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Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
by statements *77 of this Court as well, see ; United 271 U.S. 34, 3 Federal courts earlier adhered to this literal interpretation and thus sustained demurrers to conspiracy indictments. See United 303-30 aff'd, ; United 126 F. 69 More recently, however, some federal courts have differed over whether Wharton's Rule requires initial dismissal of the conspiracy indictment. In United and United 30 F. Supp. 1031 rev'd sub nom. United cert. pending sub nom. Scaglione v. United No. 73-103, District Courts sustained preliminary motions to dismiss conspiracy indictments in cases in which the prosecution also charged violation of 19. In this case, and in United however, the courts held that the Rule's purposes can be served equally effectively by permitting the prosecution to charge both offenses and instructing the jury that a conviction for the substantive offense necessarily precludes conviction for the conspiracy. Federal courts likewise have disagreed as to the proper application of the recognized "third-party exception," which renders Wharton's Rule inapplicable when the conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense. See at n. 6. In the present case, the Third Circuit concluded that the third-party exception permitted prosecution because the conspiracy involved more than the five persons required to commit the substantive offense, 477 F. *776 2d 999, a view shared by the Second Circuit, United v. Becker, vacated and remanded on other grounds,[9] The Seventh Circuit reached the opposite result, however, reasoning that since 19 also covers gambling activities involving more than five persons, the third-party exception is inapplicable. United v. cert. denied, 414 U.S. 87 The Courts of Appeals are at odds even over the fundamental question whether Wharton's Rule ever applies to a charge for conspiracy to violate 19. The Seventh Circuit holds that it does. United v. Clarke, 00 F.2d 140 cert. denied, post, p. 92. The Fourth and Fifth Circuits, on the other hand, have declared that it does not. United v. cert. pending sub nom. Gray v. United No. 73-231; United v. Pacheco, 489 F.2d 4 cert. pending, No. 73-0. As this brief description indicates, the history of the application of Wharton's Rule to charges for conspiracy to violate 19 fully supports the Fourth Circuit's observation that "rather than being a rule, [it] is a concept, the confines of which have been delineated in widely diverse fashion by the courts." United v. With this diversity of views in mind, we turn to an examination of the history and purposes of the Rule. *777 III A Traditionally the law has considered
Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
the Rule. *777 III A Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. See, e. g., United v. ante, p. 671; v. United ; Braverman v. United 3[10] Unlike some crimes that arise in a single transaction, see Heflin v. United 38 U.S. 41 (199); Prince v. United 32 U.S. 322 (197), the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act. v. United[] Thus, it is well recognized that in most cases separate sentences can be imposed for the conspiracy to *778 do an act and for the subsequent accomplishment of that end. Callanan v. United 364 U.S. 87 ; 183 U.S. 36 Indeed, the Court has even held that the conspiracy can be punished more harshly than the accomplishment of its purpose. Clune v. United 19 U.S. 90 (189). The consistent rationale of this long line of decisions rests on the very nature of the crime of conspiracy. This Court repeatedly has recognized that a conspiracy poses distinct dangers quite apart from those of the substantive offense. "This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement—partnership in crime—presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise." Callanan v. United at 93-94. As Mr. Justice Jackson, no friend of the law of conspiracy, see Krulewitch v. United 44 *779 observed: "The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish." Dennis v. United 73 (191) See also United v. Rabinowich, (191). B The historical difference between the conspiracy and its end has led this Court consistently to attribute to Congress
Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
end has led this Court consistently to attribute to Congress "a tacit purpose—in the absence of any inconsistent expression—to maintain a long-established distinction between offenses essentially different; a distinction whose practical importance in the criminal law is not easily overestimated." Ibid.; Callanan, at 94. Wharton's Rule announces an exception to this general principle. The Rule traces its origin to the decision of the Pennsylvania Supreme Court in (180), a case in which the court ordered dismissal of an indictment alleging conspiracy to commit adultery that was brought after the State had failed to obtain conviction for the substantive offense. Prominent among the concerns voiced in the Shannon opinion is the possibility that the State could force the defendant to undergo subsequent prosecution for a lesser offense after failing to prove the greater. The Shannon court's holding reflects this concern, stating that "where concert is a constituent part of the act to be done, as it is in fornication and adultery, a party acquitted of the major cannot be indicted of the minor." Wharton's treatise first reported the case as one based on principles of double jeopardy, see F. Wharton, Criminal Law 198 (2d ed. 182), and indicated that it was *780 limited to that context.[12] Subsequently, however, Wharton came to view the principle as one of broader application. The seventh edition of Wharton's treatise reported the more general rule which is repeated in similar form today. was said to be an application of the principle rather than its source. 2 F. Wharton, Criminal Law 634 (7th ed. 1874). This Court's previous discussions of Wharton's Rule have not elaborated upon its precise role in federal law. In most instances, the Court simply has identified the Rule and described it in terms similar to those used in Wharton's treatise. But in United v. Holte, (191), the sole case in which the Court felt compelled specifically to consider the applicability of Wharton's Rule, it declined to adopt an expansive definition of its scope. In that case, Wharton's Rule was advanced as a bar to prosecution of a female for conspiracy to violate the Mann Act. Rejecting that contention, the Court adopted a narrow construction of the Rule that focuses on the statutory requirements of the substantive offense rather than the evidence offered to prove those elements at trial: "The substantive offence might be committed without the woman's consent, for instance, if she were drugged or taken by force. Therefore the decisions that it is impossible to turn the concurrence *781 necessary to effect certain crimes such as bigamy or duelling into a conspiracy
Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
certain crimes such as bigamy or duelling into a conspiracy to commit them do not apply." at 14. Wharton's Rule first emerged at a time when the contours of the law of conspiracy were in the process of active formulation. The general question whether the conspiracy merged into the completed felony offense remained for some time a matter of uncertain resolution.[13] That issue is now settled, however, and the Rule currently stands as an exception to the general principle that a conspiracy and the substantive offense that is its immediate *782 end do not merge upon proof of the latter. See v. United If the Rule is to serve a rational purpose in the context of the modern law of conspiracy, its role must be more precisely identified. C This Court's prior decisions indicate that the broadly formulated Wharton's Rule does not rest on principles of double jeopardy, see Pereira v. United (194); -.[14] Instead, it has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary. The classic Wharton's Rule offenses—adultery, incest, bigamy, duelling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense,[1] and the immediate consequences *783 of the crime rest on the parties themselves rather than on society at large. See United v. 477 F. 2d, at 987. Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert.[16] It cannot, for *784 example, readily be assumed that an agreement to commit an offense of this nature will produce agreements to engage in a more general pattern of criminal conduct. Cf. Callanan v. United 364 U.S. 87 ; United v. Rabinowich, (191). The conduct proscribed by 19 is significantly different from the offenses to which the Rule traditionally has been applied. Unlike the consequences of the classic Wharton's Rule offenses, the harm attendant upon the commission of the substantive offense is not restricted to the parties to the agreement. Large-scale gambling activities seek to elicit the participation of additional persons— the bettors—who are parties neither to the conspiracy nor to the substantive offense that results from it. Moreover, the parties prosecuted for the conspiracy need not be the same persons who are prosecuted for commission of the substantive offense. An endeavor as complex as a large-scale gambling enterprise might involve persons who have played appreciably different
Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
gambling enterprise might involve persons who have played appreciably different roles, and whose level of culpability varies significantly. It might, therefore, be appropriate to prosecute the owners and organizers of large-scale gambling operations both for the conspiracy and for the substantive offense but to prosecute the lesser participants only for the substantive offense. Nor can it fairly be maintained that agreements to enter into large-scale gambling activities are not likely to generate additional agreements to engage in other criminal endeavors. As shown in Part IV hereof, the legislative history of 19 provides documented testimony to the contrary. *78 Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity. The substantive offense therefore presents some of the same threats that the law of conspiracy normally is thought to guard against, and it cannot automatically be assumed that the Legislature intended the conspiracy and the substantive offense to remain as discrete crimes upon consummation of the latter.[17] Thus, absent legislative intent to the *786 contrary, the Rule supports a presumption that the two merge when the substantive offense is proved.[18] But a legal principle commands less respect when extended beyond the logic that supports it. In this case, the significant differences in characteristics and consequences of the kinds of offenses that gave rise to Wharton's Rule and the activities proscribed by 19 counsel against attributing significant weight to the presumption the Rule erects. More important, as the Rule is essentially an aid to the determination of legislative intent, it must defer to a discernible legislative judgment. We turn now to that inquiry. IV The basic purpose of the Organized Crime Control Act of 1970, Pub. L. No. 91-42, 84 Stat. 922, 923, was "to seek the eradication of organized crime in the United by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." The content of the Act reflects the dedication with which the Legislature pursued this purpose. In addition to enacting provisions to facilitate the discovery and proof of organized criminal activities, Congress passed a number of relatively severe penalty provisions. For example, Title X, codified in 18 U.S. C. 37-378, *787 identifies for harsher sentencing treatment certain "dangerous special offenders," among them persons who initiate, direct, or supervise patterns of criminal conduct or conspiracies to engage in such conduct, and
Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
criminal conduct or conspiracies to engage in such conduct, and persons who derive substantial portions of their income from those activities.[19] 37 (e). Major gambling activities were a principal focus of congressional concern. Large-scale gambling enterprises were seen to be both a substantive evil and a source of funds for other criminal conduct. See S. Rep. No. 91-617, pp. 71-73 (1969).[20] Title VIII thus was enacted *7 "to give the Federal Government a new substantive weapon, a weapon which will strike at organized crime's principal source of revenue: illegal gambling." In addition to declaring that certain gambling activities violate federal as well as state law, 18 U.S. C. 19, Title VIII provides new penalties for conspiracies to obstruct state law enforcement efforts for the purpose of facilitating the conduct of these activities. 18 U.S. C. 1. In drafting the Organized Crime Control Act of 1970, Congress manifested its clear awareness of the distinct nature of a conspiracy and the substantive offenses that might constitute its immediate end. The identification of "special offenders" in Title X speaks both to persons who commit specific felonies during the course of a pattern of criminal activity and to those who enter into conspiracies to engage in patterns of criminal conduct. 18 U.S. C. 37 (e). And Congress specifically utilized the law of conspiracy to discourage organized crime's corruption of state and local officials for the purpose of facilitating gambling enterprises. 18 U.S. C. 1.[21] *789 But the 19 definition of "gambling activities" pointedly avoids reference to conspiracy or to agreement, the essential element of conspiracy. Moreover, the limited 19 definition is repeated in identifying the reach of 1, a provision that specifically prohibits conspiracies. Viewed in this context, and in light of the numerous references to conspiracies throughout the extensive consideration of the Organized Crime Control Act, we think that the limited congressional definition of "gambling activities" in 19 is significant. The Act is a carefully crafted piece of legislation. Had Congress intended to foreclose the possibility of prosecuting conspiracy offenses under 371 by merging them into prosecutions under 19, we think it would have so indicated explicitly. It chose instead to define the substantive offense punished by 19 in a manner that fails specifically to invoke the concerns which underlie the law of conspiracy. Nor do we find merit to the argument that the congressional requirement of participation of "five or more persons" as an element of the substantive offense under 19 represents a legislative attempt to merge the conspiracy and the substantive offense into a single crime. The history of the Act
Justice Powell
1,975
17
majority
Iannelli v. United States
https://www.courtlistener.com/opinion/109225/iannelli-v-united-states/
offense into a single crime. The history of the Act instead reveals that this requirement was designed to restrict federal intervention to cases in which federal interests are substantially implicated. The findings accompanying Title VIII, see note *790 following 18 U.S. C. 1, would appear to support the assertion of federal jurisdiction over all illegal gambling activities, cf. Heart of Atlanta Motel v. United 28 ; Congress did not, however, choose to exercise its power to the fullest. Recognizing that gambling activities normally are matters of state concern, Congress indicated a desire to extend federal criminal jurisdiction to reach only "those who are engaged in an illicit gambling business of major proportions." S. Rep. No. 91-617, p. 73 (1969). It accordingly conditioned the application of 19 on a finding that the gambling activities involve five or more persons and that they remain substantially in operation in excess of 30 days or attain gross revenues of $2,000 in a single day. 18 U.S. C. 19 (b) (1) (iii) (1970 ed. and Supp. III).[22] Thus the requirement of "concerted activity" in 19 reflects no more than a concern to avoid federal prosecution of small-scale gambling activities which pose a limited threat to federal interests and normally can be combated effectively by local law enforcement efforts. Viewed in the context of this legislation, there simply is no basis for relying on a presumption to reach a result so *791 plainly at odds with congressional intent. We think it evident that Congress intended to retain each offense as an "independent curb" available for use in the strategy against organized crime. Gore v. United 37 U.S. 386, (198). We conclude, therefore, that the history and structure of the Organized Crime Control Act of 1970 manifest a clear and unmistakable legislative judgment that more than outweighs any presumption of merger between the conspiracy to violate 19 and the consummation of that substantive offense. V In expressing these conclusions we do not imply that the distinct nature of the crimes of conspiracy to violate and violation of 19 should prompt prosecutors to seek separate convictions in every case, or judges necessarily to sentence in a manner that imposes an additional sanction for conspiracy to violate 19 and the consummation of that end. Those decisions fall within the sound discretion of each, and should be rendered in accordance with the facts and circumstances of a particular case. We conclude only that Congress intended to retain these traditional options. Neither Wharton's Rule nor the history and structure of the Organized Crime Control Act of 1970 persuade us to the
Justice Stevens
1,988
16
second_dissenting
Kadrmas v. Dickinson Public Schools
https://www.courtlistener.com/opinion/112133/kadrmas-v-dickinson-public-schools/
When the sovereign applies different rules to different segments of its jurisdiction, it must have a rational basis for doing so. "The term `rational,' of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class." In this case, JUSTICE MARSHALL accurately explicates the harm to certain members of the disadvantaged class. And since the Supreme Court of the State of North Dakota has unequivocally identified the actual purpose of the geographic discrimination, I would not second-guess that conclusion and presume that the harm JUSTICE MARSHALL describes has been imposed for other reasons. The State Supreme Court explained: "The obvious purpose of such legislation is to encourage school district reorganization with a concomitant tax base expansion and an enhanced and more effective school system. The legislation provides incentive for the people to approve school district reorganization by alleviating parental concerns regarding the cost of student transportation in the reorganized district." This explanation of the state legislative purpose makes two propositions perfectly clear. First, free bus transportation is an important component of public education in a sparsely populated State; otherwise the alleviation of parental concerns regarding the cost of student transportation in a reorganized district could not have been expected to motivate a significant number of voters. Second, after the voters in a school district have had a fair opportunity to decide whether *473 or not to reorganize,[*] there is no longer any justification at all for allowing the nonreorganized districts to place an obstacle in the paths of poor children seeking an education in some parts of the State that has been removed in other parts of the State. Cf. G. D. Searle & ("[T]he Constitution requires a rational basis for the special burden imposed on the disfavored class as well as a reason for treating that class differently"). Thus, the State Supreme Court's explanation of the purpose of this discrimination does not include the "elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially." at Accordingly, I respectfully dissent.
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitu- tional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this ques- tion, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental condi- tions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question 2 MADISON v. ALABAMA ALITO, J., dissenting fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. (2016); City and County of San Francisco v. Sheehan, 575 U. S. (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that peti- tioner claims it took. I The question on which we granted review was
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
took. I The question on which we granted review was an out- growth of our per curiam decision in Dunn v. Madison, 583 U. S. (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in that the Eighth Amendment prohib- its the execution of a person who is “insane,” and in Panetti v. Quarterman, the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the Cite as: 586 U. S. (2019) 3 ALITO, J., dissenting execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U.S. C. which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejec- tion of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. at (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet ad- dressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th- hour application for a stay of execution1 was the argument —————— 1 Petitioner sought and obtained a stay of execution based on this 4 MADISON v. ALABAMA ALITO, J., dissenting that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1,
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the un- derlying offense is consistent with the evolving stand- ards of decency inherent in this Court’s Eighth Amendment jurisprudence.” This same point was made time and again: ● “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” ● “[I]mposing death on a prisoner, who, like Mr. Madi- son, suffers from substantial memory deficits by vir- tue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” 2. ● “[E]xecuting an individual with no memory of the un- derlying offense serves no retributive purpose.” ● “[W]here the person being punished has no memory of the commission of the offense for which he is to be ex- ecuted, the ‘moral quality’ of that punishment is less- ened and unable to match outrage over the offense.” 2–23. —————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub- stantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis- sion of the capital offense,” would violate the Eighth Amendment). Cite as: 586 U. S. (2019) 5 ALITO, J., dissenting ● “Mr. Madison’s severe memory impairments as a re- sult of vascular dementia render him incompetent to be executed under the Eight Amendment.” 5 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital of- fense? See Dunn v. Madison, [583 U. S. (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun- ishment bar the execution of a prisoner whose compe- tency has been compromised by vascular dementia and multiple
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
compe- tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys- function and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the peti- tion, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia ren- dered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact- bound question on which we rarely grant review, see this 6 MADISON v. ALABAMA ALITO, J., dissenting Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no ink- ling of that argument in the petition. Although the peti- tion described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe- tency to be executed,” 5, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction be- tween dementia and other mental conditions, there is little reason to
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- —————— 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test. Cite as: 586 U. S. (2019) 7 ALITO, J., dissenting ing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence that he does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Mad- ison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that re- names the word or phrase that precedes it. In other 8 MADISON v. ALABAMA ALITO, J., dissenting words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that? In Ford, the Court held that
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
Panetti. What was that? In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implica- tions.” Justice Powell, who provided the fifth vote for the decision, took a similar position. See at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U.S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and re- manding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an inter- pretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, –16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the mean- ing of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a peti- Cite as: 586 U. S. (2019) 9 ALITO, J., dissenting tion for post-conviction relief ” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubt- ful that we could review
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
state law, it is doubt- ful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under –16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madi- son’s objection) that only prisoners suffering from delu- sional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument be- cause petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner —————— 3 Petitioner’s papers emphasized again and again that he suffers from 10 MADISON v. ALABAMA ALITO, J., dissenting was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execu- tion. The majority cites no place where the State made the latter argument in the state court.4 And even if the —————— delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabil- ities”); (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about medication and believed that he was being used as a guinea pig in medical experi- ments”); (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); (“Mr. Madison exhibited delusional and disoriented behavior
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
paranoid delusions’ ”); (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, –7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to Cite as: 586 U. S. (2019) 11 ALITO, J., dissenting —————— consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational under- standing of his execution, including the reasons therefor”); 7 (“The Supreme Court has not held that a petitioner can show incompe- tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); 9 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U.S. C. stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti. I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understand- ing”); at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter- mined that dementia and severe memory loss—or even total amnesia— are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational under- standing, that determination was not unreasonable in light of clearly 12 MADISON v. ALABAMA ALITO, J., dissenting State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncer- tainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at (slip op., ) (quotation altered). And we said that the state court “determined that Madison
Justice Alito
2,019
8
dissenting
Madison v. Alabama
https://www.courtlistener.com/opinion/4594417/madison-v-alabama/
And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have commit- ted.” at (slip op., at 4); see also (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it under- stood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the —————— established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panet- ti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti- tioner could be executed even if his dementia precluded a rational understanding. Cite as: 586 U. S. (2019) 13 ALITO, J., dissenting state court’s factual finding on the question whether Mad- ison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the ques- tion whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. * * * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent
Justice Kennedy
2,011
4
concurring
Virginia Office for Protection and Advocacy v. Stewart
https://www.courtlistener.com/opinion/214949/virginia-office-for-protection-and-advocacy-v-stewart/
Ex parte Young, recognized a narrow limitation on state sovereign immunity, permitting railroad stockholders to enjoin enforcement of unconsti tutional rate regulations. That negative injunction was nothing more than the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law. at 165–166; see also Harrison, Ex Parte Young, 997–999 (2008). The Court has expanded the Young exception far beyond its original office in order “to vindicate the federal interest in assuring the supremacy of [federal] law,” Green v. Mansour, but not without careful attention in each case to the sovereign interests of the State. See Verizon In for example, the Court applied the exception to an affirmative prospec tive order but not to equitable restitution, for the latter was too similar to an award of damages against the State. 2 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART KENNEDY, J., concurring at 6; see Pennhurst State School and Hospital v. Halderman, (“Under the theory of Young, such a suit [for restitution] would not be one against the State since the federal-law allegation would strip the state officer of his official authority. Neverthe less, retroactive relief was barred by the Eleventh Amendment”). And Pennhurst declined to extend Young to suits alleging a state-law violation, for without the need to ensure the supremacy of federal law there was no justi fication for restricting state sovereignty. 465 U.S., at 105–106. The “straightforward inquiry” of Verizon derives from Edelman and Pennhurst, both of which defined im portant limits on Young in order to respect state sover eignty while still adhering to principles necessary to im plement the Supremacy Clause. As a result, Verizon incorporates the very balancing it might at first seem to reject. Verizon itself was an easy case, for it involved the same kind of preenforcement assertion of a defense that was at issue in Young. But when Young’s application is explored in novel contexts, as in and also in this case, the inquiry “proves more complex,” Verizon at 648 In this case, in my view, the Virginia Office for Protec tion and Advocacy may rely on Young, despite the some what striking novelty of permitting a state agency to sue officials of the same State in federal court. In the posture of the case as it comes before the Court, it must be as sumed that VOPA has a federal right to the records it seeks, and so the extension of Young would vindicate the Supremacy Clause. To be balanced against this important interest is the need to preserve “the dignity
Justice Kennedy
2,011
4
concurring
Virginia Office for Protection and Advocacy v. Stewart
https://www.courtlistener.com/opinion/214949/virginia-office-for-protection-and-advocacy-v-stewart/
this important interest is the need to preserve “the dignity and respect afforded a State, which the immunity is designed to pro tect.” Coeur d’, at 2. Permitting a state agency like VOPA to sue officials of the same State does Cite as: 563 U. S. (2011) 3 KENNEDY, J., concurring implicate the State’s important sovereign interest in using its own courts to control the distribution of power among its own agents. But the affront to the State’s dignity is diminished to some extent when it is noted that if the State had elected the alternate course of designating a private protection and advocacy system it then would have avoided any risk of internal conflict while still participat ing in the federal program. The availability of that alter nate course does not, in my view, weigh much in favor of the validity of the underlying federal scheme, but the only question here is the reach of the Young exception. Virginia’s concern that the holding here upsets the federal balance is further mitigated by the various protec tions built into the structure of federal litigation to ensure that state officials do not too often call upon the federal courts to resolve their intramural disputes. First, and most important, state law must authorize an agency or official to sue another arm of the State. If States do not wish to see their internal conflicts aired in federal court, they need not empower their officers or agencies to sue one another in a federal forum. And if state officers are not by state law empowered to sue, they may invoke federal jurisdiction only in their personal capacities. Second, to the extent there is some doubt under state law as to an officer’s or agency’s power to sue, or any other state-law issue that may be dispositive, federal courts should abstain under Railroad Comm’n of Pullman recognizes the impor tance of state sovereignty by limiting federal judicial intervention in state affairs to cases where intervention is necessary. If an open question of state-law would resolve a dispute, then federal courts may wait for the resolution of the state-law issue before adjudicating the merits. Likewise, certification of questions of state law to the state courts may pretermit an otherwise sensitive federal con 4 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. STEWART KENNEDY, J., concurring troversy. Lehman (Certification “helps build a cooperative judicial federalism”). Finally, federal law does not often create rights for state officials or agencies to assert against other arms of the State. True, officials may assert that their personal fed eral rights are
Justice Kennedy
2,011
4
concurring
Virginia Office for Protection and Advocacy v. Stewart
https://www.courtlistener.com/opinion/214949/virginia-office-for-protection-and-advocacy-v-stewart/
officials may assert that their personal fed eral rights are violated by unlawful state action, for exam ple where the State engages in discriminatory employ ment practices. But the statutory framework in the case now before the Court is unusual in that it vests a state agency itself with federal rights against the State. Stat utes tend to protect the rights of individuals, not officers or agencies, and the Constitution’s rights-creating Clauses protect persons rather than officers. Because the Young exception is available only to those who assert federal violations, the paucity of federal rights vested in govern ment officials makes the scope of the holding here a nar row one. All this is simply to underscore that the program at issue may present constitutional questions but that the parties do not raise them in this litigation. Virginia does not argue, for example, that Congress exceeded its spend ing power under Article I, by forcing a state that wishes to designate a public agency as its advocacy system to allow intramural suits like the instant one or by requiring that the agency be structured as Congress directs. E.g., 42 U.S. C. (system must “be independent of any agency that provides treatment, services, or habilita tion to individuals with developmental disabilities”); (“[N]ot more than 1/3 of the members of the governing board may be appointed by the chief executive officer of the State”). Young—a court-made doctrine based on convenience, fiction, or both—neither implicates nor subsumes these more fundamental concerns regarding the excessive exercise of federal power. The Court should be most cautious before deciding cases that might later lead Cite as: 563 U. S. (2011) 5 KENNEDY, J., concurring to a general principle that the National Government can condition receipt of funds on the State’s agreement to make far-reaching changes with respect to its governmen tal structure or its basic policies of governance in matters within its special competence. Assuming, as the Court must, that the statutes here are constitutional, the narrow question is whether VOPA may rely on Young to avoid the sovereign immunity bar. One might doubt whether the constitutional question may be so severed from the Young analysis. The Court wields Young in the name of the Supremacy Clause only to vindicate important federal rights. Perhaps this Court should not extend the fiction in the name of claims that may rest on unconstitutional foundations. This concern is misplaced. The canon of constitutional avoidance directs courts to prefer the interpretation of a statute that pre serves its validity, but the specter of a statute’s unconsti tutionality cannot be permitted
Justice Kennedy
2,011
4
concurring
Virginia Office for Protection and Advocacy v. Stewart
https://www.courtlistener.com/opinion/214949/virginia-office-for-protection-and-advocacy-v-stewart/
the specter of a statute’s unconsti tutionality cannot be permitted to distort the antecedent question of jurisdiction. Courts interpret and evaluate a statute only after confirming their authority to adjudicate the case before them. To decline to adjudicate a federal right for fear of its potential unconstitutionality is in effect to invalidate the right in the quest to save it. The Court should not permit the commission of acts that violate a federal right on the mere suspicion that Congress acted beyond its authority. Because the suit must be assumed to vindicate the Supremacy Clause and poses no serious affront to state sovereignty in light of the options available to the State under the program, it may proceed. With these observations, I join the Court’s opinion. Cite as: 563 U. S. (2011) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–529 VIRGINIA OFFICE FOR PROTECTION AND ADVO- CACY, PETITIONER v. JAMES W. STEWART, III, COMMISSIONER, VIRGINIA DEPARTMENT OF BEHAVIORAL HEALTH AND DE- VELOPMENTAL SERVICES, ET AL.
per_curiam
1,977
200
per_curiam
Califano v. Webster
https://www.courtlistener.com/opinion/109618/califano-v-webster/
Under 2 of the Social Security Act, as added, and amended, 42 U.S. C. 4 (0 ed. and Supp. V), old-age insurance benefits are computed on the basis of the wage earner's "average monthly wage" earned during his "benefit computation years" which are the "elapsed years" (reduced by five) during which the wage earner's covered wages were highest. Until a 2 amendment, "elapsed years" depended upon the sex of the wage earner. Section 2 (b) (3) prescribed that the number of "elapsed years" for a male wage earner would be three higher than for an otherwise similarly situated female wage earner; for a male, the number of "elapsed years" equaled the number of years that elapsed after 1950 and before the year in which he attained age 65; for a female the number of "elapsed years" equaled the number of years that elapsed after 1950 and before the year in which she attained age 62.[1] Thus, a male born in 1900 *3 would have 14 "elapsed years" on retirement at age 65 but a female born in the same year would have only 11.[2] Accordingly, a female wage earner could exclude from the computation *316 of her "average monthly wage" three more lower earning years than a similarly situated male wage earner could exclude. This would result in a slightly higher "average monthly wage" and a correspondingly higher level of monthly old-age benefits for the retired female wage earner.[3] A single-judge District Court for the Eastern District of New York, on review under 205 (g) of the Social Security Act, 42 U.S. C. 405 (g), of a denial, after hearing, of appellee's request that the more favorable formula be used to compute his benefits, held that, on two grounds, the statutory scheme violated the equal protection component of the Due Process Clause of the Fifth Amendment: (1) that to give women who reached age 62 before 5 greater benefits than men of the same age and earnings record was irrational,[4] and (2) that in any event the 2 amendment was to be construed to apply retroactively, because construing the amendment to give men who reach age 62 in 5 or later the benefit of the 2 amendments but to deny older men the same benefit would render the amendment irrational, and therefore unconstitutional. We reverse. To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, "classifications *317 by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Reduction of the disparity in economic condition between men and women
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Califano v. Webster
https://www.courtlistener.com/opinion/109618/califano-v-webster/
of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as such an important governmental objective. (5); (4). But "the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme." (5). Accordingly, we have rejected attempts to justify gender classifications as compensation for past discrimination against women when the classifications in fact penalized women wage earners, Califano v. ante, at 209 n. 8; or when the statutory structure and its legislative history revealed that the classification was not enacted as compensation for past discrimination. Califano v. ante, at 212-216 (plurality opinion), 221-222 (STEVENS, J., concurring in judgment); at The statutory scheme involved here is more analogous to those upheld in Kahn and than to those struck down in and The more favorable treatment of the female wage earner enacted here was not a result of "archaic and overbroad generalizations" about women, or of "the role-typing society has long imposed" upon women, (5), such as casual assumptions that women are "the weaker sex" or are more likely to be child-rearers or dependents. Cf. Califano v. Rather, "the only discernible purpose of [ 2's more favorable treatment is] the permissible one of redressing our society's longstanding disparate treatment of women." Califano v. ante, at 209 n. 8. *318 The challenged statute operated directly to compensate women for past economic discrimination. Retirement benefits under the Act are based on past earnings. But as we have recognized: "Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs." See generally and nn. 4-6. Thus, allowing women, who as such have been unfairly hindered from earning as much as men, to eliminate additional low-earning years from the calculation of their retirement benefits works directly to remedy some part of the effect of past discrimination.[5] Cf. The legislative history of 2 (b) (3) also reveals that Congress directly addressed the justification for differing treatment of men and women in the former version of that section and purposely enacted the more favorable treatment for female wage earners to compensate for past employment discrimination against women. Before 1956, the sexes were treated equally by 2 (b) (3); the computation it required turned on the attainment of "retirement age," which was then defined in 42 U.S. C. 416 (a) (1952 ed.) as 65 for both sexes.[6] In 1956, however, retirement age was redefined as 62
per_curiam
1,977
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per_curiam
Califano v. Webster
https://www.courtlistener.com/opinion/109618/califano-v-webster/
sexes.[6] In 1956, however, retirement age was redefined as 62 for women and 65 for men, Social Security Amendments of *319 1956, 102 (a), thereby changing the calculation under 2 (b) (3). A House Report emphasizes that this reduction in the retirement age for women was purposely made to remedy discrimination against women in the job market: "Your committee believes that the age of eligibility should be reduced to 62 for women workers. A recent study by the United States Employment Service in the Department of Labor showed that age limits are applied more frequently to job openings for women than for men and that the age limits applied are lower." H. R. Rep. No. 1189, 84th Cong., 1st Sess., 7 (1955).[7] The effect of this change on 2 (b) (3) was also discussed in connection with the amendment of that section in 1961.[8] Social Security Amendments of 1961, 102 (d) (2), During the hearings on that amendment Representative Watts asked why a woman would draw more benefits than a similarly situated man. After it was noted that this did not change the law as it had existed since 1956, Representative Boggs confirmed that the difference in treatment was not inadvertent: "If I may interrupt, I think we went into this at great length some years ago when we adopted the 62-year provision for women and the theory was that a woman at that age was less apt to have employment opportunities than a man and despite the fact of some statistics to the effect *320 that women live longer than men, I think the other fact is equally commanding, so there is some justification for a distinction between men and women." Executive Hearings on Social Security Amendments of 1961, before the House Committee on Ways and Means, 87th Cong., 1st Sess., 146-147 (1961). Thus, the legislative history is clear that the differing treatment of men and women in former 2 (b) (3) was not "the accidental byproduct of a traditional way of thinking about females," Califano v. ante, at 223 (STEVENS, J., concurring in judgment), but rather was deliberately enacted to compensate for particular economic disabilities suffered by women. That Congress changed its mind in 2 and equalized the treatment of men and women does not, as the District Court concluded, constitute an admission by Congress that its previous policy was invidiously Congress has in recent years legislated directly upon the subject of unequal treatment of women in the job market.[9] Congress may well have decided that "[t]hese congressional reforms have lessened the economic justification for the more favorable
per_curiam
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Califano v. Webster
https://www.courtlistener.com/opinion/109618/califano-v-webster/
reforms have lessened the economic justification for the more favorable benefit computation formula in 2 (b) (3)." (ED Pa. 4), vacated on other grounds, (5). Moreover, elimination of the more favorable benefit computation for women wage earners, even in the remedial context, is wholly consistent with those reforms, which require equal treatment of men and women in preference to the attitudes of "romantic paternalism" that have contributed to the "long and unfortunate history of sex discrimination." (3). Finally, there is no merit in appellee's argument that the failure to make the 2 amendment retroactive constitutes *321 discrimination on the basis of date of birth. Old-age benefit payments are not constitutionally immunized against alterations of this kind. Congress expressly reserved "[t]he right to alter, amend, or repeal any provision" of the Act, 42 U.S. C. 1304, and the Fifth Amendment "does not forbid statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time." Sperry & Hutchinson It follows that Congress may replace one constitutional computation formula with another and make the new formula prospective only. Reversed. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, concurring in the judgment.
Justice Rehnquist
1,991
19
dissenting
Salve Regina College v. Russell
https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/
I do not believe we need to delve into such abstractions as "deferential" review, on the one hand, as opposed to what the Court's opinion calls, at various places, "plenary," "independent," and "de novo" review, on the other, in order to decide this case. The critical language used by the Court of Appeals, and quoted in this Court's opinion, is this: "In view of the customary appellate deference accorded to interpretations of state law made by federal judges of that state, ; we hold that the district court's determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error." In order to determine the Court of Appeals' views as to "customary appellate deference," it seems only fair to refer to the page in to which the court cites. There we find this language: "[I]n a diversity case such as this one, involving a technical subject matter primarily of state concern, we are `reluctant to interfere with a reasonable construction of state law made by a district judge, sitting in the state, who is familiar with that state's law and practices.'" at *241 The court does not say that it always defers to a district court's conclusions of law. Rather, it states that it is reluctant to substitute its own view of state law for that of a judge "who is familiar with that state's law and practices." In this case, the court concluded that the opinion of a District Judge with 18½ years of experience as a trial judge was entitled to some appellate deference. This seems to me a rather sensible observation. A district court's insights are particularly valuable to an appellate court in a case such as this where the state law is unsettled. In such cases, the courts' task is to try to predict how the highest court of that State would decide the question. A judge attempting to predict how a state court would rule must use not only his legal reasoning skills, but also his experiences and perceptions of judicial behavior in that State. It therefore makes perfect sense for an appellate court judge with no local experience to accord special weight to a local judge's assessment of state court trends. If we must choose among Justice Holmes' aphorisms to help decide this case, I would opt for his observation that "[t]he life of the law has not been logic: it has been experience." O. Holmes, The Common Law 1 (1881). And it does no harm to recall that the Members of this Court have no monopoly on experience; judges
Justice Rehnquist
1,991
19
dissenting
Salve Regina College v. Russell
https://www.courtlistener.com/opinion/112564/salve-regina-college-v-russell/
Members of this Court have no monopoly on experience; judges of the courts of appeals and of the district courts surely possess it just as we do. That the experience of appellate judges should lead them to rely, in appropriate situations, on the experience of district judges who have practiced law in the State in which they sit before taking the bench seems quite natural. For this very reason, this Court has traditionally given special consideration or "weight" to the district judge's perspective on local law. See ; United ; But the Court today decides that this intuitively sensible deference is available only to this Court, and not to the courts of appeals. It then proceeds to instruct the courts of appeals and the district courts on their respective functions in the federal judicial system, and how they should go about exercising them. Questions of law are questions of law, they are told, whether they be of state law or federal law, and must all be processed through an identical decisional mold. I believe this analysis unduly compartmentalizes things which have up to now been left to common sense and good judgment. Federal courts of appeals perform a different role when they decide questions of state law than they do when they decide questions of federal law. In the former case, these courts are not sources of law but only reflections of the jurisprudence of the courts of a State. While in deciding novel federal questions, courts of appeals are likely to ponder the policy implications as well as the decisional law, only the latter need be considered in deciding questions of state law. To my mind, therefore, it not only violates no positive law but also is a sensible allocation of resources to recognize these differences by deferring to the views of the district court where such deference is felt warranted. I think we run a serious risk that our reach will exceed our grasp when we attempt to impose a rigid logical framework on the courts of appeals in place of a less precise but tolerably well-functioning approach adopted by those courts. I agree with the Court that a court of appeals should not "abdicate" *243 its obligation to decide questions of state law presented in a diversity case. But by according weight to the conclusion of a particular district judge on the basis of his experience and special knowledge of state law, an appellate court does not "suspend [its] own thought processes." In re McLinn, I think the Court of Appeals did no more than that here,
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
The principal issues in this case are whether is authority for state limits on contributions to state political candidates and *382 whether the federal limits approved in Buckley, with or without adjustment for inflation, define the scope of permissible state limitations We hold Buckley to be authority for comparable state regulation, which need not be pegged to Buckley `s dollars. I In 1994, the Legislature of Missouri enacted Senate Bill 650 to restrict the permissible amounts of contributions to candidates for state office. Before the statute became effective, however, Missouri voters approved a ballot initiative with even stricter contribution limits, effective immediately. The United States of Appeals for the Eighth Circuit then held the initiative's contribution limits unconstitutional under the First Amendment, cert. denied, with the upshot that the previously dormant 1994 statute took effect. Shrink Missouri Government As amended in 1997, that statute imposes contribution limits ranging from $250 to $1,000, depending on specified state office or size of constituency. See1 ( Cum. Supp.); 161 F.3d, at The particular provision challenged here reads that "[t]o elect an individual to the office of governor, lieutenant governor, secretary of state, state treasurer, state auditor or attorney general, [[t]he amount of contributions made by or accepted from any person other than the candidate in any one election shall not exceed] one thousand dollars."1(1) ( Cum. Supp.). The statutory dollar amounts are baselines for an adjustment each even-numbered year, to be made "by multiplying the base year amount by the cumulative consumer price *383 index and rounded to the nearest twenty-five-dollar amount, for all years since January 1," 130.032.2. When this suit was filed, the limits ranged from a high of $1,075 for contributions to candidates for statewide office (including state auditor) and for any office where the population exceeded 250,000, down to $275 for contributions to candidates for state representative or for any office for which there were fewer than 100,000 people 161 F.3d, at ; App. 37. Respondents Shrink Missouri Government PAC, a political action committee, and Zev David Fredman, a candidate for the Republican nomination for state auditor, sought to enjoin enforcement of the contribution statute[1] as violating their First and Fourteenth Amendment (presumably those of free association, and equal protection, although the complaint did not so state). Shrink Missouri gave $1,025 to Fredman's candidate committee in 1997, and another $50 in Shrink Missouri represented that, without the limitation, it would contribute more to the Fredman campaign. Fredman alleged he could campaign effectively only with more generous contributions than 130.032.1 allowed. Shrink Missouri Government On cross-motions for summary judgment, the
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
allowed. Shrink Missouri Government On cross-motions for summary judgment, the District sustained the statute. Applying the court found adequate support for the law in the proposition that large contributions raise suspicions of influence peddling tending to undermine citizens' confidence "in the integrity of government." The District rejected respondents' contention *384 that inflation since Buckley `s approval of a federal $1,000 restriction meant that the state limit of $1,075 for a statewide office could not be constitutional The of Appeals for the Eighth Circuit nonetheless enjoined enforcement of the law pending appeal, and ultimately reversed the District 161 F.3d, at Finding that Buckley had "`articulated and applied a strict scrutiny standard of review,' " the of Appeals held that Missouri was bound to demonstrate "that it has a compelling interest and that the contribution limits at issue are narrowly drawn to serve that interest." (quoting ). The appeals court treated Missouri's claim of a compelling interest "in avoiding the corruption or the perception of corruption brought about when candidates for elective office accept large campaign contributions" as insufficient by itself to satisfy strict -522. Relying on Circuit precedent, see (CA8), cert. denied, ; the of Appeals required "some demonstrable evidence that there were genuine problems that resulted from contributions in amounts greater than the limits in place. "[T]he Buckley noted the perfidy that had been uncovered in federal campaign financing in 1972. But we are unwilling to extrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from `large' campaign contributions, without some evidence that such problems really exist." -522 The court thought that the only evidence presented by the State, an affidavit from the cochairman of the state legislature's Interim Joint Committee on Campaign Finance Reform when the statute was passed, was inadequate to raise *385 a genuine issue of material fact about the State's alleged interest in limiting campaign contributions. Ibid.[2] Given the large number of States that limit political contributions, see generally Federal Election Commission, E. Feigenbaum & J. Palmer, Campaign Finance Law 98 we granted certiorari to review the congruence of the Eighth Circuit's decision with Buckley. We reverse. II The matters raised in included claims that federal campaign finance legislation infringed and association protections of the First Amendment and the equal protection guarantee of the Fifth. The Federal Election Campaign Act of 1971, as amended by the Federal Election Campaign Act Amendments of 1974, limited (and still limits) contributions by individuals to any single candidate for federal office to $1,000 per election. 18 U.S. C. 608(b)(1), (3) (1970
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
to $1,000 per election. 18 U.S. C. 608(b)(1), (3) (1970 ed., Supp. IV); Until Buckley struck it down, the law placed a $1,000 annual ceiling on independent expenditures linked to specific candidates. 18 U.S. C. 608(e) (1970 ed., Supp. IV); 424 U.S., We found violations of the First Amendment in the expenditure regulations, but held the contribution restrictions constitutional. *386 A Precision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley per curiam opinion. To be sure, in addressing the claim, we explicitly rejected both O'Brien intermediate scrutiny for communicative action, see United and the similar standard applicable to merely time, place, and manner restrictions, see ; ; In distinguishing these tests, the discussion referred generally to "the exacting scrutiny required by the First Amendment," and added that "`the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,' " ). We then, however, drew a line between expenditures and contributions, treating expenditure restrictions as direct restraints on which nonetheless suffered little direct effect from contribution limits: "[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or *387 campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues." We thus said, in effect, that limiting contributions left communication significantly unimpaired. We flagged a similar difference between expenditure and contribution limitations in their impacts on the association right. While an expenditure limit "precludes most associations from effectively amplifying the voice of their adherents," (thus interfering with the freedom of the adherents as well as the association, ), the contribution limits "leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
and to assist personally in the association's efforts on behalf of candidates," ; see While we did not then say in so many words that different standards might govern expenditure and contribution limits affecting associational we have since then said so explicitly in Federal Election : "We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending." It has, in any event, been plain ever since Buckley that contribution limits would more readily clear the hurdles before them. Cf. Colorado Republican Federal Campaign (noting that in campaign finance case law, "[t]he provisions that the found constitutional mostly imposed contribution limits" (emphasis in original)). Thus, under Buckley `s standard of scrutiny, a contribution limit involving "significant interference" with associational could survive if the Government demonstrated that contribution regulation was "closely drawn" *388 to match a "sufficiently important interest," ib though the dollar amount of the limit need not be "fine tun[ed],"[3] While we did not attempt to parse distinctions between the and association standards of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily on the associational right than on freedom to speak. We consequently proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would survive a challenge as well, and we held the standard satisfied by the contribution limits under review. "[T]he prevention of corruption and the appearance of corruption" was found to be a "constitutionally sufficient justification," at 25-26: "To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. "Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. Congress could legitimately *389 conclude that the avoidance of the appearance of improper influence `is critical if confidence in the system of representative Government is not to be eroded to a disastrous extent.' " ). See Federal Election ; Federal Election )); First Nat. Bank of 435 U.S. In speaking of "improper influence" and "opportunities for abuse" in addition to "quid pro quo arrangements," we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money "to influence governmental action"
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
constitutionally address the power of money "to influence governmental action" in ways less "blatant and specific" than bribery. 424 U. S.,[4] *390 B In defending its own statute, Missouri espouses those same interests of preventing corruption and the appearance of it that flows from munificent campaign contributions. Even without the authority of Buckley, there would be no serious question about the legitimacy of the interests claimed, which, after all, underlie bribery and antigratuity statutes. While neither law nor morals equate all political contributions, without more, with bribes, we spoke in Buckley of the perception of corruption "inherent in a regime of large individual financial contributions" to candidates for public office, as a source of concern "almost equal" to quid pro quo improbity, The public interest in countering that perception was, indeed, the entire answer to the overbreadth claim raised in the Buckley case. This made perfect sense. Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Democracy works "only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption." United 364 U.S. Although respondents neither challenge the legitimacy of these objectives nor call for any reconsideration of Buckley, they take the State to task, as the of Appeals did, for failing to justify the invocation of those interests with empirical evidence of actually corrupt practices or of a perception *391 among Missouri voters that unrestricted contributions must have been exerting a covertly corrosive influence. The state statute is not void, however, for want of evidence. The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised. Buckley demonstrates that the dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible. The opinion noted that "the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem [of corruption] is not an illusory one." 424 U.S., and n. 28. Although we did not ourselves marshal the evidence in support of the congressional concern, we referred to "a number of the abuses" detailed in the of Appeals's decision, ib which described how corporations, wellfinanced interest groups, and rich individuals had made large contributions, some of which were illegal under existing law, others of which reached at least the verge of bribery. See The evidence
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
reached at least the verge of bribery. See The evidence before the of Appeals described public revelations by the parties in question more than sufficient to show why voters would tend to identify a big donation with a corrupt purpose. While Buckley `s evidentiary showing exemplifies a sufficient justification for contribution limits, it does not speak to what may be necessary as a minimum.[5] As to that, respondents *392 are wrong in arguing that in the years since Buckley came down we have "supplemented" its holding with a new requirement that governments enacting contribution limits must "`demonstrate that the recited harms are real, not merely conjectural,' " Brief for Respondents Shrink Missouri Government PAC et al. 26 ), a contention for which respondents rely principally on Colorado Republican Federal Campaign We have never accepted mere conjecture as adequate to carry a First Amendment burden, and Colorado Republican did not deal with a government's burden to justify limits on contributions. Although the principal opinion in that case charged the Government with failure to show a real risk of corruption, the issue in question was limits on independent expenditures by political parties, which the principal opinion expressly distinguished from contribution limits: "limitations on independent expenditures are less directly related to preventing corruption" than contributions are, In that case, the "constitutionally significant fact" that there was no "coordination between the candidate and the source of the expenditure" kept the principal opinion "from assuming, absent convincing evidence to the contrary, that [a limitation on expenditures] is necessary to combat a substantial danger of corruption of the *393 electoral system." Colorado Republican thus goes hand in hand with Buckley, not toe to toe. In any event, this case does not present a close call requiring further definition of whatever the State's evidentiary obligation may be. While the record does not show that the Missouri Legislature relied on the evidence and findings accepted in Buckley,[6] the evidence introduced into the record by petitioners or cited by the lower courts in this action and the action regarding Proposition A is enough to show that the substantiation of the congressional concerns reflected in Buckley has its counterpart supporting the Missouri law. Although Missouri does not preserve legislative history, the State presented an affidavit from State Senator Wayne Goode, the co-chair of the state legislature's Interim Joint Committee on Campaign Finance Reform at the time the State enacted the contribution limits, who stated that large contributions have "`the real potential to buy votes,' " ; App. 47. The District cited newspaper accounts of large contributions supporting inferences of impropriety.
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
cited newspaper accounts of large contributions supporting inferences of impropriety. n. 6. One report questioned the state treasurer's decision to use a certain bank for most of Missouri's banking business after that institution contributed $20,000 to the treasurer's campaign. Editorial, The Central Issue is Trust, St. Louis PostDispatch, Dec. 31, 1993, p. 6C. Another made much of the receipt by a candidate for state auditor of a $40,000 contribution from a brewery and one for $20,000 from a bank. J. Mannies, Auditor Race May Get Too Noisy to be Ignored, St. Louis Post-Dispatch, Sept. 11, 1994, at 4B. In the Eighth Circuit itself, while *394 invalidating the limits Proposition A imposed, identified a $420,000 contribution to candidates in northern Missouri from a political action committee linked to an investment bank, and three scandals, including one in which a state representative was "accused of sponsoring legislation in exchange for kickbacks," and another in which Missouri's former attorney general pleaded guilty to charges of conspiracy to misuse state property, and n. 10, after being indicted for using a state workers' compensation fund to benefit campaign contributors. And although majority votes do not, as such, defeat First Amendment protections, the statewide vote on Proposition A certainly attested to the perception relied upon here: "[A]n overwhelming 74 percent of the voters of Missouri determined that contribution limits are necessary to combat corruption and the appearance thereof." (WD Mo.), rev'd, ; see n. 7. There might, of course, be need for a more extensive evidentiary documentation if respondents had made any showing of their own to cast doubt on the apparent implications of Buckley `s evidence and the record here, but the closest respondents come to challenging these conclusions is their invocation of academic studies said to indicate that large contributions to public officials or candidates do not actually result in changes in candidates' positions. Brief for Respondents Shrink Missouri Government PAC et al. 41; Smith, Money Talks: Speech, Corruption, Equality, and Campaign Finance, 86 Geo. L. J. 45, 58 (1997); Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 Yale L. J. 1049, 1067-1068 Other studies, however, point the other way. Reply Brief for Respondent Bray 4-5; F. Sorauf, Inside Campaign Finance 169 (1992); Hall & Wayman, Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 Am. Pol. Sci. Rev. 797 ; D. Magleby & C. Nelson, The Money Given the conflict among these publications, *395 and the absence of any reason to think that public perception has been influenced by the studies cited by respondents, there is
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
been influenced by the studies cited by respondents, there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters. C Nor do we see any support for respondents' various arguments that in spite of their striking resemblance to the limitations sustained in Buckley, those in Missouri are so different in kind as to raise essentially a new issue about the adequacy of the Missouri statute's tailoring to serve its purposes.[7] Here, as in Buckley, "[t]here is no indication that the contribution limitations imposed by the [law] would have any dramatic[ally] adverse effect on the funding of campaigns and political associations," and thus no showing that *396 "the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." The District found here that in the period since the Missouri limits became effective, "candidates for state elected office [have been] quite able to raise funds sufficient to run effective campaigns," and that "candidates for political office in the state are still able to amass impressive campaign war chests,"[8] The plausibility of these conclusions is buttressed by petitioners' evidence that in the 1994 Missouri elections (before any relevant state limitations went into effect), 97.62 percent of all contributors to candidates for state auditor made contributions of $2,000 or less. Ibid.; App. 34-36.[9] Even if we were to assume that the contribution limits affected respondent Fredman's ability to wage a competitive campaign (no small assumption given that Fredman only identified one contributor, Shrink Missouri, that would have given him more than $1,075 per election), a showing of one affected individual does not point up a system of suppressed political advocacy that would be unconstitutional under Buckley. These conclusions of the District and the supporting evidence suffice to answer respondents' variant claim that the Missouri limits today differ in kind from Buckley' s owing to inflation since 1976. Respondents seem to assume that Buckley set a minimum constitutional threshold for contribution limits, which in dollars adjusted for loss of purchasing power are now well above the lines drawn by Missouri. But this assumption is a fundamental misunderstanding of what we held. *397 In Buckley, we specifically rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate. As indicated above, we referred instead to the outer limits of contribution regulation by asking whether there was any showing that the limits were so low as to impede the ability of candidates to "amas[s] the
Justice Souter
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Nixon v. Shrink Missouri Government PAC
https://www.courtlistener.com/opinion/118335/nixon-v-shrink-missouri-government-pac/
as to impede the ability of candidates to "amas[s] the resources necessary for effective advocacy," We asked, in other words, whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless. Such being the test, the issue in later cases cannot be truncated to a narrow question about the power of the dollar, but must go to the power to mount a campaign with all the dollars likely to be forthcoming. As Judge Gibson put it, the dictates of the First Amendment are not mere functions of the Consumer Price Index. D The dissenters in this case think our reasoning evades the real issue. Justice Thomas chides us for "hiding behind" Buckley, post, at 422, and Justice Kennedy faults us for seeing this case as "a routine application of our analysis" in Buckley instead of facing up to what he describes as the consequences of Buckley, post, at 405. Each dissenter would overrule Buckley and thinks we should do the same. The answer is that we are supposed to decide this case. Shrink and Fredman did not request that Buckley be overruled; the furthest reach of their arguments about the law was that subsequent decisions already on the books had enhanced the State's burden of justification beyond what Buckley required, a proposition we have rejected as mistaken. III There is no reason in logic or evidence to doubt the sufficiency of Buckley to govern this case in support of the Missouri *398 statute. The judgment of the of Appeals is, accordingly, reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
Justice Ginsburg
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Cunningham v. California
https://www.courtlistener.com/opinion/145761/cunningham-v-california/
California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated "upper term" The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments We hold that it does As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant ; ; ; United "[T]he relevant `statutory maximum,'" this Court has clarified, "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings" -304, (emphasis in original) In petitioner's case, the jury's verdict alone limited the permissible sentence to 12 years Additional factfinding by the trial judge, however, yielded an upper term sentence of 16 years The California Court of Appeal affirmed the harsher We reverse that disposition because the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial I A Petitioner John Cunningham was tried and convicted of continuous sexual abuse of a child under the age of 14 Under the DSL, that offense is punishable by imprisonment for a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years CalPenal Code Ann 2885(a) (hereinafter Penal Code) As further explained below, see infra, at 861-863, the DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional facts in aggravation Based on a post-trial sentencing hearing, the trial judge found by a preponderance of the evidence six aggravating circumstances, among them, the particular vulnerability of Cunningham's victim, and Cunningham's violent conduct, which indicated a serious danger to the community Tr of Sentencing (Aug 1, 2003), App 22[1] In mitigation, the judge found one fact: Cunningham had no record of prior criminal *861 conduct Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years A panel of the California Court of Appeal affirmed the conviction and sentence; one judge dissented in
Justice Ginsburg
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Cunningham v. California
https://www.courtlistener.com/opinion/145761/cunningham-v-california/
Appeal affirmed the conviction and sentence; one judge dissented in part, urging that this Court's precedent precluded the judge-determined four-year increase in Cunningham's No A103501 App 43-48; [2] The California Supreme Court denied review No S133971 (en banc), In a reasoned decision published nine days earlier, that court considered the question here presented and held that the DSL survived Sixth Amendment inspection B Enacted in 1977, the DSL replaced an indeterminate sentencing regime in force in California for some 60 years See Under the prior regime, courts imposed open-ended prison terms (often one year to life), and the parole board—the Adult Authority—determined the amount of time a felon would ultimately spend in prison 35 Cal4th, 1256, 544; In re Roberts, ; Cassou & Taugher 5-9 In contrast, the DSL fixed the terms of imprisonment for most offenses, and eliminated the possibility of early release on parole See Penal Code 3000 et seq (West Supp2006); 3 B Witkin & N Epstein, California Criminal Law 610, p 809 ; Brief for Respondent 7[3] Through the DSL, California's lawmakers aimed to promote uniform and proportionate punishment Penal Code 1170(a)(1); 35 Cal4th, For most offenses, including Cunningham's, the DSL regime is implemented in the following manner The statute defining the offense prescribes three precise terms of imprisonment—a lower, middle, and upper term Eg, Penal Code 2885(a) (a person convicted of continuous sexual abuse of a child "shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years") See Penal Code 1170(b) (West Supp2006) controls the trial judge's choice; it provides that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime" "[C]ircumstances in aggravation or mitigation" are to be determined by *862 the court after consideration of several items: the trial record; the probation officer's report; statements in aggravation or mitigation submitted by the parties, the victim, or the victim's family; "and any further evidence introduced at the sentencing hearing" The DSL directed the State's Judicial Council[4] to adopt Rules guiding the sentencing judge's decision whether to "[i]mpose the lower or upper prison term" Penal Code 11703(a)(2) [5] Restating 1170(b), the Council's Rules provide that "[t]he middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation" Rule 4420(a) "Circumstances in aggravation," as crisply defined by the Judicial Council, means "facts which justify the imposition of the upper prison term" Rule 4405(d) (emphasis added) Facts aggravating an offense, the Rules instruct, "shall be established by a preponderance
Justice Ginsburg
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Cunningham v. California
https://www.courtlistener.com/opinion/145761/cunningham-v-california/
offense, the Rules instruct, "shall be established by a preponderance of the evidence," Rule 4420(b),[6] and must be "stated orally on the record" Rule 4420(e) The Rules provide a nonexhaustive list of aggravating circumstances, including "[f]acts relating to the crime," Rule 4421(a),[7] "[f]acts relating to the defendant," Rule 4421(b),[8] and "[a]ny other facts statutorily declared to be circumstances in aggravation," Rule 4421(c) Beyond the enumerated circumstances, "the judge is free to consider any `additional criteria reasonably related to the decision being made'" "A fact that is an element of the crime," however, "shall not be used to impose the upper term" Rule 4420(d) In sum, California's DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense Justice ALITO maintains, however, that a circumstance in aggravation need not be a fact at all In his view, a policy judgment, or even a judge's "subjective belief" regarding the appropriate sentence, qualifies as an aggravating circumstance Post, at 879-880 (dissenting opinion) California's Rules, however, constantly refer to "facts" As just noted, the Rules define "circumstances in aggravation" as "facts which justify the imposition of the upper *863 prison term" Rule 4405(d) (emphasis added)[9] And "circumstances in aggravation," the Rules unambiguously declare, "shall be established by a preponderance of the evidence," Rule 4420(b), a clear factfinding directive to which there is no exception See While the Rules list "[g]eneral objectives of sentencing," Rule 4410(a), nowhere are these objectives cast as "circumstances in aggravation" that alone authorize an upper term The Rules state that "[t]he enumeration of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made" Rule 4408(a) California courts have not read this language to unmoor "circumstances in aggravation" from any factfinding anchor In line with the Rules, the California Supreme Court has repeatedly referred to circumstances in aggravation as facts See, eg, ; ("[T]rial courts are assigned the task of deciding whether to impose an upper or lower term of imprisonment based upon their determination whether there are circumstances in aggravation or mitigation of the crime, a determination that invariably requires numerous factual findings" (emphasis added and internal quotation marks omitted)) It is unsurprising, then, that State's counsel, at oral argument, acknowledged that he knew of no case in which a California trial judge had gone beyond the middle term
Justice Ginsburg
2,007
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Cunningham v. California
https://www.courtlistener.com/opinion/145761/cunningham-v-california/
a California trial judge had gone beyond the middle term based not on any fact the judge found, but solely on the basis of a policy judgment or subjective belief See Tr of Oral Arg 49-50 Notably, the Penal Code permits elevation of a sentence above the upper term based on specified statutory enhancements relating to the defendant's criminal history or circumstances of the crime See, eg, Penal Code 667 et seq (West Supp 2006); 12022 et seq See 113 P3d, at Unlike aggravating circumstances, statutory enhancements must be charged in the indictment, and the underlying facts must be proved to the jury beyond a reasonable doubt Penal Code 11701(e); 113 P3d, at A fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term Penal Code 1170(b) Where permitted by statute, however, a judge may use a fact qualifying as an enhancer to impose an upper term rather than an enhanced ; Rule 4420(c) II This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a *864 judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence While this rule is rooted in longstanding common-law practice, its explicit statement in our decisions is recent In we examined the Sixth Amendment's historical and doctrinal foundations, and recognized that judicial factfinding operating to increase a defendant's otherwise maximum punishment posed a grave constitutional question 9-252, While the Court construed the statute at issue to avoid the question, the Jones opinion presaged our decision, some 15 months later, in Charles Apprendi was convicted of possession of a firearm for an unlawful purpose, a second-degree offense under New Jersey law punishable by five to ten years' imprisonment A separate "hate crime" statute authorized an "extended term" of imprisonment: Ten to twenty years could be imposed if the trial judge found, by a preponderance of the evidence, that "`[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity'" -469, (quoting NJ Stat Ann 2C:44-3(e) ) The judge in Apprendi's case so found, and therefore sentenced the defendant to 12 years' imprisonment This Court held that the Sixth Amendment proscribed the enhanced we held in Apprendi, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
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Cunningham v. California
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statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" See 536 US ("Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime—and thus the domain of the jury—by those who framed the Bill of Rights") We have since reaffirmed the rule of Apprendi, applying it to facts subjecting a defendant to the death penalty, facts permitting a sentence in excess of the "standard range" under Washington's Sentencing Reform Act, and facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines, United and bear most closely on the question presented in this case Ralph Howard was convicted of second-degree kidnapping with a firearm, a class B felony under Washington law -299, While the overall statutory maximum for a class B felony was ten years, the State's Sentencing Reform Act (Reform Act) added an important qualification: If no facts beyond those reflected in the jury's verdict were found by the trial judge, a defendant could not receive a sentence above a "standard range" of 49 to 53 months The Reform Act permitted but did not require a judge to exceed that standard range if she found "`substantial and compelling reasons justifying an exceptional *865 '" (quoting Wash Rev Code Ann 994A120(2) ) The Reform Act set out a nonexhaustive list of aggravating facts on which such a sentence elevation could be based It clarified that a fact taken into account in fixing the standard range—ie, any fact found by the jury—could under no circumstances count in the determination whether to impose an exceptional 542 US, was sentenced to 90 months' imprisonment, more than three years above the standard range, based on the trial judge's finding that he had acted with deliberate cruelty Applying the rule of Apprendi, this Court held 's sentence unconstitutional The State in had endeavored to distinguish Apprendi on the ground that "[u]nder the Washington guidelines, an exceptional sentence is within the court's discretion as a result of a guilty verdict" Brief for Respondent in OT2003, No 02-1632, p 15 We rejected that argument The judge could not have sentenced above the standard range without finding the additional fact of deliberate cruelty Consequently, that fact was subject to the Sixth Amendment's jury-trial -314, It did not matter, we explained, that 's sentence, though outside the standard range, was within the 10-year maximum for class B felonies: "Our precedents make clear that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose
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Cunningham v. California
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Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment,' and the judge exceeds his proper authority" (emphasis in original) (quoting 1 J Bishop, Criminal Procedure 87, p 55 (2d ed 1872)) Because the judge in 's case could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range—53 months, and not 10 years—was the relevant statutory The State had additionally argued in that Apprendi's rule was satisfied because Washington's Reform Act did not specify an exclusive catalog of potential facts on which a judge might base a departure from the standard range This Court rejected that argument as well "Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact one of several specified facts or any aggravating fact (as here)," we observed, "it remains the case that the jury's verdict alone does not authorize the " (emphasis in original) Further, we held it irrelevant that the Reform Act ultimately left the decision whether or not to depart to the judge's discretion: "Whether the judicially determined facts require a sentence enhancement or merely allow it," we noted, "the verdict alone does not authorize the " n 8 (emphasis in original) Freddie was convicted of possession with intent to distribute crack cocaine and was sentenced under the Federal Sentencing Guidelines The facts found by 's jury yielded a base Guidelines range of 210 to 262 months' imprisonment, *866 a range the judge could not exceed without undertaking additional factfinding 233-234, The judge did so, finding by a preponderance of the evidence that possessed an amount of drugs in excess of the amount determined by the jury's verdict That finding boosted into a higher Guidelines range was sentenced at the bottom of the higher range, to 360 months in prison In an opinion written by Justice STEVENS for a five-Member majority, the Court held 's sentence impermissible under the Sixth Amendment In the majority's judgment, there was "no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in []" 3, Both systems were "mandatory and impose[d]
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issue in []" 3, Both systems were "mandatory and impose[d] binding requirements on all sentencing judges" [10] Justice STEVENS' opinion for the Court, it bears emphasis, next expressed a view on which there was no disagreement among the Justices He acknowledged that the Federal Guidelines would not implicate the Sixth Amendment were they advisory: "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range Indeed, everyone agrees that the constitutional issues presented by [this case] would have been avoided entirely if Congress had omitted from the [federal Sentencing Reform Act] the provisions that make the Guidelines binding on district judges For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant "The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges" In an opinion written by Justice BREYER, garnering a five-Member majority, the Court faced the remedial question, which turned on an assessment of legislative intent: What alteration would Congress have intended had it known that the Guidelines were vulnerable to a Sixth Amendment challenge? Three choices were apparent: the Court could invalidate in its entirety the Sentencing Reform Act of 1984(SRA), the law comprehensively delineating the federal sentencing system; or it could preserve the SRA, and the mandatory Guidelines regime the SRA established, by attaching a jury-trial requirement to any fact increasing a defendant's base Guidelines range; finally, the Court could render the Guidelines advisory by severing two provisions of the SRA, 18 USC 3553(b)(1) and 3742(e) ( ed and Supp IV) -249, 125 *867 SCt 738[11] Recognizing that "reasonable minds can, and do, differ" on the remedial question, the majority concluded that the advisory Guidelines solution came closest to the congressional mark Under the system described in Justice BREYER's opinion for the Court in judges would no longer be tied to the sentencing range indicated in the Guidelines But they would be obliged to "take account of" that range along with the sentencing goals Congress enumerated in the SRA at 18 USC 3553(a) 543 US, at 259, 264, [12] Having severed 3742(e), the provision of the SRA governing appellate review of sentences under the mandatory Guidelines scheme, see and n
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of sentences under the mandatory Guidelines scheme, see and n 11, the Court installed, as consistent with the Act and the sound administration of justice, a "reasonableness" standard of review 543 US, at 261, Without attempting an elaborate discussion of that standard, Justice BREYER's remedial opinion for the Court observed: "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is reasonable" [13] The Court emphasized the provisional character of the remedy Recognizing that authority *868 to speak "the last word" resides in Congress, the Court said: "The ball now lies in Congress' court The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice" We turn now to the instant case in light of both parts of the Court's opinion, and our earlier decisions in point III Under California's DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance See An element of the charged offense, essential to a jury's determination of guilt, or admitted in a defendant's guilty plea, does not qualify as such a circumstance See Instead, aggravating circumstances depend on facts found discretely and solely by the judge In accord with therefore, the middle term prescribed in California's statutes, not the upper term, is the relevant statutory ("[T]he `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant" (emphasis in original)) Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, see the DSL violates Apprendi's bright-line rule: Except for a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" While "[t]hat should be the end of the matter," 542 US, at 313, in the California Supreme Court held otherwise In that court's view, the DSL survived examination under our precedent intact See 35 Cal4th, at 1254-1261, 113 P3d, at 543-548 The court acknowledged that California's system appears on surface inspection to be in tension with the rule of Apprendi But in "operation and effect," the court said, the DSL "simply authorize[s] a sentencing court to engage in the type of factfinding that
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sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range" 35 Cal4th, at 1254, 113 P3d, at 543 Therefore, the court concluded, "the upper term is the `statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in Apprendi, and " But see 113 P3d, at 554 (Kennard, J, concurring and dissenting) ("Nothing in the high court's majority opinions in Apprendi, and suggests that the constitutionality of a state's sentencing scheme turns on whether, in the words of the majority here, it involves the type of factfinding `that traditionally has been performed by a judge'" (quoting 113 P3d, at 542)) The court's conclusion that the upper term, and not the middle term, qualifies as the relevant statutory maximum, rested on several considerations First, the court reasoned that, given the ample discretion afforded trial judges to identify aggravating facts warranting an upper term sentence, the DSL *869 "does not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge) Instead, it afforded the sentencing judge the discretion to decide, with the guidance of rules and statutes, whether the facts of the case and the history of the defendant justify the higher Such a system does not diminish the traditional power of the jury" We cautioned in however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied and n 8, The court urged that the DSL is not cause for concern because it reduced the penalties for most crimes over the prior indeterminate sentencing regime -1258, - But see 113 P3d, at 555 (Kennard, J, concurring and dissenting) ("This aspect of our sentencing law does not differ significantly from the Washington sentencing scheme [the high court invalidated in ]"); Furthermore, California's system is not unfair to defendants, for they "cannot reasonably expect a guarantee that the upper term will not be imposed" given judges' broad discretion to impose an upper term sentence or to keep their punishment
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Cunningham v. California
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impose an upper term sentence or to keep their punishment at the middle term 35 Cal4th, at 1258-1259, 113 P3d, at -546 The court additionally noted that the DSL requires statutory enhancements (as distinguished from aggravators)—eg, the use of a firearm or other dangerous weapon, infliction of great bodily injury, Penal Code 12022, 120227-8 (West and Supp2006)—to be charged in the indictment and proved to a jury beyond a reasonable doubt 113 P3d, at The court's examination of the DSL, in short, satisfied it that California's sentencing system does not implicate significantly the concerns underlying the Sixth Amendment's jury-trial Our decisions, however, leave no room for such an examination Asking whether a defendant's basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, we have said, is the very inquiry Apprendi's "bright-line rule" was designed to exclude See 542 US, at 307-308, But see 35 Cal4th, at 1260, 113 P3d, at 547 [14] Ultimately, the court relied on an equation of California's DSL system to the post- federal system "The level of discretion available to a California judge in selecting which of the three available terms to impose," the court said, "appears *870 comparable to the level of discretion that the high court has chosen to permit federal judges in post- sentencing" 35 Cal4th, at 1261, 113 P3d, at 548 The same equation drives Justice ALITO's dissent See post, at 873 ("The California sentencing law is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in []") The attempted comparison is unavailing As earlier explained, see this Court in held the Federal Sentencing Guidelines incompatible with the Sixth Amendment because the Guidelines were "mandatory and imposed binding requirements on all sentencing judges" 543 US, 3, "[M]erely advisory provisions," recommending but not requiring "the selection of particular sentences in response to differing sets of facts," all Members of the Court agreed, "would not implicate the Sixth Amendment" To remedy the constitutional infirmity found in the Court's majority excised provisions that rendered the system mandatory, leaving the Guidelines in place as advisory only See California's DSL does not resemble the advisory system the Court had in view Under California's system, judges are not free to exercise their "discretion to select a specific sentence within a defined range" 543 US, 3, California's Legislature has adopted sentencing triads, three fixed sentences with no ranges between them Cunningham's sentencing judge had no discretion to select a sentence within a range of 6 to 16 years His instruction was to select 12
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6 to 16 years His instruction was to select 12 years, nothing less and nothing more, unless he found facts allowing the imposition of a sentence of 6 or 16 years Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies Nevertheless, the court attempted to rescue the DSL's judicial factfinding authority by typing it simply a reasonableness constraint, equivalent to the constraint operative in the federal system post- See 35 Cal4th, at 1261, 113 P3d, at 548 ("Because an aggravating factor under California law may include any factor that the judge reasonably deems relevant, the [DSL's] requirement that an upper term sentence be imposed only if an aggravating factor exists is comparable to 's requirement that a federal judge's sentencing decision not be unreasonable") Reasonableness, however, is not, as the court would have it, the touchstone of Sixth Amendment analysis The reasonableness requirement anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment It is comforting, but beside the point, that California's system requires judge-determined DSL sentences to be reasonable 's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless[15] *871 To summarize: Contrary to the court's holding, our decisions from Apprendi to point to the middle term specified in California's statutes, not the upper term, as the relevant statutory Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent[16] IV As to the adjustment of California's sentencing system in light of our decision, "[t]he ball lies in [California's] court" 543 US, ; cf We note that several States have modified their systems in the wake of Apprendi and to retain determinate sentencing They have done so by calling upon the jury—either at trial or in a separate sentencing proceeding—to find any fact necessary to the imposition of an elevated [17] As earlier noted, California already employs juries in this manner to determine statutory sentencing enhancements See Other States have chosen to permit judges genuinely "to exercise broad discretion within a statutory range,"[18] which, "everyone agrees," encounters no Sixth Amendment shoal 543 US, 3, California
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Salinas v. Texas
https://www.courtlistener.com/opinion/903977/salinas-v-texas/
Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police who was investigating a murder. But petitioner balked when the asked whether a ballis- tics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial pros- ecutors argued that his reaction to the ’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guaran- tees that “[n]o person shall be compelled in any crimi- nal case to be a witness against himself.” Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the ’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ” 425, 427 (1984) (quoting United States v. Monia, 317 U.S. 2 SALINAS v. TEXAS Opinion of ALITO, J. 424, 427 (1943)). Although “no ritualistic formula is nec- essary in order to invoke the privilege,” a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed. I On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning. Petitioner’s interview with the police lasted approxi- mately one hour. All agree that the interview was noncusto- dial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Mi- For most of the interview, petitioner answered the ’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” App. 17, petitioner declined to answer. Instead, petitioner “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” After
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hands in his lap, [and] began to tighten up.” After a few moments of silence, the asked addition- al questions, which petitioner answered. Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded Cite as: 570 U. S. (2013) 3 Opinion of ALITO, J. that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge peti- tioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name. Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the ’s question dur- ing the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sen- tence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors’ use of his si- lence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argu- ment, reasoning that petitioner’s prearrest, pre-Miranda silence was not “compelled” within the meaning of the Fifth Amendment. The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. We granted certiorari, 568 U. S. (2013), to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief. Compare, e.g., United with United (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question. II A The privilege against self-incrimination “is an exception to the general principle that the Government has the right 4 SALINAS v. TEXAS Opinion of ALITO, J. to everyone’s testimony.” v. United States, 424 U.S. 648, 658, n. 11 To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “ ‘desires the protection of the privilege must claim it’ ” at the time he relies on it. (quoting Monia, 317 U. S., at 427). See also United States ex rel. That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see or cure any potential self-incrimination through a grant of immunity, see
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cure any potential self-incrimination through a grant of immunity, see Kasti- The ex- press invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. See n. 7 (“A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give”); 610– 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.” We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in that a criminal de- fendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a crim- inal defendant has an “absolute right not to testify.” (Black, J., dissenting); see United Cite as: 570 U. S. (2013) 5 Opinion of ALITO, J. 637 (2004) (plurality opinion). Since a defendant’s reasons for remaining silent at trial are irrelevant to his constitu- tional right to do so, requiring that he expressly invoke the privilege would serve no purpose; neither a showing that his testimony would not be self-incriminating nor a grant of immunity could force him to speak. Because pe- titioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception. Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coer- cion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the 384 U. S., at 467–468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” at 429–430. For similar reasons, we have held that threats to with- draw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. See also (public office); 84–85 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77–79 (members
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v. Subversive Activities Control Bd., 382 U.S. 70, 77–79 (members of the Communist Party not required to complete registration form “where response to 6 SALINAS v. TEXAS Opinion of ALITO, J. any of the form’s questions might involve [them] in the admission of a crucial element of a crime”). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.’ ” –657 ). Petitioner cannot benefit from that principle because it is undisputed that his interview with police was volun- tary. As petitioner himself acknowledges, he agreed to accompany the s to the station and “was free to leave at any time during the interview.” Brief for Peti- tioner 2–3 (internal quotation marks omitted). That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from volun- tarily invoking the The dissent elides this point when it cites our precedents in this area for the proposi- tion that “[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.” Post, at 7–8 (opinion of BREYER, J.). The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was invol- untary, and it would have been a simple matter for him to say that he was not answering the ’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment. B Petitioner urges us to adopt a third exception to the in- vocation requirement for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would be incriminating. Our cases all but Cite as: 570 U. S. (2013) 7 Opinion of ALITO, J. foreclose such an exception, which would needlessly bur- den the Government’s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner’s invitation to craft a new exception to the “general rule” that a witness must assert the privilege to subsequently benefit from it. Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In v. United States, for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher
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remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have deter- mined whether his claim was legitimate.” at See also United 263–264 ; 273 U. S., at1 A witness does not expressly invoke the privilege by standing mute. We have also repeatedly held that the express invoca- tion requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Thus, in we held that the defendant’s self-incriminating answers to his probation of- ficer were properly admitted at trial because he failed to invoke the –428. In reaching that conclusion, we rejected the notion “that a witness —————— 1 The dissent argues that in these cases “neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the Fifth Amendment.” Post, at 5–6 (opinion of BREYER, J.). But none of our precedents sug- gests that governmental officials are obliged to guess at the meaning of a witness’ unexplained silence when implicit reliance on the Fifth Amendment seems probable. does not say as much, despite its holding that the defendant in that case was required to explain the Fifth Amendment basis for his failure to cooperate with an investiga- tion that led to his 8 SALINAS v. TEXAS Opinion of ALITO, J. must ‘put the Government on notice by formally availing himself of the privilege’ only when he alone ‘is reasonably aware of the incriminating tendency of the questions.’ ” (quoting n.* (Brennan, J., concurring)). See also United States v. Kordel, 397 U.S. 1, 72 Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, peti- tioner would have us hold that although neither a wit- ness’ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation require- ment does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we con- clude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless
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Salinas v. Texas
https://www.courtlistener.com/opinion/903977/salinas-v-texas/
relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt. Petitioner’s proposed exception would also be very diffi- cult to reconcile with Berghuis v. Thompkins, U.S. 370 (2010). There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the —————— 2 Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminat- ing See post, at 7 (BREYER, J., dissenting). For example, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on and —two cases in which witnesses remained silent and did not make incriminating 429, 455–456, n. 20. Similarly, Kordel cited among other cases, for the proposition that the defendant’s “failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.” and n. 18. Cite as: 570 U. S. (2013) 9 Opinion of ALITO, J. privilege when he refused to respond to police questioning for 2 hours and 45 minutes. U. S., at (slip op., at 3, 8–10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary si- lence in this case did not do so either. Petitioner and the dissent attempt to distinguish Berg- huis by observing that it did not concern the admissi- bility of the defendant’s silence but instead involved the admissibility of his subsequent Post, at 8–9 (opinion of BREYER, J.). But regardless of whether prose- cutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment 3 In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reli- ance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9–10 (BREYER, J., dissenting). But whatever the most probable explanation, such silence is “insolubly ambiguous.” See 617 To be sure, someone might decline to answer a police ’s question in reliance on his constitutional But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence
Justice Alito
2,013
8
majority
Salinas v. Texas
https://www.courtlistener.com/opinion/903977/salinas-v-texas/
protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amend- ment. Petitioner alone knew why he did not answer the ’s question, and it was therefore his “burden to —————— 3 Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, but that rule does not apply where a suspect has not received the warnings’ implicit promise that any silence will not be used against him, Jenkins v. Anderson, 10 SALINAS v. TEXAS Opinion of ALITO, J. make a timely assertion of the ” 424 U. S., at 655. At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain si- lent.” Tr. of Oral Arg. 26–27; see post, at 10 (BREYER, J., dissenting); 417 U.S. (observing that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself ”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See 341 U. S., at –487.4 In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. –428; State- ments against interest are regularly admitted into evi- dence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant’s silence any differently. C Finally, we are not persuaded by petitioner’s arguments —————— 4 The dissent suggests that officials in this case had no “special need to know whether the defendant sought to rely on the protections of the Fifth Amendment.” Post, at 4 (opinion of BREYER, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the Fifth Amendment. Cite as: 570 U. S. (2013) 11 Opinion of ALITO, J. that applying the usual express invocation requirement where a witness is
Justice Alito
2,013
8
majority
Salinas v. Texas
https://www.courtlistener.com/opinion/903977/salinas-v-texas/
applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will “unleash complicated and persistent litigation” over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 11–12 (opinion of BREYER, J.), but our cases have long required that a witness assert the privilege to subse- quently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for sus- pects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, U. S., at (slip op., at 8–10) (requiring suspect to unam- biguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U.S. 452, 459 (1994) (same standard for assertions of the right to counsel). Notably, petitioner’s approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At pre- cisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid. We also reject petitioner’s argument that an express invocation requirement will encourage police s to “ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Reply Brief 21 (quoting South (1983)). Petitioner worries that s could unduly pressure suspects into talking by telling them that their silence could be used in a future But as petitioner himself concedes, police s “have done nothing wrong” when they “accurately stat[e] the law.” 12 SALINAS v. TEXAS Opinion of ALITO, J. Brief for Petitioner 32. We found no constitutional infir- mity in government officials telling the defendant in Mur- phy that he was required to speak truthfully to his parole –438, and we see no greater dan- ger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to volun- tarily invoke the privilege, there is no Fifth Amendment violation. * * * Before petitioner could rely on the privilege against self- incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Crimi- nal Appeals is affirmed. It is so ordered. Cite as: 570 U. S. (2013) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 12–246 GENOVEVO
Justice Alito
2,013
8
majority
Salinas v. Texas
https://www.courtlistener.com/opinion/903977/salinas-v-texas/
judgment SUPREME COURT OF THE UNITED STATES No. 12–246 GENOVEVO SALINAS, PETITIONER v. TEXAS ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS [June 17, 2013] JUSTICE THOMAS, with whom JUSTICE SCALIA joins, con- curring in the judgment. We granted certiorari to decide whether the Fifth Amend- ment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant’s pre- custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas’ Fifth Amendment claim fails because he did not expressly invoke the Ante, at 3. I think there is a simpler way to resolve this case. In my view, Salinas’ claim would fail even if he had invoked the privilege be- cause the prosecutor’s comments regarding his precusto- dial silence did not compel him to give self-incriminating testimony. In this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify. The Court reasoned that such comments, and any adverse inferences drawn from them, are a “penalty” imposed on the defendant’s exercise of his Fifth Amend- ment Salinas argues that we should extend Griffin’s no-adverse-inference rule to a defendant’s silence during a precustodial interview. I have previously explained that the Court’s decision in Griffin “lacks foun- dation in the Constitution’s text, history, or logic” and should not be extended. See v. United States, 526 2 SALINAS v. TEXAS THOMAS, J., concurring in judgment U. S. 314, 341 (1999) (dissenting opinion). I adhere to that view today. Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled to be a witness against himself ” simply because a jury has been told that it may draw an adverse inference from his silence. See (“[T]he threat of an adverse inference does not ‘compel’ anyone to testify. Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony”); (Powell, J., concurring) (“[N]othing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”). Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and Ameri- can courts strongly encouraged defendants to give un- sworn statements and drew adverse inferences when they failed to do so. See (SCALIA, J., dissenting); Alschuler, A Peculiar Privilege
Justice White
1,977
6
dissenting
Jones v. Hildebrant
https://www.courtlistener.com/opinion/109697/jones-v-hildebrant/
Physical abuses by police under color of state law may in some circumstances constitute a constitutional deprivation giving rise to criminal liability under the civil rights laws, even if the abuses result in the death of the victim, ; and if the victim survives such abuses, it is now clear that he may recover damages under 42 U.S. C. 193 for the injuries that he has sustained. See ; (CA2), cert. denied sub nom. ; ; ; ; ; There remains the question whether, independently or in conjunction with state law, 193 affords parents a cause of action for a wrongful killing of their child by a state law enforcement officer and, if it does, the further question as to the measure of damages in such case. This Court has never addressed these issues.[1] Beginning *190 with (CA), cert. denied, however, the Courts of Appeals have permitted survivor suits under 193, at least where such actions are maintainable under state law. See, e. g., ; See also cert. denied, In Brazier the Fifth Circuit held that an action by a widow against a police officer for the wrongful killing of her husband was maintainable under 193. There the Court of Appeals found that in enacting 42 U.S. C. 19, "Congress adopted as federal law the currently effective state law on the general right of survival." The same court has now ruled that a 193 action survives the death of the victim, despite state law to the contrary. It is thus apparent that the availability of 193 in wrongful-death actions is a recurring issue and that it is far from evident that the Colorado Supreme Court was correct in ruling that a 193 death action is tied to state law. It is clear that by enacting 193, Congress intended to create a federal right of action separate and independent from any remedies afforded under state law. See State law may be relevant where a trial court is seeking to fix a remedy under 193, cf. but it is by no means clear that state law may serve as a limitation on recovery where the remedy provided under state law is inadequate to implement the purposes of 193. Thus, "both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. The Courts of Appeals have taken a similar approach by allowing recovery of punitive damages in suits brought under 193 even if state law would not have permitted them. See (CA1), cert. denied, ; See also ; ; Annot., 14 A. L.
Justice White
1,977
6
dissenting
Jones v. Hildebrant
https://www.courtlistener.com/opinion/109697/jones-v-hildebrant/
denied, ; See also ; ; Annot., 14 A. L. R. Fed. 60 Despite the importance of the question whether 193 is available when a state officer wrongfully takes a life, the Court dismisses the writ of certiorari as improvidently granted because in its view the critical issues are not properly before us. I disagree. Petitioner included in her complaint filed in the trial court a claim for relief under 42 U.S. C. 193.[2] That cause of action was dismissed on the ground that it was merged in the state wrongful-death action also included in the complaint. The Colorado Supreme Court rejected petitioner's claim that "her 193 claim should not have been dismissed," 0 P.2d 339, and in so doing rejected each of the "four distinct theories [advanced] to support her" 193 cause of 191 Colo., at 0 P. 2d, at *192 One of petitioner's arguments was that 193 and 19 together permit suits under 193 in reliance on state wrongful-death statutes but authorize recovery of damages free from the limitations of state law. The Colorado Supreme Court agreed that " 19 permits the incorporation of the states' non-abatement statutes and wrongful death statutes into 193 actions in order to effectually implement the policies of that legislation," 0 P. 2d, at 343-344 (footnotes omitted), and that in a federal suit "Colorado's wrongful death remedy would be engrafted into a 193 " 0 P.2d, at 344. But it disagreed with petitioner on the question of remedy, holding that any such 193 action was subject to the damages limitations of state law—here the Colorado rule limiting recovery for wrongful death to direct pecuniary loss to the survivors; and because suit was brought in state court, the 193 case merged with the state wrongful-death action and was properly dismissed. Chief Justice Pringle and Justice Groves dissented, saying that they did not "believe that Colorado's judicial limitation of net pecuniary loss as a measure of damages for wrongful death applies to actions founded upon 42 U.S. C. 193" 0 P. 2d, at 34-346. In the course of arriving at this conclusion, the Colorado Supreme Court expressly rejected the other grounds offered by petitioner to sustain her 193 claim. First, because the Colorado statute permitted petitioner to bring her suit, she was not deprived of any civil right "without due process of law." 0 P. 2d, at 343. Second, the Colorado court rejected as contrary to congressional intent, the "theory that a federal wrongful death remedy impliedly exists in 193, independent of state wrongful death remedies." 0 P.2d, at 34.[3] *193 Petitioner also claimed that
Justice White
1,977
6
dissenting
Jones v. Hildebrant
https://www.courtlistener.com/opinion/109697/jones-v-hildebrant/
remedies." 0 P.2d, at 34.[3] *193 Petitioner also claimed that she was entitled to a "separate recovery under her 193 claim" because "she was deprived of her own constitutional rights" in that "her child's right to life, his right to freedom from physical abuse and intimidation, and his right to equal protection of the laws were violated." In rejecting this claim, the court held that "[t]hese deprivations are really those of her son" and that a 193 action did not lie for injuries to another. Petitioner could not "sue in her own right for the deprivations of her son's rights," such as his right to life. The Colorado court thus treated petitioner's claim as a survivor's suit based on the deceased's cause of action, holding that 193 does not provide for such an action independently of state law. Finally, the Colorado Supreme Court expressly rejected any notion that the State "directly attempt[ed] to restrict [petitioner's] own personal decisions relating to procreation, contraception, and child-rearing which are involved in 31 U.S. 49 and" 0 P. 2d. at 34. While conceding that "the death of a family member represents a loss" to petitioner, the court held that the State had not interfered with her right to child rearing, and " 193 was not designed to compensate for these collateral losses resulting from injuries to others." Accordingly, the rights of parents were sufficiently vindicated by the state statutory recovery of direct pecuniary losses resulting from the death of their children. It is obvious from the proceedings in the Colorado courts that the dismissal of petitioner's 193 claim and the associated *194 damages limitation ruling were unsuccessfully challenged in the Colorado Supreme Court on the grounds just mentioned. It also seems to me that these grounds were preserved by the petition for certiorari, which we granted and which presented the following questions: "Where the black mother of a 1-year-old child who was intentionally shot and killed by a white policeman acting under the color of state law brings a suit in state court pursuant to 42 U.S. C. 193, what is the measure of damages? Particularly, can the state measure of damages cancel and displace an action brought pursuant to 42 U.S. C. 193?" The questions "what is the measure of damages" in a 193 suit and "can a state measure of damages cancel and displace an action brought pursuant to 193" fairly pose the correctness of the Colorado Supreme Court rulings that (1) no 193 action exists independently of state law; (2) a survivor may not sue under 193 for injuries suffered by
Justice White
1,977
6
dissenting
Jones v. Hildebrant
https://www.courtlistener.com/opinion/109697/jones-v-hildebrant/
survivor may not sue under 193 for injuries suffered by the deceased; and (3) the damages recoverable under 193 are limited by Colorado law to direct pecuniary loss and do not reach "collateral" injuries. These issues were addressed directly by the Colorado Supreme Court, and I doubt that court misunderstood the scope of the litigation before it or reached and decided issues not fairly presented by the appeal. Nor do I think that the oral argument, even when read in the majority's common-law pleading style, ineluctably supports any conclusion that petitioner has abandoned any of these claims. At oral argument, petitioner's claim as a parent was articulated several times: "a right to not have her child taken"; she was deprived of the "liberty to raise children"; she had the right "[t]o raise her child"; and the "constitutional violation was the infringement of her rights as a parent." Tr. of Oral Arg. -10. In light of these statements and similar ones throughout the oral argument it cannot *19 be said that petitioner has abandoned her claim, expressly rejected by the Colorado Supreme Court, that 193 affords a remedy to petitioner in her capacity as a parent wholly independent of state law. Similarly, petitioner's counsel made his view clear that even if the 193 action for the death of petitioner's child was dependent on state law, it was error to restrict petitioner's recovery to her direct pecuniary losses pursuant to the Colorado rule. Recovery should include, it was urged, damages for loss of a parent's own "civil rights" as well as punitive damages for the wrongful killing. Tr. of Oral Arg. 4. Finally, it appears to me that petitioner has preserved her claim that 193 affords a survivor's action for the invasion of her child's right to life. Although petitioner's counsel seems to have characterized his claims in the state courts as being related solely to the mother's rights as a parent, the Colorado Supreme Court understood them to consist in part of claims on behalf of the son and, as I have indicated, expressly held these claims not cognizable under 193. 191 Colo., 0 P.2d, at 34. At oral argument, counsel for petitioner conceded that he had not pressed his client's survivorship claim, apparently because he felt constrained by certain lower court opinions, since reversed or overruled, to articulate petitioner's claims in the Colorado courts in terms of the mother's rights alone. But he made it clear that "in hindsight" he would assert the survivorship claim, citing for the proposition that independently of state law a 193 action survives the death
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
On June 16, 1967, Emerson Electric in an attempt to wrest control from the incumbent management, acquired more than 10% of the outstanding common stock of Dodge Manufacturing Dodge successfully resisted the take-over bid by means of a defensive merger with petitioner, Reliance Electric Emerson then sold the shares it had accumulated, within six months of their purchase, for a profit exceeding $900,000. Because this sale purportedly comprised two "independent" transactions, the first of which reduced Emerson's holdings to 9.96% of the outstanding Dodge common stock, the Court today holds that the profit from the second transaction is beyond the contemplation of 16 (b) of the Securities Exchange Act.[1] So Emerson *428 need not account to the corporation for these gains. In my view, this result is a mutilation of the Act, contrary to its broad remedial purpose, inconsistent with the flexibility required in the interpretation of securities legislation, and not required by the language of the statute itself. I Section 16 (b) is a "prophylactic" rule, whose wholesome purpose is to control the insiders whose access to confidential information gives them unfair advantage in the trading of their corporation's securities.[2] *429 The congressional investigations which led to the enactment of the Securities Exchange Act unearthed convincing evidence that disregard by corporate insiders of their fiduciary positions was widespread and pervasive.[3] Indeed, "the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions, to aid them in their market activities," *430 was reported by the Senate subcommittee charged with the investigation to be "[a]mong the most vicious practices unearthed at the hearings." S. Rep. No. 73d Cong., 2d Sess., 55 (1934). The subcommittee did not limit its attack to directors and officers. "Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others." Despite its flagrantly inequitable character, the most respected pillars of the business and financial communities considered windfall profits from "sure-thing" speculation in their own company's stock to be one of the usual emoluments of their position. Cook & Feldman, Insider Trading Under the Securities Exchange Act, ; 10 SEC Ann. Rep. 50 (1944). These abuses were perpetrated by such ostensibly reliable men and institutions as Richard Whitney, President of the New York Stock Exchange,[4] Albert H. Wiggin and the Chase National Bank, of which
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
Albert H. Wiggin and the Chase National Bank, of which he was the chief executive officer,[5] and Charles E. Mitchell and the National City Bank, of which he was Chairman of the Board.[6] Section 16 (b) was drafted to combat these "predatory operations," S. Rep. No. by removing all possibility of profit from those short-swing insider trades occurring within the statutory period of six *431 months.[7] The statute is written broadly, and the liability it imposes is strict. Profits are forfeit without proof of an insider's intent to gain from inside information, and without proof that the insider was even privy to such (CA2). II Today, however, in the guise of an "objective" approach, the Court undermines the statute. By the simple expedient of dividing what would ordinarily be a single transaction into two parts—both of which could be performed on the same day, so far as it appears from the Court's opinion—a more-than-10% owner may reap windfall profits on 10% of his corporation's outstanding stock. This result, " `plainly at variance with the policy of the legislation as a whole,' " United is said to be required because Emerson, owning only 9.96%, was not a "beneficial owner" of more than 10% within the meaning of 16 (b) "at the time of" the disposition of this block of Dodge stock. If 16 (b) is to have the "optimum prophylactic effect" which its architects intended, insiders must not be permitted so easily to circumvent its broad mandate. We should hold that there was only one sale—a plan of distribution conceived "at the time" Emerson owned 13.2% of the Dodge stock, and implemented within six months of a matching purchase. Moreover, in the spirit of the Act we should presume that any such "split-sale" by a more-than-10% owner was part of a single plan of disposition for purposes of 16 (b) liability. This construction of "the sequence of relevant transactions," (CA7), is not foreclosed by any language in the statute. The statutory definitions of such terms as "purchase," "sale," "beneficial owner," "insider," and "at the time of" are not, as one might infer from the Court's opinion, objectively defined words with precise meanings. " `Whatever the terms "purchase" and "sale" may mean in other contexts,' they should be construed in a manner which will effectuate the purposes of the specific section of the [Securities Exchange] Act in which they are used." MR. JUSTICE STEWART, while on the Court of Appeals, explained the manner appropriate for the construction of the statutory definitions in the context of 16 (b): "Every transaction which can reasonably
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
the context of 16 (b): "Every transaction which can reasonably be defined as a purchase will be so defined, if the transaction is of a kind which can possibly lend itself to the speculation encompassed by Section 16 (b)." (CA6). *433 Applying this salutary approach toward the statutory definitions, the courts have reasoned that, because of the opportunities for abuse inhering in his position, a director must account both for purchases made shortly before his appointment, (CA2), and for sales made shortly after his resignation, Feder v. Martin Marietta "Options," which played such a large role in the manipulative practices disclosed during the 1930's,[9] are not ordinarily thought to be "purchases" or "sales" of the underlying commodity; yet, because of the opportunity for abuse inherent in the device, courts have held that an option can be a "sale," when granted, within the meaning of 16 (b). But, in order to bring the underlying transaction within the six-month limitation of 16 (b), an option was also held to be a "purchase" when exercised. (CA1). Similarly, where there was an opportunity for the abuse of inside information, a conversion of debentures into common stock was held to be a "sale"; Park & (CA2); but where there was no such opportunity, a similar conversion was held not to be. (CA2). The common thread running through the decisions is that whether we approach the problem of this case as a question of "beneficial ownership" at the time of the second transaction, or as a question whether the two transactions were one "sale," it "is not in any event primarily a semantic one, but must be resolved in the light of the legislative purpose—to curb short swing speculation by insiders." Until today, the federal courts have been almost universally faithful to this philosophy, "even departing where necessary from the literal statutory language." *434 Feder v. Martin Marietta at Thus, a tender offer, although it may justifiably be described as a series of discrete purchases, has been treated as a single purchase. (SDNY), rev'd on other grounds, (CA2). And, in order to prevent a construction of the statute whereby "it would be possible for a person to purchase a large block of stock, sell it out until his ownership was reduced to less than 10%, and then repeat the process, ad infinitum," the phrase "at the time of the purchase and sale," on which the Court places such heavy reliance, was defined to mean "simultaneously with" purchase, and "just prior to" sale. (SDNY). As one commentator noted, this holding "necessitates a logical inconsistency insofar as the
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
noted, this holding "necessitates a logical inconsistency insofar as the phrase `at the time of purchase and sale' is treated as meaning the moment after purchase and the moment before sale." Recent Developments, 57 Col. L. Rev. 287, 289. Yet, as in the present case, "the discrepancy seems slight in view of the broader statutory policies involved." Thus, should the broadly remedial statutory purpose of 16 (b) require it, the literal language of the statute would not preclude an analysis in which the two transactions herein at issue are treated as part of a single "sale." III The potential for abuse of inside information in the present case is self-evident. Equally obvious is the fact *435 that the modern-day insider is no less prone than his counterpart of a generation ago to succumb to the lure of insider trading where windfall profits are in the offing. Indeed, in a survey of "reputable" businessmen, 42% of those responding indicated they would themselves trade on inside information, and 61% believed that the "average" executive would do likewise.[10] Thus, it would appear both that 16 (b) was directed at such conduct as is herein at issue and that the protection 16 (b) affords is as necessary today as it was when the statute was enacted. Despite the fact that the decision below strikes at the vitals of the statute, the Court says it must be affirmed because to treat "two sales as one upon proof of a pre-existing intent by the seller" detracts from the "mechanical quality" of the statute and is "scarcely in harmony with the congressional design of predicating liability upon an `objective measure of proof.' " Ante, at 425. This "mechanical quality," however, is illusory. "There is no rule so `objective' (`automatic' would be a better word) that it does not require some mental effort in applying it on the part of the person or persons entrusted by law with its application." Thus, the deterrent value of 16 (b) depends not so *436 much on its vaunted "objectivity" as on its "thorough-going" qualities. "We must suppose that the statute was intended to be thoroughgoing, to squeeze all possible profits out of stock transactions, and thus to establish a standard so high as to prevent any conflict between the selfish interest of a fiduciary officer, director, or stockholder and the faithful performance of his duty." Smolowe v. Delendo (CA2). Insiders have come to recognize that "in order not to defeat [ 16 (b)'s] avowed objective," federal courts will resolve "all doubts and ambiguities against insiders." Moreover, courts have not shirked this
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
and ambiguities against insiders." Moreover, courts have not shirked this responsibility simply because, as here, such a resolution may require a factual inquiry. In this Court said that on an appropriate factual showing, an investment banking firm might be forced to disgorge profits made from short-swing trades in the stock of a corporation on whose board a partner of the firm was "deputized" to sit. In (CA2), cited by the majority, the court permitted a factual inquiry into the possibility that an individual might be a "de facto" officer or director, although not formally labeled as such. Virtually all courts faced with 16 (b) problems now inquire into the opportunity for abuse inherent in a particular type of transaction, in order to see if applying the statute would serve its purposes. See, e. g., (CA9); And, even under the narrow approach of the majority, I presume it would still be open, in cases like this one, to inquire whether the ostensibly separate sales are "legally *437 tied."[11] It follows that the necessity of a factual inquiry is no bar to the application of the statute to the present case. It is beyond question, of course, that a prime concern of the statute was that a requirement of positive proof of an insider's "intent" would render the statute ineffective. Insofar as the District Court's approach appears to place the burden on the plaintiff to demonstrate the existence of a "plan of distribution," it is justifiably open to criticism. The broad sweep of 16 (b) requires that a minimal burden be placed on putative plaintiffs. But this goal—elimination of proof problems—is subsidiary to the statute's main aim—curbing insider speculation. Whatever "mechanical quality" the statute possesses, it was intended to ease the plaintiff's burden, not to insulate the insider's profits. Thus, we should not conclude, as does the majority, that there is no enforceable way to combat the potential *438 for sharp practices which inheres in the "split-sale" scheme. "[T]he `objective' or `rule of thumb' approach need not compel a court to wink at the substantial effects of a transaction which is rife with potential sharp practices in order to preserve the easy application of the short-swing provisions under Section 16 (b). Certainly the interest of simple application of the prohibitions of Section 16 (b) does not carry so far as to facilitate evasion of that provision's function by formalistic devices." at n. 5. A series of sales, spaced close together, is more than likely part of a single plan of disposition. Plain common sense would indicate that Emerson's conduct in the present
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
common sense would indicate that Emerson's conduct in the present case had probably been planned, even if there were no confirmation in the form of an admission. It is statistically probable that any series of sales made by a beneficial owner of more than 10%, within six months, in which he disposes of a major part of his holdings, would be similarly connected. We, therefore, should construe the statute as allowing a rebuttable presumption that any such series of dispositive transactions will be deemed to be part of a single plan of disposition, and will be treated as a single "sale" for the purposes of 16 (b).[12] Because the burden *439 would be on the defendant, not the plaintiff, such a rule would operate with virtually the same less-than-perfectly automatic efficiency that the statute now does, and it would comport far more closely with the statute's broad, remedial sweep than does the approach taken by the Court. Such a rule would not, moreover, import questions of "intent" into the statutory scheme. Any factual inquiry would involve only an objective analysis of the circumstances of the various dispositions in the series, applying the "various tests" established by the cases "to determine whether a transaction, objectively defined, falls within or without the terms of the statute." Ante, at 424 n. 4. *440 Only if a beneficial owner carried an affirmative burden of proof—that his series of dispositive transactions was not of a type that afforded him an opportunity for speculative abuse of his position as an insider —should we say that he was not such a beneficial owner "at the time of sale."[13] IV The Court suggests two additional factors militating against Emerson's liability under 16 (b). First, the Court implies that it is contrary to the SEC's own rules. This argument rests on the power given to the SEC by 16 (b) to exempt from its scope those transactions that are "not comprehended within the purpose" of the section. Pursuant to this authority, the SEC has promulgated Rule 16a-10, providing that transactions not required to be reported under 16 (a) are exempt from 16 (b) as well. The SEC's reporting requirements are contained in "Form 4." Until recently, this Form required insiders— officers, directors, and more-than-10% owners—only to report transactions occurring in a calendar month in which they met the formal requirements to be denominated such an insider. Emerson sold down to 9.96% in August, then sold out in September. Presumably, it did not have to report the September sale on Form 4, and thus, by operation of Rule 16a-10, the
Justice Douglas
1,972
10
dissenting
Reliance Electric Co. v. Emerson Electric Co.
https://www.courtlistener.com/opinion/108426/reliance-electric-co-v-emerson-electric-co/
Form 4, and thus, by operation of Rule 16a-10, the September sale is argued to be exempt from the operations of 16 (b) as well. *441 Inasmuch as the SEC's power to promulgate such a rule is not "a matter solely within the expertise of the SEC and therefore beyond the scope of judicial review," (CA2), this argument loses substantially all its force after Feder v. Martin Marietta There, the court held, in the face of the identical argument that Rule 16a-10 was invalid, insofar as it operated through Form 4 to exempt transactions by ex-directors from liability under 16 (b) The court reasoned that the limitation of the reporting requirement to the calendar month in which a transaction occurred was "an arbitrary [and] unnecessary loophole in the effective operation of the statutory scheme," because it required reporting of some transactions 30 days after an ex-director's resignation, but insulated others taking place the very next day. Form 4 did, however, extend 16 (b) liability to at least some transactions occurring after resignation. "Therefore, inasmuch as Form 4, a valid exercise of the SEC's power, has already extended 16 (b) to cover, in part, an ex-director's activities, a less arbitrarily defined reporting requirement for ex-directors is but a logical extension of 16 (b) coverage, would be a coverage in line with the congressional aims, and would afford greater assurance that the lawmakers' intent will be effectuated." [14] This analysis is equally applicable to the reporting requirements of ex-10% owners. *442 Second, the Court analogizes Emerson's "plan" to a sale "conceived" during the six-month period but not made until after the expiration of the statutory limitation. The Court incorrectly assumes that such a sale could not fall within 16 (b). If the "conception" were sufficiently concrete to be construed as a "contract to sell," or an "option," there would indeed be liability. Cf. In any event, the analogy fails because the purposes of the six-month rule are different from the purpose of the 10% rule. The six-month limitation is based on Congress' estimation that beyond this time period, normal market fluctuations sufficiently deter attempts to trade on inside information. Thus, it is consistent with the statutory scheme to permit an insider to "plan" a sale within the six-month period that will not take place until six months have passed from a matching purchase. But the 10% rule is based upon a conclusive statutory presumption that ownership of this quantity of stock suffices to provide access to inside information. (CA2). The rationale of the six-month rule implies that such information will be presumed
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
The Court's narrow construction of the word "seizure" represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment.[1] Almost a quarter of a century ago, in two landmark cases— one broadening the protection of individual privacy,[2] and the other broadening the powers of law enforcement officers[3]— we rejected the method of Fourth Amendment analysis that *630 today's majority endorses. In particular, the Court now adopts a definition of "seizure" that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment—as long as he misses his target. For the purposes of decision, the following propositions are not in dispute. First, when Officer Pertoso began his pursuit of respondent,[4] the officer did not have a lawful basis for either stopping or arresting respondent. See App. 138-140; ante, at 623, 1. Second, the officer's chase amounted to a "show of authority" as soon as respondent saw the officer nearly upon him. See ante, at 625-626, 629. Third, the act of discarding the rock of cocaine was the direct consequence of the show of authority. See Pet. for Cert. 48-49, 52. Fourth, as the Court correctly demonstrates, no common-law arrest occurred until the officer tackled respondent. See ante, at 624-625. Thus, the Court is quite right in concluding that the abandonment of the rock was not the fruit of a common-law arrest. It is equally clear, however, that if the officer had succeeded in touching respondent before he dropped the rock— *631 even if he did not subdue him—an arrest would have occurred.[5] See ante, at 624-625, 626. In that event (assuming the touching precipitated the abandonment), the evidence would have been the fruit of an unlawful common-law arrest. The distinction between the actual case and the hypothetical case is the same as the distinction between the common-law torts of assault and battery—a touching converts the former into the latter.[6] Although the distinction between assault and battery was important for pleading purposes, see 2 J. Chitty, Pleading *32-*3, the distinction should not take on constitutional dimensions. The Court mistakenly allows this common-law distinction to define its interpretation of the Fourth Amendment. At the same time, the Court fails to recognize the existence of another, more telling, common-law distinction—the distinction between an arrest and an attempted arrest.
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
common-law distinction—the distinction between an arrest and an attempted arrest. As the Court teaches us, the distinction between battery and assault was critical to a correct understanding of the common law of arrest. See ante, at 626 ("An arrest requires either physical force or, where that is absent, submission to the assertion of authority"). However, the facts of this case do not describe an actual arrest, but rather an unlawful attempt to take a presumptively innocent person into custody. Such an *632 attempt was unlawful at common law.[] Thus, if the Court wants to define the scope of the Fourth Amendment based on the common law, it should look, not to the common law of arrest, but to the common law of attempted arrest, according to the facts of this case. The first question, then, is whether the common law should define the scope of the outer boundaries of the constitutional protection against unreasonable seizures. Even if, contrary to settled precedent, traditional common-law analysis were controlling, it would still be necessary to decide whether the unlawful attempt to make an arrest should be considered a seizure within the meaning of the Fourth Amendment, and whether the exclusionary rule should apply to unlawful attempts. I The Court today takes a narrow view of "seizure," which is at odds with the broader view adopted by this Court almost 25 years ago. In the Court considered whether electronic surveillance conducted "without any trespass and without the seizure of any material object fell outside the ambit of the Constitutio" Over Justice Black's powerful dissent, we rejected that "narrow view" of the Fourth Amendment and held that electronic eavesdropping is a "search and seizure" within the meaning of the Amendment. -354. We thus endorsed the position expounded by two of the dissenting Justices in : *633 "Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it." "The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words." Writing for the Court in Katz, Justice Stewart explained: "Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any `technical trespass under local property law.' Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people—and not simply `areas'—against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. "We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the `trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone *634 booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. "The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards." 389 U.S., -354. Significantly, in the Katz opinion, the Court repeatedly used the word "seizure" to describe the process of recording sounds that could not possibly have been the subject of a common-law seizure. See Justice Black's reasoning, which was rejected by the Court in 196, is remarkably similar to the reasoning adopted by the Court today. After criticizing "language-stretching judges," Justice Black wrote: "I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal constructio This principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the `seizure' of conversations." -36. "Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to `keep the Constitution up to date' or `to bring it into harmony with the times.' It was never meant that
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
into harmony with the times.' It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional conventio" *635 The expansive construction of the word "seizure" in the Katz case provided an appropriate predicate for the Court's holding in the following year.[8] Prior to the Fourth Amendment proscribed any seizure of the person that was not supported by the same probable-cause showing that would justify a custodial arrest.[9] See Given the fact that street encounters between citizens and police officers "are incredibly rich in diversity," the Court recognized the need for flexibility and held that "reasonable" suspicion—a quantum of proof less demanding than probable cause—was adequate to justify a stop for investigatory purposes. As a corollary to the lesser justification for the stop, the Court necessarily concluded that the word "seizure" in the Fourth Amendment encompasses official restraints on individual freedom that fall short of a common-law arrest. Thus, broadened the range of encounters between the police and the citizen encompassed within the term "seizure," while at the same time, lowering the standard of proof necessary to justify a "stop" in the newly expanded category of seizures *636 now covered by the Fourth Amendment.[10] The Court explained: "Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden `seized' and whether and when he conducted a `search.' There is some suggestion in the use of such terms as `stop' and `frisk' that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a `search' or `seizure' within the meaning of the Constitutio We emphatically reject this notio It is quite plain that the Fourth Amendment governs `seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime—`arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that perso" "The distinctions of classical `stop-and-frisk' theory thus serve to divert attention from the central inquiry under the Fourth Amendment—the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. `Search' and `seizure' are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a `technical arrest' or a `full-blown search.'" *63 The decisions in Katz and unequivocally reject
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
`full-blown search.'" *63 The decisions in Katz and unequivocally reject the notion that the common law of arrest defines the limits of the term "seizure" in the Fourth Amendment. In Katz, the Court abandoned the narrow view that would have limited a seizure to a material object, and, instead, held that the Fourth Amendment extended to the recording of oral statements. And in the Court abandoned its traditional view that a seizure under the Fourth Amendment required probable cause, and, instead, expanded the definition of a seizure to include an investigative stop made on less than probable cause. Thus, the major premise underpinning the majority's entire analysis today—that the common law of arrest should define the term "seizure" for Fourth Amendment purposes, see ante, at 624-625—is seriously flawed. The Court mistakenly hearkens back to common law, while ignoring the expansive approach that the Court has taken in Fourth Amendment analysis since Katz and[] II The Court fares no better when it tries to explain why the proper definition of the term "seizure" has been an open question until today. In in addition to stating that a seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away," 392 U.S., the Court noted that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citize" 16. The touchstone of a seizure is the restraint of an individual's personal liberty "in some way."[12] Today the Court's reaction to respondent's reliance on *638 is to demonstrate that in "show of force" cases no common-law arrest occurs unless the arrestee submits. See ante, at 626-62. That answer, however, is plainly insufficient given the holding in that the Fourth Amendment applies to stops that need not be justified by probable cause in the absence of a full-blown arrest. In United the Court "adhere[d] to the view that a person is `seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." The Court looked to whether the citizen who is questioned "remains free to disregard the questions and walk away," and if he or she is able to do so, then "there has been no intrusion upon that person's liberty or privacy" that would require some "particularized and objective justification" under the Constitutio The test for a "seizure," as formulated by the Court in was whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
person would have believed that he was not free to leave." Examples of seizures include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." The Court's unwillingness today to adhere to the "reasonable person" standard, as formulated by Justice Stewart in marks an unnecessary departure from Fourth Amendment case law. The Court today draws the novel conclusion that even though no seizure can occur unless the reasonable person standard is met, see ante, at 628, the fact that the standard has been met does not necessarily mean that a seizure has occurred. See If it were true that a seizure requires more than whether a reasonable person felt free to leave, then the following passage from the Court's opinion in is at best, seriously misleading: "As we have noted elsewhere: `Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may we conclude that a "seizure" has occurred.' 16. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see the protection against unreasonable seizures also extends to `seizures that involve only a brief detention short of traditional arrest.' United What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, `if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' ; see" More importantly, in a plurality of the Court adopted Justice Stewart's formulation in as the appropriate standard for determining when police questioning crosses the threshold from a consensual encounter to a forcible stop. In Royer, the Court held that an illegal seizure had occurred. As a *640 predicate for that holding, JUSTICE WHITE, in his opinion for the plurality, explained that the citizen "may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United" The rule looks, not to the subjective perceptions of the person questioned, but rather, to the objective characteristics of the encounter that may suggest whether a reasonable person would have felt free to leave. Even though momentary,
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
person would have felt free to leave. Even though momentary, a seizure occurs whenever an objective evaluation of a police officer's show of force conveys the message that the citizen is not entirely free to leave—in other words, that his or her liberty is being restrained in a significant way. That the Court understood the definition as both necessary and sufficient to describe a Fourth Amendment seizure is evident from this passage in our opinion in United : "A `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property.5 5 "See United ; ; ; see also United ; While the concept of a `seizure' of property is not much discussed in our cases, this definition follows from our oftrepeated definition of the `seizure' of a person within the meaning of the Fourth Amendment—meaningful interference, however brief, with an individual's freedom of movement. See ; ; United ; ; United ; ; ; 392 U. S., 19, 16." and 5. Finally, it is noteworthy that in the State asked us to repudiate the reasonable person standard developed in Delgado, and Royer.[13] We decided, however, to "adhere to our traditional contextual approach," In our opinion, we described Justice Stewart's analysis in as "a test to be applied in determining whether `a person has been "seized" within the meaning of the Fourth Amendment'" and noted that "[t]he Court has since embraced this test." Moreover, in commenting on the virtues of the test, we explained that it focused on the police officer's conduct: "The test's objective standard—looking to the reasonable man's interpretation of the conduct in question—allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment." Expressing his approval of the Court's rejection of Michigan's argument in Professor LaFave observed: "The `free to leave' concept, in other words, has nothing to do with a particular suspect's choice to flee rather than submit or with his assessment of the probability of successful flight. Were it otherwise, police would be encouraged to utilize a very threatening but sufficiently slow chase as an evidence-gathering technique whenever they lack even the reasonable suspicion needed for a stop." 3 W. LaFave, Search and Seizure 9.2, p. 61 (2d ed. 198, Supp. 1991). *642 Whatever else one may think of today's decision, it unquestionably represents a departure from earlier Fourth Amendment case law. The notion that our prior cases contemplated a distinction between seizures effected by a touching on the one hand, and those effected by a show of force on the other hand, and
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
by a show of force on the other hand, and that all of our repeated descriptions of the test stated only a necessary, but not a sufficient, condition for finding seizures in the latter category, is nothing if not creative lawmaking. Moreover, by narrowing the definition of the term seizure, instead of enlarging the scope of reasonable justifications for seizures, the Court has significantly limited the protection provided to the ordinary citizen by the Fourth Amendment. As we explained in : "The danger in the logic which proceeds upon distinctions between a `stop' and an `arrest,' or `seizure' of the person, and between a `frisk' and a `search' is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citize And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulatio" III In this case the officer's show of force—taking the form of a head-on chase—adequately conveyed the message that respondent was not free to leave.[14] Whereas in there was "nothing in the record [to] sugges[t] that the respondent *643 had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way," here, respondent attempted to end "the conversation" before it began and soon found himself literally "not free to leave" when confronted by an officer running toward him head-on who eventually tackled him to the ground. There was an interval of time between the moment that respondent saw the officer fast approaching and the moment when he was tackled, and thus brought under the control of the officer. The question is whether the Fourth Amendment was implicated at the earlier or the later moment. Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue would arise if the show of force took the form of a command to "freeze," a warning shot, or the sound of sirens accompanied by a patrol car's flashing lights. In any of these situations, there may be a significant time interval between the initiation of the officer's show of force and the complete submission by the citize At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen's reaction, rather than by the officer's conduct. See ante, at 626-62. One consequence of this conclusion is that the point at
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
One consequence of this conclusion is that the point at which the interaction between citizen and police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no longer free to go, but, rather, only after the officer exercises control over the citize In my view, our interests in effective law enforcement and in personal liberty[15] would be better served by adhering to a standard that "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth *644 Amendment." 486 U. S., The range of possible responses to a police show of force, and the multitude of problems that may arise in determining whether, and at which moment, there has been "submission," can only create uncertainty and generate litigatio In some cases, of course, it is immediately apparent at which moment the suspect submitted to an officer's show of force. For example, if the victim is killed by an officer's gunshot,[16] as in[1] or by a hidden roadblock, as in the submission is unquestionably complete. But what if, for example, William James Caldwell (Brower) had just been wounded before being apprehended? Would it be correct to say that no seizure had occurred and therefore the Fourth Amendment was not implicated even if the pursuing officer had no justification whatsoever for initiating the chase? The Court's opinion in Brower suggests that the officer's responsibility should not depend on the character of the victim's evasive actio The Court wrote: "Brower's independent decision to continue the chase can no more eliminate respondents' responsibility for the termination of his movement effected by the roadblock than Garner's independent decision to flee eliminated the Memphis police officer's responsibility for the termination of his movement effected by the bullet." *645 It seems equally clear to me that the constitutionality of a police officer's show of force should be measured by the conditions that exist at the time of the officer's actio A search must be justified on the basis of the facts available at the time it is initiated; the subsequent discovery of evidence does not retroactively validate an unconstitutional search. The same approach should apply to seizures; the character of the citizen's response should not govern the constitutionality of the officer's conduct. If an officer effects an arrest by touching a citizen, apparently the Court would accept the fact that a seizure occurred, even if the arrestee should thereafter break loose and flee. In such a case, the constitutionality of the seizure would be evaluated as of the time the officer acted. That category of seizures would
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
the time the officer acted. That category of seizures would then be analyzed in the same way as searches, namely, was the police action justified when it took place? It is anomalous, at best, to fashion a different rule for the subcategory of "show of force" arrests. In cases within this new subcategory, there will be a period of time during which the citizen's liberty has been restrained, but he or she has not yet completely submitted to the show of force. A motorist pulled over by a highway patrol car cannot come to an immediate stop, even if the motorist intends to obey the patrol car's signal. If an officer decides to make the kind of random stop forbidden by U.S. 648 and, after flashing his lights, but before the vehicle comes to a complete stop, sees that the license plate has expired, can he justify his action on the ground that the seizure became lawful after it was initiated but before it was completed? In an airport setting, may a drug enforcement agent now approach a group of passengers with his gun drawn, announce a "baggage search," and rely on the passengers' reactions to justify his investigative stops? The holding of today's majority fails to recognize the coercive and intimidating nature of such behavior and creates a rule that may allow such behavior to go unchecked. *646 The deterrent purposes of the exclusionary rule focus on the conduct of law enforcement officers and on discouraging improper behavior on their part,[18] and not on the reaction of the citizen to the show of force. In the present case, if Officer Pertoso had succeeded in tackling respondent before he dropped the rock of cocaine, the rock unquestionably would have been excluded as the fruit of the officer's unlawful seizure. Instead, under the Court's logic-chopping analysis, the exclusionary rule has no application because an attempt to make an unconstitutional seizure is beyond the coverage of the Fourth Amendment, no matter how outrageous or unreasonable the officer's conduct may be. It is too early to know the consequences of the Court's holding. If carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they *64 may still have. It is not too soon, however, to note the irony in the fact that the Court's own justification for its result is its analysis of the rules of the common law of arrest that antedated our decisions in Katz and Yet, even in those days the common law provided the citizen
Justice Stevens
1,991
16
dissenting
California v. Hodari D.
https://www.courtlistener.com/opinion/112579/california-v-hodari-d/
even in those days the common law provided the citizen with protection against an attempt to make an unlawful arrest. See n 5 and The central message of Katz and was that the protection the Fourth Amendment provides to the average citizen is not rigidly confined by ancient common-law precept. The message that today's literal-minded majority conveys is that the common law, rather than our understanding of the Fourth Amendment as it has developed over the last quarter of a century, defines, and limits, the scope of a seizure. The Court today defines a seizure as commencing, not with egregious police conduct, but rather with submission by the citize Thus, it both delays the point at which "the Fourth Amendment becomes relevant"[19] to an encounter and limits the range of encounters that will come under the heading of "seizure." Today's qualification of the Fourth Amendment means that innocent citizens may remain "secure in their persons against unreasonable searches and seizures" only at the discretion of the police.[20] Some sacrifice of freedom always accompanies an expansion in the Executive's unreviewable[21] law enforcement powers. *648 A court more sensitive to the purposes of the Fourth Amendment would insist on greater rewards to society before decreeing the sacrifice it makes today. Alexander Bickel presciently wrote that "many actions of government have two aspects: their immediate, necessarily intended, practical effects, and their perhaps unintended or unappreciated bearing on values we hold to have more general and permanent interest."[22] The Court's immediate concern with containing criminal activity poses a substantial, though unintended, threat to values that are fundamental and enduring. I respectfully dissent.
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) requirement that certain complaints must be sealed for a limited time period. See 31 U.S. C. There are two questions presented before this Court. First, do any and all violations of the seal requirement mandate dismissal of a private party’s complaint with prejudice? Second, if dismissal is not mandatory, did the District Court here abuse its discretion by declining to dismiss respondents’ complaint? I A The FCA imposes civil liability on an individual who, inter alia, “knowingly presents a false or fraudulent claim for payment or approval” to the Federal Govern- ment. Almost unique to the FCA are its qui tam enforcement provisions, which allow a private party known as a “relator” to bring an FCA action on behalf of the Government. Vermont Agency of 2 STATE FARM FIRE & CASUALTY CO. v. UNITED STATES EX REL. RIGSBY Opinion of the Court Natural Resources v. United States ex rel. 529 U.S. 765, 768, n. 1 (2000) (listing three other qui tam statutes). The Attorney General retains the authority to intervene in a relator’s ongoing action or to bring an FCA suit in the first instance. This system is designed to benefit both the relator and the Government. A relator who initiates a meritorious qui tam suit receives a percentage of the ultimate dam- ages award, plus attorney’s fees and costs. In turn, “ ‘encourag[ing] more private enforcement suits’ ” serves “ ‘to strengthen the Government’s hand in fighting false claims.’ ” Graham County Soil and Water Conserva- tion 298 (2010). The FCA places a number of restrictions on suits by relators. For example, under the provision known as the “first-to-file bar,” a relator may not “ ‘bring a related action based on the facts underlying [a] pending ’ ” Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U. S. (slip op., at 11) (quoting emphasis deleted). Other FCA provisions require compliance with statutory requirements as ex- press conditions on the relators’ ability to bring suit. The paragraph known as the “public disclosure bar,” for in- stance, provided at the time this suit was filed that “ ‘[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions unless the action is brought by the Attor- ney General or an original source of the information.’ ” Graham County Soil and Water Conservation Dist. v. United States ex rel. 285–286 (quoting 31 U.S. C. (2006 ed.); footnote omitted).
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
rel. 285–286 (quoting 31 U.S. C. (2006 ed.); footnote omitted). The FCA also establishes specific procedures for the relator to follow when filing the complaint. Among other things, the relator must serve on the Government “[a] copy Cite as: 580 U. S. (2016) 3 Opinion of the Court of the complaint and written disclosure of substantially all material evidence and information the [relator] possesses.” Most relevant here, the FCA provides: “The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defend- ant until the court so orders.” B Petitioner State Farm is an insurance company. In the years before Hurricane Katrina, petitioner issued two types of homeowner-insurance policies that are relevant in this case: (1) Federal Government-backed flood insurance policies and (2) petitioner’s own general homeowner insur- ance policies. The practical effect for homeowners who were affected by Hurricane Katrina and who purchased both policies was that petitioner would be responsible for paying for wind damage, while the Government would pay for flood damage. As the Court of Appeals noted, this arrangement created a potential conflict of interest: Peti- tioner had “an incentive to classify hurricane damage as flood-related to limit its economic exposure.” 794 F.3d 457, 462 Respondents Cori and Kerri Rigsby are former claims adjusters for one of petitioner’s contractors, E. A. Renfroe & Together with other adjusters, they were responsi- ble for visiting the damaged homes of petitioner’s custom- ers to determine the extent to which a homeowner was entitled to an insurance payout. According to respond- ents, petitioner instructed them and other adjusters to misclassify wind damage as flood damage in order to shift petitioner’s insurance liability to the Government. See at 463– (summarizing trial evidence). In April 2006, respondents filed their qui tam complaint under seal. At the Government’s request, the District Court extended the length of the seal a number of times. In January 2007, the court lifted the seal in part, allowing 4 STATE FARM FIRE & CASUALTY CO. v. UNITED STATES EX REL. RIGSBY Opinion of the Court disclosure of the qui tam action to another District Court hearing a suit by E. A. Renfroe against respondents for purported misappropriation of documents related to peti- tioner’s alleged fraud. See E. A. Renfroe & v. Moran, No. 2:06–cv–1752 (ND Ala.). In August 2007, the District Court lifted the seal in full. In January 2008, the Gov- ernment declined to intervene. In January 2011, petitioner moved to dismiss respond- ents’ suit on the grounds that they had violated the seal requirement.
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
on the grounds that they had violated the seal requirement. The parties do not dispute the essential background. In the months before the seal was lifted in part, respondents’ then-attorney, one Dickie Scruggs, e- mailed a sealed evidentiary filing that disclosed the com- plaint’s existence to journalists at ABC, the Associated Press, and the New York Times. All three outlets issued stories discussing the fraud allegations, but none revealed the existence of the FCA complaint. Respondents them- selves met with Mississippi Congressman Gene Taylor, who later spoke out in public against petitioner’s purported fraud, although he did not mention the existence of the FCA suit at that time. After the seal was lifted in part, Scruggs disclosed the existence of the suit to various oth- ers, including a public relations firm and CBS News. At the time of the motion to dismiss in 2011, respond- ents were represented neither by Scruggs nor by any of the attorneys who had worked with him. In March 2008, Scruggs withdrew from respondents’ case after he was indicted for attempting to bribe a state-court judge. Two months later, the District Court removed the remaining Scruggs-affiliated attorneys from the case, based on their alleged involvement in improper payments made from Scruggs to The District Court did not punish respondents themselves for the payments because they were not made “aware of the ethical implications” and, as laypersons, “are not bound by the rules of professional conduct that apply to” attorneys. App. 21. Cite as: 580 U. S. (2016) 5 Opinion of the Court In deciding petitioner’s motion the District Court con- sidered only the seal violations that occurred before the seal was lifted in part, reasoning the partial lifting in effect had mooted the seal. Applying the test for dismissal set out in United States ex rel. the District Court balanced three factors: (1) the actual harm to the Govern- ment, (2) the severity of the violations, and (3) the evi- dence of bad faith. The court decided against dismissal. Petitioner did not request some lesser sanction. The case went to trial, resulting in a victory for respondents on what the Court of Appeals referred to as a “bellwether” claim regarding a single damaged home. 794 F.3d, at 462. The Court of Appeals for the Fifth Circuit affirmed the denial of petitioner’s motion to dismiss. The court recog- nized that the case presented two related issues of the first impression under its case law: (1) whether a seal violation requires mandatory dismissal of a relator’s com- plaint and, if not, (2) what standard governs a district
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
plaint and, if not, (2) what standard governs a district court’s decision to dismiss. The court noted that the Courts of Appeals for the Second and Ninth Circuits had held that the FCA does not require automatic dismissal for a seal violation, while the Court of Appeals for the Sixth Circuit had held that dismissal is mandatory. See United States ex rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 998 ; United States ex rel. Lujan v. Hughes Aircraft ; United States ex rel. (CA6 2010); see also United States ex rel. Smith v. Clark/Smoot/Russell, (following Pilon). After a careful analysis, the Court of Appeals for the Fifth Circuit held automatic dismissal is not required by the –471. It then considered the same factors the District Court had weighed and came to a 6 STATE FARM FIRE & CASUALTY CO. v. UNITED STATES EX REL. RIGSBY Opinion of the Court similar conclusion. at 471–472. First, the Court of Appeals held the Government was in all likelihood not harmed by the disclosures because none of them led to the publication of the pendency of the suit before the seal was lifted in part. Second, the Court of Appeals determined the violations were not severe in their repercussions be- cause respondents had complied with the seal requirement when they first filed their suit. Third, the Court of Ap- peals assumed, without deciding, that the bad behavior of respondents’ then-attorney could be imputed to respond- ents; but it held that, even presuming the attribution of bad faith, the other factors favored This Court granted certiorari, 578 U. S. (2016), and now affirms. II A Petitioner’s primary contention is that a violation of the seal provision necessarily requires a relator’s complaint to be dismissed. The FCA does not enact so harsh a rule. Section 3730(b)(2)’s text provides that a complaint “shall” be kept under seal. True, this language creates a mandatory rule the relator must follow. See Rockwell Int’l (“As required under the Act, [the relator] filed his complaint under seal ”); see also Kingdomware Technologies, Inc. v. United States, 579 U. S. (2016) (slip op., at 9) (“[T]he word ‘shall’ usually connotes a requirement”). The statute says nothing, however, about the remedy for a violation of that rule. In the absence of congressional guidance regarding a remedy, “[a]lthough the duty is mandatory, the sanction for breach is not loss of all later powers to act.” United States v. Montalvo-Murillo, 495 U.S. 711, 718 (1990). The FCA’s structure is itself an indication that violating the seal requirement does not mandate dismissal. This Cite
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
violating the seal requirement does not mandate dismissal. This Cite as: 580 U. S. (2016) 7 Opinion of the Court Court adheres to the general principle that Congress’ use of “explicit language” in one provision “cautions against inferring” the same limitation in another provision. Marx v. General Revenue Corp., 568 U. S. (2013) (slip op., at 12). And the FCA has a number of provisions that do require, in express terms, the dismissal of a re- lator’s at 2 (citing see also (“[n]o court shall have jurisdiction” over certain FCA claims by relators against a member of the military or of the judicial, legislative, or executive branches). It is proper to infer that, had Congress intended to require dismissal for a violation of the seal requirement, it would have said so. The Court’s conclusion is consistent with the general purpose of The seal provision was enacted in the 1980’s as part of a set of reforms that were meant to “encourage more private enforcement suits.” S. Rep. No. 99–345, pp. 23–24 (1986). At the time, “perhaps the most serious problem plaguing effective enforcement” of the FCA was “a lack of resources on the part of Federal en- forcement agencies.” The Senate Committee Report indicates that the seal provision was meant to allay the Government’s concern that a relator filing a civil complaint would alert defendants to a pending federal criminal investigation. Because the seal re- quirement was intended in main to protect the Govern- ment’s interests, it would make little sense to adopt a rigid interpretation of the seal provision that prejudices the Government by depriving it of needed assistance from private parties. The Federal Government agrees with this interpretation. It informs the Court that petitioner’s test “would undermine the very governmental interests that the seal provision is meant to protect.” Brief for United States as Amicus Curiae 10. 8 STATE FARM FIRE & CASUALTY CO. v. UNITED STATES EX REL. RIGSBY Opinion of the Court B Petitioner’s arguments to the contrary are unavailing. First, petitioner urges that because the seal provision appears in the subsection of the FCA creating the relator’s private right of action, Congress intended to condition the right to bring suit on compliance with the seal require- ment. It is true that, as discussed further below, the Court sometimes has concluded that Congress conditioned the authority to file a private right of action on compliance with a statutory mandate. E.g., There is no textual indication, however, that Congress did so here. Section 3730(b)(2) does not tie the seal requirement to the right to bring the qui
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
the seal requirement to the right to bring the qui tam suit in conditional terms. As noted above, the statute just provides: “The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” The text at issue in Hallstrom, by contrast, was quite different than the statutory language that controls here. The Hallstrom statute, part of the Resource Conservation and Recovery Act of 1976, provided: “ ‘No action may be commenced prior to sixty days after the plaintiff has given notice of the violation’ ” to the Government. 493 U.S., at 25. Petitioner cites two additional cases to support its ar- gument, but those decisions concerned statutes that used even clearer conditional words, like “if ” and “unless.” See United States ex rel. Texas Portland Cement v. McCord, (statute allowed credi- tors of Government contractors to bring suit “ ‘if no suit should be brought by the United States within six months from the completion and final settlement of said con- tract’ ”); (1993) (statute provided that “ ‘[a]n action shall not be instituted upon a claim against the United States for Cite as: 580 U. S. (2016) 9 Opinion of the Court money damages unless the claimant shall have first presented the claim to the appropriate Federal agency’ ”). Again, the FCA’s structure shows that Congress knew how to draft the kind of statutory language that petitioner seeks to read into The applicable version of the public disclosure bar, for example, requires a district court to dismiss an action when the underlying infor- mation has already been made available to the public, “ ‘unless’ ” the plaintiff is the Attorney General or an origi- nal source. Graham County Soil and Water Conservation Second, petitioner contends that because this Court has described the FCA’s qui tam provisions as “effecting a partial assignment of the Government’s damages claim,” Vermont Agency of Natural Resources v. United States ex rel. 529 U.S., 73, adherence to all of the FCA’s mandatory requirements—no matter how small—is a condition of the assignment. This argument fails for the same reason as the one discussed above: Petitioner can show no textual indication in the statute suggesting that the relator’s ability to bring suit depends on adherence to the seal requirement. Third, petitioner points to a few stray sentences in the Senate Committee Report that it claims support the man- datory dismissal rule. As explained above, however, the Report’s recitation of the general purpose of the statute is best understood to
Justice Kennedy
2,016
4
majority
State Farm Fire & Casualty Co. v. Rigsby
https://www.courtlistener.com/opinion/4327560/state-farm-fire-casualty-co-v-rigsby/
the general purpose of the statute is best understood to support And, furthermore, because the meaning of the FCA’s text and structure is “plain and unambiguous, we need not accept petitioner[’s] invitation to consider the legislative history.” (2005). III Petitioner’s secondary argument is that the District Court did not consider the proper factors when declining 10 STATE FARM FIRE & CASUALTY CO. v. UNITED STATES EX REL. RIGSBY Opinion of the Court to dismiss respondents’ complaint or, at a minimum, that it was plain error not to consider respondents’ conduct after the seal was lifted in part. This Court holds the District Court did not abuse its discretion by denying petitioner’s motion, much less commit plain error. In light of the questionable conduct of respondents’ prior attorney, it well may not have been reversible error had the District Court granted the motion; that possibility, however, need not be considered here. In general, the question whether dismissal is appropri- ate should be left to the sound discretion of the district court. While the factors articulated in United States ex rel. Lujan v. Hughes Aircraft appear to be appropri- ate, it is unnecessary to explore these and other relevant considerations. These standards can be discussed in the course of later cases. IV Petitioner and its amici place great emphasis on the reputational harm FCA defendants may suffer when the seal requirement is violated. But even if every seal viola- tion does not mandate dismissal, that sanction remains a possible form of relief. District courts have inherent power, moreover, to impose sanctions short of dismissal for violations of court orders. See Remedial tools like monetary penalties or attorney discipline remain available to punish and deter seal violations even when dismissal is not appropriate. Of note in this case, petitioner did not request any sanction other than dismissal. Tr. of Oral Arg. 3–4, 17. Had petitioner sought some lesser sanctions, the District Court might have taken a different course. Yet petitioner failed to do so. On this record, the question whether a lesser sanction is warranted is not preserved. The judgment of the Court of Appeals for the Fifth Circuit is Affirmed
Justice Marshall
1,977
15
dissenting
Weatherford v. Bursey
https://www.courtlistener.com/opinion/109590/weatherford-v-bursey/
It is easy to minimize the significance of the incursion into the lawyer-client relationship that the Court sanctions today. After all, as the Court observes, there is no evidence that Weatherford went to the meetings between Bursey and his lawyer with an intent to spy; that he reported to the prosecutor *562 on those meetings; or that what he learned was used to develop evidence against Bursey. But while what occurred here may be "the obnoxious thing in its mildest and least repulsive form illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure." I cannot join in providing even the narrowest of openings to the practice of spying upon attorney-client communications. There are actually two independent constitutional values that are jeopardized by governmental intrusions into private communications between defendants and their lawyers. First, the integrity of the adversary system and the fairness of trials is undermined when the prosecution surreptitiously acquires information concerning the defense strategy and evidence (or lack of it), the defendant, or the defense counsel. In this Court made clear that while "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded it does speak to the balance of forces between the accused and his accuser." Due process requires that discovery "be a two-way street." "The State may not insist that trials be run as a `search for truth' so far as defense witnesses are concerned, while maintaining `poker game' secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State." At issue in Wardius was a statute compelling defendants to provide certain information about their case to the prosecution. But the same concerns are implicated when the State seeks such information, not by force of law, but by surreptitious invasions and deceit. *563 Of equal concern, governmental incursions into confidential lawyer-client communications threaten criminal defendants' right to the effective assistance of counsel. Only last Term we held that the right to counsel encompasses the right to confer with one's lawyer. See also ; ; ; But "[a]s a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it
Justice Marshall
1,977
15
dissenting
Weatherford v. Bursey
https://www.courtlistener.com/opinion/109590/weatherford-v-bursey/
would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice." See also United For this reason, it has long been recognized that "the essence of the Sixth Amendment right is privacy of communication with counsel." United cert. denied, See, e. g., ; ; Louie ; cf., e. g., In re Rider, ; 1 N.E. 488 ; State ex rel. ; ; Annot., 5 A. L. R. 3d 1360 The Court today apparently concludes that neither of these constitutional values is infringed when, as here, the State does not act with a purpose to intercept information about the defense, and the information that is uncovered is neither transmitted to the prosecutor nor used by him to the defendant's detriment. I respectfully disagree. In my view, *564 the "balance of forces between the accused and his accuser" is sharply skewed in favor of the accuser if the government's key witnesses are permitted to discover the defense strategy by intercepting attorney-client communications, even if the witnesses cannot divulge the information to the prosecution. With this information, the witnesses are in a position to formulate in advance answers to anticipated questions, and even to shade their testimony to meet expected defenses.[1] Furthermore, because of these dangers defendants may be deterred from exercising their right to communicate candidly with their lawyers if government witnesses can intrude upon the lawyer-client relationship with impunity so long as they do not discuss what they learn with the prosecutor.[2] And insofar as the Sixth Amendment establishes an independent right to confidential communications with a lawyer, that right by definition is invaded when a government agent attends meetings of the defense team at which defense plans are reviewed.[3] *565 But even if I were to agree that unintended and undisclosed interceptions by government witness-employees affect neither the fairness of trials nor the effectiveness of defense counsel, I still could not join in upholding the practice. For in my view, the precious constitutional rights at stake here, like other constitutional rights, need "breathing space to survive," and a prophylactic prohibition on all intrusions of this sort is therefore essential. A rule that offers defendants relief only when they can prove "intent" or "disclosure" is, I fear, little better than no rule at all. Establishing that a desire to intercept confidential communications was a factor in a State's decision to keep an agent under cover will seldom be possible, since the State always can argue plausibly that its sole purpose was to continue to enjoy the legitimate services of the undercover agent. Proving
Justice Marshall
1,977
15
dissenting
Weatherford v. Bursey
https://www.courtlistener.com/opinion/109590/weatherford-v-bursey/
to enjoy the legitimate services of the undercover agent. Proving that an informer reported to the prosecution on defense strategy will be equally difficult, not only because such proof requires an informer or prosecutor to admit his own wrongdoing (and open the door to damages suits and attacks on convictions), but also because an informer's failure to make a report after overhearing a lawyer-client session oftentimes can be an effective means of communicating to the prosecutor that nothing surprising was uncovered.[4] Given these problems of proof, the only way to assure that defendants will feel free to communicate candidly with their lawyers is to prohibit the government from intercepting such *566 confidential communications, at least absent a compelling justification for doing so.[5] Like the Court of appeals, and unlike the majority today, I believe a per se rule of this sort is fully supported, if not compelled, by our decisions in and In both cases, the United informed this Court that lawyer-client conversations had been intercepted by surveillance devices installed to investigate crimes unrelated to the crimes for which the defendants were convicted. Memorandum for United in O. T. 1965, No. 1029, p. 2; Brief for United in O. T. 1966, No. 823, pp. 10-11. In Black the Government reported that information uncovered through the monitoring had been relayed to the prosecutors, but maintained that none of the evidence against the defendant had been derived from the surveillance, and that nothing was learned "which had any effect upon the presentation of the government's case or the fairness of petitioner's trial." Memorandum for United in In O'Brien the Government stated that the only *567 intercepted lawyer-client conversation concerned the terms of the defendant's bail, and that neither this conversation nor any other conversation was disclosed to the prosecuting attorneys. Brief for United in In both cases, the United urged a remand for a hearing to determine whether the intrusions had tainted the trials. Memorandum for United in ; Brief for United in Yet in each case this Court rejected that course and instead remanded for a new trial. To say that these cases establish that "when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial," ante, 52, twists the cases beyond recognition.[6] That is precisely the principle that was urged by the Government and by the dissenters, ; but was rejected by the Court. By vacating the convictions without proof that "the *568 overheard conversations have produced any of the evidence
Justice Alito
2,011
8
majority
Davis v. United States
https://www.courtlistener.com/opinion/218926/davis-v-united-states/
The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from intro ducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. I The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. 2 DAVIS v. UNITED STATES Opinion of the Court A Under this Court’s decision in 395 U.S. 752 a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” (internal quotation marks omitted). This rule “may be stated clearly enough,” but in the early going after Chimel it proved difficult to apply, particularly in cases that in volved searches “inside [of] automobile[s] after the arrest ees [we]re no longer in [them].” See New A number of courts up held the constitutionality of vehicle searches that were “substantially contemporaneous” with occupants’ arrests.1 Other courts disapproved of automobile searches incident to arrests, at least absent some continuing threat that the arrestee might gain access to the vehicle and “destroy evidence or grab a weapon.”2 In New York v. Bel, this Court granted certiorari to resolve the conflict. See at 59–60. In Bel, a police officer conducting a traffic stop law fully arrested four occupants of a vehicle and ordered the arrestees to line up, un-handcuffed, along the side of the thruway. ; see Brief for Petitioner in New York v. Bel, O. T. No. 80–328, p. 3. The officer then searched the vehicle’s passenger compartment and found cocaine inside a jacket that lay on the backseat. Bel, 53 U.S., This Court upheld the search as rea sonable incident to the occupants’ arrests. In an opinion that repeatedly stressed the need for a “straightforward,” —————— 1 See e.g., United –1 ; United ; United ; 2 See e.g., United ; see also United ; Cite as: 56 U. S. (2011) 3 Opinion
Justice Alito
2,011
8
majority
Davis v. United States
https://www.courtlistener.com/opinion/218926/davis-v-united-states/
United ; Cite as: 56 U. S. (2011) 3 Opinion of the Court “workable rule” to guide police conduct, the Court an nounced “that when a policeman has made a lawful custo dial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the pas senger compartment of that automobile.” at 59–60 (footnote omitted). For years, Bel was widely understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching dis tance of the vehicle at the time of the search. See Thorn (SCALIA, J., concur in judgment) (collecting cases). Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Bel still authorized a substantially contemporaneous search of the automobile’s passenger compartment.3 Not every court, however, agreed with this reading of Bel. In the Arizona Supreme Court considered an automobile search conducted after the vehicle’s occupant had been arrested, handcuffed, and locked in a patrol car. The court distinguished Bel as a case in which “four unsecured” arrestees “presented an immediate risk of loss of evidence and an obvious threat to [a] lone officer’s safety.” 216 Ariz., at The court held that where no such “exigencies exis[t]”—where the arrestee has been subdued and the scene secured—the rule of Bel does not 216 Ariz., at 162 P.3d, at 63. This Court granted certiorari in see 552 U. S. —————— 3 See,e.g., United 18 F.3d 1038, 101, 103–10 (CA9 2005) (upholding automobile search conducted after the officer had “handcuffed [the arrestee] and put him in the back of [the] patrol car”); United 37 F.3d 601, 60 DAVIS v. UNITED STATES Opinion of the Court 1230 and affirmed in a 5-to- decision. Arizona v. 556 U. S. Four of the Justices in the majority agreed with the Arizona Supreme Court that Bel’s holding applies only where “the arrestee is unse cured and within reaching distance of the passenger com partment at the time of the search.” 556 U. S., at (slip op., at 10). The four dissenting Justices, by contrast, understood Bel to have explicitly adopted the simple, bright-line rule stated in the Bel Court’s opinion. 556 U. S., at (opinion of ALITO, J.) (slip op., at 3); see Bel 53 U.S., at 60 (“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that
Justice Alito
2,011
8
majority
Davis v. United States
https://www.courtlistener.com/opinion/218926/davis-v-united-states/
an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automo bile” (footnote omitted)). To limit Bel to cases involving unsecured arrestees, the dissenters thought, was to over rule the decision’s clear holding. at (slip op., at 2–3). JUSTICE SCALIA, who provided the fifth vote to affirm in agreed with the dissenters’ understand ing of Bel’s holding. 556 U. S., at (slip op., at 1–2) (concur opinion). JUSTICE SCALIA favored a more ex plicit and complete overruling of Bel, but he joined what became the majority opinion to avoid “a -to-1-to-” disposition. 556 U. S., at (slip op., at 2–). As a result, the Court adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching dis tance of the vehicle du the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.” at (slip op., at 9– 10) (citing Thorn, (SCALIA, J., concur in judgment); internal quotation marks omitted). B The search at issue in this case took place a full two years before this Court announced its new rule in Cite as: 56 U. S. (2011) 5 Opinion of the Court On an April evening in police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the pas senger compartment of Owens’s vehicle and found a re volver inside Davis’s jacket pocket. Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. See 18 U.S. C. §(g)(1). In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit ” App. –15. Like most courts, the Eleventh Circuit had long read Bel to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. See United 82–827 (upholding automobile search conducted after the defendant had been “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest”). Davis recognized that the Dis trict Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. App. 15. The District Court denied the motion, and
Justice Alito
2,011
8
majority
Davis v. United States
https://www.courtlistener.com/opinion/218926/davis-v-united-states/
appeal. App. 15. The District Court denied the motion, and Davis was convicted on the fire arms charge. While Davis’s appeal was pending, this Court decided The Eleventh Circuit, in the opinion below, applied ’s new rule and held that the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” As for whether this constitutional violation warranted suppres sion, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrong ful police conduct.” ; internal quotation marks omitted). The court concluded that “penalizing the [ar resting] officer” for following binding appellate precedent would do nothing to “dete[r] Fourth Amendment viola tions.” 598 F.3d, –1266 (bracketing and internal quotation marks omitted). It therefore declined to apply the exclusionary rule and affirmed Davis’s conviction. We granted certiorari. 562 U. S. II The Fourth Amendment protects the “right of the peo ple to be secure in their persons, houses, papers, and ef fects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence ob tained in violation of this command. That rule—the exclusionary rule—is a “prudential” doctrine, Pennsyl vania Bd. of Probation and 52 U.S. 357, 363 (1998), created by this Court to “compel respect for the constitutional guaranty.” v. United States, 36 U.S. 206, 217 (1960); see Weeks v. United States, 232 U.S. 383 (191); 367 U.S. 63 Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Se v. Powell, 28 U.S. 65, 86 ; see United 28 U.S. 33, 5, n. 29 (exclusionary rule “unsupportable as reparation or com pensatory dispensation to the injured criminal” (internal quotation marks omitted)). The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amend ment violations. E.g., at 11, and n. 2; United 68 U.S. 897, (198); (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most effica ciously served.” United 1 U.S. 338, 38 (197). Where suppression fails to yield “appreciable Cite as: 56 U. S. (2011) 7 Opinion of the Court deterrence,” exclusion is “clearly unwarranted.” at 5. Real deterrent value is a “necessary condition for exclu sion,” but it is not “a sufficient” one. 57 U.S. 586, The analysis must also account for the “substantial social costs” generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. Se, 28 U.S., at 90–91. It almost always requires courts to ignore reliable, trustworthy evidence bea on guilt
Justice Alito
2,011
8
majority
Davis v. United States
https://www.courtlistener.com/opinion/218926/davis-v-united-states/
requires courts to ignore reliable, trustworthy evidence bea on guilt or inno cence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See at 11. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” For exclusion to be appropriate, the deter rence benefits of suppression must outweigh its heavy costs. See at 11; Admittedly, there was a time when our exclusionary rule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several deci sions, see suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. See Olmstead v. United States, 277 U.S. 38, 62 (1928) (remarking on the “striking outcome of the Weeks case” that “the Fourth Amendment, although not refer to or limiting the use of evidence in courts, really forbade its introduction”); (“[A]ll evidence obtained by searches and seizures in viola tion of the Constitution is, by that same authority, inad missible in a state court”). As late as our 1971 decision in Whiteley v. Warden, Wyo. State Penitentiary, 01 U.S. 560, 568–569, the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” 51 U.S. 1, (1995). In time, however, we came to acknowledge the 8 DAVIS v. UNITED STATES Opinion of the Court exclusionary rule for what it undoubtedly is—a “judicially created remedy” of this Court’s own making. at 38. We abandoned the old, “reflexive” applica tion of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. at ; see, e.g., Se, INS v. Lopez-Mendoza, 68 U.S. 1032 (198); United States v. Havens, 6 U.S. 620 In a line of cases beginning with United 68 U.S. 897, we also recali brated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. The basic insight of the line of cases is that the deterrence benefits of exclusion “var[y] with the culpabil ity of the law enforcement conduct” at issue. 555 U.S., at When the police exhibit “deliberate,” “reck less,” or “grossly negligent” disregard for Fourth Amend ment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. at 1. But when the police act with an objectively “reasonable good faith belief” that their conduct is lawful, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Her at the “ ‘deterrence rationale loses much of
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Davis v. United States
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negligence, Her at the “ ‘deterrence rationale loses much of its force,’ ” and exclusion cannot “pay its way.” See ). The Court has over time applied this “good-faith” excep tion across a range of cases. itself, for example, held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held 68 U.S., at The error in such a case rests with the issuing magistrate, not the police officer, and “punish[ing] the errors of judges” is not the office of the exclusionary rule. ; see also 68 U.S. 981, (198) Cite as: 56 U. S. (2011) 9 Opinion of the Court (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge’s clerical error). Other good-faith cases have sounded a similar theme. 80 U.S. 30 extended the good faith exception to searches conducted in reasonable reli ance on subsequently invalidated statutes. at 39– 350 (“legislators, like judicial officers, are not the focus of the rule”). In the Court applied the good-faith exception in a case where the police rea sonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial em ployees. at 1. Most recently, in v. United States, we extended in a case where police employees erred in maintaining records in a war rant database. “[I]solated,” “nonrecur” police negli gence, we determined, lacks the culpability required to justify the harsh sanction of 555 U.S., at 1. III The question in this case is whether to apply the exclu sionary rule when the police conduct a search in objec tively reasonable reliance on binding judicial At the time of the search at issue here, we had not yet decided Arizona v. 556 U. S. and the Eleventh Circuit had interpreted our decision in New to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. The search incident to Davis’s arrest in this case followed the Eleventh Circuit’s precedent to the letter. Although the search turned out to be unconstitutional under all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. See Brief for Petitioner 9 (“sup 10 DAVIS v. UNITED STATES Opinion of the Court pression” in this case would “impl[y] no assignment of blame”). Under our exclusionary-rule precedents, this acknowl edged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “mean ingfu[l]” deterrence, and
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they are deliberate enough to yield “mean ingfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” 555 U.S., at 1. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence. See Nor does this case involve any “recur or systemic negligence” on the part of law enforcement. The police acted in strict compliance with binding precedent, and their behav ior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case. Indeed, in 27 years of practice under ’s good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct. at 1. If the police in this case had reasonably relied on a warrant in conducting their search, see or on an errone ous warrant record in a government database, the exclusionary rule would not And if Congress or the Alabama Legislature had enacted a stat ute codifying the precise holding of the Eleventh Circuit’s decision in we would swiftly conclude that —————— Cf. –2501(c) (“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of [d]iscove the fruits, instrumentalities, or evidence of a crime”). The Kansas Supreme Court recently struck this provision down in light of Arizona v. 556 U. S. 289 Kan. 6, 71 But it has applied Cite as: 56 U. S. (2011) 11 Opinion of the Court “ ‘[p]enalizing the officer for the legislature’s error cannot logically contribute to the deterrence of Fourth Amendment violations.’ ” See 80 U.S., at 350. The same should be true of Davis’s attempt here to “ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’ ” See About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. 57 U.S., at 599. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An of ficer who conducts a search in reliance on binding appel late precedent does no more than “ ‘ac[t] as a reasonable officer would and should act’ ” under the circumstances. 68 U.S., at 920 (quoting Se,
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” under the circumstances. 68 U.S., at 920 (quoting Se, 28 U.S., at – 50 (White, J., dissenting)). The deterrent effect of exclu sion in such a case can only be to discourage the officer from “ ‘do[ing] his duty.’ ” 68 U.S., at 920. That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Evidence obtained du a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule. IV JUSTICE BREYER’s dissent and Davis argue that, al though the police conduct in this case was in no way cul —————— 80 U.S. 30 and the good-faith exception to searches conducted in reasonable reliance on the statute. See State v. Daniel, 291 Kan. 90, 97–50, 22 P.3d 1186, 12 DAVIS v. UNITED STATES Opinion of the Court pable, other considerations should prevent the good-faith exception from applying. We are not persuaded. A 1 The principal argument of both the dissent and Davis is that the exclusionary rule’s availability to enforce new Fourth Amendment precedent is a retroactivity issue, see 79 U.S. 31 not a good-faith issue. They contend that applying the good-faith excep tion where police have relied on overruled precedent effec tively revives the discarded retroactivity regime of Linklet See post, at 2–5. In Linkletter, we held that the retroactive effect of a new constitutional rule of criminal procedure should be deter mined on a case-by-case weighing of interests. For each new rule, Linkletter required courts to consider a three factor balancing test that looked to the “purpose” of the new rule, “reliance” on the old rule by law enforcement and others, and the effect retroactivity would have “on the administration of justice.” After “weigh[ing] the merits and demerits in each case,” courts decided whether and to what extent a new rule should be given retroactive effect. In Linkletter itself, the balance of interests prompted this Court to conclude that 367 U.S. 63—which incorporated the exclusionary rule against the States—should not apply retroactively to cases already final on direct 381 U.S., at 639–60. The next year, we extended Linkletter to retroactivity determinations in cases on direct See 38 U.S. 719, and 378 U.S. 78 (196), applied retroactively only to trials commenced after the decisions were released). Over time, Linkletter proved difficult to apply in a con Cite as: 56 U. S. (2011) Opinion of the Court sistent, coherent way. Individual applications of the standard “produced strikingly
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Davis v. United States
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sistent, coherent way. Individual applications of the standard “produced strikingly divergent results,” see Dan 552 U.S. 26, that many saw as “incompatible” and “inconsistent.” Desist v. United States, 39 U.S. 2, (Harlan, J., dis senting). Justice Harlan in particular, who had endorsed the Linkletter standard early on, offered a strong critique in which he argued that “basic judicial” norms required full retroactive application of new rules to all cases still subject to direct 39 U.S., at –259; see also 01 U.S. 667, (Harlan, J., concur in part and dissenting in part). Eventually, and after more than 20 years of toil under Linkletter, the Court adopted Justice Harlan’s view and held that newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” 2 The dissent and Davis argue that applying the good faith exception in this case is “incompatible” with our retroactivity precedent under See post, at 2; Reply Brief for Petitioner 3–7. We think this argument conflates what are two distinct doctrines. Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroac tive application under lifts what would otherwise be a categorical bar to obtaining redress for the govern ment’s violation of a newly announced constitutional rule. See (noting that it may “make more sense to speak in terms of the ‘redressability’ of violations of new rules, rather than the ‘retroactivity’ of such new rules”). Retroactive application does not, how ever, determine what “appropriate remedy” (if any) the 1 DAVIS v. UNITED STATES Opinion of the Court defendant should obtain. See Powell v. Nevada, 511 U.S. 79, 8 (199) (noting that it “does not necessarily follow” from retroactive application of a new rule that the defen dant will “gain relief”). Remedy is a separate, analyti cally distinct issue. Cf. American Trucking Assns., Inc. v. Smith, 96 U.S. 167, (1) (“[T]he Court has never equated its retroactivity principles with remedial principles”). As a result, the retroactive applica tion of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question. See 68 U.S., at 906 (“Whether the exclusionary sanction is appropriately imposed in a particular case is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct’ ”). When this Court announced its decision in Davis’s conviction had not yet become final on
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decision in Davis’s conviction had not yet become final on direct therefore applies retroactively to this case. Davis may invoke its newly announced rule of substantive Fourth Amendment law as a basis for seeking relief. See The question, then, becomes one of remedy, and on that issue Davis seeks application of the exclusionary rule. But exclusion of evidence does not automatically follow from the fact that a Fourth Amend ment violation occurred. See 51 U.S., at –1. The remedy is subject to exceptions and applies only where its “purpose is effectively advanced.” 80 U.S., at 37. The dissent and Davis recognize that at least some of the established exceptions to the exclusionary rule limit its availability in cases involving new Fourth Amendment rules. Suppression would thus be inappropriate, the dissent and Davis acknowledge, if the inevitable-discovery exception were applicable in this case. See post, at 3; Reply Brief for Petitioner 22 (“Doctrines such as inevitable Cite as: 56 U. S. (2011) 15 Opinion of the Court discovery, independent source, attenuated basis, [and] standing sharply limit the impact of newly-announced rules”). The good-faith exception, however, is no less an established limit on the remedy of exclusion than is inevi table discovery. Its application here neither contravenes nor denies retroactive effect to5 It is true that, under the old retroactivity regime of Linkletter, the Court’s decisions on the “retroactivity prob lem in the context of the exclusionary rule” did take into account whether “law enforcement officers reasonably believed in good faith” that their conduct was in compli ance with governing law. 22 U.S., at 535–537. As a matter of retroactivity analysis, that approach is no longer applicable. See 79 U.S. 31. It does not follow, however, that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule. When this Court adopted the good-faith exception in the Court’s opinion explicitly relied on and imported its reasoning into the good-faith inquiry. See 68 U.S., –919. That reasonable reliance by police was once a factor in our retroactivity cases does not make it any less relevant under our —————— 5 The dissent argues that the good-faith exception is “unlike inevi table discovery” because the former applies in all cases where the police reasonably rely on binding precedent, while the latter “applies only upon occasion.” Post, at 3. We fail to see how this distinction makes any difference. The same could be said—indeed, the same was said—of searches conducted in reasonable reliance on statutes. See 80 U.S., at 368–369 (O’Connor, J., dissenting) (arguing that result in was inconsistent with ). When
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dissenting) (arguing that result in was inconsistent with ). When this Court strikes down a statute on Fourth Amendment grounds, the good-faith exception may prevent the exclusionary rule from applying “in every case pending when [the statute] is overturned.” Post, at 3. This result does not make the Court’s newly announced rule of Fourth Amendment law any less retroactive. It simply limits the applicability of a suppression remedy. See at 35–355, n. 11. 16 DAVIS v. UNITED STATES Opinion of the Court line of cases.6 B Davis also contends that applying the good-faith ex ception to searches conducted in reliance on binding pre cedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defen dants will have no incentive, Davis maintains, to request that courts overrule 7 1 This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of prece dent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement. See, e.g., 68 U.S., at (“ ‘adopted to deter unlawful searches by police’ ”); at 1 (“historically designed as a means of deter police misconduct”). We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpa ble police conduct. In for example, we made clear —————— 6 Nor does United 57 U.S. 537 foreclose application of the good-faith exception in cases involving changing law. Johnson distinguished and held that all Fourth Amendment cases should be retroactive on direct review so long as the new decision is not a “clear break” from prior 57 U.S., at 562. Johnson had no occasion to opine on the good-faith exception to the exclusionary rule, which we adopted two years later in 7 Davis also asserts that a good-faith rule would permit “new Fourth Amendment decisions to be applied only prospectively,” thus amounting to “a regime of rule-creation by advisory opinion.” Brief for Petitioner 23, 25. For reasons discussed in connection with Davis’s argument that application of the good-faith exception here would revive the Linkletter regime, this argument conflates the question of retroactivity with the question of remedy. Cite as: 56 U. S. (2011) 17 Opinion of the Court that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” 68 U.S., ; see (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent