Eleventh Amendment context, however, the Court instead relies on a supposed constitutional policy disfavoring suits against States as justification for ignoring the will of Congress; the goal seems to be to obstruct the ability of Congress to achieve ends that are otherwise constitutionally unexceptionable and well within the reach of its Article I powers. The Court's sovereign immunity doctrine has other unfortunate results. Because the doctrine is inconsistent with the *256 essential function of the federal courts to provide a fair and impartial forum for the uniform interpretation and enforcement of the supreme law of the land it has led to the development of a complex body of technical rules made necessary by the need to circumvent the intolerable constriction of federal jurisdiction that would otherwise occur. Under the rule of Ex parte Young, a State may be required to obey federal law, so long as the plaintiff remembers to name a state official rather than the State itself as defendant, see and so long as the relief sought is prospective rather than retrospective.[8] These intricate rules often create manifest injustices while failing to respond to any legitimate needs of the States. A damages award may often be the only practical remedy available to the plaintiff,[9] and the threat of a damages award may be the only effective *25 deterrent to a defendant's willful violation of federal law. Cf. While the prohibition of damages awards thus imposes substantial costs on plaintiffs and on members of a class Congress sought to protect, the injunctive relief that s permitted can often be more intrusive and more expensive than a simple damages award would be.[10] The Court's doctrine itself has been unstable. As I shall discuss below, the doctrine lacks a textual anchor, a firm historical foundation, or a clear rationale. As a result, it has been impossible to determine to what extent the principle of state accountability to the rule of law can or should be accommodated within the competing framework of state nonaccountability put into place by the Court's sovereign immunity doctrine. For this reason, we have been unable to agree on the content of the special "rules" we have |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | agree on the content of the special "rules" we have applied to Acts of Congress to determine whether they abrogate state sovereign immunity. Compare with Whatever rule is decided upon at a given time is then applied retroactively to actions taken by Congress. See n. Finally, in the absence of any plausible *258 limiting principles, the Court has overruled and ignored past cases that seemed to stand in the way of vindication of the doubtful States' right the Court has created. See Pennhurst State School and -166, n. 50. I might tolerate all of these results the unprecedented intrusion on Congress' lawmaking power and consequent increase in the power of the courts, the development of a complex set of rules to circumvent the obviously untenable results that would otherwise ensue, the lack of respect for precedent and the lessons of the past evident in Pennhurst if the Court's sovereign immunity doctrine derived from essential constitutional values protecting the freedom of our people or the structure of our federal system. But that is sadly not the case. Instead, the paradoxical effect of the Court's doctrine is to require the federal courts to protect States that violate federal law from the legal consequences of their conduct. Since the Court began over a decade ago aggressively to expand its doctrine of Eleventh Amendment sovereign immunity, see modern scholars and legal historians have taken a critical look at the historical record that is said to support the Court's result.[11] Recent research has discovered *259 and collated substantial evidence that the Court's constitutional doctrine of state sovereign immunity has rested on a mistaken historical premise. The flawed underpinning is the premise that either the Constitution or the Eleventh Amendment embodied a principle of state sovereign immunity as a limit on the federal judicial power. New evidence concerning the drafting and ratification of the original Constitution indicates that the Framers never intended to constitutionalize the doctrine of state sovereign immunity. Consequently, the Eleventh Amendment could not have been, as the Court has occasionally suggested, an effort to reestablish a limitation on the federal judicial power granted in Article Nor, given the limited terms in which it was written, could the Amendment's narrow and technical language be understood to have instituted a sweeping new limitation on the federal judicial power whenever an individual attempts to sue a State. A close examination of the historical records reveals a rather different status for the doctrine of state sovereign immunity in federal court. There simply is no constitutional principle of state sovereign immunity, and no constitutionally mandated policy |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | principle of state sovereign immunity, and no constitutionally mandated policy of excluding suits against States from federal court. A In the Court stated that to permit a citizen to bring a suit against a State in federal court would be "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of." The text of the Constitution, of course, contains no explicit adoption of a principle of state sovereign immunity. The passage from thus implies that everyone involved in the framing or ratification of the Constitution believed *260 that Article included a tacit prohibition on the exercise of the judicial power when a State was being sued in federal court. The early history of the Constitution reveals, however, that the Court in was mistaken. The unamended Article was often read to the contrary to prohibit not the exercise of the judicial power, but the assertion of state sovereign immunity as a defense, even in cases arising solely under state law. It is useful to begin with the text of Article Section 2 provides: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." The judicial power of the federal courts thus extends only to certain types of cases, identified either by subject matter or parties. The subject-matter heads of jurisdiction include federal questions ("all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made") and admiralty ("all Cases of admiralty and maritime Jurisdiction"). The party-based heads of jurisdiction include what might be called ordinary diversity ("Controversies. between Citizens of different States"), state-citizen diversity ("between a State and Citizens of another State"), and state-alien diversity ("between a State and foreign Citizens"). It is the latter two clauses, providing for state-citizen and state-alien diversity, that were *261 at the focus of the Court's decision in (193), and the subsequent ratification of the Eleventh Amendment. To understand the dispute concerning the state-citizen and state-alien |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | Amendment. To understand the dispute concerning the state-citizen and state-alien diversity clauses, it is crucial to understand the relationship between the party-based and subject-matter heads of jurisdiction. The grants of jurisdiction in Article are to be read disjunctively. The federal judicial power may extend to a case if it falls within any of the enumerated jurisdictional heads. Thus, a federal court can hear a federal-question case even if the parties are citizens of the same state; it can exercise jurisdiction over cases between citizens of different states even where the case does not arise under federal law. Most important for present purposes, the language of the unamended Article alone would permit the federal courts to exercise jurisdiction over suits in which a noncitizen or alien is suing a State on a claim of a violation of state law. This standard interpretation of Article gave a special importance to the interpretation of the state-citizen and state-alien diversity clauses. The clauses by their terms permitted federal jurisdiction over any suit between a State and a noncitizen or a State and an alien, and in particular over suits in which the plaintiff was the noncitizen or alien and the defendant was the State. Yet in most of the States in 189, the doctrine of sovereign immunity formally forbade the maintenance of suits against States in state courts, although the actual effect of this bar in frustrating legal claims against the State was unclear.[12] Thus, the question left open by the terms of the two clauses was whether the state law of *262 sovereign immunity barred the exercise of the federal judicial power. A plaintiff seeking federal jurisdiction against a State under the state-citizen or state-alien diversity clauses would be asserting a cause of action based on state law, since a federal question or admiralty claim would provide an independent basis for jurisdiction that did not depend on the identity of the parties. To read the two clauses to abrogate the state-law sovereign immunity defense would be to find in Article a substantive federal limitation on state law. Although a State previously could create a cause of action to which it would not itself be liable, this same cause of action now could be used (at least by citizens of other States or aliens) in federal courts to sue the State itself. This was a particularly troublesome prospect to the States that had incurred debts, some of which dated back to the Revolutionary War. The debts would naturally find their way into the hands of noncitizens and aliens, who at the first sign of |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | of noncitizens and aliens, who at the first sign of default could be expected promptly to sue the State in federal court. The State's effort to retain its sovereign immunity in its own courts would turn out to be futile. Moreover, the resulting abrogation of sovereign immunity would operate retroactively; even debts incurred years before the Constitution was adopted and before either of the contracting parties expected that a judicial remedy against the State would be available would become the basis for causes of action brought under the two clauses in federal court. In short, the danger of the state-citizen and state-alien diversity clauses was that, if read to permit suits against States, they would have the effect of limiting state law in a way not otherwise provided for in the Constitution. The original Constitution prior to the Bill of Rights contained only a few express limitations on state power. Yet the States would now find in Article itself a further limit on state action: Despite the fact that the State as sovereign had created a given cause of action, Article would have made it impossible *263 for the State effectively to assert a sovereign immunity defense to that action. The records of the Constitutional Convention do not reveal any substantial controversy concerning the state-citizen and state-alien diversity clauses.[13] The language of Article[14] which provides one guide to its meaning, is undoubtedly consistent with suits against States under both subject-matter heads of jurisdiction (for example, a suit arising out of federal law brought by a citizen against a State) and party-based heads of jurisdiction (for example, a suit brought under the state-citizen diversity clause itself). However, a federal-question suit against a State does not threaten to displace a prior state-law defense of sovereign immunity, because state-law defenses would not of their own force be applicable to federal causes of action. On the other hand, a state-citizen suit against a State does, as suggested threaten to displace any extant state-law sovereign immunity defense. An examination of the debates surrounding the state ratification conventions proves more productive. The various *264 references to state sovereign immunity all appear in discussions of the state-citizen diversity clause. Virtually all of the comments were addressed to the problem created by state debts that predated the Constitution, when the State's creditors may often have had meager judicial remedies in the case of default. Yet, even in this sensitive context, a number of participants in the debates welcomes the abrogation of sovereign immunity that they thought followed from the state-citizen and state-alien clauses. The debates do |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | followed from the state-citizen and state-alien clauses. The debates do not directly address the question of suits against States in admiralty or federal-question cases, where federal law and not state law would govern. Nonetheless, the apparent willingness of many delegates to read the state-citizen clause as abrogating sovereign immunity in state-law causes of action suggests that they would have been even more willing to permit suits against States in federal-question cases, where Congress had authorized such suits in the exercise of its Article I or other powers. The Virginia debates included the most detailed discussion of the state-citizen diversity clause.[15] The first to mention the clause explicitly was George Mason, an opponent of the new Constitution. After quoting the clause, he referred to a *265 dispute about Virginia's confiscation of property belonging to Lord Fairfax.[16] He asserted: "Claims respecting those lands, every liquidated account, or other claim against this state, will be tried before the federal court. Is not this disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender? Will the states undergo this mortification? I think this power perfectly unnecessary. But let us pursue this subject farther. What is to be done if a judgment be obtained against a state? Will you issue a fieri facias? It would be ludicrous to say that you could put the state's body in jail. How is the judgment, then, to be enforced? A power which cannot be executed ought not to be granted." 3 Elliot's Debates, at 526-52. Mason thus believed that the state-citizen diversity clause provided federal jurisdiction for suits against the States and would have the effect of abrogating the State's sovereign immunity defense in state-law causes of action for debt that would be brought in federal court. Madison responded the next day: "[Federal] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts." *266 Madison seems to have believed that the Article judicial power, at least under the state-citizen diversity clause, was limited to cases in which the States were plaintiffs. |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | was limited to cases in which the States were plaintiffs. Although he does deny that "[i]t is in the power of individuals to call any State into court," this remark could be understood as an explication of current state law which he believed would not be displaced by the state-citizen diversity clause. His remarks certainly do not suggest that Congress, acting under its enumerated powers elsewhere in the Constitution, could not "call a state into court," or, again acting within its own granted powers, provide a citizen with the power to sue a State in federal court. At any rate, the delegates were not wholly satisfied with Madison's explanation. Patrick Henry, an opponent of ratification, was the next speaker. Referring to Mason, he said: "My honorable friend's remarks were right, with respect to incarcerating a state. It would ease my mind, if the honorable gentleman would tell me the manner in which money should be paid, if, in a suit between a state and individuals, the state were cast." Returning to the attack on Madison, Henry had no doubt concerning the meaning of the state-citizen diversity clause: "As to controversies between a state and the citizens of another state, his construction of it is to me perfectly incomprehensible. He says it will seldom happen that a state has such demands on individuals. There is nothing to warrant such an assertion. But he says that the state may be plaintiff only. If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument. What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant. What says the honorable gentleman? The contrary that the state can only be plaintiff. When the state is debtor, there is no reciprocity. It seems to me that *26 gentlemen may put what construction they please on it. What! is justice to be done to one party, and not to the other?" Edmund Pendleton, the President of the Virginia Convention and the next speaker, supported ratification but seems to have agreed with Henry that the state-citizen diversity clause would subject the States to suit in federal court. He said that "[t]he impossibility of calling a sovereign state before the jurisdiction of another sovereign state, shows the propriety and necessity of vesting this tribunal with the decision of controversies to which a state shall be a party." John Marshall next took up the debate: "With respect to disputes between a state |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | up the debate: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be a partiality in it if a state cannot be defendant if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular state, is it to be presumed that, on application to its legislature, he will not obtain satisfaction? But how could a state recover any claim from a citizen of another *268 state, without the establishment of these tribunals?" Marshall's remarks, like Madison's, appear to suggest that the state-citizen diversity clause could not be used to make an unwilling State a defendant in federal court. The reason seems to be that "it is not rational to suppose that the sovereign power should be dragged before a court." Of course, where the cause of action is based on state law, as it would be in a suit under the state-citizen diversity clause, the "sovereign power" whose law governed would be the State, and Marshall is consequently correct that it would be "irrational" to suppose that the sovereign could be forced to abrogate the sovereign immunity defense that its own law had created. However, where the cause of action is based on a federal law enacted pursuant to Congress' Article I powers, it would be far less clear that Marshall would have concluded that the State still retained the relevant "sovereignty"; in such a case, there is nothing "irrational" about supposing that the relevant sovereign in this case, Congress had subjected the State to suit.[1] Marshall's observations did not go unanswered. Edmund Randolph, a member of the Committee of Detail at |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | Edmund Randolph, a member of the Committee of Detail at the Constitutional Convention and a proponent of the Constitution, referred back to Mason's remarks: "An honorable gentleman has asked, Will you put the body of the state in prison? How is it between independent states? If a government refuses to do justice to individuals, war is the consequence. Is this the bloody alternative to which we are referred. I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not *269 defendant, is taken away by the words where a state shall be a party." at 53. Randolph was convinced that a State could be made a party defendant. Discussing some disputed land claims, he remarked: "One thing is certain that the remedy will not be sought against the settlers, but the state of Virginia. The court of equity will direct a compensation to be made by the state." at 54. Finally, he concluded his discussion: "I ask the Convention of the free people of Virginia if there can be honesty in rejecting the government because justice is to be done by it? Are we to say that we shall discard this government because it would make us all honest?" at 55.[18] One of the purposes of Article was to vest in the federal courts the power to settle disputes that might threaten the peace and unity of the Nation.[19] Randolph saw the danger of just this kind of internecine strife when a State reneges on debts owed to citizens of another State, and consequently applauded the extension of federal jurisdiction to avoid these consequences. The Virginia Convention ratified the Constitution. The Madison and Marshall remarks have been cited as evidence of an inherent limitation on Article jurisdiction. See, e. g., n. 9; ; Even if this adequately characterized the substance of their views, they were a minority of those given at the Convention. Mason, Henry, Pendleton, and Randolph *20 all took an opposing position.[20] Equally important, the entire discussion focused on the question of Virginia's liability for debts and land claims that predated the Constitution and clearly arose under Virginia law. The question that excited such interest was whether the state-citizen diversity clause itself abrogated the sovereign immunity defense that would be available to the State in a suit concerning these issues in state court.[21] The same issue arose in a few other state conventions, but did not receive the detailed attention that it did in Virginia.[22] *21 The debate in the press sheds further light on |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | *21 The debate in the press sheds further light on the effect of the Constitution on state sovereign immunity. A number of influential anti-Federalist publications sounded the alarm at what they saw as the unwarranted extension of the federal judicial power worked by the state-citizen diversity clause. The "Federal Farmer," commonly identified as Richard Henry Lee of Virginia, was one influential and widely published anti-Federalist. He objected: "There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states. It is proper the federal judiciary should have powers co-extensive with the federal legislature that is, the power of deciding finally on the laws of the union. By Art. 3. Sect. 2. the powers of the federal judiciary are extended (among other things) to all cases between a state and citizens of another state between citizens of different states between a state or the citizens thereof and foreign states, citizens of subjects. Actions in all these cases, except against a state government, are now brought and finally determined in the law courts of the states respectively; and as there are no words to exclude these courts of their jurisdiction in these cases, they will have concurrent jurisdiction with the inferior federal courts in them." 14 The Documentary History of the Ratification of the Constitution 40 (hereinafter Documentary History) (emphasis added).[23] *22 Later in the same essay, which was published and circulated in 18 and 188, see at 14-1, the author becomes even more explicit: "How far it may be proper to admit a foreigner or the citizen of another state to bring actions against state governments, which have failed in performing so many promises made during the war, is doubtful: How far it may be proper so to humble a state, as to bring it to answer to an individual in a court of law is worthy of consideration; the states are now subject to no such actions; and this new jurisdiction will subject the states, and many defendants to actions, and processes, which were not in the contemplation of the parties, when the contract was made; all engagements existing between citizens of different states, citizens and foreigners, states and foreigners; and states and citizens of other states were made the parties contemplating the remedies then existing on the laws of the states and the new remedy proposed to be given in the federal courts, can be founded on no principle whatever." This discussion undoubtedly |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | can be founded on no principle whatever." This discussion undoubtedly presupposes that States would be parties defendant in suits on state-law causes of action under the state-citizen diversity clause; the author objects to barring sovereign immunity defenses in cases "arising upon the internal laws of the respective states." However, the anti-Federalist author plainly also believes that the powers of the federal courts are to be coextensive with the powers of Congress. Thus, the deficiency of state-citizen diversity jurisdiction is not that it permits the federal courts to hear suits against States based on federal causes of action, but that it permits the federal courts to exercise jurisdiction beyond the lawmaking powers of Congress: it provides new remedies for state creditors "which were not in the contemplation of the parties, when the contract was made." *23 Another noted anti-Federalist writer who published under the pseudonym "Brutus" also attacked what he saw as the untoward implications of the state-citizen diversity clause: "I conceive the clause which extends the power of the judicial to controversies arising between a state and citizens of another state, improper in itself, and will, in its exercise, prove most pernicious and destructive. "It is improper, because it subjects a state to answer in a court of law, to the suit of an individual. This is humiliating and degrading to a government, and, what I believe, the supreme authority of no state ever submitted to. "Every state in the union is largely indebted to individuals. For the payment of these debts they have given notes payable to the bearer. At least this is the case in this state. Whenever a citizen of another state becomes possessed of one of these notes, he may commence an action in the supreme court of the general government; and I cannot see any way in which he can be prevented from recovering. "If the power of the judicial under this clause will extend to the cases stated, it will, if executed, produce the utmost confusion, and in its progress, will crush the states beneath its weight. And if it does not extend to these cases, I confess myself utterly at a loss to give it any meaning." 2 The Complete Anti-Federalist 429-431 (H. Storing ed. 11). Other materials, from proponents and opponents of ratification, similarly view Article jurisdiction as extending to suits against States.[24] Timothy Pickering, a Pennsylvania *24 landowner who supported ratification and attended the Pennsylvania Convention, wrote: "The federal farmer, and other objectors, say the causes between a state & citizens of another state between citizens of different states |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | of another state between citizens of different states and between a state, or the citizens thereof, and the citizens of subjects of foreign states, should be left, as they now are, to the decision of the particular state courts. The other cases enumerated in the constitution, seem to be admitted as properly cognizable in the federal courts. With respect to all the former, it may be said generally, that as the local laws of the several states may differ from each other as particular states may pass laws unjust in their nature, or partially unjust as they regard foreigners and the citizens of other states, it seems to be a wise provision, which puts it in the power of such foreigners & citizens to resort to a court where they may reasonably expect to obtain impartial justice. But there is a particular & very cogent reason for securing to foreigners a trial, either in the first instance, or by appeal, in a federal court. With respect to foreigners, all the states form but one nation. This nation is responsible for the conduct of all its members towards foreign nations, their citizens & subjects; and therefore ought to possess the *25 power of doing justice to the latter. Without this power, a single state, or one of its citizens, might embroil the whole union in a foreign war." 14 Documentary History, at 204. Pickering's comments are particularly revealing because, unlike the previous comments, they do not focus on the problem caused by the abrogation of sovereign immunity in state-law causes of action. In fact, his views seem to be consistent with the view that a federal court adjudicating a state-law claim should apply an applicable state-law sovereign immunity defense. Pickering justifies the existence of state-citizen diversity jurisdiction in part as a remedy for state laws that are unjust or unfair to noncitizens. Such laws would, of course, implicate the interests protected by the Privileges and Immunities Clause of Article IV. His comments, like those of the "Federal Farmer," thus suggest the recognized need for a federal forum to adjudicate cases implicating the guarantees of the Federal Constitution even those cases in which a State is the defendant. The Federalist Papers were written to influence the ratification debate in New York. In No. 81, Hamilton discussed the issue of state sovereign immunity in plain terms: "I shall take occasion to mention here, a supposition which has excited some alarm upon very mistaken grounds: It has been suggested that an assignment of the public securities of one state to |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities. A suggestion which the following considerations prove to be without foundation. "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender *26 of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable." The Federalist No. 81, pp. 548-549 (emphasis in original). Hamilton believed that the States could not be held to their debts in federal court under the state-citizen diversity clause. The Court has often cited the passage as support for its view that the Constitution, even before the Eleventh Amendment, gave the federal courts no authority to hear any case, under any head of jurisdiction, in which a State was an unconsenting defendant. See, e. g., -662, n. 9; -13. A careful reading of this passage, however, in the context of Hamilton's views elsewhere in The Federalist, demonstrates precisely the opposite. In the cases arising under state law that would find their way into federal court |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | state law that would find their way into federal court under the state-citizen *2 diversity clause, a defense of state sovereign immunity would be as valid in federal court as it would be in state court. The States retained their full sovereign authority over state-created causes of action, as they did over their traditional sources of revenue. See The Federalist No. 32 (discussing taxation). On the other hand, where the Federal Government, in the "plan of the convention,"[25] had substantive lawmaking authority, the States no longer retained their full sovereignty and could be subject to suit in federal court.[26] In these areas, in which the Federal Government *28 had substantive lawmaking authority, Article 's federal-question grant of jurisdiction gave the federal courts power that extended just as far as the legislative power of Congress; as Hamilton has said in discussing the judicial power, "every government ought to possess the means of executing its own provisions by its own authority," The Federalist No. 80, p. 53 (emphasis in original).[2] To interpret Article to impose an independent limit on the lawmaking power of Congress would be to turn the "plan of the convention" on its head.[28] A sober assessment of the ratification debates thus shows that there was no firm consensus concerning the extent to which the judicial power of the United States extended to suits against States. Certain opponents of ratification, like *29 Mason, Henry, and the "Federal Farmer," believed that the state-citizen diversity clause abrogated state sovereign immunity on state causes of action and predicted dire consequences as a result. On the other hand, certain proponents of the Constitution, like Pendleton, Randolph, and Pickering, agreed concerning the interpretation of Article but believed that this constituted an argument in favor of the new Constitution. Finally, Madison, Marshall, and Hamilton believed that a State could not be made a defendant in federal court in a state-citizen diversity suit. The majority of the recorded comments on the question contravene the Court's statement in see that suits against States in federal court were inconceivable.[29] Granted that most of the comments thus expressed a belief that state sovereign immunity would not be a defense to suit in federal court in state-citizen diversity cases, the question remains whether the debates evince a contemporary understanding concerning the amenability of States to suit under federal-question or other subject-matter grants of jurisdiction. Although this question received little direct attention, the debates permit some conclusions to be drawn. First, the belief that the state-citizen diversity clause abrogated state sovereign immunity in federal court implies that the federal question and admiralty |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | in federal court implies that the federal question and admiralty clauses would have the same effect. It would be curious indeed if Article abrogated a State's immunity on causes of action that arose under the State's own laws and over which the Federal Government had no legislative authority, but gave a State an absolute right to a sovereign immunity defense when it was charged with a violation of federal law. Second, even Hamilton, who believed that the state-citizen clause did not abrogate state sovereign immunity in federal court, also left substantial room for suits *280 against States when "the plan of the convention" required this result. Given the Supremacy Clause and the enumeration of congressional powers in Article I, "the plan of the convention" requires States to answer in federal courts for violations of duties lawfully imposed on them by Congress in the exercise of its Article I powers. Third, the repeated references by Hamilton and others to the need for the federal courts to be able to exercise jurisdiction that is as extensive as Congress' powers to legislate suggests that, if Congress had the substantive power under Article I to enact legislation providing rights of action against the States, the federal courts under Article could be given jurisdiction to hear such cases. B After the ratification of the Constitution, Congress provided in 13 of the First Judiciary Act, 1 Stat. 3, 80, that "the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction." The Act did not provide the federal courts with original federal-question jurisdiction, although it did in 25 provide the Supreme Court with considerable jurisdiction over appeals in federal-question cases from state courts. Despite the controversy over the suability of the States, the provision of the Act giving the Supreme Court original jurisdiction under the state-citizen and state-alien diversity clauses surprisingly aroused little or no debate in Congress. See Fletcher, 53-1054.[30] *281 Those with disputes against States had no doubt that state-citizen diversity jurisdiction gave them a remedy in federal court. The first case docketed in this Court was (191), a suit by Dutch creditors who sought judgments to recover principal and interest on Revolutionary War loans to the State of Although a number of other cases were brought against States prior to the passage of the Eleventh Amendment,[31] the most significant of course was |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | of the Eleventh Amendment,[31] the most significant of course was (193). Chisholm was an action in assumpsit by a citizen of South Carolina for the price of military goods sold to Georgia in 1.[32] The case squarely presented the question whether a State could be sued in federal court. The Court held that federal jurisdiction extended to suits against States under the state-citizen diversity clause. Each of the five sitting Justices delivered an opinion; only Justice Iredell was in dissent. Several features of Chisholm are *282 crucial to an understanding of the meaning of the Eleventh Amendment. First, two members of the Committee on Detail that had drafted Article at the Convention were involved in the Chisholm case. Both believed that a State could be sued in federal court. Edmund Randolph, Washington's Attorney General who had previously represented the plaintiff in represented the Chisholm plaintiff and argued strongly that a State must be amenable to suit in federal court as a result of the plain words of Article the necessity for enforcing the constitutional prohibitions on the States, and the implicit consent to suit that occurred on ratification of the Constitution, Justice James Wilson, another of the drafters of Article delivered a lengthy opinion in which he urged that sovereign immunity had no proper application within the new Republic. Second, Chisholm was not a federal-question case. Although the case involved a contract, it was brought pursuant to the state-citizen diversity clause and not directly under the Contracts Clause of the Constitution. See[33] The case thus squarely raised the issue whether a suit against a State based on a state-law cause of action that was not maintainable in state court could be brought in federal court pursuant to the state-citizen diversity clause. The case did not present the question whether a *283 State could be sued in federal court where the cause of action arose under federal law. Third, even Justice Iredell's dissent did not go so far as to argue that a State could never be sued in federal court. He sketched his argument as follows: "I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the Legislature appointing Courts, and prescribing their methods of proceeding. 2d. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3d. That there are no principles of the old law, to which we must have recourse, that in any manner authorize the present |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | must have recourse, that in any manner authorize the present suit, either by precedent or by analogy." He thus accurately perceived that the question presented was whether Article itself created a cause of action in federal court to displace state law where a State was being sued. Because he believed that it did not, and because he found no other source of law on which the State could be held liable in the case, he believed that the suit could not be maintained.[34] The decision in Chisholm was handed down on February 18, 193. On February 19, a resolution was introduced in the House of Representatives stating: "[N]o State shall be liable to be made a party defendant in any of the Judicial Courts established or to be established under the authority of the United States, at the *284 suit of any person or persons, citizens or foreigners, or of any body politic or corporate whether within or without the United States." 1 C. Warren, The Supreme Court in United States History 101 (rev. ed. 193).[35] Another resolution was introduced in the Senate on February 20. That resolution provided: "The Judicial power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 3 Annals of Cong. 651-652 (193). Congress then recessed on March 4, 193, without taking any action on the proposed Amendment. By the time Congress reconvened in December 193, a suit had been brought against Massachusetts in the Supreme Court by a British Loyalist whose properties had been confiscated. Vassal v. Massachusetts.[36] Georgia had responded angrily to the decision in Chisholm, and the Massachusetts Legislature reacted to the suit against it by enacting a resolution calling for "the most speedy and effectual measures" to obtain a constitutional amendment, including a constitutional convention. Resolves of Massachusetts 28 (193) (No. 45). Virginia followed with a similar resolution. Acts of Virginia 52 (193). The issue had thus come to a head, and the Federalists who controlled Congress no doubt felt considerable pressure to act to avoid an open-ended constitutional convention.[3] *285 On January 2, 194, a resolution was introduced, by a Senator whose identity is not now known, with the text of the Eleventh Amendment as it was ultimately enacted: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 4 Annals of Cong. 25 (194) (emphasis added). This differed from the original February 20 resolution only in the addition of the three italicized words. Senator Gallatin moved to amend the resolution to add the words "except in cases arising under treaties made under the authority of the United States" after "The Judicial power of the United States." After rejecting Gallatin's proposal, the Senate then rejected an amendment offered by an unknown Senator that would have forbidden suits against States only "where the cause of action shall have arisen before the ratification of this amendment." [38] The Senate ultimately voted 23-2 in favor of the Amendment. In the House of Representatives, there was only one attempt to amend the resolution. The amendment would have added at the end of the Senate version the following language: "[w]here such State[s] shall have previously made provision in their own Courts, whereby such suit may be prosecuted to effect." at 46. This resolution, of course, would have ratified the Chisholm result that States could be sued under the state-citizen diversity clause, but would have given the States an opportunity to shift the litigation into *286 their own courts. It was rejected, -8, and the House proceeded to ratify the Amendment by a vote of 81-9 on March 4, 194. at 46-48. Although the chronology of ratification is somewhat unclear,[39] President Adams certified that it had been ratified four years later on January 8, 1. Those who have argued that the Eleventh Amendment was intended to constitutionalize a broad principle of state sovereign immunity have always elided the question of why Congress would have chosen the language of the Amendment as enacted to state such a broad principle. As shown there was to say the least no consensus at the time of the Constitution's ratification as to whether the doctrine of state sovereign immunity would have any application in federal court. Even if there had been such a consensus, however, the Eleventh Amendment would represent a particularly cryptic way to embody that consensus in the Constitution. Had Congress desired to enshrine state sovereign immunity in federal courts for all cases, for instance, it could easily have adopted the first resolution introduced on February 19, 193, in the House. Alternatively, a strong sovereign immunity principle could have been derived from an amendment that merely omitted the last 14 words of the enacted resolution. See Gibbons, at 192. However, it does not take a particularly close |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | at 192. However, it does not take a particularly close reading of the Eleventh Amendment to see that it stops far short of that. Article had provided: "The judicial Power shall extend to Controversies between a State and Citizens of another State" and "between a State and foreign Citizens or Subjects." The Eleventh Amendment used the identical language in stating that the judicial power did not extend to "any suit in law or equity. against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State." The congruence of language suggests that the Amendment was *28 intended simply to adopt the narrow view of the state-citizen and state-alien diversity clauses; henceforth, a State could not be sued in federal court where the basis of jurisdiction was that the plaintiff was a citizen of another State or an alien.[40] It may be argued that the true intentions of the Second Congress were revealed by its use of the words "shall not be *288 construed" in the text of the Amendment. According to this argument, Congress intended not merely to qualify the statecitizen and state-alien diversity clauses, but also to establish a rule of construction barring exercise of the federal jurisdiction in any case even one otherwise maintainable under the subject-matter heads of jurisdiction in which a noncitizen or alien was suing a State. This view at least is consistent with the language of the Amendment, and would lead to the conclusion that suits by noncitizens or aliens against a State are never permitted, while suits by a citizen are permissible.[41] Recent scholarship, however, suggests strongly that this view is incorrect. In particular, two other explanations for the use of these terms have been advanced. Some have argued that the words were a natural means for Congress to rebuke the Supreme Court for its construction of the words "between a State and citizens of another State" in Chisholm; no longer should those words be construed to extend federal jurisdiction to suits brought under that clause in which the State was a defendant. See, e. g., Fletcher, 61-1062. Others have argued that the words were added to assure the retrospective application of the Eleventh Amendment. See, e. g., Jacobs, at 68-69. Of course, if the latter meaning were intended, the words had their intended effect, for the Court dismissed cases pending on its docket under the state-citizen diversity clause when the Amendment was ratified. E. g., 3 Dall. 38 (1).[42] *289 The language of the Eleventh Amendment, its legislative history, and the attendant |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | of the Eleventh Amendment, its legislative history, and the attendant historical circumstances all strongly suggest that the Amendment was intended to remedy an interpretation of the Constitution that would have had the state-citizen and state-alien diversity clauses of Article abrogating the state law of sovereign immunity on state-law causes of action brought in federal courts. The economy of this explanation, which accounts for the rather legalistic terms in which the Amendment and Article were written, does not require extravagant assumptions about the unexpressed intent of Congress and the state legislatures, and is itself a strong point in its favor. The original Constitution did not embody a principle of sovereign immunity as a limit on the federal judicial power. There is simply no reason to believe that the Eleventh Amendment established such a broad principle for the first time. The historical record in fact confirms that, far from correcting the error made in Chisholm, the Court's interpretation of the Eleventh Amendment makes a similar mistake. The Chisholm Court had interpreted the state-citizen clause of Article to work a major substantive change in state law, or at least in those cases arising under state law that found their way to federal court. The Eleventh Amendment corrected that error, and henceforth required that the party-based heads of jurisdiction in Article be construed not to work this kind of drastic modification of state law. The Court's current interpretation of the Eleventh Amendment makes the opposite mistake, construing the Eleventh Amendment to work a major substantive change in federal law. According to the Court, the Eleventh Amendment imposes a substantive limit on the Necessary and Proper Clause of Article I, limiting the remedies that Congress may authorize for state violations of federal law. This construction suffers from the same defect as that of Chisholm: both construe the enumeration of heads of jurisdiction to impose substantive limits on lawmaking authority. *290 Article grants a federal-question jurisdiction to the federal courts that is as broad as is the lawmaking authority of Congress. If Congress acting within its Article I or other powers creates a legal right and remedy, and if neither the right nor the remedy violates any provision of the Constitution outside Article then Congress may entrust adjudication of claims based on the newly created right to the federal courts even if the defendant is a State. Neither Article nor the Eleventh Amendment imposes an independent limit on the lawmaking authority of Congress. This view makes sense of the language, history, and purposes of Article and of the Eleventh Amendment. It is also the view |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | and of the Eleventh Amendment. It is also the view that was adopted in the earliest interpretations of the Amendment by the Marshall Court. C After the enactment of the Eleventh Amendment, the number of suits against States in the federal courts was largely curtailed. The Amendment itself had eliminated the constitutional basis for the provisions of the First Judiciary Act granting the Supreme Court original jurisdiction over suits against States by an alien or noncitizen. Because there was no general statutory grant of original federal-question jurisdiction to the federal courts,[43] suits against States would not arise under that head of jurisdiction.[44] Nonetheless, the Marshall Court did have a number of opportunities to confront the issue of state sovereign immunity. The Court's decisions reflect a consistent understanding of the limited effect of the Amendment on the structure of federal jurisdiction outside the state-citizen and state-alien diversity clauses. Because the Justices on the Marshall Court lived through the *291 ratification of the Constitution, the decision in and the subsequent enactment of the Eleventh Amendment, the Marshall Court's views on the meaning of the Amendment should take on particular importance. (1) Admiralty was perhaps the most significant head of federal jurisdiction in the early 19th century. As Hamilton noted in a much-quoted passage from the Federalist Papers: "The most bigoted idolizers of State authority have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes." The Federalist No. 80, p. 538 Although few admiralty cases could be expected to arise in which the States were defendants, the Marshall Court in the few instances in which it confronted the issue showed a strong reluctance to construe the Eleventh Amendment to interfere with the admiralty jurisdiction of the federal courts. In United the Court adjudicated a controversy over whether certain funds, proceeds of an admiralty prize sale dating from the 10's, belonged to the Commonwealth of Pennsylvania or to a private claimant. The Commonwealth claimed the money as the result of a state-court judgment in its favor, while the private claimant's claim was based on a judgment received from a national prize court established under the Articles of Confederation. The money claimed by the Commonwealth had been held by the State Treasurer, who had since died. Chief Justice Marshall, writing for the Court, held that the Eleventh Amendment did not interfere with the traditional common-law suit against a state official for recovery of funds held with notice of an adverse claim. According to Marshall, the suit could be maintained against the state official, even though the relief sought |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | maintained against the state official, even though the relief sought was a recovery of funds. Marshall carefully avoided deciding whether the Eleventh Amendment would have barred the action if it had been necessary *292 to bring it against the State itself: "If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion." Nonetheless, Marshall's construction of the Eleventh Amendment by preserving the essential remedy of a money judgment that, in effect, ran against the State, left federal admiralty jurisdiction intact. Later that same year, Justice Bushrod Washington, who had sat on the Peters Court, heard a sequel to Peters that arose when the State resisted the execution of the Peters judgment. United (No. 14,64) After agreeing with the Peters Court that the State Treasurer could be sued for the funds in his private capacity, he went on to note that the Eleventh Amendment in terms applies only to suits "in law or equity." Because the Framers of the Amendment did not add the words "or to cases of admiralty and maritime jurisdiction," the Amendment should not be construed to extend to admiralty cases.[45] Washington thus did not read the Amendment to require a broad constitutional prohibition of suits against States in federal court. Moreover, given the importance of admiralty jurisdiction at the time, Congress' failure to include admiralty suits in the express terms of the statute was unlikely to have been an oversight. The Marshall Court again refused to hold that the Eleventh Amendment barred suits in admiralty against States in Governor of On appeal *293 from a Federal Circuit Court decision, a claimant alleged that he, and not the State of Georgia, was entitled to the proceeds of a prize sale. Chief Justice Marshall, writing for the Court, held that the suit was in reality a suit against the State. Although the Governor was named as defendant, there was no allegation that he had violated any federal or state law, and thus "no case is made which justifies a decree against him personally." The Court then dismissed the case because the Circuit Court had no jurisdiction over it: "[I]f the 11th amendment to the Constitution, does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the Supreme Court." [46] Writing in 1833, Justice Joseph Story noted: "It has been doubted, whether this amendment extends to cases of admiralty and maritime jurisdiction, where the proceeding is in rem and not in personam. There, |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | the proceeding is in rem and not in personam. There, the jurisdiction of the court is founded upon the possession of the thing; and if the state should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides the language of the amendment is, that `the judicial power of the United States shall not be construed to extend to any suit in law or equity.' But a suit in the admiralty is not, correctly speaking, a suit in law, or in equity; but is often spoken of in contradistinction to both." 3 J. Story, Commentaries on the Constitution of the United States 560-561 (1833).[4] *294 As Justice Story pointed out, the result of the early admiralty cases was that the Eleventh Amendment was not seen as an obstacle to the exercise of otherwise legitimate federal admiralty jurisdiction. (2) Until 185, Congress did not endow the federal courts with general federal-question jurisdiction. Nonetheless, the Supreme Court had several opportunities to decide federal-question cases against States. In some of these, suit was brought against a State in state court and an appeal was taken to the Supreme Court. If the Eleventh Amendment had constitutionalized state sovereign immunity as a limit to the Article federal judicial power, it would have operated as a limit on both original and appellate federal-question jurisdiction, for nothing in the text or subsequent interpretations of Article suggests that the federal judicial power extends more broadly to hear appeals than to decide original cases.[48] Although the Court has largely ignored this consequence of its constitutional sovereign immunity doctrine,[49] it was a consequence that the Marshall Court squarely faced. In Chief Justice Marshall addressed the question of the effect of the Eleventh Amendment on the Supreme Court's appellate jurisdiction to review a criminal conviction obtained in a Virginia state court. Counsel for the State argued that either the original *295 Constitution or the Eleventh Amendment denied the federal courts the power to hear such an appeal, in which a State was being "sued" for a writ of error in the Supreme Court. Marshall noted at the outset of his opinion for the Court that Article provides federal jurisdiction "to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party." at 38. After repeating this principle several times,[50] the Chief Justice stated: "We think, then, that as the constitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the constitution, laws, or treaties |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party." Marshall then went on to consider the applicability of the Eleventh Amendment. After holding that a criminal defendant's petition for a writ of error is not properly understood to be a suit "commenced" or "prosecuted" by an individual against a State, Marshall stated an alternative holding: "But should we in this be mistaken, the error does not affect the case now before the Court. If this writ of *296 error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted `by a citizen of another State, or by a citizen or subject of any foreign State.' It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen that, in its origin, the judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties."[51] Thus, the Marshall Court in Cohens squarely confronted the issue of the extent to which the Eleventh Amendment encroached on federal-question jurisdiction, and concluded that it made no encroachment at all. This result is not distinguishable on the ground that it concerned only the exercise of appellate, and not original, federal-question jurisdiction. As was made clear three years later in 9 Wheat. 38 : "In those cases in which original jurisdiction is given to the supreme court, the judicial power of the United States cannot be exercised in its appellate form. In every other case the power is to be exercised in its original *29 or appellate form, or both, as the wisdom of congress may direct. With the exception of these cases in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the constitution. Original jurisdiction, so far as the constitution gives a rule, is co-extensive with the judicial power. We find in the constitution no prohibition to its exercise, in every case in which the judicial power can be exercised." The Court continued, speaking of federal-question jurisdiction: "It would be a very bold construction to say that [the judicial] power could be applied in its appellate form only, to the most important class of cases to which it is applicable." Osborn itself involved several important Eleventh Amendment issues. The State of Ohio had seized bank notes and specie of the |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | of Ohio had seized bank notes and specie of the Bank of the United States pursuant to a statute imposing a tax on the Bank. The statute was evidently unconstitutional under the Court's holding in McCulloch v. The Bank, which was treated as a private corporation and not a division of the Federal Government for purposes of the suit, obtained an injunction in federal court prohibiting the State from enforcing the tax and requiring the return of the seized funds. The State of Ohio appealed to the Supreme Court, relying in part on the Eleventh Amendment as a bar to the proceedings. Chief Justice Marshall's opinion for the Court carefully explains that the sovereign immunity principles of the Eleventh Amendment have no application where the State is not a party of record: "It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains *2 the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record." 9 Wheat., at 85. Technically, this principle does not address the question whether a suit may be brought against a State, but rather the question whether a suit is indeed to be understood as a suit against a State.[52] Nonetheless, it represents a narrow, technical construction of the Eleventh Amendment, and is thus of a piece with the immediately following language: "The amendment has its full effect, if the constitution be construed as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a State, by the citizens of another State, or by aliens." at 85-858. The restatement of the principle of Cohens demonstrates Marshall's understanding that neither Article nor the Eleventh Amendment limits the ability of the federal courts to hear the full range of cases arising under federal law. The lack of original federal-question jurisdiction, combined with the paucity of admiralty actions against the States, deprived the Marshall Court of the opportunity to rule often on the effect of the Eleventh Amendment on state sovereign immunity in federal court. Moreover, the Court's rulings demonstrate a certain reluctance squarely to decide the extent to which the States were suable in federal court. This was perhaps a result of the Court's sensitivity to the unpopular decision in the lack of effective governmental power to enforce its decisions, and the centripetal forces that were |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | to enforce its decisions, and the centripetal forces that were driving the Nation toward civil war. Nonetheless, *299 a careful reading of the Marshall Court's precedents indicates that the Marshall Court consistently adopted narrow and technical readings of the Amendment's import and thus carefully retained the full measure of federal-question and admiralty jurisdiction. IV The Marshall Court's precedents, and the original understanding of the Eleventh Amendment, survived until near the end of the 19th century. In 185, Congress gave the federal courts general original federal-question jurisdiction. 18 Stat. 40. For the first time, suits could now be brought against States in federal court based on the existence of a federal cause of action. In a citizen of sued his State for payment on some bonds that the state government had repudiated. The plaintiff claimed a violation of the Contracts Clause. The Court held in favor of the State and ordered the suit dismissed. has been taken to stand for the proposition that the Eleventh Amendment, despite its terms, bars the federal courts from hearing federal-question suits by citizens against their own State.[53] As I have argued before, the Court's ambiguous opinion need not be interpreted in this way. See -315 The Court relied on Justice Iredell's dissent in Chisholm, which as noted rested on the absence of a statutory cause of action for Mr. Chisholm against the State of Georgia and reserved the question of the constitutional status of state sovereign immunity. See -19. The Court further noted the "presumption that *300 no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution anomalous and unheard of when the Constitution was adopted." The opinion can thus sensibly be read to have dismissed the suit before it on the ground that no federal cause of action supported the plaintiff's suit and that state-law causes of action would of course be subject to the ancient common-law doctrine of sovereign immunity. Whether the Court's departure from a sound interpretation of the Eleventh Amendment occurred in or only in later cases that misread however, is relatively unimportant. If is a constitutional holding, it rests by its own terms on two premises. First, the opinion cites the comments by Madison, Marshall, and Hamilton in the ratification debates. The Court concludes that permitting suits against States would be "startling and unexpected," and would "strain the Constitution and the law to a construction never imagined or dreamed of." The historical record outlined demonstrates that the Court's history was plainly mistaken. Numerous individuals at the time of the Constitution's ratification believed that |
Justice Brennan | 1,985 | 13 | dissenting | Atascadero State Hospital v. Scanlon | https://www.courtlistener.com/opinion/111503/atascadero-state-hospital-v-scanlon/ | individuals at the time of the Constitution's ratification believed that it would have exactly the effect the Court found unimaginable. Moreover, even the comments of Madison, Marshall, and Hamilton need not be taken to advocate a constitutional doctrine of state sovereign immunity. Read literally and in context, all three were explicitly addressed to the particular problem of the state-citizen diversity clause. All three were vitally concerned with the constitutionally unauthorized displacement of the state law of creditors' rights and remedies that would be worked by an incorrect reading of the state-citizen diversity clause. All three are fully consistent with a recognition that the Constitution neither abrogated nor instituted state sovereign immunity, but rather left the ancient doctrine as it found it: a state-law defense available in state-law causes of action prosecuted in federal court. *301 Second, the opinion relies heavily on the supposedly "anomalous" result that, if the Eleventh Amendment were read literally, "in cases arising under the Constitution or laws of the United States, a State may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other States, or of a foreign state." Even if such an "anomaly" existed, it would not justify judicial rewriting of the Eleventh Amendment and Article and the wholesale disregard of precedents. But in any event a close look at the historical record reveals that the "anomaly" can easily be avoided without a general expansion of a constitutionalized sovereign immunity doctrine. The Eleventh Amendment can and should be interpreted in accordance with its original purpose to reestablish the ancient doctrine of sovereign immunity in state-law causes of action based on the state-citizen and state-alien diversity clauses; in such a state-law action, the identity of the parties is not alone sufficient to permit federal jurisdiction. If federal jurisdiction is based on the existence of a federal question or some other clause of Article however, the Eleventh Amendment has no relevance. There is thus no Article limitation on otherwise proper suits against States by citizens, noncitizens, or aliens, and no "anomaly" that requires such drastic "correction." The Court has repeatedly relied on as establishing a broad principle of state immunity from suit in federal court.[54] The historical record demonstrates that, if was a constitutional *302 holding, it rested on misconceived history and misguided logic.[55] The doctrine that has thus been created is pernicious. In an era when sovereign immunity has been generally recognized by courts and legislatures as an anachronistic and unnecessary remnant of a feudal legal system, see, e. |
Justice Burger | 1,976 | 12 | majority | City of Madison Sch. Dist. No. 8 v. Wisconsin Emp. Rel. Comm'n. | https://www.courtlistener.com/opinion/109568/city-of-madison-sch-dist-no-8-v-wisconsin-emp-rel-commn/ | The question presented on this appeal from the Supreme Court of Wisconsin is whether a State may constitutionally require that an elected board of education prohibit teachers, other than union representatives, to speak at open meetings, at which public participation is permitted, if such speech is addressed to the subject of pending collective-bargaining negotiations. The Madison Board of Education and Madison Teachers, Inc. (MTI), a labor union, were parties to a collective-bargaining agreement during the calendar year of 1971.[1] In January 1971 negotiations commenced for renewal of the agreement and MTI submitted a number of proposals. One among them called for the inclusion of a so-called "fair-share" clause, which would require all teachers, whether members of MTI or not, to pay union dues to defray the costs of collective bargaining. Wisconsin law expressly permits inclusion of "fair share" provisions in municipal employee collective-bargaining agreements. (2) Another proposal presented by the union was a provision for binding arbitration of teacher dismissals. Both of these provisions were resisted by the school board. The negotiations deadlocked in November 1971 with a number of issues still unresolved, among them "fair share" and arbitration. During the same month, two teachers, Holmquist and Reed, who were members of the bargaining unit, but not members of the union, mailed a letter to all teachers in the district *170 expressing opposition to the "fair share" proposal.[2] Two hundred teachers replied, most commenting favorably on Holmquist and Reed's position. Thereupon a petition was drafted calling for a one-year delay in the implementation of "fair share" while the proposal was more closely analyzed by an impartial committee.[3] The petition was circulated *171 to teachers in the district on December 6, 1971. Holmquist and Reed intended to present the results of their petition effort to the school board and to MTI at the school board's public meeting that same evening. Because of the stalemate in the negotiations, MTI arranged to have pickets present at the school board meeting. In addition, 300 to 400 teachers attended in support of the union's position. During a portion of the meeting devoted to expression of opinion by the public, the president of MTI took the floor and spoke on the subject of the ongoing negotiations. He concluded his remarks by presenting to the board a petition signed by 1,300-1,400 teachers calling for the expeditious resolution of the negotiations. Holmquist was next given the floor, after John Matthews, the business representative of MTI, unsuccessfully attempted to dissuade him from speaking. Matthews had also spoken to a member of the school board before the meeting and requested |
Justice Burger | 1,976 | 12 | majority | City of Madison Sch. Dist. No. 8 v. Wisconsin Emp. Rel. Comm'n. | https://www.courtlistener.com/opinion/109568/city-of-madison-sch-dist-no-8-v-wisconsin-emp-rel-commn/ | member of the school board before the meeting and requested that the board refuse to permit Holmquist to speak. Holmquist stated that he represented "an informal committee of 72 teachers in 49 schools" and that he desired to inform the board of education, as he had already informed the union, of the results of an informational survey concerning the "fair share" clause. He then read the petition which had been circulated to the teachers in the district that morning and stated that in the 31 schools from which reports had been received, 53% of the teachers had already signed the petition. *172 Holmquist stated that neither side had adequately addressed the issue of "fair share" and that teachers were confused about the meaning of the proposal. He concluded by saying: "Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation." The sole response from the school board was a question by the president inquiring whether Holmquist intended to present the board with the petition. Holmquist answered that he would. Holmquist's presentation had lasted approximately 2 1/2 minutes. Later that evening, the board met in executive session and voted a proposal acceding to all of the union's demands with the exception of "fair share." During a negotiating session the following morning, MTI accepted the proposal and a contract was signed on December 14, 1971. (1) In January 1972, MTI filed a complaint with the Wisconsin Employment Relations Commission (WERC) claiming that the board had committed a prohibited labor practice by permitting Holmquist to speak at the December 6 meeting. MTI claimed that in so doing the board had engaged in negotiations with a member of the bargaining unit other than the exclusive collective-bargaining representative, in violation of (3) 1, 4[4] Following *173 a hearing the Commission concluded that the board was guilty of the prohibited labor practice and ordered that it "immediately cease and desist from permitting employes, other than representatives of Madison Teachers Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers Inc." The Commission's action was affirmed by the Circuit Court of Dane County. The Supreme Court of Wisconsin affirmed. The court recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged |
Justice Burger | 1,976 | 12 | majority | City of Madison Sch. Dist. No. 8 v. Wisconsin Emp. Rel. Comm'n. | https://www.courtlistener.com/opinion/109568/city-of-madison-sch-dist-no-8-v-wisconsin-emp-rel-commn/ | the government, but noted that these rights may be abridged in the face of " `a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent.' " citing The court held that abridgment of the speech in this case was justified in order "to avoid the dangers attendant upon relative chaos in labor management relations." 231 N. W. 2d, at 213. (2) The Wisconsin court perceived "clear and present danger" based upon its conclusion that Holmquist's speech before the school board constituted "negotiation" with the board. Permitting such "negotiation," the court reasoned, would undermine the bargaining exclusivity guaranteed the majority union under (3) 4 From that *174 premise it concluded that teachers' First Amendment rights could be limited. Assuming, arguendo, that such a "danger" might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech. The Wisconsin Supreme Court's conclusion that Holmquist's terse statement during the public meeting constituted negotiation with the board was based upon its adoption of the lower court's determination that, " `[e]ven though Holmquist's statement superficially appears to be merely a "position statement," the court deems from the total circumstances that it constituted "negotiating." ' " This cryptic conclusion seems to ignore the ancient wisdom that calling a thing by a name does not make it so.[5] Holmquist did not seek to bargain or offer to enter into any bargain with the board, nor does it appear that he was authorized by any other teachers to enter into any agreement on their behalf. Although his views were not consistent with those of MTI, communicating such views to the employer could not change the fact that MTI alone was authorized to negotiate and to enter into a contract with the board. Moreover the school board meeting at which Holmquist was permitted to speak was open to the public.[6] He addressed *175 the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government. We have held that teachers may not be "compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work." See also ; ; Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding teachers who make up the overwhelming proportion |
Justice Burger | 1,976 | 12 | majority | City of Madison Sch. Dist. No. 8 v. Wisconsin Emp. Rel. Comm'n. | https://www.courtlistener.com/opinion/109568/city-of-madison-sch-dist-no-8-v-wisconsin-emp-rel-commn/ | justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.[7] It is conceded that any citizen could have presented precisely the same points and provided the board with the same information as did Holmquist. Regardless of the extent to which true contract negotiations between a public body and its employees may be regulated an issue we need not consider at this timethe participation in public discussion of public business cannot be confined to one category of interested individuals.[8] To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis *176 of constitutional guarantees.[9] Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech. See Police Dept. of[10] (3) The WERC's order is not limited to a determination that a prohibited labor practice had taken place in the past; it also restrains future conduct. By prohibiting the school board from "permitting employes to appear and speak at meetings of the Board of Education" the order constitutes an indirect, but effective, prohibition on persons such as Holmquist from communicating with their government. The order would have a substantial impact upon virtually all communication between teachers and the school board. The order prohibits speech by teachers "on matters subject to collective bargaining."[11] As the dissenting opinion below noted, however, *177 there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining. Teachers not only constitute the overwhelming bulk of employees of the school system, but they are the very core of that system; restraining teachers' expressions to the board on matters involving the operation of the schools would seriously impair the board's ability to govern the district. The Wisconsin court's reliance on for the proposition that one whose conduct falls squarely within an otherwise valid proscription may not challenge that proscription on grounds of vagueness, is inapposite. The challenged portion of the order is designed to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint. The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE BRENNAN, with whom |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | This case arises out of a dispute between Montana and Wyoming over the Yellowstone River Compact. Montana alleges that Wyoming has breached Article V(A) of the Compact by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems. The new systems, Montana alleges, employ sprinklers that reduce the amount of wastewater returned to the river, thus depriv ing Montana’s downstream pre-1950 appropriators of water to which they are entitled. The Special Master has filed a First Interim Report determining, as relevant here, that Montana’s allegation fails to state a claim because more efficient irrigation systems are permissible under the Compact so long as the conserved water is used to irrigate the same acreage watered in 1950. We agree with the Special Master and overrule Montana’s exception to that conclusion. I From its headwaters in Wyoming, the Yellowstone River flows nearly 700 miles northeast into Montana and then North Dakota, where it joins the Missouri River. Several 2 MONTANA v. WYOMING Opinion of the Court of its tributaries, including the Clarks Fork, Tongue, Powder, and Bighorn Rivers, also begin in Wyoming and cross into Montana before joining the main stem of the Yellowstone River. This river system’s monthly and an nual flows, which are dictated largely by snow melt, vary widely. In 196, for example, the flow in the Tongue and Powder Rivers was nearly 10 times the 1961 flow. App. 936. As the rivers came into heavy use for irrigation, it became expedient to build water storage facilities for preserving the heaviest flows. See First Interim Report of Special Master 6 (hereinafter Report). Before funding new water storage facilities, Congress sought agreement as to the allocation of the Yellowstone River system among Wyoming, Montana, and North Da kota. In 1932, Congress granted the States permission to negotiate a compact. See Act of June 1, 1932, ch. 253, 7 Stat. 306. Draft compacts were produced in 1935, 192, and 19, but none was fully agreed upon. Finally, in 1951 Montana, Wyoming, and North Dakota ratified the Yellowstone River Compact, and Congress consented to it. Act of Oct. 30, 1951, The Yellowstone River Compact divides water into three tiers of priority. First, Article V(A) provides: “Appropria tive rights to the beneficial uses of the water of the Yellow stone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accor dance with the laws governing the acquisition and use of water under the doctrine of appropriation.” Second, Article V(B) allocates to each State the “quantity |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | appropriation.” Second, Article V(B) allocates to each State the “quantity of that water as shall be necessary to provide supplemen tal water supplies” for the pre-1950 uses protected by Article V(A). Third, “the remainder of the unused and unappropriated water” of each tributary is divided by percentage: Wyoming receives 60% of the remaining water in the Clarks Fork River, 80% in the Bighorn River, 0% in the Tongue River, and 2% in the Powder River; the Cite as: 563 U. S. (2011) 3 Opinion of the Court rest goes to Montana. –667. In February 2008, we granted Montana leave to file a bill of complaint against Wyoming for breach of the Com pact. Montana alleged that Wyoming had breached the Compact by consuming more than its share of the Tongue and Powder Rivers. Bill of Complaint 3, ¶8. Specifically, Montana claimed that Wyoming was ap propriating water for a number of new, post-1950 uses: irrigating new acreage; building new storage facilities; conducting new groundwater pumping; and increasing con sumption on existing agricultural acreage.1 at 3–, ¶¶ 9–12. According to Montana’s complaint, the Compact did not permit Wyoming to use water for any of these practices as long as Montana’s pre-1950 users’ rights remained unfulfilled. In response, Wyoming filed a motion to dismiss the complaint. We appointed a Special Master and referred the motion to him. 555 U. S. (2008). After briefing and argument, the Special Master recommended that we deny Wyoming’s motion, because at least some of Montana’s allegations state a claim for relief. The Special Master found that “Article V of the Compact protects pre-1950 appropriations in Montana from new surface and ground water diversions in Wyoming, whether for direct use or for storage, that prevent adequate water from reaching Mon tana to satisfy those pre-1950 appropriations.” Report 1– 15. But the Special Master agreed with Wyoming that Montana’s allegations regarding “efficiency improvements —————— 1 Montana has since clarified that increased consumption on existing acreage refers to the use of more efficient irrigation systems. The “efficiency” of irrigation for our purposes refers to the amount of wastewater that is lost, for example, to evaporation, seepage, runoff, or deep percolation. Some of the lost water returns to the river and is later available for downstream users. A more efficient irrigation system loses less water; thus, though it may draw the same volume of water from the river, net water consumption is increased. MONTANA v. WYOMING Opinion of the Court by pre-1950 appropriators in Wyoming” do not state a claim for relief. The States did not object to most of the |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | relief. The States did not object to most of the Special Master’s findings, and we have issued orders accordingly. See 562 U. S. (2010); 562 U. S. (2010). Montana has filed an exception to the Special Master’s rejection of its increased-efficiency allegation. It is this exception that is before us.2 II Article V(A) of the Compact states that “[a]ppropriative rights to the beneficial uses of [water] existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisi tion and use of water under the doctrine of appropriation.” Montana claims that its pre-1950 appropriators’ rights are not “continu[ing] to be enjoyed” because upstream pre 1950 appropriators in Wyoming have increased their consumption by switching from flood to sprinkler irriga tion. Montana alleges that sprinkler systems increase crop consumption of water and decrease the volume of runoff and seepage that returns to the Tongue and Powder rivers by 25% or more.3 See Montana’s Exception and Brief 3 (hereinafter Brief for Montana). As a result, even if Wyoming’s pre-1950 water users divert the same quan tity of water as before, less water reaches Montana. Ac cording to Montana, Article V(A) prohibits Wyoming from allowing this practice when it deprives Montana’s pre —————— 2 Montana also raised an exception to the Special Master’s finding that if Montana can remedy the shortage of water to its pre-1950 users by curtailing its post-1950 uses without “prejudic[ing] Montana’s other rights under the Compact,” then an intrastate remedy is “the appropri ate solution.” Report 15. We recommitted this exception to the Special Master. 562 U. S. (2010). 3 For purposes of resolving Wyoming’s motion to dismiss, we take as true Montana’s allegation that the new sprinkler systems actually reduce return flow to the rivers. Wyoming has not conceded that this is true. See Wyoming’s Reply to Montana’s Exception 35, n. 6. Cite as: 563 U. S. (2011) 5 Opinion of the Court 1950 users of their full water rights. The question, therefore, is whether Article V(A) allows Wyoming’s pre-1950 water users—diverting the same quantity of water for the same irrigation purpose and acreage as before 1950—to increase their consumption of water by improving their irrigation systems even if it reduces the flow of water to Montana’s pre-1950 users. Montana makes two basic arguments: that background principles of appropriation law, to the extent they are incorporated into the Compact, do not allow such an in crease in consumption; and that even if they do, the terms of the Compact amended those principles in Montana’s favor. The Special |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | the Compact amended those principles in Montana’s favor. The Special Master rejected these arguments, and so do we. A Because Article V(A) of the Compact protects “[a]ppropriative rights to the beneficial uses of [water]” as of 1950 “in accordance with the laws governing the ac- quisition and use of water under the doctrine of appro priation,” we begin with an overview of appropriation doctrine. As the Special Master explained, if “[a]p propriation law clearly proscribe[s] increases in consump tion on existing acreage to the detriment of downstream appropriators, the Compact arguably would prohibit Wyoming from allowing its appropriators to make —————— As with all contracts, we interpret the Compact according to the intent of the parties, here the signatory States. We thus look primarily to the doctrine of appropriation in Wyoming and Montana, but, like the States, we also look to Western water law more generally and authori ties from before and after 1950. The States appear to have assumed that the doctrine has not changed in a way directly relevant here. We therefore do not decide whether Article V(A) intended to freeze appro priation law as it stood in 199, or whether it incorporates the evolution of the doctrine over time, allowing Compact-protected rights to grow or shrink accordingly. We resolve the matter of Montana’s exception without prejudice to that issue. See Report 39–0. 6 MONTANA v. WYOMING Opinion of the Court such increases to the detriment of Montana’s pre-1950 uses.” Report 65. As is typical west of the 100th meridian, the doctrine of appropriation has governed water rights in Montana and Wyoming since the 1800’s. See, e.g., As relevant here, the doctrine provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person to divert water from a natural stream and apply it to a beneficial use (or to begin such a project, if diligently completed). See ; 2 U.S. 558, ; Wyo. Const., Art. 8, (“Priority of appropriation for beneficial uses shall give the better right”). The scope of the right is limited by the concept of “beneficial use.” That concept restricts a farmer “to the amount of water that is necessary to irrigate his land by making a reasonable use of the water.” 1 C. Kinney, Law of Irrigation and Water Rights pp. 1007–1008 (hereinafter Kinney) (internal quotation marks omitted); see also ; 376–380, 570–571 (1939). Once such a water right is perfected, it is senior to any later appropriators’ rights and may be ful filled entirely before those junior appropriators get any water at all. For |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | before those junior appropriators get any water at all. For our purposes, Montana’s pre-1950 water users are similar to junior appropriators. As between the States, the Compact assigned the same seniority level to all pre 1950 water users in Montana and Wyoming. See Brief for Montana 23; Brief for United States as Amicus Curiae 12. But as Montana concedes, precisely because of this equal seniority, its downstream pre-1950 users cannot stop Wyoming’s upstream pre-1950 users from fully exercising their water rights. Thus, when the rivers are low, Mon Cite as: 563 U. S. (2011) 7 Opinion of the Court tana’s downstream pre-1950 users might get no water at all because the equally senior users upstream in Wyoming may lawfully consume all of the water. Tr. of Oral Arg. 51. Junior appropriators are not completely without rights, however. As they come online, appropriators acquire rights to the stream basically as it exists when they find it. See 2 Kinney at 103–10. Accordingly, subject to the fulfillment of all senior users’ existing rights, under the no-injury rule junior users can prevent senior users from enlarging their rights to the junior users’ detriment. 1 W. Hutchins, Water Rights Laws in the Nineteen West ern States 573 (1971) (hereinafter Hutchins). Montana’s pre-1950 users can therefore “insist that [Wyoming’s pre-1950 users] confine themselves strictly within the rights which the law gives them, that is, to the amount of water within the extent of their appropriation which they actually apply to some beneficial use.” 2 Kinney at 1366. That general proposition is undis puted; the dispute here is in its application. Is a switch to more efficient irrigation with less return flow within the extent of Wyoming’s pre-1950 users’ existing appropriative rights, or is it an improper enlargement of that right to the detriment of Montana’s pre-1950 water users? As the Special Master observed, the law of return flows is an unclear area of appropriation doctrine. Report 65 (citing Trelease, Reclamation Water Rights, 32 Rocky Mt. L. Rev. 6, 69 (1960)). The States have not directed us to any case on all fours with this one. Indeed, “[n]o west ern state court appears to have conclusively answered the question.” Report 65. Despite the lack of clarity, the Special Master found several reasons to conclude that Wyoming’s pre-1950 users may switch to sprinkler irrigation. He found that the scope of the original appropriative right includes such a change so long as no additional water is diverted from the 8 MONTANA v. WYOMING Opinion of the Court stream and the conserved water is used on the same acre |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | and the conserved water is used on the same acre age for the same agricultural purpose as before. We agree with the Special Master.5 1 First, although the no-injury rule prevents appropria tors from making certain water-right changes that would harm other appropriators, a change in irrigation methods does not appear to run afoul of that rule in Montana and Wyoming. See Because each new appropriator is entitled to the stream as it exists when he finds it, the general rule is that “if a change in these conditions is made by [a senior] appropriator, which interferes with the flow of the water to the material injury of [the junior appropriator’s] rights, he may justly complain.” 2 Kinney at 10. But the no-injury rule is not absolute; it generally con cerns changes in the location of the diversion and the place or purpose of use. Quigley v. McIntosh, 110 Mont. —————— 5 The lack of clarity in this area of water law highlights the sensitive nature of our inquiry and counsels caution. Our original jurisdiction over cases between States brings us this dispute between Montana and Wyoming about the meaning of their congressionally approved Yellow stone River Compact. See U. S. Const., Art. III, cl. 2; 28 U.S. C. Yet, because the Compact references and the parties direct us to principles of appropriation doctrine, we find ourselves immersed in state water law. See n. Our assessment of the scope of these water rights is merely a federal court’s description of state law. The highest court of each State, of course, remains “the final arbiter of what is state law.” West v. American Telephone & Telegraph 311 U.S. 223, 236 (190). We recognize that appropriation doctrine contin ues to evolve, and there are reasonable policy arguments in favor of both States’ positions here. But it is not this Court’s role to guide the development of state water regulation. See (“[I]t is the duty of [federal courts] in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of ‘general law’ ”). Our decision is not intended to restrict the States’ determina tion of their respective appropriation doctrines. Cite as: 563 U. S. (2011) 9 Opinion of the Court 95, 505, (190) (“[P]lace of diver sion, or place or purpose of use, may be changed only if others are not thereby injured” (internal quotation marks omitted)); see also 1 S. Wiel, Water Rights in the Western States §, p. 532 |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | Wiel, Water Rights in the Western States §, p. 532 (3d ed. 1911) (hereinafter Wiel); Mont. Code Ann. (197); Wyo. Stat. Ann. §1–3–10 (1977). Accordingly, certain types of changes can occur even though they may harm downstream appropriators. See D. Getches, Water Law in a Nutshell 175 (th ed. 2009) (hereinafter Getches). For instance, an appropriator may increase his consumption by changing to a more water-intensive crop so long as he makes no change in acreage irrigated or amount of water diverted. See at 183; East Bench Irrig. 271 P.2d 9, 55 (195) (assuming that farm ers may “legally increase the quantity of water consumed in irrigating their lands by changing to more water con suming crops” and adding that “it would be difficult to prevent such increased consumptive use”). Ordinary, day-to-day operational changes or repairs also do not violate the no-injury rule. See, e.g., 1 Wiel at 51 (“Would the fact that my pump has for years dripped water onto a neighbor’s ground give him a right to say that my pump must go on leaking?”). Consumption can even be increased by adding farm acreage, so long as that was part of the plan from the start, and diligently pursued through the years. See Van Tassel Real Estate & Live Stock 9 Wyo. 333, 357–359, 5 P.2d 906, 913 (per curiam); 1 Hutchins 377–378; St. Onge v. Blakely, 22–2, 25 P. 532, Improvements to irrigation systems seem to be the sort of changes that fall outside the no-injury rule as it exists in Montana and Wyoming. Those changes are not to the “place of diversion, or place or purpose of use,” Quigley, 103 P. 2d, at and thus seem to be excluded, much like crop changes or day-to-day irrigation 10 MONTANA v. WYOMING Opinion of the Court adjustments or repairs. This is also consistent with the fact that by 1950 both States had statutes regulating certain changes to water rights, but neither required farmers to take official action before adjusting irrigation methods.6 See Report 69–70, 87; (they “do not generally have procedures for overseeing changes in water efficiencies stemming from crop shifts or irrigation im provements where there are no formal changes in the underlying water rights”). Like the Special Master, we find this to be persuasive evidence that the States consid ered such changes permissible. Montana argues that, regardless of the statutes, private lawsuits could be brought to challenge such efficiency changes. But it has not provided a single example from either State. Instead, Montana and Wyoming cases typi cally describe the no-injury rule as applying to changes |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | typi cally describe the no-injury rule as applying to changes in point of diversion, purpose of use, and place of use. See, e.g., 90 Mont. 3, 355– 357, ; Thayer v. Rawlins, 59 P.2d 951, 955 (Wyo. 1979). The abundance of litigation over such changes—and the absence of any litigation over the sort of change at issue here—strongly implies that irriga tion efficiency improvements do not violate the no-injury rule and were considered within the scope of the original appropriative right. 2 The doctrine of recapture also supports treating im provements in irrigation efficiency as within the original appropriative right. Under this doctrine, an appropriator who has diverted water for irrigation purposes has the right to recapture and reuse his own runoff and seepage —————— 6 Mont. Code Ann. (197); –01 (195) (water rights “cannot be detached from the lands, place or purpose for which they are acquired” outside of specific exceptions); see also 1885 Mont. Laws p. 131, Cite as: 563 U. S. (2011) 11 Opinion of the Court water before it escapes his control or his property.7 An appropriator is entitled to the “exclusive control [of his appropriated water] so long as he is able and willing to apply it to beneficial uses, and such right extends to what is commonly known as wastage from surface run-off and deep percolation, necessarily incident to practical irriga tion.” 263 U.S. 97, (192) (internal quotation marks omitted); see also Arizona Pub. Serv. 160 Ariz. 29, 37–38, 773 P.2d 8, 996–997 (19) (“No appropriator can compel any other appropriator to continue the waste of water which benefits the former. If the senior appropriator, through scientific and technical advances, can utilize his water so that none is wasted, no other appropriator can complain”). Montana contends that this rule does not apply when the runoff or seepage water would, if not recaptured, return to the same stream from which it was originally drawn. There is some support for Montana’s position— that a beneficial user may not reuse water at all, even while it is still on his property, if it otherwise would flow back to the same stream—especially in Utah and Colorado cases. See Deseret Irrig. at 180–182, 271 P. 2d, at 56–57; Estate of Steed v. New Escalante Irrig. 86 P.2d 1223, ; Comstock v. Ramsay, 55 Colo. 2, 252–258,8 But other authorities draw no such exception based on where the runoff or seepage is heading. See 2 Hutchins 580–582 —————— 7 And in some narrowly defined circumstances, he retains this right even after the water leaves his property. See 1 Wiel §8–0, |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | after the water leaves his property. See 1 Wiel §8–0, at 37–3. 8 Colorado has a relatively unique doctrine of recapture. See Hoese, Comment, Recapture of Reclamation Project Ground Water, 53 Cal. L. Rev. 51, 5, n. 18 (1965) (noting the general doctrine of recapture, and adding that “[t]he Colorado rule, however, is to the contrary”); United 12 F.2d 850, (CA8 191) (allowing recap ture by the original appropriator under Nebraska law, and noting Colorado’s opposite rule). 12 MONTANA v. WYOMING Opinion of the Court (asserting that, even in Utah, “where the original appro priator retains possession and control of the waste and seepage water from irrigation of his lands, he is entitled to reuse these waters for his own benefit and need not return them to the channel from which they were diverted” (em phasis added)); Getches 139–15; Woolman v. Garringer, 1 Mont. 535 (1872). And Montana cites no case from either State here in which a court has recognized, much less found controlling, the idea that a water user may not reuse his own wastewater while it is still on his property simply because it otherwise would return to the original stream. In fact, Montana and Wyoming appear to apply, without qualification, the basic doctrine that the original appro priator may freely recapture his used water while it re mains on his property and reuse it for the same purpose on the same land. For example, in Binning v. Miller, 55 Wyo. 51, 102 P.2d 5 (190), a man was diverting water from a creek fed largely by irrigation runoff and seepage from Binning’s property. Although the court found that the man had a right to that water once Binning’s runoff and seepage had become a natural stream, it noted that his right remained subject to Binning’s right “to use the water above mentioned for beneficial purposes upon the land for which the seepage water was [originally] appro priated.” 7, 102 P. 2d, at 63. In a later case, the court explained that the man could not “secure a perma nent right to continue to receive the water” because Binning “might find better ways of utilizing the water on the same land so that less waste and seepage would oc cur.” P.2d 593, 601 (1957). Similarly, in the court held that Bower could appropriate water as it seeped across his property from the Big Horn Canal toward a nearby river. at 102–10, 307 P. 2d, at 602. The court Cite as: 563 U. S. (2011) 13 Opinion of the Court added, however, that Bower’s right was subject always |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | the Court added, however, that Bower’s right was subject always to the Big Horn Canal’s right: “No appropriator can compel any other appropriator to continue the waste of water which benefits the former.” at P. 2d, at 601. Importantly, the court noted that “[i]f the senior appro priator by a different method of irrigation can so utilize his water that it is all consumed in transpiration and consumptive use and no waste water returns by seepage or percolation to the river, no other appropriator can complain.” Finally, in (Wyo. 10), water was seeping from Fuss’ property and into a pit in a public right of way. Franks was the first to appropriate the water from the pit. The court upheld Franks’ appro priation right because the water had already escaped from Fuss’ property. The court said that the “owner of land upon which seepage or waste water rises has the right to use and reuse—capture and recapture—such waste wa ters,” but only before the water escapes his land, and “for use only upon the land for which the water forming the seepage was originally appropriated.” (internal quotation marks omitted). Fuss thus had no superior right to the water that had left his property, and espe cially not for reuse on other lands. The law in Montana is similar. The Montana Supreme Court has explained that “the general rule is that the owner of the right to use the water—his private property while in his possession,—may collect it, recapture it, be fore it leaves his possession.” Rock Creek Ditch & Flume v. Miller, 93 Mont. 28, 17 P.2d 107, (1933); see also A. Stone, Montana Water Law 66 (199) (noting that, according to the “early cases,” while “the water is still seeping and running off one’s own land, the landowner is free to recapture and further use it”). The right of recapture discussed in these authorities is broad. As the Special Master recognized, the “language of 1 MONTANA v. WYOMING Opinion of the Court the Wyoming Supreme Court was expansive” in Binning, Bower, and Fuss, and “all appear to hold that an appropriator in Wyoming can increase his water use effi ciency by recovering runoff on his property or through other means so long as the increased consumption is on the same land to which the appropriative right attaches.” Report 81; see also 8–85; Case Note, Water Law—Reusing Irrigation Waste Water on Different Lands: A Warning to Get a New Permit, (Wyo. 10), 16 Land & Water L. Rev. 71, 76 (11) (concluding that in Wyoming, “a prior appropriator can at |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | (11) (concluding that in Wyoming, “a prior appropriator can at anytime, utilize irrigation methods that are totally consumptive, such as pumping the collected waste water back to the top of the field or installing a sprinkler system, thereby eliminating all waste of water”); Jones, Note, Rights of the Original Appropriator to Recapture Water Used in Irrigation, 11 Wyo. L. J. 39 (1956); Wille, Note, The Right to Use Waste Water Before It Re-enters the Stream, 12 Wyo. L. J. 7, 8 (1957). The Wyoming and Montana doctrine of recapture strongly suggests that improvements in irrigation effi ciency are within the original appropriative right of Wyo ming’s pre-1950 water users. By using sprinklers rather than flood irrigation, those water users effectively recap ture water. The sprinklers, by reducing loss due to seep age and runoff, operate much like, if more efficiently than, cruder recapture systems involving ditches or pits. They are simply different mechanisms for increasing the volume of water available to the crops without changing the amount of diversion. Binning, Bower, and Fuss expressly acknowledged that in such situations, lower appropriators who have perfected their own appropriative rights are nonetheless at the mercy of the property owners from which their water flows. See 55 Wyo., –77, 102 P.2d, at 63; –10, –602; 610 P. 2d, Cite as: 563 U. S. (2011) 15 Opinion of the Court 3 Our conclusion is consistent with that of water law scholars who have considered the specific question pre sented in this case. One scholar asserted: “[O]f course, increasing efficiency at one site may reduce the amount of water available to downstream users who may rely on return flows from other users. [Wyoming] law, however, does not preclude more efficient uses merely because a downstream user may be injured.” Squillace, A Critical Look at Wyoming Water Law, 2 Land & Water L. Rev. 307, 331 (19); see (“For example, a farmer who traditionally consumes only 50% of the water applied to his land is free to change his crop or method of applying water so as to increase his consumption to 60%”); see also (“[A] prior appropriator can at anytime instal[l] a sprinkler system, thereby eliminating all waste of water”). And a national hornbook on water law has observed: “The rule allowing recapture and reuse of salvaged water on the original land can result in more water being consumed. For instance, if a water user is con suming less than the permitted amount of water and plants a more water-intensive crop or puts in a more efficient irrigation system, most or all of the water |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | more efficient irrigation system, most or all of the water that had previously been returned to the stream might be consumed. This can deprive other appro priators of water on which they depend but it is al lowed since it is technically within the terms of the original appropriation.” Getches 13–1. Montana has not identified any scholars who have reached the opposite conclusion. For all of these reasons, we hold that the doctrine of appropriation in Wyoming and Montana allows appro priators to improve their irrigation systems, even to the detriment of downstream appropriators. We readily ac 16 MONTANA v. WYOMING Opinion of the Court knowledge that this area of law is far from clear. See But the apparent scope of the no-injury rule in Wyoming and Montana, the doctrine of recapture and its broad reach in Wyoming and Montana case law, and the specific conclusions of water law scholars all point in the same direction, which also comports with the Special Master’s exhaustive discussion and findings. Accordingly, if Article V(A) simply incorporates background principles of appropriation law, it allows Wyoming’s pre-1950 water users to improve their irrigation efficiency, even to the detriment of Montana’s pre-1950 users. B Montana, however, takes another tack. It argues that even if background principles of appropriation law do not support its position, Article V(A) of the Compact does not protect the full scope of ordinary appropriative rights. Montana claims that the Compact’s definition of “benefi cial use” restricts the scope of protected pre-1950 appro priative rights to the net volume of water that was actu ally being consumed in 1950. We agree with the Special Master that this argument also fails. 1 Article V(A) protects “[a]ppropriative rights to the bene ficial uses of water.” “Beneficial use,” in turn, is de fined in Article II(H) as “that use by which the water supply of a drainage basin is depleted when usefully em ployed by the activities of man.” Montana contends that “beneficial use” is thus defined as the amount of depletion. According to Montana, any activity that increases pre-1950 water users’ depletions in Wyo ming beyond pre-1950 levels exceeds the scope of the appropriative rights that Article V(A) protects. See Brief for Montana 25–28. On this basis, Montana asserts that the Compact requires (subject to river conditions) that the Cite as: 563 U. S. (2011) 17 Opinion of the Court same quantity of water that was reaching Montana as of January 1, 1950, continue to do so. 2 We acknowledge that “beneficial use” refers to a type of use that involves some depletion, as all |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | a type of use that involves some depletion, as all irrigation does. See Report 61. The part of the Compact’s definition of “beneficial use” that refers to depletion—“that use by which the water supply is depleted”—is fairly clear. It begins with “that use,” and the words that follow merely explain that “that use” must be a use that “deplete[s]” the “water supply.” Nothing in the language suggests that “beneficial use” means a measure of the amount of water depleted. A “beneficial use” within the meaning of the Compact, therefore, is a type of use that depletes the water supply. This plain reading makes sense in light of the circum stances existing in the signatory States when the Compact was drafted. At that time, Wyoming had a statutory preference for irrigation, a type of depletive use, over power generation, a nondepletive use. Wyo. Stat. Ann. §71–02 (195). It makes sense that the Compact would have been written to protect the irrigation uses that were legislatively favored and represented the predominant use of the Yellowstone River system. See Tr. of Oral Arg. 5– 7; (noting that the Compact recognizes “the great importance of water for irrigation in the signatory States”). Montana’s reading of the Compact, by contrast, does not follow from the text and would drastically redefine the term “beneficial use” from its longstanding meaning. The amount of water put to “beneficial use” has never been defined by net water consumption. The quantity of water “beneficially used” in irrigation, for example, has always included some measure of necessary loss such as runoff, evaporation, deep percolation, leakage, and seepage (re 18 MONTANA v. WYOMING Opinion of the Court gardless of whether any of it returns to the stream). So, water put to “[b]eneficial use is not what is actually con sumed, but what is actually necessary in good faith.” 1 Wiel §81, at 509; see also Trelease, The Concept of Rea sonable Beneficial Use in the Law of Surface Streams, 12 Wyo. L. J. 1, 10 (1957) (listing irrigation as a beneficial use and noting that “the method of application, by flood ing, channeling, or sprinkling, is immaterial”); J. Sax, B. J. Leshy, & R. Adams, Legal Control of Water Resources 131 (th ed. 2006) (discussing normal irrigation practices and observing that the amount of water put to beneficial use “is often considerably more than the quan tum actually consumed”). If the Compact’s definition of “beneficial use” were meant to drastically redefine the term into shorthand for net water consumption, we would expect far more clarity. For example, the Compact could have stated |
Justice Thomas | 2,011 | 1 | majority | Montana v. Wyoming | https://www.courtlistener.com/opinion/215807/montana-v-wyoming/ | far more clarity. For example, the Compact could have stated that it would protect “only ‘the amount of water consumed for a benefi cial use in each signatory state as of January 1, 1950.’ ” Report 60. Or it could have defined “beneficial use” as the “volume by which the water supply is depleted.” More over, if the Compact effected a dramatic reframing of ordinary appropriation principles, the rest of Article V(A), which expressly states that “the laws governing the acqui sition and use of water under the doctrine of appropria tion” control, would make little sense. We agree with the Special Master that the definition of beneficial use in the Compact is unremarkable. Arti cle V(A) does not change the scope of the pre-1950 appro priative rights that it protects in both States. 3 Finally, if Article V(A) were intended to guarantee Montana a set quantity of water, it could have done so as plainly as other compacts that do just that. By 1950, Wyoming itself had entered into at least one compact that Cite as: 563 U. S. (2011) 19 Opinion of the Court defined water rights in terms of depletion. The Colorado River Compact of 1922 apportioned 7,500,000 acre-feet of water per year for “the exclusive beneficial consumptive use” of several upstream States, including Wyoming. That compact specifically added that “[t]he States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre feet for any period of ten consecutive years” National Resources Planning Bd., Water Resources Comm., Inter state Water Compacts, 1785–191, p. 8 (192). See also Republican River Compact (193), Kan. Stat. Ann. (1997) (allocating water by the acre-foot for beneficial consumptive use in Kansas, Nebraska, and Colorado). And, even here in the Yellowstone River Com pact, Article V(B) unambiguously apportions the third tier of Yellowstone River system water by percentage. 65 Stat. 666. The notion that Article V(A) accomplishes essen- tially the same sort of depletive allocation with language that has a different and longstanding meaning is simply unpersuasive. * * * We conclude that the plain terms of the Compact protect ordinary “[a]ppropriative rights to the beneficial uses of [water] existing in each signatory State as of January 1, 1950.” Art. V(A), And the best evidence we have shows that the doctrine of appropriation in Wyoming and Montana allows appropriators to improve the efficiency of their irrigation systems, even to the detriment of down stream appropriators. Montana’s allegation that Wyo ming has breached Article V(A) of the Compact by allow |
Justice Kennedy | 1,994 | 4 | concurring | ABF Freight System, Inc. v. NLRB | https://www.courtlistener.com/opinion/112925/abf-freight-system-inc-v-nlrb/ | I join the opinion of the Court and agree as well with the concerns expressed by JUSTICE SCALIA. Our law must not become so caught up in procedural niceties that it fails to sort out simple instances of right from wrong and give some redress for the latter. At the very least, when we proceed on the assumption that perjury was committed, the Government ought not to suggest, as it seemed to do here, that one who violates his testimonial oath is no worse than the student *326 who claims the dog ate his homework. See Tr. of Oral Arg. 42. The Board's opinions show that it can become quite exercised about trial-related misconduct that obstructs its own processes. See Lear-Siegler Management Service Corp., 306 N. L. R. B. 393, 394 (1992) (tolling the backpay award of an employee who threatened a witness, because such manipulation undermined "[t]he integrity of the Board's judicial process"). The Board seems more blithe, however, about the potential for dishonesty to disrupt the workplace. See Owens Illinois, Inc., 290 N. L. R. B. 1193 (1988) (reinstating and awarding backpay to an employee who lied under oath, because the employer "failed to meet its burden of establishing that [the employee] is unfit for further employment"). True, the gravest consequence of lying under oath is the affront to the law itself. But both employer and employee have reason to insist upon honesty in the resolution of disputes within the workplace itself. And this interest, too, is not beyond the Board's discretion to take into account in fashioning appropriate relief. JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, concurring in the judgment. It is ordinarily no proper concern of the judge how the Executive chooses to exercise discretion, so long as it be within the scope of what the law allows. For that reason, judicial dicta criticizing unintelligent (but nonetheless lawful) executive action are almost always inappropriate. The context changes, however, when the exercise of discretion relates to the integrity of the unitary adjudicative process that begins in an administrative hearing before a federal administrative law judge and ends in a judgment of this or some other federal court. Agency action or inaction that undermines and dishonors that process undermines and dishonors the legal systemundermines and dishonors the courts. Judges may properly protest, no matter how lawful *327 (and hence unreversible) the agency action or inaction may be. Such a protest is called for in the present case, in which the Board has displayedfrom its initial decision through its defense of that decision in this Courtan unseemly toleration of |
Justice Kennedy | 1,994 | 4 | concurring | ABF Freight System, Inc. v. NLRB | https://www.courtlistener.com/opinion/112925/abf-freight-system-inc-v-nlrb/ | defense of that decision in this Courtan unseemly toleration of perjury in the course of adjudicative proceedings. Michael Manso, the employee to whom the Board awarded backpay and reinstatement, testified in this case before Administrative Law Judge Walter H. Maloney the week of January 8, 1990. He was placed under oathpresumably standing up, his right hand raised, to respond to the form of oath set forth in the NLRB Judges' Manual 17008 (1984): "Do you solemnly swear that the testimony which you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God?" He then proceeded to lie to the administrative tribunal, as he had earlier lied to his employer, concerning the reason he reported an hour late for work on August 17, 1989. He said that his car had broken down; that he called his wife, who came in her pajamas to pick him up; that he drove the rest of the way to work, with his wife, and was stopped for speeding along the way. The employer produced the officer that stopped him, who testified with assurance that Manso was all alone; that Manso mentioned no car trouble as an excuse for his speeding, but simply that he was late for work; and that the officer himself observed no car trouble. Hearsay evidence admitted (without objection) at the hearing showed that an ABF official, after Manso told his breakdown story on August 17, drove out to the portion of the highway where Manso said he had left the disabled vehicle, and found it not to be there. Administrative Law Judge Maloney found that "Manso was lying to the Respondent when he reported that his car had overheated and that he was late for work because of car trouble"which meant, of course that he was also lying under oath when he repeated that story. ABF Freight System, Inc., 304 N. L. R. B. 585, 600 (1991). The ALJ did *328 not punish the false testimony, but his finding that the dismissal on August 17 was for cause had something of that effect, depriving Manso of reinstatement. The Board itself accepted the ALJ's finding that the carbreakdown story was a lie, but since it found that the real reason for the August 17 dismissal was neither Manso's lateness nor his dishonesty, but rather retaliation for his filing of an earlier unfair-labor-practice complaint, it ordered Manso's reinstatement. In stark contrast to today's opinion for the Court, the Board's opinion did not carefully weigh the pros and cons of using the Board's |
Justice Kennedy | 1,994 | 4 | concurring | ABF Freight System, Inc. v. NLRB | https://www.courtlistener.com/opinion/112925/abf-freight-system-inc-v-nlrb/ | carefully weigh the pros and cons of using the Board's discretion in the conferral of relief to protect the integrity of its proceedings. It weighed those pros and cons not at all. Indeed, it mentioned the apparent perjury not at all, as though that is just part of the accepted background of Board proceedings, in no way worthy of note. That insouciance persisted even through the filing of the Board's brief in this Court, which makes the astounding statement that, in light of his "history of mistreatment," Manso's lying under oath, "though unjustifiable, is understandable." Brief for Respondent 22, n. 15. (In that context, of course, the plain meaning of "to understand" is "[t]o know and be tolerant or sympathetic toward." American Heritage Dictionary 1948 (3d ed. 1992).) Well, I am not understanding of lying under oath, whatever the motivation for it, and I do not believe that any law enforcement agency of the United States ought to be. Title 18 U.S. C. 1621 provides: "Whoever ". having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify truly, willfully and contrary to such oath states. any material matter which he does not believe to be true *329 "is guilty of perjury and shall be fined not more than $2,000 or imprisoned not more than five years, or both." United States Attorneys doubtless cannot prosecute perjury indictments for all the lies told in the Nation's federal proceedingsnot even, perhaps, for all the lies so cleanly nailed as was the one here. Not only, however, did the Board not refer the matter for prosecution, it did not impose, indeed did not even explicitly consider imposing, another sanction available to it (and not generally available to federal judges): denying discretionary relief because of the intentional subversion of the Board's processes. While the Court is correct that we have no power to compel the Board to apply such a sanction, nor even, perhaps, to require that the Board's opinion explicitly consider it, neither was the Board's action in this case as eminently reasonable as the Court makes it out to be. Nor does it deserve the characterization of being "well within [the Board's] broad discretion," ante, at 325 (emphasis added). In my estimation, it is at the very precipice of the tolerable, particularly as concerns the Board's failure even to consider and discuss the desirability of limiting its discretionary relief. Denying reinstatement would not, as the Court contends, involve the "unfairness of |
Justice Kennedy | 1,994 | 4 | concurring | ABF Freight System, Inc. v. NLRB | https://www.courtlistener.com/opinion/112925/abf-freight-system-inc-v-nlrb/ | would not, as the Court contends, involve the "unfairness of sanctioning Manso while indirectly rewarding [ABF] witnesses' lack of candor." First of all, no "indirect reward" comes to ABF, which receives nothing from the Board. There is a world of difference between the mere inaction of failing to punish ABF for lying (which is the "indirect reward" that the Court fears) and the beneficence of conferring a nonmandated award upon Manso despite his lying (which is the much greater evil that the Court embraces). The principle that a perjurer should not be rewarded with a judgmenteven a judgment otherwise deservedwhere there is discretion to deny it, has a long and sensible tradition in the common law. The "unclean *330 hands" doctrine "closes the door of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant." Precision Instrument Mfg. See H. McClintock, Principles of Equity 26, p. 63, and n. 75 (2d ed. 1948). And the Board itself has sometimes applied this sanction in the past. See, e. g., D. V. Copying & Printing, Inc., 240 N. L. R. B. 1276 (1979); O'Donnell's Sea Grill, 55 N. L. R. B. 828 (1944). In any case, there is no realistic comparison between the ABF managers' disbelieved testimony concerning motivations for firing and Manso's crystalclear lie that he was where he was not. The latter is the stuff of perjury prosecutions; the former is not. The Court is correct that an absolute rule requiring the denial of discretionary relief for perjury "might force the Board to divert its attention from its primary mission and devote unnecessary time and energy to resolving collateral disputes about credibility." Ante, at 325. But intelligent and conscientious application of the Board's supposed rule permitting denial of discretionary relief for perjury would not have that effectand such application should probably have occurred, and should surely have been considered, in an obvious case such as this. Nor am I as impressed as the Court is by the Board's assertion that "ordering effective relief in a case of this character promotes a vital public interest." Assuredly it does, but plenty of effective relief was ordered here without adding Manso's reinstatement, including (1) the entry of a cease-and-desist order subjecting ABF to severe sanctions if it commits similar unfair labor practices in the future, (2) the award of backpay to Manso for the period from his unlawful discharge on June 19, 1989, to the date of his subsequent reinstatement, and (3) |
Subsets and Splits