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Justice Alito | 2,011 | 8 | majority | Davis v. United States | https://www.courtlistener.com/opinion/218926/davis-v-united-states/ | to a subsequently invalidated warrant is to have any deterrent effect it must alter the behav ior of individual law enforcement officers or the policies of their departments”). too noted that “legislators, like judicial officers, are not the focus” of the exclusionary rule. 80 U.S., at 350. And in we said that the exclu sionary rule was aimed at deter “police misconduct, not mistakes by court employees.” 51 U.S., at 1. These cases do not suggest that the exclusionary rule should be modified to serve a purpose other than deterrence of cul pable law-enforcement conduct. 2 And in any event, applying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent sought to be challenged will be a decision of a Federal Court of Appeals or State Su preme Court. But a good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions. This Court re views criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defen dants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the de velopment of Fourth Amendment law will in no way be stunted.8 —————— 8 The dissent does not dispute this point, but it claims that the good faith exception will prevent us from “rely[ing] upon lower courts to work out Fourth Amendment differences among themselves.” Post, at 18 DAVIS v. UNITED STATES Opinion of the Court Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate But this argument is overblown. For one thing, it is im portant to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 0 years since the Court last handed down a decision of the type to which Davis refers. and Harris v. United States, 331 U.S. 15 (197)). And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Brief for Petitioner 50. Moreover, as a practical matter, defense counsel in many cases will test this Court’s Fourth |
Justice Alito | 2,011 | 8 | majority | Davis v. United States | https://www.courtlistener.com/opinion/218926/davis-v-united-states/ | defense counsel in many cases will test this Court’s Fourth Amendment precedents in the same way that Bel was tested in —by arguing that the precedent is distin guishable. See Brief for Respondent in Arizona v. O. T. 2008, No. 07–52, pp. 22–29.9 At most, Davis’s argument might suggest that—to prevent Fourth Amendment law from becoming ossified— the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should —————— 5. If that is correct, then today’s holding may well lead to more circuit splits in Fourth Amendment cases and a fuller docket of Fourth Amendment cases in this Court. See this Court’s Rule 10. Such a state of affairs is unlikely to result in ossification of Fourth Amendment doctrine. 9 Where the search at issue is conducted in accordance with a munici pal “policy” or “custom,” Fourth Amendment precedents may also be challenged, without the obstacle of the good-faith exception or qualified immunity, in civil suits against municipalities. See 2 U.S. C. Los Angeles County v. Humphries, 562 U. S. (slip op., at 7) (citing 36 U.S. 658, 690–691 (1978)). Cite as: 56 U. S. (2011) 19 Opinion of the Court be given the benefit of the victory by permitting the sup pression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” Se, 28 U.S., at 86. It is a “judicially created” sanction, 1 U.S., at 38, specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. See Se, at 90. The good-faith excep tion is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment over ruling one of our Fourth Amendment prece- dents. Cf. Friendly, The Bill of Rights as a Code of Criminal Procedure, 952–953 (“[T]he same authority that empowered the Court to sup plement the amendment by the exclusionary rule a hun dred and twenty-five years after its adoption, likewise allows it to modify that rule as the lessons of experience may teach” (internal quotation marks and footnotes omitted)).10 —————— 10 Davis contends that a criminal defendant will lack Article III standing to challenge an existing Fourth Amendment precedent if the good-faith exception to the exclusionary rule precludes the defendant from obtaining relief based on police conduct that conformed to that This argument confuses weakness on the merits with absence of Article III |
Justice Alito | 2,011 | 8 | majority | Davis v. United States | https://www.courtlistener.com/opinion/218926/davis-v-united-states/ | confuses weakness on the merits with absence of Article III standing. See ASARCO Inc. v. Kadish, 90 U.S. 605, 62 (1989) (standing does not “ ‘depen[d] on the merits of [a claim]’ ”). And as a practical matter, the argument is also overstated. In many instances, as in see 556 U. S., at (slip op., at 8), defendants will not simply concede that the police conduct conformed to the precedent; they will argue instead that the police conduct did not fall within the scope of the In any event, even if some criminal defendants will be unable to challenge some precedents for the reason that Davis suggests, that provides no good reason for refusing to apply the good-faith exception. As noted, the exclusionary rule is not a personal right, see Se, 28 U.S., at 86, 90, and therefore the rights of these defendants will not 20 DAVIS v. UNITED STATES Opinion of the Court But this is not such a case. Davis did not secure a deci sion overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit See United States v. That sort of blameless police conduct, we hold, comes within the good faith exception and is not properly subject to the exclu sionary rule. * * * It is one thing for the criminal “to go free because the constable has blundered.” 22 N.Y. 21, It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evi dence in such cases deters no police misconduct and im poses substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not The judgment of the Court of Appeals for the Eleventh Circuit is Affirmed. —————— be impaired. And because (at least in almost all instances) the prece dent can be challenged by others, Fourth Amendment case law will not be insulated from reconsideration. Cite as: 56 U. S. (2011) 1 SOTOMAYOR, J., concur in judgment SUPREME COURT OF THE UNITED STATES No. 09–128 WILLIE GENE DAVIS, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June 16, 2011] JUSTICE SOTOMAYOR, concur in the judgment. |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | Today's opinion takes the view that because the National Bank Act, 12 U.S. C. 85, 86, provides the exclusive cause of action for claims of usury against a national bank, all such claimseven if explicitly pleaded under state laware to be construed as "aris[ing] under" federal law for purposes of our jurisdictional statutes. Ante this page. This view finds scant support in our precedents and no support whatever in the National Bank Act or any other Act of Congress. I respectfully dissent. Unless Congress expressly provides otherwise, the federal courts may exercise removal jurisdiction over state-court actions "of which the district courts of the United States *12 have original " 28 U.S. C. 1441(a). In this case, petitioners invoked as the predicate for removal the district courts' original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 1331. This so-called "arising under" or "federal question" jurisdiction has long been governed by the well-pleaded-complaint rule, which provides that "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." A federal question "is presented" when the complaint invokes federal law as the basis for relief. It does not suffice that the facts alleged in support of an asserted state-law claim would also support a federal claim. "The [well-pleaded-complaint] rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." See also The Nor does it even suffice that the facts alleged in support of an asserted state-law claim do not support a state-law claim and would only support a federal claim. "Jurisdiction may not be sustained on a theory that the plaintiff has not advanced." Merrell Dow Pharmaceuticals Under the well-pleaded-complaint rule, "a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise,. or that a federal defense the defendant may raise is not sufficient to defeat the claim." Franchise Tax Bd. of Of critical importance here, the rejection of a federal defense as the basis for original federal-question jurisdiction applies with equal force *13 when the defense is one of federal pre-emption. "By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby." 299 U.S. 9, "[A] case may not be removed to federal court on the basis of the defense of |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | to federal court on the basis of the defense of pre-emption." To be sure, pre-emption requires a state court to dismiss a particular claim that is filed under state law, but it does not, as a general matter, provide grounds for removal. This Court has twice recognized exceptions to the well-pleaded-complaint rule, upholding removal jurisdiction not-withstanding the absence of a federal question on the face of the plaintiff's complaint. First, in we allowed removal of a state-court action to enforce a no-strike clause in a collective-bargaining agreement. The complaint concededly did not advance a federal claim, but was subject to a defense of pre-emption under 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S. C. 185. The well-pleaded-complaint rule notwithstanding, we treated the plaintiff's state-law contract claim as one arising under 301, and held that the case could be removed to federal court. The only support mustered by the Court for its conclusion was a statement wrenched out of context from our decision in Textile that "[a]ny state law applied [in a 301 case] will be absorbed as federal law and will not be an independent source of private rights." To begin with, this statement is entirely unnecessary to the landmark holding in Lincoln Millsthat 301 not only gives federal courts jurisdiction to decide labor relations cases but also supplies them with authority to create the governing substantive law. More importantly, understood in the context of that holding, the quoted passage in no way supports the proposition for which it is relied upon in that state-law *14 claims relating to labor relations necessarily arise under 301. If one reads Lincoln Mills with any care, it is clear beyond doubt that the relevant passage merely confirms that when, in deciding cases arising under 301, courts employ legal rules that overlap with, or are even explicitly borrowed from, state law, such rules are nevertheless rules of federal law. It is in this sense that "[a]ny state law applied [in a 301 case] will be absorbed as federal law"in the sense that federally adopted state rules become federal rules, not in the sense that a state-law claim becomes a federal claim. Other than its entirely misguided reliance on Lincoln Mills, the opinion in failed to clarify the analytic basis for its unprecedented act of jurisdictional alchemy. The Court neglected to explain why state-law claims that are pre-empted by 301 of the LMRA are exempt from the strictures of the well-pleaded-complaint rule, nor did it explain how such a state-law claim can plausibly be said to "arise under" federal law. Our subsequent |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | plausibly be said to "arise under" federal law. Our subsequent opinion in Franchise Tax Board struggled to prop up 's puzzling holding: "The necessary ground of decision [in ] was that the pre-emptive force of 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, not-withstanding the fact that state law would provide a cause of action in the absence of 301. stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." - This passage has repeatedly been relied upon by the Court as an explanation for its decision in See, e. g., ante, at 7, ; Metropolitan Life Ins. Of course it is not an explanation *15 at all. It provides nothing more than an account of what accomplishes, rather than a justification (unless ipse dixit is to count as justification) for the radical departure from the well-pleaded-complaint rule, which demands rejection of the defense of federal pre-emption as a basis for federal Gully, at Neither the excerpt quoted above, nor any other fragment of the decision in Franchise Tax Board, explains how or why the nonviability (due to pre-emption) of the state-law contract claim in magically transformed that claim into one "arising under" federal law. Metropolitan Life Ins. was our second departure from the prohibition against resting federal "arising under" jurisdiction upon the existence of a federal defense. In that case, sued his former employer and its insurer, alleging breach of contract and seeking, inter alia, reinstatement of certain disability benefits and insurance coverages. Though invoked no federal law in his complaint, we treated his case as one arising under 502 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1132, and upheld the District Court's exercise of removal -67. In reaching this conclusion, the Court broke no new analytic ground; its opinion follows the exception established in and described in Franchise Tax Board, but says nothing to commend that exception to logic or reason. Instead, simply relies on the "clos[e] parallels," between the language of the pre-emptive provision in ERISA and the language of the LMRA provision deemed in to be so dramatically pre-emptive as to summon forth a federal claim where none had been asserted. "No more specific reference to the rule can be expected," we said, than what was found in |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | can be expected," we said, than what was found in 502(a); and we accordingly concluded that "Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of 502(a) removable to federal *16 court." As in and Franchise Tax Board, no explanation was provided for 's abrogation of the rule that "[f]ederal pre-emption is ordinarily a federal defense to the plaintiff's suit[, and as such] it does not appear on the face of a well-pleaded complaint, [nor does it] authorize removal to federal court."[1] It is noteworthy that the straightforward (though similarly unsupported) rule announced in today's opinionunder which (1) removal is permitted "[w]hen [a] federal statute completely pre-empts a state-law cause of action," ante, at 8, and (2) a federal statute is completely pre-emptive when it "provide[s] the exclusive cause of action for the claim asserted," ibid.is nowhere to be found in either or To the contrary, the analysis in today's opinion implicitly contradicts (by rendering inexplicable) 's discussion of pre-emption and removal. (, as I observed earlier, has no discussion to be contradicted.) Had it thought that today's decision was the law, the Court need not have taken pains to emphasize the "clos[e] parallels" between 502(a)(1)(B) of ERISA and 301 of the LMRA and need not have pored over the legislative history of 502(a) to show that Congress expected ERISA to be treated like the LMRA. See -66 (citing H. R. Conf. Rep. No. 93-1280, p. 327 (1974); 120 Cong. Rec. 29933 (1974) (remarks of Sen. Williams); ). Instead, it could have rested after noting the "unique pre-emptive force of ERISA," Indeed, it could even have spared itself the trouble of adding *17 the adjective "unique. " While there is something unique about statutes whose pre-emptive force is closely patterned after that of the LMRA (which we had held to support removal), there is nothing whatever unique about a federal cause of action that displaces state causes of action. Displacement alone, if today's opinion is to be believed, would have sufficed to establish the existence of removal The best that can be said, from a precedential perspective, for the rule of law announced by the Court today is that variations on it have twice appeared in our cases in the purest dicta. ; 482 U. S., Dicta of course have no precedential value, see U. S. Bancorp Mortgage even when they do not contradict, as they do here, prior holdings of the Court. The difficulty with today's holding, moreover, is not limited to the flimsiness of its precedential roots. As |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | not limited to the flimsiness of its precedential roots. As has been noted already, the holding cannot be squared with bedrock principles of removal One or another of two of those principles must be ignored: Either (1) the principle that merely setting forth in state court facts that would support a federal cause of actionindeed, even facts that would support a federal cause of action and would not support the claimed state cause of actiondoes not produce a federal question supporting removal, or (2) the principle that a federal defense to a state *18 cause of action does not support federal-question jurisdiction, see Relatedly, today's holding also represents a sharp break from our long tradition of respect for the autonomy and authority of state courts. For example, in we explained that "[d]ue regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." And in Shamrock Oil & Gas 313 U.S. 0, 8 we insisted on a "strict construction" of the federal removal statutes.[2] Today's decision ignores these venerable principles and effectuates a significant shift in decisional authority from state to federal courts. In an effort to justify this shift, the Court explains that "[b]ecause [12 U.S. C.] 85 and 86 provide the exclusive cause of action for such claims, there is no such thing as a state-law claim of usury against a national bank." Ante, at 11. But the mere fact that a state-law claim is invalid no more deprives it of its character as a state-law claim which does not raise a federal question, than does the fact that a federal claim is invalid deprive it of its character as a federal claim which does raise a federal question. The proper response to the presentation of a nonexistent claim to a state court is dismissal, not the "federalize-and-remove" dance authorized by today's opinion. For even if the Court is correct that the National Bank Act obliterates entirely any state-created right to relief for usury against a national bank, that does not explain how or why the claim of *19 such a right is transmogrified into the claim of a federal right. Congress's mere act of creating a federal right and eliminating all state-created rights in no way suggests an expansion of federal jurisdiction so as to wrest from state courts the authority to decide questions of pre-emption under the National Bank Act. Petitioners seek to justify their end run around the well-pleaded-complaint rule by insisting that, in determining whether |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | around the well-pleaded-complaint rule by insisting that, in determining whether federal jurisdiction exists, we are required to "`look beyond the pleadings.'" Brief for Petitioners 18 ). They point out: "[A] long line of cases disallow[s] manipulations by plaintiffs designed to create or avoid diversity jurisdiction, such as misaligning the interests of the parties, naming parties (whether plaintiffs or defendants) who have no real interest in or relationship to the controversy, misstating the citizenship of a party (whether plaintiffs or defendants), or misstating the amount in controversy." Brief for Petitioners 17-18. Petitioners insist that, like the "manipulative" complaints in these diversity cases, "[r]espondents' complaint is disingenuously pleaded, not `well pleaded' in any respect, for it purports to raise a state law claim that does not exist." Accordingly, the argument continues, just as federal courts may assert jurisdiction where a plaintiff seeks to hide the true citizenship of the parties, so too they may assert jurisdiction where a plaintiff cloaks a necessarily federal claim in state-law garb. To begin with, the cases involving diversity jurisdiction are probably distinguishable on the ground that there is a crucial difference between, on the one hand, "looking beyond the pleadings" to determine whether a factual assertion is true, and, on the other hand, doing so in order to determine whether the plaintiff has proceeded on the basis of the "correct" *20 legal theory. But even assuming that the analogy to the diversity cases is apt, petitioners can derive no support from it in this case. Their argument proceeds from the faulty premise that if one looks behind the pleadings in this case, one discovers that the plaintiffs have, in fact, presented a federal claim. But that begs the questionthat is, it assumes the answer to the very question presented. It assumes that whenever a claim of usury is brought against a national bank, that claim is a federal one. As I have discussed above, neither logic nor precedent supports that conclusion; they support, at best, the proposition that the only viable claim against a national bank for usury is a federal one. Federal jurisdiction is ordinarily determinedinvariably determined, except for and on the basis of what claim is pleaded, rather than on the basis of what claim can prevail. There may well be good reasons to favor the expansion of removal jurisdiction that petitioners urge and that the Court adopts today. As the United States explains in its amicus brief: "Absent removal, the state court would have only two legitimate optionsto recharacterize the claim in federal-law terms or to dismiss the claim altogether. Any plaintiff who |
Justice Scalia | 2,003 | 9 | dissenting | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | terms or to dismiss the claim altogether. Any plaintiff who truly seeks recovery on that claim would prefer the first option, which would make the propriety of removal crystal clear. A third possibility, however, is that the state court would err and allow the claim to proceed under state law notwithstanding Congress's decision to make the federal cause of action exclusive. The complete pre-emption rule avoids that potential error." Brief for United States as Amicus Curiae 17-18. True enough, but inadequate to render today's decision either rational or properly within the authority of this Court. Inadequate for rationality, because there is no more reason *21 to fear state-court error with respect to federal pre-emption accompanied by creation of a federal cause of action than there is with respect to federal pre-emption unaccompanied by creation of a federal cause of actionor, for that matter, than there is with respect to any federal defense to a state-law claim. The rational response to the United States' concern is to eliminate the well-pleaded-complaint rule entirely. And inadequate for judicial authority, because it is up to Congress, not the federal courts, to decide when the risk of state-court error with respect to a matter of federal law becomes so unbearable as to justify divesting the state courts of authority to decide the federal matter. Unless and until we receive instruction from Congress that claims preempted under the National Bank Actin contrast to almost all other claims that are subject to federal pre-emption "arise under" federal law, we simply lack authority to "avoi[d] potential errors," by permitting removal. * * * Today's opinion has succeeded in giving to our decision a theoretical foundation that neither itself nor provided. Regrettably, that theoretical foundation is itself without theoretical foundation. That is to say, the more general proposition that (1) the existence of a pre-emptive federal cause of action causes the invalid assertion of a state cause of action to raise a federal question, has no more logic or precedent to support it than the very narrow proposition that (2) the LMRA () and statutes modeled after the LMRA () cause invalid assertions of state causes of action pre-empted by those particular statutes to raise federal questions. Since I believe that, as between an inexplicable narrow holding and an inexplicable broad one, the former is the lesser evil, I would adhere to the approach taken by and on the basis of stare decisis simply affirm, without any real explanation, that the LMRA and statutes modeled after it have a "unique pre-emptive force" that *22 (quite illogically) suspends the normal |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | We here consider the scope of a prosecutor’s absolute immunity from claims asserted under Rev. Stat. 42 U.S. C. See (1976). We ask whether that immunity extends to claims that the prosecution failed to disclose impeachment mate rial, see due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to estab lish an information system containing potential impeach ment material about informants. We conclude that a prosecutor’s absolute immunity extends to all these claims. I In 1998, respondent Thomas Goldstein (then a prisoner) filed a habeas corpus action in the Federal District Court for the Central District of California. He claimed that in 1980 he was convicted of murder; that his conviction depended in critical part upon the testimony of Edward Floyd Fink, a jailhouse informant; that Fink’s testimony was unreliable, indeed false; that Fink had previously 2 VAN DE KAMP v. GOLDSTEIN Opinion of the Court received reduced sentences for providing prosecutors with favorable testimony in other cases; that at least some prosecutors in the Los Angeles County District Attorney’s Office knew about the favorable treatment; that the office had not provided Goldstein’s attorney with that informa tion; and that, among other things, the prosecution’s failure to provide Goldstein’s attorney with this potential impeachment information had led to his erroneous convic tion. 1171–1172 (CA9 2007). After an evidentiary hearing the District Court agreed with Goldstein that Fink had not been truthful and that if the prosecution had told Goldstein’s lawyer that Fink had received prior rewards in return for favorable testimony it might have made a difference. The court ordered the State either to grant Goldstein a new trial or to release him. The Court of Appeals affirmed the District Court’s determination. And the State decided that, rather than retry Goldstein (who had already served 24 years of his sentence), it would release him. App. 54–55, 59–60. Upon his release Goldstein filed this action against petitioners, the former Los Angeles County dis trict attorney and chief deputy district attorney. Gold stein’s complaint (which for present purposes we take as accurate) asserts in relevant part that the prosecution’s failure to communicate to his attorney the facts about Fink’s earlier testimony-related rewards violated the prosecution’s constitutional duty to “insure communication of all relevant information on each case [including agree ments made with informants] to every lawyer who deals with it.” Moreover, it alleges that this failure resulted from the failure of petitioners (the office’s chief supervisory attorneys) adequately to train and to supervise the prosecutors who worked for them as well |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | to supervise the prosecutors who worked for them as well as their failure to establish an information system about informants. And it asks for damages based upon Cite as: 555 U. S. (2009) 3 Opinion of the Court these training, supervision, and information-system re lated failings. Petitioners, claiming absolute immunity from such a action, asked the District Court to dismiss the complaint. See The District Court denied the motion to dismiss on the ground that the conduct asserted amounted to “administrative,” not “prosecuto rial,” conduct; hence it fell outside the scope of the prose cutor’s absolute immunity to claims. The Ninth Circuit, considering petitioners’ claim on an interlocutory appeal, affirmed the District Court’s “no immunity” de termination. We now review the Ninth Circuit’s decision, and we reverse its determination. II A half-century ago Chief Judge Learned Hand explained that a prosecutor’s absolute immunity reflects “a balance” of “evils.” (CA2 1949). “[I]t has been thought in the end better,” he said, “to leave unredressed the wrongs done by dishonest offi cers than to subject those who try to do their duty to the constant dread of retaliation.” In this Court considered prosecutorial actions that are “inti mately associated with the judicial phase of the criminal process.” And, referring to Chief Judge Hand’s views, it held that prosecutors are absolutely immune from liability in lawsuits brought under such circumstances. The action at issue was that of a prisoner freed on a writ of habeas corpus who subsequently sought damages from his former prosecutor. His action, like the action now before us, tracked the claims that a federal court had found valid when granting his habeas corpus petition. In particular, the prisoner claimed that the trial prosecutor had permitted a fingerprint expert to give false testimony, that the prosecutor was responsible for the expert’s having 4 VAN DE KAMP v. GOLDSTEIN Opinion of the Court suppressed important evidence, and that the prosecutor had introduced a misleading artist’s sketch into evidence. In concluding that the prosecutor was absolutely im mune, the Court pointed out that legislators have long “enjoyed absolute immunity for their official actions,” at 417; that the common law granted immunity to “judges and jurors acting within the scope of their duties,” and that the law had also granted prosecutors absolute immunity from common-law tort actions, say, those underlying a “decision to initiate a prosecution,” at 421. The Court then held that the “same considerations of public policy that underlie” a prosecutor’s common-law immunity “countenance absolute immunity under ” Those considerations, the Court said, arise out of the general common-law “concern that |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | Court said, arise out of the general common-law “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and also lead the prosecutor to “shade his decisions instead of exercising the independence of judgment required by his public trust.” Where actions are at issue, the Court said, both sets of concerns are present and serious. The “public trust of the prosecutor’s office would suffer” were the prosecutor to have in mind his “own potential” damages “liability” when making prosecutorial decisions—as he might well were he subject to liability. This is no small concern, given the frequency with which criminal defendants bring such suits, (“[A] defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate”), and the “substantial danger of liability even to the honest prosecutor” that such suits pose when they survive pretrial dismissal, ; see also (complex, close, fair-trial questions “often would require a virtual retrial of the criminal offense in a new Cite as: 555 U. S. (2009) 5 Opinion of the Court forum, and the resolution of some technical issues by the lay jury”). A “prosecutor,” the Court noted, “inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor respon sible annually for hundreds of indictments and trials.” –426. The Court thus rejected the idea of applying the less-than-absolute “qualified immunity” that the law accords to other “executive or administrative officials,” noting that the “honest prosecutor would face greater difficulty” than would those officials “in meeting the stan dards of qualified immunity.” Accordingly, the immunity that the law grants prosecutors is “absolute.” The Court made clear that absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in other tasks, say, investi gative or administrative tasks. To decide whether absolute immunity attaches to a particular kind of prosecutorial activity, one must take account of the “functional” considerations discussed above. See v. Reed, (collecting cases applying “functional approach” to immunity); In the Court con cluded that the “reasons for absolute immunity appl[ied] with full force” to the conduct at issue because it was “intimately associated with the judicial phase of the criminal process.” 424 U.S., The fact that one constitutional duty at issue was a positive duty (the duty to supply “information relevant to the defense”) rather than a negative duty (the duty not to “use perjured |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | than a negative duty (the duty not to “use perjured testimony”) made no difference. After all, a plaintiff can often transform a positive into a negative duty simply by reframing the pleadings; in either case, a constitutional violation is at issue. 6 VAN DE KAMP v. GOLDSTEIN Opinion of the Court Finally, the Court specifically reserved the question whether or when “similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator rather than that of advocate.” –431. It said that “[d]rawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.” In the years since we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, or appears in court to present evidence in support of a search warrant application, We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see when the prosecutor makes statements to the press, (1993), or when a prosecutor acts as a complaining witness in support of a warrant application, at 132 (SCALIA, J., concurring). This case, unlike these earlier cases, requires us to consider how immunity ap plies where a prosecutor is engaged in certain administra tive activities. III Goldstein claims that the district attorney and his chief assistant violated their constitutional obligation to provide his attorney with impeachment-related information, see because, as the Court of Appeals wrote, they failed “to adequately train and supervise deputy district attorneys on that subject,” 481 F.3d, at 1176, and because, as Goldstein’s complaint adds, they “failed to create any system for the Deputy District Attor neys handling criminal cases to access information per taining to the benefits provided to jailhouse informants and other impeachment information.” App. 45. We agree Cite as: 555 U. S. (2009) 7 Opinion of the Court with Goldstein that, in making these claims, he attacks the office’s administrative procedures. We are also willing to assume with Goldstein, but purely for argument’s sake, that imposes certain obligations as to training, supervision, or information-system management. Even so, we conclude that prosecutors involved in such supervision or training or information-system manage ment enjoy absolute immunity from the kind of legal claims at issue here. Those claims focus upon a certain kind of administrative obligation—a kind that itself is directly connected with the conduct of a trial. Here, unlike with other claims related to administrative decisions, an individual prosecutor’s error in the plaintiff’s specific criminal trial constitutes an essential element of the |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | plaintiff’s specific criminal trial constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management. And in that sense also Goldstein’s claims are unlike claims of, say, unlawful discrimination in hiring employees. Given these features of the case before us, we believe absolute immunity must follow. A We reach this conclusion by initially considering a hypo thetical case that involves supervisory or other office prosecutors but does not involve administration. Suppose that Goldstein had brought such a case, seeking damages not only from the trial prosecutor but also from a supervi sory prosecutor or from the trial prosecutor’s colleagues— all on the ground that they should have found and turned 8 VAN DE KAMP v. GOLDSTEIN Opinion of the Court over the impeachment material about Fink. makes clear that all these prosecutors would enjoy absolute immunity from such a suit. The prosecutors’ behavior, taken individually or separately, would involve “[p]repara tion for trial,” 424 U.S., and would be “intimately associated with the judicial phase of the criminal process” because it concerned the evidence pre sented at trial. And all of the considerations that this Court found to militate in favor of absolute im munity in would militate in favor of immunity in such a case. The only difference we can find between and our hypothetical case lies in the fact that, in our hypothetical case, a prosecutorial supervisor or colleague might himself be liable for damages instead of the trial prosecutor. But we cannot find that difference (in the pattern of liability among prosecutors within a single office) to be critical. Decisions about indictment or trial prosecution will often involve more than one prosecutor within an office. We do not see how such differences in the pattern of liability among a group of prosecutors in a single office could alle viate ’s basic fear, namely, that the threat of dam ages liability would affect the way in which prosecutors carried out their basic court-related tasks. Moreover, this Court has pointed out that “it is the interest in protecting the proper functioning of the office, rather than the inter est in protecting its occupant, that is of primary impor tance.” Thus, we must assume that the prosecutors in our hypothetical |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | Thus, we must assume that the prosecutors in our hypothetical suit would enjoy absolute immunity. B Once we determine that supervisory prosecutors are immune in a suit directly attacking their actions related to an individual trial, we must find they are similarly im mune in the case before us. We agree with the Court of Cite as: 555 U. S. (2009) 9 Opinion of the Court Appeals that the office’s general methods of supervision and training are at issue here, but we do not agree that that difference is critical for present purposes. That dif ference does not preclude an intimate connection between prosecutorial activity and the trial process. The manage ment tasks at issue, insofar as they are relevant, concern how and when to make impeachment information avail able at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties. And, in terms of ’s functional concerns, a suit charging that a supervisor made a mistake directly related to a particular trial, on the one hand, and a suit charging that a supervi sor trained and supervised inadequately, on the other, would seem very much alike. That is true, in part, for the practical reason that it will often prove difficult to draw a line between general office supervision or office training (say, related to ) and specific supervision or training related to a particular case. To permit claims based upon the former is almost inevitably to permit the bringing of claims that include the latter. It is also true because one cannot easily distin guish, for immunity purposes, between claims based upon training or supervisory failures related to and similar claims related to other constitutional matters for example). And that being so, every consideration that mentions militates in favor of immunity. As we have said, the type of “faulty training” claim at issue here rests in necessary part upon a consequent error by an individual prosecutor in the midst of trial, namely, the plaintiff’s trial. If, as says, the threat of dam ages liability for such an error could lead a trial prosecutor to take account of that risk when making trial-related decisions, so, too, could the threat of more widespread liability throughout the office (ultimately traceable to that trial error) lead both that prosecutor and other office 10 VAN DE KAMP v. GOLDSTEIN Opinion of the Court prosecutors as well to take account of such a risk. Indeed, members of a large prosecutorial office, when making prosecutorial decisions, could have in mind the “conse quences in terms of” damages liability whether they are |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | “conse quences in terms of” damages liability whether they are making general decisions about supervising or training or whether they are making individual trial-related deci sions. 424 U.S., Moreover, because better training or supervision might prevent most, if not all, prosecutorial errors at trial, per mission to bring such a suit here would grant permission to criminal defendants to bring claims in other similar instances, in effect claiming damages for (trial-related) training or supervisory failings. Cf. Fur ther, given the complexity of the constitutional issues, inadequate training and supervision suits could, as in “pose substantial danger of liability even to the honest prosecutor.” Finally, as pointed out, defending prosecutorial decisions, often years after they were made, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hun dreds of indictments and trials.” –426. At the same time, to permit this suit to go forward would create practical anomalies. A trial prosecutor would remain immune, even for intentionally failing to turn over, say material; but her supervisor might be liable for negligent training or supervision. Small prosecu tion offices where supervisors can personally participate in all of the cases would likewise remain immune from prose cution; but large offices, making use of more general office wide supervision and training, would not. Most impor tant, the ease with which a plaintiff could restyle a com plaint charging a trial failure so that it becomes a com plaint charging a failure of training or supervision would eviscerate We conclude that the very reasons that led this Court in to find absolute immunity require a similar finding Cite as: 555 U. S. (2009) 11 Opinion of the Court in this case. We recognize, as Chief Judge Hand pointed out, that sometimes such immunity deprives a plaintiff of compensation that he undoubtedly merits; but the im pediments to the fair, efficient functioning of a prosecuto rial office that liability could create lead us to find that must apply here. C We treat separately Goldstein’s claim that the Los Angeles County District Attorney’s Office should have established a system that would have permitted prosecu tors “handling criminal cases to access information per taining to the benefits provided to jailhouse informants and other impeachment information.” App. 45. We do so because Goldstein argues that the creation of an informa tion management system is a more purely administrative task, less closely related to the “judicial phase of the criminal process,” than are supervi sory or training tasks. He adds that technically qualified individuals other than prosecutors could create such a system and that they could do |
Justice Breyer | 2,009 | 2 | majority | Van de Kamp v. Goldstein | https://www.courtlistener.com/opinion/145911/van-de-kamp-v-goldstein/ | could create such a system and that they could do so prior to the initiation of criminal proceedings. In our view, however, these differences do not require a different outcome. The critical element of any information system is the information it contains. Deciding what to include and what not to include in an information system is little different from making similar decisions in respect to training. Again, determining the criteria for inclusion or exclusion requires knowledge of the law. Moreover, the absence of an information system is rele vant here if, and only if, a proper system would have included information about the informant Fink. Thus, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate system would 12 VAN DE KAMP v. GOLDSTEIN Opinion of the Court have included -related information about one par ticular kind of trial informant. Such decisions—whether made prior to or during a particular trial—are “intimately associated with the judicial phase of the criminal process.” ; see 500 U.S., at And, for the reasons set out above, all ’s functional con siderations (and the anomalies we mentioned earlier, ) apply here as well. We recognize that sometimes it would be easy for a court to determine that an office’s decision about an in formation system was inadequate. Suppose, for example, the office had no system at all. But the same could be said of a prosecutor’s trial error. Immunity does not exist to help prosecutors in the easy case; it exists because the easy cases bring difficult cases in their wake. And, as pointed out, the likely presence of too many diffi cult cases threatens, not prosecutors, but the public, for the reason that it threatens to undermine the necessary independence and integrity of the prosecutorial decision making process. Such is true of the kinds of claims before us, to all of which ’s functional considerations apply. Consequently, where a plaintiff claims that a prose cutor’s management of a trial-related information system is responsible for a constitutional error at his or her par ticular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself. * * * For these reasons we conclude that petitioners are entitled to absolute immunity in respect to Goldstein’s claims that their supervision, training, or information system management was constitutionally inadequate. Accordingly, the judgment of the Court of Appeals is re versed, and the |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | The Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S. C. 1381-1461, provides that an employer who withdraws from an underfunded multiemployer pension plan must pay a charge sufficient to cover that employer's fair share of the plan's unfunded liabilities. The statute permits the employer to pay that charge in lump *416 sum or to "amortize" it, making payments over time. This case focuses upon a withdrawing employer who amortizes the charge, and it asks when, for purposes of calculating the amortization schedule, interest begins to accrue on the amortized charge. The Court of Appeals for the Seventh Circuit held that, for purposes of computation, interest begins to accrue on the first day of the year after withdrawal. We agree and affirm its judgment. I We shall briefly describe the general purpose of MPPAA, the basic way MPPAA works, and the relevant interestrelated facts of the case before us. A MPPAA's General Purpose MPPAA helps solve a problem that became apparent after Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1001 et seq. ERISA helped assure private-sector workers that they would receive the pensions that their employers had promised them. See, e. g., Concrete Pipe & Products of Cal., To do so, among other things, ERISA required employers to make contributions that would produce pension plan assets sufficient to meet future vested pension liabilities; it mandated termination insurance to protect workers against a plan's bankruptcy; and, if a plan became insolvent, it held any employer who had withdrawn from the plan during the previous five years liable for a fair share of the plan's underfunding. See 26 U.S. C. 412 (minimum funding standards); 29 U.S. C. 1082 (same); 29 U.S. C. 1301 et seq. (termination insurance); 29 U.S. C. 1364 (withdrawal liability). Unfortunately, this scheme encouraged an employer to withdraw from a financially shaky plan and risk paying its share if the plan later became insolvent, rather than to remain *417 and (if others withdrew) risk having to bear alone the entire cost of keeping the shaky plan afloat. Consequently, a plan's financial troubles could trigger a stampede for the exit doors, thereby ensuring the plan's demise. See ; Pension Benefit Guaranty ; see also 29 U.S. C. 1001a(a)(4); H. R. Rep. No. 96-869, pt. 1, pp. 54-55 (1980); D. McGill & D. Grubbs, Fundamentals of Private Pensions 618-619 (6th ed. 1989). MPPAA helped eliminate this problem by changing the strategic considerations. It transformed what was only a risk (that a withdrawing employer would have to pay a fair share of underfunding) into |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | would have to pay a fair share of underfunding) into a certainty. That is to say, it imposed a withdrawal charge on all employers withdrawing from an underfunded plan (whether or not the plan later became insolvent). And, it set forth a detailed set of rules for determining, and collecting, that charge. B MPPAA's Basic Approach The way in which MPPAA calculates interest is related to the way in which that statute answers three more general, and more important, questions: First, how much is the withdrawal charge? MPPAA's lengthy charge-determination section, 1391, sets forth rules for calculating a withdrawing employer's fair share of a plan's underfunding. See 29 U.S. C. 1391. It explains (a) how to determine a plan's total underfunding; and (b) how to determine an employer's fair share (based primarily upon the comparative number of that employer's covered workers in each earlier year and the related level of that employer's contributions). One might expect 1391 to calculate a withdrawal charge that equals the withdrawing employer's fair share of a plan's underfunding as of the day the employer withdraws. But, instead, 1391 instructs a plan to make the withdrawal *418 charge calculation, not as of the day of withdrawal, but as of the last day of the plan year preceding the year during which the employer withdrew a day that could be up to a year earlier. See 1391(b)(2)(A)(ii), (b)(2)(E)(i), (c)(2)(C)(i), (c)(3)(A), and (c)(4)(A). Thus (assuming for illustrative purposes that a plan's bookkeeping year and the calendar year coincide), the withdrawal charge for an employer withdrawing from an underfunded plan in 1981 equals that employer's fair share of the underfunding as calculated on December 31, 1980, whether the employer withdrew the next day (January 1, 1981) or a year later (December 31, 1981). The reason for this calculation date seems one of administrative convenience. Its use permits a plan to base the highly complex calculations upon figures that it must prepare in any event for a report required under ERISA, see 29 U.S. C. 1082(c) (9), thereby avoiding the need to generate new figures tied to the date of actual withdrawal. Second, how may the employer pay the withdrawal charge? The statute sets forth two methods: (a) payment in a lump sum; and (b) payment in installments. The statute's lump-sum method is relatively simple. A withdrawing employer may pay the entire liability when the first payment falls due; pay installments for a while and then discharge its remaining liability; or make a partial balloon payment and afterwards pay installments. See 29 U.S. C. 1399(c)(4). The statute's installment method is |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | See 29 U.S. C. 1399(c)(4). The statute's installment method is more complex. The statutory method is unusual in that the statute does not ask the question that a mortgage borrower would normally ask, namely, what is the amount of each of my monthly payments? What size monthly payment will amortize, say, a 7% 30-year loan of $100,000? Rather, the statute fixes the amount of each payment and asks how many such payments there will have to be. To put the matter more precisely, (1) the statute fixes the amount of each annual payment at a level that (roughly speaking) equals the withdrawing employer's typical contribution in earlier years; (2) it sets an interest rate, *419 equal to the rate the plan normally uses for its calculations; and (3) it then asks how many such annual payments it will take to "amortize" the withdrawal charge at that interest rate. 29 U.S. C. 1399(c)(1)(A)(i), (c)(1)(A)(ii), (c)(1)(C). It is as if Brown, who owes Smith $1,000, were to ask, not, "How much must I pay each month to pay off the debt (with 7% interest) over two years?"but, rather, "Assuming 7% interest, how many $100 monthly payments must I make to pay off that debt?" To bring the facts closer to those of this case, assume that an employer withdraws from an underfunded plan in mid-1981; that the withdrawal charge (calculated as of the end of 1980) is $23.3 million; that the employer normally contributes about $4 million per year to the plan; and that the plan uses a 7% interest rate. In that case, the statute asks: "How many annual payments of about $4 million does it take to pay off a debt of $23.3 million if the interest rate is 7%?" The fact that the statute poses the installment-plan question in this way, along with an additional feature of the statute, namely, that the statute forgives all debt outstanding after 20 years, 29 U.S. C. 1399(c)(1)(B), suggests that maintaining level funding for the plan is an important goal of the statute. The practical effect of this concern with maintaining level payments is that any amortization interest 1399(c)(1)(A)(i) may cause to accrue is added to the end of the payment schedule (unless forgiven by 1399(c)(1)(B)). Third, when must the employer pay? The statute could not make the employer pay the calculated sum (or begin to pay that sum) on the date in reference to which one calculates the withdrawal charge, for that date occurs before the employer withdraws. (It is the last day of the preceding plan year, i. e., December 31, |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | day of the preceding plan year, i. e., December 31, 1980, for an employer who withdraws in 1981.) The statute, of course, might make the withdrawing employer pay (or begin payment) on the date the employer actually withdraws. But, it does not do so. Rather, the statute says that a plan must draw up a schedule *420 for payment and "demand payment" as "soon as practicable" after withdrawal. 29 U.S. C. 1399(b)(1). It adds that "[w]ithdrawal liability shall be payable no more than 60 days after the date of the demand." 1399(c)(2). Thus, a plan that calculates quickly might demand payment the day after withdrawal and make the charge "payable" within 60 days thereafter. A plan that calculates slowly might not be able to demand payment for many months after withdrawal. For example, in the case of the employer who withdraws on August 14, 1981, incurring a withdrawal charge of $23.3 million (calculated as of December 31, 1980), the lump sum of $23.3 million, or the first of the installment payments of roughly $4 million, will become "payable" to the plan "no later than 60 days" after the plan sent the withdrawing employer a demand letter. The day of the first payment may thus come as soon as within 60 days after August 15, 1981, or it may not come for many months thereafter, depending upon the plan's calculating speed. C This Case The facts of this case approximate those of our example. Three brewers, Schlitz, Pabst, and Miller, contributed for many years to a multiemployer pension plan (Plan). On August 14, 1981, Schlitz withdrew from the Plan. See App. 151-152. By the end of September 1981, the Plan completed its calculations, created a payment schedule, and sent out a demand for payment (thereby making the first installment payment "payable") "on or before November 1, 1981." From the outset, the parties agreed that the annual installment payment amounted to $3,945,481, and that the relevant interest rate was 7% per year. After various controversies led to arbitration and a court proceeding between Schlitz and the Plan, the courts and parties eventually determined that the withdrawal charge (calculated as of the *421 last day of the previous plan-bookkeeping year, December 31, 1980) amounted to $23.3 million. But the parties disagreed whether interest accrued during 1981, the year in which Schlitz withdrew. The Plan claimed that, for purposes of calculating the installment schedule, interest started accruing on the last day of the plan year preceding withdrawal (December 31, 1980). Schlitz, on the other hand, argued that accrual began on the first day of |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | hand, argued that accrual began on the first day of the plan year following withdrawal (January 1, 1982). Under either reading, the number of annual payments is eight. But, under the Plan's reading, the final payment would amount to $3,499,361, whereas, in Schlitz's reading, that payment would amount to $880,331. The arbitrator in this case agreed with Schlitz's reading. See 9 EBC 2385, 2405 (1988). The District Court, reviewing the arbitration award, disagreed, No. 88C-908 (ED Wis., June 6, 1991), reprinted in App. 25, 62-69, but the Court of Appeals for the Seventh Circuit reversed the District Court, Because the Seventh Circuit's decision conflicts with a holding of the Third Circuit, cert. dism'd, this Court granted certiorari, Our conclusion, like that of the Seventh Circuit, is that, for purposes of computation, interest does not start accruing until the beginning of the plan year after withdrawal. II At first glance, the statutory provision that (the parties agree) governs this case seems silent on the issue of withdrawal-year interest. Indeed, it does not mention interest directly at all. Rather, it says that a withdrawing employer "shall pay the amount determined under section 1391 over the period of years necessary to amortize the amount in level annual payments determined under subparagraph *422 (C), calculated as if the first payment were made on the first day of the plan year following the plan year in which the withdrawal occurs and as if each subsequent payment were made on the first day of each subsequent plan year." 29 U.S. C. 1399(c)(1)(A)(i) (emphasis added). After considering the parties' arguments, which focus upon the emphasized language, we have become convinced that, for purposes of computation, this provision, although causing interest to accrue over subsequent plan years, does not cause interest to accrue during the withdrawal year itself. A The Plan points out, and we agree, that the word "amortize" normally assumes interest charges. After all, the very idea of amortizing, say, a mortgage loan, involves paying the principal of the debt over time along with interest. But the Plan (supported by the Government, which is taking a view of the matter contrary to the view the Pension Benefit Guaranty Corporation took in the case, see ) goes on to claim that the word "amortize" indicates that interest accrues during the withdrawal year as well as during subsequent years. We do not agree with that claim. In our view, one generally does not pay interest on a debt until that debt arisesthat is to say, until the principal of the debt is outstanding. And the instruction to calculate |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | of the debt is outstanding. And the instruction to calculate payment as if the first payment were made at the beginning of the following year tells us to treat the debt as if it arose at that time (i. e., the first day of the year after withdrawal), not as if it arose one year earlier. For one thing, unless a loan is involved, one normally expects a debtor to make a first payment at the time the debt arises, not one payment cycle later. Suppose, for example, that a taxpayer arranges to pay a large tax debt in four quarterly installments. Would one not expect the taxpayer to make the first payment on April 15, the day the tax debt *423 becomes due? Similarly, would one not expect a buyer of, say, a business to make the first payment (a down payment) at the time of the closing? By way of contrast, when a loan is involved (say, when one borrows money on a home mortgage and repays it in installments), interest accrual normally does begin before the first payment. That is because the borrower has had the use of the money for one cycle before the first payment. In the case of a loan, it would seem pointless, and would simply generate an unnecessary back-andforth transfer of money, for a first repayment to take place on the very day the lender disburses the loan proceeds. The "first payment" at issue here, however, looks more like a tax or purchase-money installment than a loan installment. Under the statute, the withdrawing employer's debt does not arise at the end of the year preceding the year of withdrawal. In fact, the employer may not have withdrawn from the plan at the beginning of the year, but instead may have continued to make its ordinary contribution until well into the year. In any event, the statute makes clear that the withdrawing employer owes nothing until its plan demands payment, which will inevitably happen some time after the beginning of the year. See 29 U.S. C. 1399(b)(1), (c)(2). In fact, the withdrawing employer cannot determine, or pay, the amount of its debt until the plan has calculated that amountwhich must take place some time after the beginning of the withdrawal year. All these features make it difficult to find any analogy in withdrawal liability to a loan. For another thing, we cannot easily reconcile the Plan's reading of the statute with the statutory provision that permits an employer to pay the amount owed in a lump sum. That provision says that a withdrawing |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | in a lump sum. That provision says that a withdrawing employer "shall be entitled to prepay the outstanding amount of the unpaid annual withdrawal liability payments determined under [ 1399(c)(1)(C)], plus accrued interest, if any, in whole or in part, without penalty." 1399(c)(4). *424 We read this provision to permit an employer, by paying a lump sum, to avoid paying the amortization interest that 1399(c)(1)(A)(i) would otherwise cause to accrue. (Under any other reading, the prepayment provision would not create much of an "entitle[ment]." Moreover, the prepayment provision refers to "payments determined under [ 1399(c)(1) (C )]"not 1399(c)(1)(A ), the provision that causes amortization interest to accrue.) It would seem odd if the prepayment provision enabled an employer to avoid all interest except the interest accruing during the year of withdrawal. And, if interest accrued from the last day of the year before withdrawal, there would hardly ever be a time that no interest was due. Such a reading would thus make it very difficult to give meaning to the words "if any" in the phrase "plus accrued interest, if any." (The Third Circuit suggested that these words might refer to a lump-sum payment made immediately after a scheduled installment. See 916 F. 2d, at 99. We agree that they could, theoretically. But, realistically speaking, it seems unlikely that Congress inserted "if any" to deal with such an unusual event.) Further, the interpretation under which interest would accrue from the last day of the year before withdrawal is difficult to reconcile with the statutory language that defines a withdrawing employer's basic liability. Section 1381(a) says that the withdrawing employer becomes "liable to the plan in the amount determined under this part to be the withdrawal liability." Section 1381(b)(1) defines "withdrawal liability" as "the amount determined under section 1391." Yet, 1391 says nothing about a year's worth of interest. Why then read the provision here at issue so that it inevitably and always creates liability in the amount of the withdrawal charge plus one year's interest, irrespective of when the employer, in fact, withdraws and how or when the employee begins to pay? Finally, the provision here at issue asks one to calculate the installment payments as if the "first payment" was made, *425 not on the last day of the withdrawal year, but on the "first day " of the next year, i. e., one year plus one day after the withdrawal charge calculation date. This choice of time (a year and a day) would be an odd way to signal that one is to treat the first payment as |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | signal that one is to treat the first payment as if it occurred at the end of a cycle. B The Plan (and supporting amici ) make several arguments in support of a reading in which, for purposes of calculation, interest starts accruing on the last day of the year before withdrawal. But we are not persuaded. First, the Plan argues that our interpretation works against the basic objective of the statute, requiring a withdrawing employer to pay a fair share of the under funding. Under our interpretation, says the Plan, the withdrawing employer will fail to pay a year's worth of interest on the withdrawal charge, thereby requiring the remaining employers to make up what, in fact, was part of the withdrawing employer's fair share. Suppose, for example, that an underfunded plan needed exactly $20 million as of the end of 1980 to create a sum that would grow to just the amount needed to pay then-vested benefits falling due, say, in 1999. By the end of 1981 that same plan would need more money; indeed, if we assume the $20 million would have grown 7% each year, it would need 7% more to pay those same vested 1999 benefits. Thus, if the withdrawing employer's fair share of the $20 million is $3 million as of the end of 1980, its fair share must have grown to $3,210,000 by the end of 1981. Why, asks the Plan, should the remaining employers have to make up for this missing $210,000? One answer to the Plan's question is that the $210,000 will not necessarily be missing. For one thing, until the employer withdraws, it will be required to make contributions that should contain a component designed to reduce underfunding. See 26 U.S. C. 412(b)(2); 29 U.S. C. 1082. For another thing, if a plan moves quickly, it may be able to force *426 a withdrawing employer to begin making installment payments even before the end of the withdrawal year. Either way, to charge such an employer a full year's worth of interest would overcharge that employer and thereby provide the remaining employers with a kind of under funding-reduction windfall. Another answer is that we are not convinced that MPPAA aims to make withdrawing employers pay an actuarially perfect fair share, namely, a set of payments in amounts that, when invested, would theoretically produce (on the plan's actuarial assumptions) a sum precisely sufficient to pay (the employer's proportional share of) a plan's estimated vested future benefits. For one thing, the statute forgives de minimis amounts. See 29 U.S. C. 1389. For another |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | de minimis amounts. See 29 U.S. C. 1389. For another thing, it forgives all annual installment payments after 20 years, see 1399(c)(1)(B)and that means that, if an employer's normal annual contribution was low compared to the withdrawal charge, the presence or absence of withdrawal-year interest (which shows up at the end of the payment schedule, see ) will make no difference (for the last payments will never be made). Finally, in making the first installment "payable" only after a plan demands it, MPPAA contemplates that an employer sometimes may pay its actual first installment long after the withdrawal yearas was the case in in which case no interpretation of the statute can avoid an employer's actually paying something less than its fair share of interest. Second, the Plan argues that the statute's language favors its interpretation. It refers to a dictionary that defines an amortization plan as "`one where there are partial payments of the principal, and accrued interest, at stated periods for a definite time, at the expiration of which the entire indebtedness will be extinguished,' " Brief for Petitioner 27 (quoting Black's Law Dictionary 76 (5th ed. 1979)) (emphasis added), and to another definition that says that, "`[i]f a loan is being repaid by the amortization method, each payment *427 is partially repayment of principal and partially payment of interest,' " Brief for Petitioner 27 (quoting S. Kellison, The Theory of Interest 169 (2d ed. 1991)) (emphasis added). These definitions accurately describe the repayment of loans. But, they do not seem to focus upon whether or not one would normally include interest in the first installment of an amortized payment of a debt that is not a loan. We have no reason to believe they intend to define away the issue before us here. The Plan adds that our reading of the statute makes the first "as if" clause in 1399(c)(1)(A)(i) superfluous because, "if Congress had not intended to include interest in the first payment, it could have simply provided that the presumed payment schedule should be calculated as if payments were made annually." Brief for Petitioner 38. It seems to us that the premise of this argument is that, without contrary indication, one would expect that, in the case of an indebtedness of the kind here at issue, interest would not start accruing before the first payment is duea premise with which we agree, see More importantly, had Congress not used the words "as if the first payment were made on the first day of the plan year following the plan year in which the withdrawal occurs," |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | year following the plan year in which the withdrawal occurs," the reader might have thought that interest would begin to accrue immediately upon withdrawal, a reading that has some intuitive appeal, see But, the first "as if" clause makes clear that interest does not begin accruing on that date. (The same concern may explain the second "as if" clause in 1399(c)(1)(A)(i), concerning subsequent payments. Without that clause, one might think that one should calculate the amortization schedule as if the first payment is made out of order, and as if each successive payment is made on the anniversary of the date of withdrawal.) *428 We recognize that Congress might have been more specific. For example, it could have said: "Calculate amortization as if the first payment is made on the date the employer's withdrawal liability is due" (had it intended interest to start accruing on that date); or: "Calculate amortization as if each payment is made on the last day of the year at the beginning of which it is due" (had it intended interest to start accruing one cycle before the first payment is due). Instead, Congress said that one should calculate amortization "as if the first payment were made on the first day of the plan year following the plan year in which the withdrawal occurs." And, that actual language, as we have said, offers more support for our interpretation than for the alternative. Were we to read the actual language as does the Plan, we would have to analogize the valuation date (the last day of the year preceding withdrawal) to the date on which liability arises; to the date on which the debt becomes "payable"; or to the date on which the employer withdraws. But, in fact, the calculation date is none of those things; it is a date chosen simply for ease of administration; and ease of administration does not require choosing the same date for interest-accrual purposes. See Third, the Plan points to legislative history. The Plan says that the original bill provided that interest would not begin accruing until the date of withdrawal. And, the Plan points out, just like the version that ultimately became law, the bill located the valuation date (the date as of which the withdrawing employer's share in the plan's under funding is determined) at the end of the plan year before withdrawal. Thus, the Plan says, the original bill contemplated a "funding gap"from the valuation date to the withdrawal date. Because the section providing that interest started accruing on the withdrawal date did not make it into the |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | on the withdrawal date did not make it into the statute as enacted, *429 the Plan argues, Congress expressly rejected the idea of a "gap." Brief for Petitioner 41. For the reasons stated above, see we doubt that our reading, as a practical matter, will cause a significant gap to occur. But, regardless, if we were to consider legislative history in this case, we would find that it undermines, rather than supports, the Plan's reading. The Plan's rendering is incomplete, for the relevant statutory provisions went through not two but four versions: (1) the original bill, calling for a valuation on the last day of the year before withdrawal and for interest accrual beginning on the date of withdrawal, see S. 1076, 96th Cong., 1st Sess., 104 (1979) (adding ERISA 4201(d)(1)(A), (e)(5)), reprinted in 125 Cong. Rec. 9800, 9803 (1979); H. R. 96th Cong., 1st Sess., 104 (1979) (adding ERISA 4201(d) (1)(A), (e)(5)), reprinted in Hearings on the Multiemployer Pension Plan Amendments Act of 1979 before the Task Force on Welfare and Pension Plans of the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 96th Cong., 1st Sess., pp. 3, 21, 25 (1979) (hereinafter Task Force Hearings); (2) a second version, which moved the valuation date to (2)the end of the withdrawal year and also said that interest shall be determined "as if each payment were made at the end of the year in which it is due" (thus apparently indicating that interest would start accruing one year before the first payment fell due), see H. R. 104 (adding ERISA 4201(e) (2)(E), (f)(2)(C), (f)(3)(A), (f)(4)(A), (i)(2)(A) (ii)),reprinted in Task Force Hearings 246-247, 249, 251, 252, 256; (3) a third version, which kept the valuation date at the (3)end of the withdrawal year but changed the interestaccrual *430 language to the "as if" clauses found in the statute as we now know it, see H. R. 96th Cong., 1st Sess., 104 (1980) (adding ERISA 4201(e)(2)(E)(i), (f)(2)(C)(i), (f) (3)(A), (f)(4)(A), (i)(2)(A)(i)), reprinted in H. R. Rep. No. 96-869, pt. 1, pp. 12-15 (1980); H. R. 96th Cong., 1st Sess., 104 (1980) (adding ERISA 4201(e)(2)(E)(i), (f)(2)(C)(i), (f)(3)(A), (f)(4)(A), 4202(c)(1)(A)(i)), reprinted in H. R. Rep. No. 96-869, pt. 2, pp. 129-131, 135-136 (1980); and (4) a final version, which moved the valuation date back to the end of the year preceding withdrawal but retained the third version's interest-accrual language, see H. R. 96th Cong., 1st Sess., 104 (1980) (adding ERISA 4211(b)(2)(E)(i), (c)(2)(C)(i)(I), (c)(3)(A), (c)(4)(A)(i), 4219(c)(1)(A)(i)), reprinted in 126 Cong. Rec. 23003, 23014, 23016 (1980). This history suggests two things, neither |
Justice Breyer | 1,995 | 2 | majority | Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co. | https://www.courtlistener.com/opinion/117896/milwaukee-brewery-workers-pension-plan-v-jos-schlitz-brewing-co/ | 23003, 23014, 23016 (1980). This history suggests two things, neither of which helps the Plan. First, throughout the bill's history, the valuation date and interest-accrual date moved about in an apparently uncoordinated way. This somewhat undermines the Plan's suggestion that Congress was very concerned about the interplay between the two. It certainly dispels the notion that the final version should primarily be viewed as a rejection of the "funding gap" found in the original bill. Second, the evolution of the "as if" clause from "as if each payment were made at the end of the year in which it is due" to "as if the payment were made on the first day of the plan year [following withdrawal]" suggests that Congress replaced a scheme in which interest starts accruing a full payment cycle before the first payment with a scheme in which interest starts accruing on the first day of the year following withdrawal. *431 III We consequently hold that MPPAA calculates its installment schedule on the assumption that interest begins accruing on the first day of the year following withdrawal. The judgment of the Court of Appeals is therefore Affirmed. |
Justice Scalia | 1,994 | 9 | concurring | Albright v. Oliver | https://www.courtlistener.com/opinion/112924/albright-v-oliver/ | One can conceive of many abuses of the trial process ) that might cause a criminal sentence to be a deprivation of life, liberty or property without due process. But here there was no criminal sentence (the indictment was dismissed), and so the only deprivation of life, liberty or property, if any, consisted of petitioner's pretrial arrest. I think it unlikely that the procedures constitutionally "due," with regard to an arrest, consist of anything more than what the Fourth Amendment specifies; but petitioner has in any case not invoked "procedural" due process. Except insofar as our decisions have included within the Fourteenth Amendment certain explicit substantive protections of the Bill of Rightsan extension I accept because it is both long established and narrowly limitedI reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures as a prerequisite to deprivation of liberty. See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. *276 443, 470-471 (1993) (SCALIA, J., concurring). As I have acknowledged, however, see Michael this Court's current jurisprudence is otherwise. But that jurisprudence rejects "the more generalized notion of `substantive due process'" at least to this extent: It cannot be used to impose additional requirements upon such of the States' criminal processes as are already addressed (and left without such requirements) by the Bill of Rights. That proscription applies here. The Bill of Rights sets forth, in the Fifth and Sixth Amendments, procedural guarantees relating to the period before and during trial, including a guarantee (the Grand Jury Clause) regarding the manner of indictment. Those requirements are not to be supplemented through the device of "substantive due process." For these reasons, in addition to those set forth by THE CHIEF JUSTICE, the judgment here should be affirmed. |
Justice Blackmun | 1,976 | 11 | concurring | Pennsylvania v. New Jersey | https://www.courtlistener.com/opinion/109493/pennsylvania-v-new-jersey/ | Obviously, and naturally, I join the Court's per curiam opinion. Last Term, in lonely dissent, in the case which has spawned the present motions by Pennsylvania and by Maine, Massachusetts, and Vermont, I said: "Because the New Hampshire income tax statutes operate in such a way that no New Hampshire resident is ultimately subjected to the State's income tax, the case at first glance appears to have some attraction. That attraction, however, is superficial and, upon careful analysis, promptly fades and disappears entirely. The reason these appellants, who are residents of Maine, not of New Hampshire, pay a New Hampshire tax is because the Maine Legislature the appellants' own duly elected representatives has given New Hampshire the option to divert this increment of tax (on a Maine resident's income earned in New Hampshire) from Maine to New Hampshire, and New Hampshire willingly has picked up that option. All that New Hampshire *667 has done is what Maine specifically permits and, indeed, invites it to do. If Maine should become disenchanted with its bestowed bounty, its legislature may change the Maine statute. The crux is the statute of Maine, not the statute of New Hampshire. The appellants, therefore, are really complaining about their own statute. It is ironic that the State of Maine, which allows the credit, has made an appearance in this case as an amicus urging, in effect, the denial of the credit by an adjudication of unconstitutionality of New Hampshire's statute. It seems to me that Maine should be here seeking to uphold its own legislatively devised plan or turn its attention to its own legislature." The Court in its per curiam, ante, at 664, now concedes that the "injuries to the plaintiffs' fiscs were self-inflicted" and that no State "can be heard to complain about damages inflicted by its own hand." Quod approbo non reprobo. |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | We granted certiorari, to review a decision of the Court of Appeals for the First Circuit affirming the issuance of a writ of habeas corpus. The Court of Appeals agreed with the District Court that the trial de novo of respondent Lydon, pursuant to ' "two-tier" *297 system for trying minor crimes, would violate his right not to be placed twice in jeopardy for the same crime, because it determined that insufficient evidence of a critical element of the charge was adduced at the first-tier trial. We reverse. I Under law, a defendant charged with certain crimes in Boston Municipal Court may elect either a bench trial or a jury trial. Mass. Gen. Laws Ann., ch. 218, 26, 26A (West Supp. 1983-1984). If a defendant chooses a jury and is convicted, he has the normal appellate process open to him, while a defendant dissatisfied with the results of a bench trial, if he elects that course, has an absolute right to a trial de novo before a jury.[1] 26 and 27A. A convicted defendant who has chosen a bench trial need not allege error at that trial to obtain de novo review. On the other hand, he may not rely upon error at the bench trial to obtain reversal of his conviction; his only recourse is a trial de novo. Respondent Michael Lydon was arrested after breaking into an automobile in Boston. He was charged with the knowing possession of implements "adapted and designed for forcing and breaking open a depository [an automobile] in order to steal therefrom, such money or other property as might be found therein" with intent "to use and employ them therefor." Record, Complaint. Lydon elected to undergo a first-tier bench trial and was convicted. The trial judge rejected Lydon's claim that the prosecution had introduced no evidence that Lydon intended to steal from the car and that his actions were as consistent with activities not covered by the complaint. Lydon was sentenced to two years in jail. Lydon requested a trial de novo in the jury session of the Boston Municipal Court. Pending retrial, he was released *298 on personal recognizance. Before the jury trial commenced, Lydon moved to dismiss the charge against him on the ground that no evidence of the element of intent had been presented at the bench trial. He contended that retrial was therefore barred under the principles of which held that the Double Jeopardy Clause bars a second trial when a reviewing court reverses a conviction on the ground that the evidence presented at the first trial was legally insufficient. |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | the evidence presented at the first trial was legally insufficient. After the motion to dismiss was denied, Lydon sought relief in the single justice session of the Supreme Judicial Court of See Mass. Gen. Laws Ann., ch. 211, 3 (West 1958). The single justice issued a stay of the de novo trial and reported two questions to the full bench: "1. Is it a denial of a defendant's right not to be placed in double jeopardy to require him to go through a jury trial, requested by him without waiving his rights, when the evidence at the bench trial was insufficient to warrant a conviction? "2. Assuming that a jury trial in such an instance would be a denial of a defendant's right not to be placed in double jeopardy, may the issue of the sufficiency of the evidence at the bench trial be considered again at the trial court level, assuming, of course, that the judge at the bench trial has denied an appropriate request for a ruling that the evidence at the bench trial was insufficient?" The single justice did not report a finding on the sufficiency of the evidence, although he did state that he was "of the view that the evidence was not sufficient to warrant guilty findings." Record, Reservation and Report, at 3. He also noted that the prosecution conceded that the evidence presented was insufficient to warrant a finding of guilt on the charges set forth in the complaint. On review by the Supreme Judicial Court, the court initially noted that the single justice did not sit as a reviewing *299 court in determining the sufficiency of the evidence and that any conclusion reached by him on that issue "was made for the purpose of reporting clearly framed questions to the full bench and is not an adjudication of the rights of the parties in this case." The court then found Lydon's double jeopardy argument to be without merit. Because no appellate court had ruled that the evidence was insufficient at Lydon's trial, and indeed no court ever would have occasion to do so under law, the court found Burks inapplicable. Burks, the court observed, did not address the question whether under double jeopardy principles a defendant convicted on insufficient evidence at a bench trial has a right to reconsideration of the sufficiency of the evidence prior to a trial de novo. The court concluded that "[a] defendant is not placed in double jeopardy merely because his only avenue of relief from a conviction based on insufficient evidence at a voluntarily sought bench trial |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | based on insufficient evidence at a voluntarily sought bench trial is a trial de novo." As to the second reported question, the court concluded that if there is a valid double jeopardy claim, it should be dealt with prior to the trial de novo, although it acknowledged that its conclusion on this question was "rendered largely academic" by its answer to the first question since any double jeopardy claim presented to the second-tier court would necessarily be rejected. Lydon then filed a petition for a writ of habeas corpus in the United District Court for the District of First addressing the question of its jurisdiction, the District Court held that Lydon was "in custody" for purposes of 28 U.S. C. 2254(b) and that he had exhausted his state remedies because there was no state remedy available to him short of submitting to a second trial. On the merits, the District Court viewed as "bestow[ing] a constitutional right upon defendants not to be retried when the initial conviction *300 rests on insufficient evidence," and thought that this holding foreclosed a second trial if the evidence against Lydon at the bench trial was insufficient, After reviewing the transcript of the bench trial, the District Court concluded that there was insufficient, evidence of intent to support a conviction and ordered the writ to issue. On appeal, a divided Court of Appeals for the First Circuit affirmed in all respects. II A We first address the Commonwealth's contention that the District Court lacked jurisdiction to entertain Lydon's habeas corpus action because he was not in "custody" for purposes of the statute and had not exhausted his state remedies. Under 28 U.S. C. 2241(c), a "writ of habeas corpus shall not extend to a prisoner unless (3) He is in custody in violation of the Constitution or laws or treaties of the United" Similarly, 28 U.S. C. 2254(a) states that a writ of habeas corpus is available to persons "in custody pursuant to the judgment of a State court." Petitioners argue that because Lydon's first conviction had been vacated when he applied for a trial de novo, and because he had been released on personal recognizance, he was not in "custody." Our cases make clear that "the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody." In we held that a petitioner enlarged on his own recognizance pending execution of sentence was in custody within the meaning of 28 U.S. C. 2241(c)(3) and 2254(a). Hensley's release on personal recognizance was subject to the conditions that |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | release on personal recognizance was subject to the conditions that he would appear when ordered by the court, that he would waive extradition if he was apprehended outside the State, and that a court could revoke the order of release and require that he be returned to confinement or *301 post bail. Although the restraints on Lydon's freedom are not identical to those imposed on Hensley, we do not think that they are sufficiently different to require a different result. The statute under which Lydon was released subjects him to "restraints not shared by the public generally." He is under an obligation to appear for trial in the jury session on the scheduled day and also "at any subsequent time to which the case may be continued. and so from time to time until the final sentence." Mass. Gen. Laws Ann., ch. 278, 18 (West 1981). Failure to appear "without sufficient excuse" constitutes a criminal offense. Ch. 276, 82A. Also, if Lydon fails to appear in the jury session, he may be required, without a further trial, to serve the 2-year sentence originally imposed. Ch. 278, 24. Finally, the statute requires that he "not depart without leave, and in the meantime keep the peace and be of good behavior." Ch. 278, 18. Consequently, we believe that the Court of Appeals correctly held that Lydon was in custody. Petitioners contend that a conclusion that a person released on personal recognizance is in custody for purposes of the federal habeas corpus statutes will "ope[n] the door to the federal court to all persons prior to trial." Brief for Petitioners 24. We addressed the same argument in Hensley: "Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts. Nothing *302 in today's opinion alters the application of that doctrine to such a defendant."[2] B We are also convinced that Lydon had exhausted his state remedies with respect to his claim that his second trial would violate his right not to be twice placed in jeopardy unless it is judicially determined that the evidence |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | in jeopardy unless it is judicially determined that the evidence at his first trial was sufficient to sustain his conviction.[3] This precise claim was presented to and rejected by the Supreme Judicial Court of That court definitively ruled that Lydon had no right to a review of the sufficiency of the evidence at the first trial and that his trial de novo without such a determination would not violate the Double Jeopardy Clause. That Lydon may ultimately be acquitted at the trial de novo does not alter the fact that he has taken his claim that he should not be tried again as far as he can in the state courts. We should keep in mind in this respect the unique nature of the double jeopardy right. In Abney v. United the Court held that denial of a motion to dismiss an indictment on double jeopardy grounds constitutes a *303 final order for purposes of 28 U.S. C. 12. That decision was based upon the special nature of the double jeopardy right and the recognition that the right cannot be fully vindicated on appeal following final judgment, since in part the Double Jeopardy Clause protects "against being twice put to trial for the same offense." Because the Clause "protects interests wholly unrelated to the propriety of any subsequent conviction," ib a requirement that a defendant run the entire gamut of state procedures, including retrial, prior to consideration of his claim in federal court, would require him to sacrifice one of the protections of the Double Jeopardy Clause.[4] In our view, therefore, Lydon had exhausted his double jeopardy claim in the state courts, and that precondition to the District Court's jurisdiction was satisfied. We conclude below, however, that the District Court and the Court of Appeals erred in sustaining Lydon's double jeopardy claim: in our view, Lydon could be retried de novo without any judicial determination of the sufficiency of the evidence at his prior bench trial.[5] *304 III In we upheld a prior two-tier system of trial courts for criminal cases. The present system differs from the system upheld in Ludwig in only one respect of significance here. Prior to the Court Reorganization Act of 1978, a defendant could not elect a jury trial in the first instance; he was required to participate in the first-tier proceedings. Under the present system, as noted above, a defendant may avoid the first-tier trial altogether and proceed directly to the jury trial. In upholding the prior system, we stated: "The system presents no danger of prosecution after an accused has been pardoned; nor |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | danger of prosecution after an accused has been pardoned; nor is there any doubt that acquittal at the first tier precludes reprosecution. Instead, the argument appears to be that because the appellant has been placed once in jeopardy and convicted, the State may not retry him when *305 he informs the trial court of his decision to `appeal' and to secure a trial de novo. "Appellant's argument is without substance. The decision to secure a new trial rests with the accused alone. A defendant who elects to be tried de novo in is in no different position than is a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand of his case for a new trial. Under these circumstances, it long has been clear that the State may reprosecute. United v. The only difference between an appeal on the record and an appeal resulting automatically in a new trial is that a convicted defendant in may obtain a `reversal' and a new trial without assignment of error in the proceedings at his first trial. Nothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal." Our decision in Ludwig, which we think is dispositive of the double jeopardy issue in this case, was not disturbed by our later decision in In Burks, the petitioner's conviction had been set aside by the Court of Appeals on the ground that there had been insufficient evidence presented at his trial to support the verdict. The Court of Appeals then ordered the case remanded to the District Court for a determination of whether a new trial should be ordered or a directed verdict of acquittal should be entered. We reversed, stating: "In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. "The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, *306 in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal no matter how erroneous |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | a jury's verdict of acquittal no matter how erroneous its decision it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." (footnote omitted) We summarized our holding in Burks as being "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient." Lydon argues, and the Court of Appeals held, that our statement in Ludwig that a defendant who elects to be tried de novo is in the same position as a convicted defendant who successfully appeals, combined with our holding in Burks that the setting aside of a conviction on the basis of evidentiary insufficiency bars retrial, mandates the conclusion that a trial de novo is barred by the Double Jeopardy Clause if the evidence presented at the bench trial was insufficient to support a finding of guilt. We are unpersuaded. A The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." In we held that this guarantee is applicable to the through the Fourteenth Amendment. Our cases have recognized three separate guarantees embodied in the Double Jeopardy Clause: It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, *307 and against multiple punishments for the same offense.[6] The primary goal of barring reprosecution after acquittal is to prevent the State from mounting successive prosecutions and thereby wearing down the defendant. As was explained in Green v. United : "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." The primary purpose of foreclosing a second prosecution after conviction, on the other hand, is to prevent a defendant from being subjected to multiple punishments for the same offense. See United v. Wilson, In this case, the Commonwealth is not attempting to impose multiple punishments for a single offense. Nor is it making another attempt to convict Lydon after acquittal. It is satisfied |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | another attempt to convict Lydon after acquittal. It is satisfied with the results of the bench trial and would have abided the results of a jury trial had Lydon taken that initial course. The conceptual difficulty for Lydon is that he has not been acquitted; he simply maintains that he ought to have been. His claim is that the evidence at the bench trial was insufficient to convict and that a second trial to a jury will offend the fundamental rule that a verdict of acquittal may "not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy." United v. 163 *, ; United v. Martin Linen Supply Our cases, however, do not take us as far as Lydon would like. B The Double Jeopardy Clause is not an absolute bar to successive trials. The general rule is that the Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal. United v. The justification for this rule was explained in United v. Tateo, as follows: "While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." In we recognized that implicit in the rule permitting retrial after reversal of a conviction is the concept of "continuing jeopardy." See also That principle "has application where criminal proceedings against an accused have not run their full course." Interests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver. at n. 4. Acquittals, unlike convictions, terminate the initial jeopardy. This is so whether they are "express or implied by a conviction on a lesser included offense." at In Burks, we recognized that an *309 unreversed determination by a reviewing court that the evidence was legally insufficient likewise served to terminate the initial jeopardy. We assume, without deciding, that jeopardy attached at the swearing of the first witness at Lydon's bench trial. The question then is whether jeopardy has now terminated. Lydon's double jeopardy argument requires an affirmative answer to that question, but he fails to identify any stage of the state proceedings |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | he fails to identify any stage of the state proceedings that can be held to have terminated jeopardy. Unlike Burks, who could rest his claim upon the appellate court's determination of insufficiency, Lydon is faced with the unreversed determination of the bench-trial judge, contrary to Lydon's assertion, that the prosecution had met its burden of proof. We noted in United v. Martin Linen Supply at that an acquittal "represents a resolution, correct or not, of some or all of the factual elements of the offense charged." (Emphasis added.) Lydon's claim of evidentiary failure and a legal judgment to that effect therefore have different consequences under the Double Jeopardy Clause. We believe that the dissent in the Court of Appeals correctly described the nature of the de novo hearing as follows: "While technically [the defendant] is `tried again,' the second stage proceeding can be regarded as but an enlarged, fact-sensitive part of a single, continuous course of judicial proceedings during which, sooner or later, a defendant receives more rather than less of the process normally extended to criminal defendants in this nation." In Burks, the question involved the significance to be attached to a particular event an appellate determination that the evidence was insufficient to support a conviction. Concededly, no such event has occurred here; but Lydon insists that he is entitled under the Federal Constitution to a review *310 of the evidence presented at the bench trial before proceeding with the second-tier trial. Burks does not control this very different issue, and we are convinced that the Double Jeopardy Clause does not reach so far. Consequently, we reject the suggestion that Burks modified Ludwig, and we reaffirm our holding in the latter case.[7] IV A number of features of the system persuade us that it does not constitute "governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect," United v. Scott, even when a defendant convicted at the first tier claims insufficiency of the evidence. We note at the outset that Lydon was in "jeopardy" in only a theoretical sense. Although technically "jeopardy" under the Double Jeopardy Clause entails the "potential or risk of trial and conviction, not punishment," at it is worthy of note that virtually nothing can happen to a defendant at a first-tier trial that he cannot avoid. He has an absolute right to obtain the de novo trial, and he need not allege error at the first-tier trial to do so. Once the right to a de novo trial is exercised, the judgment at the bench trial is |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | trial is exercised, the judgment at the bench trial is "wiped out." The defendant's right to obtain de novo review without alleging error is significant in that it ameliorates one of the concerns underlying our opinion in Burks. In Burks, we recognized the danger of "affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." The Court of Appeals in this case stated that "[t]he process of judicial review *311 has conveniently pinpointed the evidence which was lacking, and retrial simply gives the prosecutor another opportunity to supply it." However, the "process of judicial review" that resulted in the identification of the precise area of insufficiency is not a part of the ordinary procedure and would not have occurred had it not been for Lydon's double jeopardy claim and the intervention by federal courts. In the usual case, there would be no review prior to the jury trial. A claim that our decision in this case creates an incentive for a prosecutor to hold back and learn the defendant's case in the first trial, in order to hone his presentation in the second, is unpersuasive. The prosecution has every incentive to put forward its strongest case at the bench trial, because an acquittal will preclude reprosecution of the defendant. Although admittedly the Commonwealth at the de novo trial will have the benefit of having seen the defense, the defendant likewise will have had the opportunity to assess the prosecution's case. Because in most cases the judge presiding at the bench trial can be expected to acquit a defendant when legally insufficient evidence has been presented, it is clear that the system provides substantial benefits to defendants, as well as to the Commonwealth.[8] In fact, as we recognized in -627, there appears to be nothing to stop a defendant from choosing a bench trial for the sole purpose of getting a preview of the Commonwealth's case to enable him to prepare better for the jury *312 trial. To put the matter another way, as we observed in a defendant's chances in a two-tier system are "[i]n reality to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of a judge or jury in the superior court, with sentence to be determined by the full record made in that court." As the dissent in the Court of Appeals recognized, the two-tier system affords benefits to defendants that are unavailable |
Justice White | 1,984 | 6 | majority | Justices of Boston Municipal Court v. Lydon | https://www.courtlistener.com/opinion/111151/justices-of-boston-municipal-court-v-lydon/ | the two-tier system affords benefits to defendants that are unavailable in a more conventional -12 In traditional systems, a convicted defendant may seek reversal only on matters of law; in the system a defendant is given two opportunities to be acquitted on the facts. If he is acquitted at the first trial, he cannot be retried. See If he is convicted, he may then choose to invoke his right to a trial de novo and once again put the prosecution to its proof. If the prosecution fails in the second trial to convince the trier-of-fact of the defendant's guilt beyond a reasonable doubt, an acquittal results. If the prosecution succeeds in obtaining a conviction the second time, the defendant then has the usual appellate remedies. As we noted in Ludwig, "[n]othing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal."[9] *313A Although, as Judge Campbell said in dissent below, his colleagues' opinion reflects "intelligence and logic," we agree with him that their "relentless application of secondary precepts developed in other, very different settings" led to a wrong result not required by the Constitution and destructive of "a useful and fair state procedure." Accordingly, we reverse the judgment of the Court of Appeals. So ordered. *313B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and concurring in the judgment. |
Justice Stevens | 1,979 | 16 | majority | United States v. Addonizio | https://www.courtlistener.com/opinion/110094/united-states-v-addonizio/ | Three prisoners have alleged that a postsentencing change in the policies of the United States Parole Commission has prolonged their actual imprisonment beyond the period intended by the sentencing judge. The question presented is whether this type of allegation will support a collateral attack on the original sentence under 28 U.S. C. 2255.[1] We hold that it will not. *180 I With respect to the legal issue presented, the claims before us are identical. To bring this issue into sharp focus, we accept for purposes of decision Addonizio's view of the facts and the relevant aspects of the Parole Commission's practices. After his conviction in the United States District Court for the District of New Jersey, on September 22, 1970, Addonizio was sentenced to 10 years' imprisonment and a fine of $25,000. Factors which led the District Judge to impose that sentence included the serious character of Addonizio's offenses,[2] and the judge's expectation that exemplary institutional *181 behavior would lead to Addonizio's release when he became eligible for parole after serving one-third of his sentence.[3] The judge did not contemplate that the Parole Commission *182 might rely on the seriousness of the offense as a reason for refusing a parole which Addonizio would otherwise receive. In 1973, the Parole Commission markedly changed its policies.[4] Under its new practices the gravity of the offense became a significant factor in determining whether a prisoner should be granted parole. Addonizio became eligible for parole on July 3, 1975. After hearings, the Parole Commission twice refused to release him, expressly basing its refusal on the serious character of his crimes.[5] *183 Thereafter, Addonizio invoked the District Court's jurisdiction under 28 U.S. C. 2255 and moved for resentencing. Following the Third Circuit's decision in United the District Court accepted jurisdiction, found that the Parole Commission had not given Addonizio the kind of "meaningful parole hearing" that the judge had anticipated when sentence was imposed, and reduced his sentence to the time already served. The judge stated that he had "anticipatedassuming an appropriate institutional adjustment and good behavior while confined that [Addonizio] would be actually confined for a period of approximately three and one-half to four years of the ten-year sentence." This "sentencing expectation" was frustrated by the Parole Commission's subsequent adoption of new standards and procedures. The Court of Appeals affirmed. Because of a conflict with the decision of the Ninth Circuit holding that 2255 does not give district courts this type of resentencing authority,[6] we granted the Government's petition for certiorari in Addonizio's case and in the consolidated case of two other prisoners in |
Justice Stevens | 1,979 | 16 | majority | United States v. Addonizio | https://www.courtlistener.com/opinion/110094/united-states-v-addonizio/ | and in the consolidated case of two other prisoners in which similar relief was granted.[7] *184 II We decide only the jurisdictional issue. We do not consider the Government's alternative argument that the significance of the changes in the Parole Commission's procedures has been exaggerated because it always attached some weight to the character of the offense in processing parole applications. Nor do we have any occasion to consider whether the new guidelines are consistent with the Parole Commission and Reorganization Act of ;[8] or whether their enforcement may violate the Ex Post Facto Clause of the Constitution.[9] III When Congress enacted 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.[10] The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice.[11] The question in this case is *185 whether an error has occurred that is sufficiently fundamental to come within those narrow limits. Under 2255, the sentencing court is authorized to discharge or resentence a defendant if it concludes that it "was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." This statute was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United While the remedy is in this sense comprehensive, it does not encompass all claimed errors in conviction and sentencing. Habeas corpus has long been available to attack convictions and sentences entered by a court without jurisdiction. See, e. g., Ex parte Watkins, (Marshall, C. J.). In later years, the availability of the writ was expanded to encompass claims of constitutional error as well. See ; But unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited. 477 n. 10. The Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice." Similar limitations apply with respect to claimed errors of |
Justice Stevens | 1,979 | 16 | majority | United States v. Addonizio | https://www.courtlistener.com/opinion/110094/united-states-v-addonizio/ | justice." Similar limitations apply with respect to claimed errors of fact. The justification for raising such errors in a 2255 *186 proceeding, as amicus here points out,[12] is that traditionally they could have been raised by a petition for a writ of coram nobis, and thus fall within 2255's provision for vacating sentences that are "otherwise subject to collateral attack." But coram nobis jurisdiction has never encompassed all errors of fact; instead, it was of a limited scope, existing "in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid." United Thus, the writ of coram nobis was "available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment." The claimed error herethat the judge was incorrect in his assumptions about the future course of parole proceedings does not meet any of the established standards of collateral attack. There is no claim of a constitutional violation; the sentence imposed was within the statutory limits; and the proceeding was not infected with any error of fact or law of the "fundamental" character that renders the entire proceeding irregular and invalid. The absence of any error of this nature or magnitude distinguishes Addonizio's claim from those in prior cases, upon which he relies, in which collateral attacks were permitted. for example, like this case, involved a claim that a judgment that was lawful when it was entered should be set aside because of a later development. The subsequent development in that case, however, was a change in the substantive law that established that the *187 conduct for which petitioner had been convicted and sentenced was lawful. To have refused to vacate his sentence would surely have been a "complete miscarriage of justice," since the conviction and sentence were no longer lawful. The change in Parole Commission policies involved in this case is not of the same character: this change affected the way in which the court's judgment and sentence would be performed but it did not affect the lawfulness of the judgment itself then or now. Nor is United analogous to the present case. In that case, the Court ordered resentencing of a defendant whose original sentence had been imposed |
Justice Stevens | 1,979 | 16 | majority | United States v. Addonizio | https://www.courtlistener.com/opinion/110094/united-states-v-addonizio/ | resentencing of a defendant whose original sentence had been imposed at least in part upon the basis of convictions secured without the assistance of counsel. But the error underlying the sentence in Tucker, as the Court emphasized, was "misinformation of constitutional magnitude." We have held that the constitutional right to the assistance of counsel is itself violated when uncounseled convictions serve as the basis for enhanced punishment. Whether or not the Parole Commission action in this case was constitutional, a question not presented here, there is no claim that the action taken by the sentencing judge was unconstitutional, or was based on "misinformation of constitutional magnitude." Our prior decisions, then, provide no support for Addonizio's claim that he is entitled to relief under 2255. According to all of the objective criteriafederal jurisdiction, the Constitution, and federal lawthe sentence was and is a lawful one. And in our judgment, there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge. As a practical matter, the subjective intent of the sentencing judge would provide a questionable basis for testing the validity of his judgment. The record made when Judge Barlow pronounced sentence against Addonizio, for example, is entirely *188 consistent with the view that the judge then thought that this was an exceptional case in which the severity of Addonizio's offense should and would be considered carefully by the Parole Commission when Addonizio became eligible for parole. If the record is ambiguous, and if a 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants; on the other hand, the implementation of the Parole Commission's policies may reduce that risk. Nothing in the statutory scheme directs sentencing courts to engage in this task on collateral attack; quite to the contrary, the proposed system of sentencing review would be inconsistent with that established by Congress. The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission.[13] Whether *189 wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges.[14] The authority of sentencing judges to select |
Justice Stevens | 1,979 | 16 | majority | United States v. Addonizio | https://www.courtlistener.com/opinion/110094/united-states-v-addonizio/ | of individual judges.[14] The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole eligibility date, but that guarantees only that the defendant will be considered at that time by the Parole Commission.[15] And once a sentence has been imposed, the trial judge's authority to modify it is also circumscribed. Federal Rule Crim. Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal.[16] The time period, however, is jurisdictional and may not be extended.[17] *190 The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts. Nothing in 2255 supportslet alone mandatessuch a frustration of congressional intent. Accordingly, without reaching any question as to the validity of the Parole Commission's actions, either in promulgating its new guidelines or in denying Addonizio's applications for parole, we hold that subsequent actions taken by the Parole Commissionwhether or not such actions accord with a trial judge's expectations at the time of sentencingdo not retroactively affect the validity of the final judgment itself. The facts alleged by the prisoners in these cases do not provide a basis for a collateral attack on their respective sentences pursuant to 2255. The judgments of the Court of Appeals are therefore reversed. It is so ordered. MR. JUSTICE BRENNAN took no part in the decision of this case. MR. JUSTICE POWELL took no part in the consideration or decision of this case. |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | I 19, petitioer David H. Lucas paid $975,000 for two residetial lots o the Isle of Palms i Charlesto Couty, *1007 South Carolia, o which he iteded to build sigle-family homes. I 1988, however, the South Carolia Legislature eacted the Beachfrot Maagemet Act, S. C. Code A. 48-39-250 et seq. (Supp. 1990), which had the direct effect of barrig petitioer from erectig ay permaet habitable structures o his two parcels. See 48-39-290(A). A state trial court foud that this prohibitio redered Lucas's parcels "valueless." App. to Pet. for Cert. 37. This case requires us to decide whether the Act's dramatic effect o the ecoomic value of Lucas's lots accomplished a takig of private property uder the Fifth ad Fourteeth Amedmets requirig the paymet of "just compesatio." U. S. Cost., Amdt. 5. I A South Carolia's expressed iterest i itesively maagig developmet activities i the so-called "coastal zoe" dates from 1977 whe, i the aftermath of Cogress's passage of the federal Coastal Zoe Maagemet Act of 1972, as ameded, 16 U.S. C. 1451 et seq., the legislature eacted a Coastal Zoe Maagemet Act of its ow. See S. C. Code A. 48-39-10 et seq. I its origial form, the South Carolia Act required owers of coastal zoe lad that qualified as a "critical area" (defied i the legislatio to iclude beaches ad immediately adjacet sad dues, *1008 48-39-10(J)) to obtai a permit from the ewly created South Carolia Coastal Coucil (Coucil) (respodet here) prior to committig the lad to a "use other tha the use the critical area was devoted to o [September 28, 1977]." 48-39-1(A). I the late 1970's, Lucas ad others bega extesive residetial developmet of the Isle of Palms, a barrier islad situated eastward of the city of Charlesto. Toward the close of the developmet cycle for oe residetial subdivisio kow as "Beachwood East," Lucas i 19 purchased the two lots at issue i this litigatio for his ow accout. No portio of the lots, which were located approximately 0 feet from the beach, qualified as a "critical area" uder the 1977 Act; accordigly, at the time Lucas acquired these parcels, he was ot legally obliged to obtai a permit from the Coucil i advace of ay developmet activity. His itetio with respect to the lots was to do what the owers of the immediately adjacet parcels had already doe: erect siglefamily resideces. He commissioed architectural drawigs for this purpose. The Beachfrot Maagemet Act brought Lucas's plas to a abrupt ed. Uder that 1988 legislatio, the Coucil was directed to establish a "baselie" coectig the ladwardmost "poit[s] of |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | directed to establish a "baselie" coectig the ladwardmost "poit[s] of erosio durig the past forty years" i the regio of the Isle of Palms that icludes Lucas's lots. S. C. Code A. 48-39-280(A)(2) (Supp. 1988).[1] I actio ot challeged here, the Coucil fixed this baselie ladward of Lucas's parcels. That was sigificat, for uder the Act *1009 costructio of occupable improvemets[2] was flatly prohibited seaward of a lie draw 20 feet ladward of, ad parallel to, the baselie. 48-39-290(A). The Act provided o exceptios. B Lucas promptly filed suit i the South Carolia Court of Commo Pleas, cotedig that the Beachfrot Maagemet Act's costructio bar effected a takig of his property without just compesatio. Lucas did ot take issue with the validity of the Act as a lawful exercise of South Carolia's police power, but coteded that the Act's complete extiguishmet of his property's value etitled him to compesatio regardless of whether the legislature had acted i furtherace of legitimate police power objectives. Followig a bech trial, the court agreed. Amog its factual determiatios was the fidig that "at the time Lucas purchased the two lots, both were zoed for sigle-family residetial costructio ad there were o restrictios imposed upo such use of the property by either the State of South Carolia, the Couty of Charlesto, or the Tow of the Isle of Palms." App. to Pet. for Cert. 36. The trial court further foud that the Beachfrot Maagemet Act decreed a permaet ba o costructio isofar as Lucas's lots were cocered, ad that this prohibitio "deprive[d] Lucas of ay reasoable ecoomic use of the lots, elimiated the urestricted right of use, ad reder[ed] them valueless." The court thus cocluded that Lucas's properties had bee "take" by operatio of the Act, ad it ordered respodet to pay "just compesatio" i the amout of $1,232,387.50. The Supreme Court of South Carolia reversed. It foud dispositive what it described as Lucas's cocessio "that the *1010 Beachfrot Maagemet Act [was] properly ad validly desiged to preserve South Carolia's beaches." 4 S. C. 376, 379, Failig a attack o the validity of the statute as such, the court believed itself boud to accept the "ucotested fidigs" of the South Carolia Legislature that ew costructio i the coastal zoesuch as petitioer itededthreateed this public resource. The court ruled that whe a regulatio respectig the use of property is desiged "to prevet serious public harm," ), o compesatio is owig uder the Takigs Clause regardless of the regulatio's effect o the property's value. Two justices disseted. They ackowledged that our Mugler lie of cases recogizes govermetal |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | They ackowledged that our Mugler lie of cases recogizes govermetal power to prohibit "oxious" uses of propertyi. e., uses of property aki to "public uisaces"without havig to pay compesatio. But they would ot have characterized the Beachfrot Maagemet Act's "primary purpose [as] the prevetio of a uisace." 4 S. C., at 395, To the disseters, the chief purposes of the legislatio, amog them the promotio of tourism ad the creatio of a "habitat for idigeous flora ad faua," could ot fairly be compared to uisace abatemet. As a cosequece, they would have affirmed the trial court's coclusio that the Act's obliteratio of the value of petitioer's lots accomplished a takig. We grated certiorari. II As a threshold matter, we must briefly address the Coucil's suggestio that this case is iappropriate for pleary review. After briefig ad argumet before the South Carolia Supreme Court, but prior to issuace of that court's opiio, the Beach frot Maagemet Act was ameded to *1011 authorize the Coucil, i certai circumstaces, to issue "special permits" for the costructio or recostructio of habitable structures seaward of the baselie. See S. C. Code A. 48-39-290(D)(1) Accordig to the Coucil, this amedmet reders Lucas's claim of a permaet deprivatio uripe, as Lucas may yet be able to secure permissio to build o his property. "[The Court's] cases," we are remided, "uiformly reflect a isistece o kowig the ature ad extet of permitted developmet before adjudicatig the costitutioality of the regulatios that purport to limit it." MacDoald, Sommer & See also Because petitioer "has ot yet obtaied a fial decisio regardig how [he] will be allowed to develop [his] property," Williamso Couty Regioal Plaig the Coucil argues that he is ot yet etitled to defiitive adjudicatio of his takigs claim i this Court. We thik these cosideratios would preclude review had the South Carolia Supreme Court rested its judgmet o ripeess grouds, as it was (essetially) ivited to do by the Coucil. See Brief for Respodet 9, 3. The South Carolia Supreme Court shrugged off the possibility of further admiistrative ad trial proceedigs, however, preferrig to dispose of Lucas's takigs claim o the merits. Cf., e. g., Sa Gas & Electric This uusual dispositio does ot preclude Lucas from applyig for a permit uder the 1990 amedmet for future costructio, ad challegig, o takigs grouds, ay deial. But it does preclude, both practically ad legally, ay takigs claim with respect to Lucas's past deprivatio, i. e., for his havig bee deied costructio rights durig the period before the 1990 amedmet. See geerally First Eglish Evagelical Luthera Church of Without |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | amedmet. See geerally First Eglish Evagelical Luthera Church of Without eve so much as commetig upo the cosequeces of the South Carolia Supreme Court's judgmet i this respect, the Coucil isists that permittig Lucas to press his claim of a past deprivatio o this appeal would be improper, sice "the issues of whether ad to what extet [Lucas] has icurred a temporary takig have simply ever bee addressed." Brief for Respodet 11. Yet Lucas had o reaso to proceed o a "temporary takig" theory at trial, or eve to seek remad for that purpose prior to submissio of the case to the South Carolia Supreme Court, sice as the Act the read, the takig was ucoditioal ad permaet. Moreover, give the breadth of the South Carolia Supreme Court's holdig ad judgmet, Lucas would plaily be uable (abset our itervetio ow) to obtai further state-court adjudicatio with respect to the 1988-1990 period. I these circumstaces, we thik it would ot accord with soud process to isist that Lucas pursue the late-created "special permit" procedure before his takigs claim ca be cosidered ripe. Lucas has properly alleged Article III ijury i fact i this case, with respect to both the pre-1990 ad post-1990 costraits placed o the use of his parcels by the Beachfrot Maagemet Act.[3] That there is a discretioary *1013 "special permit" procedure by which he may regaifor the future, at leastbeeficial use of his lad goes oly to the prudetial "ripeess" of Lucas's challege, ad for the reasos discussed we do ot thik it prudet to apply that prudetial requiremet here. See cert. deied, post, p. 1219.[4] We leave for decisio o remad, of course, the questios left uaddressed by the South *1014 Carolia Supreme Court as a cosequece of its categorical dispositio.[5] III A Prior to Justice Holmes's expositio i Pesylvaia Coal U.S. 393 it was geerally thought that the Takigs Clause reached oly a "direct appropriatio" of property, Legal Teder Cases, or the fuctioal equivalet of a "practical ouster of [the ower's] possessio," Trasportatio See also Justice Holmes recogized i however, that if the protectio agaist physical appropriatios of private property was to be meaigfully eforced, the govermet's power to redefie the rage of iterests icluded i the owership of property was ecessarily costraied by costitutioal limits. U.S., at 414-415. If, istead, the uses of private property were subject to ubridled, ucompesated qualificatio uder the police power, "the atural tedecy of huma ature [would be] to exted the qualificatio more ad more util at last private property disappear[ed]." These cosideratios gave birth i that case to the |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | disappear[ed]." These cosideratios gave birth i that case to the oft-cited maxim that, "while property may be regulated to a certai extet, if regulatio goes too far it will be recogized as a takig." *1015 Nevertheless, our decisio i offered little isight ito whe, ad uder what circumstaces, a give regulatio would be see as goig "too far" for purposes of the Fifth Amedmet. I 70-odd years of succeedig "regulatory takigs" jurisprudece, we have geerally eschewed ay "`set formula' " for determiig how far is too far, preferrig to "egag[e] i essetially ad hoc, factual iquiries." Pe Cetral Trasportatio See Epstei, Takigs: Descet ad Resurrectio, 1987 S. Ct. Rev. 1, 4. We have, however, described at least two discrete categories of regulatory actio as compesable without case-specific iquiry ito the public iterest advaced i support of the restrait. The first ecompasses regulatios that compel the property ower to suffer a physical "ivasio" of his property. I geeral (at least with regard to permaet ivasios), o matter how miute the itrusio, ad o matter how weighty the public purpose behid it, we have required compesatio. For example, i we determied that New York's law requirig ladlords to allow televisio cable compaies to emplace cable facilities i their apartmet buildigs costituted a takig, eve though the facilities occupied at most oly 1 12 cubic feet of the ladlords' property, see See also Uited ; cf. Kaiser The secod situatio i which we have foud categorical treatmet appropriate is where regulatio deies all ecoomically beeficial or productive use of lad. See 447 U. S., at ; see also ; Keystoe Bitumious Coal ;[6] As we have said o umerous occasios, the Fifth Amedmet is violated whe lad-use regulatio "does ot substatially advace legitimate state iterests or deies a ower ecoomically viable use of his lad. " at (emphasis added).[7] *1017 We have ever set forth the justificatio for this rule. Perhaps it is simply, as Justice Brea suggested, that total deprivatio of beeficial use is, from the ladower's poit of view, the equivalet of a physical appropriatio. See Sa Gas & Electric "[F]or what is the lad but the profits thereof[?]" 1 E. Coke, Istitutes, ch. 1, 1 (1st Am. ed. 1812). Surely, at least, i the extraordiary circumstace whe o productive or ecoomically beeficial use of lad is permitted, it is less realistic to idulge our usual assumptio that the legislature is simply "adjustig the beefits ad burdes of ecoomic life," Pe Cetral Trasportatio *1018 U. S., at i a maer that secures a "average reciprocity of advatage" to everyoe cocered, Pesylvaia |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | secures a "average reciprocity of advatage" to everyoe cocered, Pesylvaia Coal U. S., Ad the fuctioal basis for permittig the govermet, by regulatio, to affect property values without compesatiothat "Govermet hardly could go o if to some extet values icidet to property could ot be dimiished without payig for every such chage i the geeral law," at 413does ot apply to the relatively rare situatios where the govermet has deprived a ladower of all ecoomically beeficial uses. O the other side of the balace, affirmatively supportig a compesatio requiremet, is the fact that regulatios that leave the ower of lad without ecoomically beeficial or productive optios for its usetypically, as here, by requirig lad to be left substatially i its atural statecarry with them a heighteed risk that private property is beig pressed ito some form of public service uder the guise of mitigatig serious public harm. See, e. g., ; Morris Couty Lad Improvemet As Justice Brea explaied: "From the govermet's poit of view, the beefits flowig to the public from preservatio of ope space through regulatio may be equally great as from creatig a wildlife refuge through formal codematio or icreasig electricity productio through a dam project that floods private property." Sa Gas & Elec. The may statutes o the books, both state ad federal, that *1019 provide for the use of emiet domai to impose servitudes o private sceic lads prevetig developmetal uses, or to acquire such lads altogether, suggest the practical equivalece i this settig of egative regulatio ad appropriatio. See, e. g., 16 U.S. C. 410ff-1(a) (authorizig acquisitio of "lads, waters, or iterests [withi Chael Islads Natioal Park] (icludig but ot limited to sceic easemets)"); 460aa-2(a) (authorizig acquisitio of "ay lads, or lesser iterests therei, icludig mieral iterests ad sceic easemets" withi Sawtooth Natioal Recreatio Area); 3921-3923 (authorizig acquisitio of wetlads); N. C. Ge. Stat. 113A-38 (1990) (authorizig acquisitio of, iter alia, "`sceic easemets' " withi the North Carolia atural ad sceic rivers system); Te. Code A. 11-15-101 to XX-XX-XXX (authorizig acquisitio of "protective easemets" ad other rights i real property adjacet to State's historic, architectural, archaeological, or cultural resources). We thik, i short, that there are good reasos for our frequetly expressed belief that whe the ower of real property has bee called upo to sacrifice all ecoomically beeficial uses i the ame of the commo good, that is, to leave his property ecoomically idle, he has suffered a takig.[8] *1020 B The trial court foud Lucas's two beachfrot lots to have bee redered valueless by respodet's eforcemet of the coastal-zoe costructio ba.[9] Uder |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | valueless by respodet's eforcemet of the coastal-zoe costructio ba.[9] Uder Lucas's theory of the case, which rested upo our "o ecoomically viable use" statemets, that fidig etitled him to compesatio. Lucas believed it uecessary to take issue with either the purposes behid the Beachfrot Maagemet Act, or the meas chose by the South Carolia Legislature to effectuate those purposes. The South Carolia Supreme Court, however, thought otherwise. I its view, the Beachfrot Maagemet Act was o ordiary eactmet, but ivolved a exercise of South Carolia's "police powers" to mitigate the harm to the public iterest that petitioer's use of his *1021 lad might occasio. 4 S. C., at 384, By eglectig to dispute the fidigs eumerated i the Act[10] or otherwise to challege the legislature's purposes, *1022 petitioer "cocede[d] that the beach/due area of South Carolia's shores is a extremely valuable public resource; that the erectio of ew costructio, iter alia, cotributes to the erosio ad destructio of this public resource; ad that discouragig ew costructio i close proximity to the beach/due area is ecessary to prevet a great public harm." at 382-, I the court's view, these cocessios brought petitioer's challege withi a log lie of this Court's cases sustaiig agaist Due Process ad Takigs Clause challeges the State's use of its "police powers" to ejoi a property ower from activities aki to public uisaces. See ; ; ; It is correct that may of our prior opiios have suggested that "harmful or oxious uses" of property may be proscribed by govermet regulatio without the requiremet of compesatio. For a umber of reasos, however, we thik the South Carolia Supreme Court was too quick to coclude that that priciple decides the preset case. The "harmful or oxious uses" priciple was the Court's early attempt to describe i theoretical terms why govermet *1023 may, cosistet with the Takigs Clause, affect property values by regulatio without icurrig a obligatio to compesatea reality we owadays ackowledge explicitly with respect to the full scope of the State's police power. See, e. g., Pe Cetral Trasportatio U. S., at 125 ; see also 483 U. S., at -835 We made this very poit i Pe Cetral Trasportatio where, i the course of sustaiig New York City's ladmarks preservatio program agaist a takigs challege, we rejected the petitioer's suggestio that Mugler ad the cases followig it were premised o, ad thus limited by, some objective coceptio of "oxiousess": "[T]he uses i issue i Hadacheck, Miller, ad Goldblatt were perfectly lawful i themselves. They ivolved o `blameworthiess, moral wrogdoig or coscious act of dagerous risk-takig which |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | `blameworthiess, moral wrogdoig or coscious act of dagerous risk-takig which iduce[d society] to shift the cost to a pa[rt]icular idividual.' Sax, Takigs ad the Police Power, 74 Yale L. J. 36, 50 (1964). These cases are better uderstood as restig ot o ay supposed `oxious' quality of the prohibited uses but rather o the groud that the restrictios were reasoably related to the implemetatio of a policyot ulike historic preservatioexpected to produce a widespread public beefit ad applicable to all similarly situated property." U.S., at 133-134, "Harmful or oxious use" aalysis was, i other words, simply the progeitor of our more cotemporary statemets that *1024 "lad-use regulatio does ot effect a takig if it `substatially advace[s] legitimate state iterests'" Nolla, at (quotig v. Tiburo, 447 U. S., at ); see also Pe Cetral Trasportatio ; Euclid v. Ambler Realty The trasitio from our early focus o cotrol of "oxious" uses to our cotemporary uderstadig of the broad realm withi which govermet may regulate without compesatio was a easy oe, sice the distictio betwee "harmprevetig" ad "beefit-coferrig" regulatio is ofte i the eye of the beholder. It is quite possible, for example, to describe i either fashio the ecological, ecoomic, ad esthetic cocers that ispired the South Carolia Legislature i the preset case. Oe could say that imposig a servitude o Lucas's lad is ecessary i order to prevet his use of it from "harmig" South Carolia's ecological resources; or, istead, i order to achieve the "beefits" of a ecological preserve.[11] Compare, e. g., Claridge v. New Hampshire *1025 Wetlads Board, 125 N. H. 745, 752, (ower may, without compesatio, be barred from fillig wetlads because ladfillig would deprive adjacet coastal habitats ad marie fisheries of ecological support), with, e. g., Bartlett v. Zoig Comm' of Old Lyme, 161 24, (ower barred from fillig tidal marshlad must be compesated, despite muicipality's "laudable" goal of "preserv[ig] marshlads from ecroachmet or destructio"). Whether oe or the other of the competig characterizatios will come to oe's lips i a particular case depeds primarily upo oe's evaluatio of the worth of competig uses of real estate. See Restatemet (Secod) of Torts 822, Commet g, p. 112 ("Practically all huma activities uless carried o i a wilderess iterfere to some extet with others or ivolve some risk of iterferece"). A give restrait will be see as mitigatig "harm" to the adjacet parcels or securig a "beefit" for them, depedig upo the observer's evaluatio of the relative importace of the use that the restrait favors. See Sax, Takigs ad the Police Power, 74 Yale L. J. 36, |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | Takigs ad the Police Power, 74 Yale L. J. 36, 49 (1964) ("[T]he problem [i this area] is ot oe of oxiousess or harm-creatig activity at all; rather it is a problem of icosistecy betwee perfectly iocet ad idepedetly desirable uses"). Whether Lucas's costructio of siglefamily resideces o his parcels should be described as brigig "harm" to South Carolia's adjacet ecological resources thus depeds pricipally upo whether the describer believes that the State's use iterest i urturig those resources is so importat that ay competig adjacet use must yield.[12] *1026 Whe it is uderstood that "prevetio of harmful use" was merely our early formulatio of the police power justificatio ecessary to sustai (without compesatio) ay regulatory dimiutio i value; ad that the distictio betwee regulatio that "prevets harmful use" ad that which "cofers beefits" is difficult, if ot impossible, to discer o a objective, value-free basis; it becomes self-evidet that oxious-use logic caot serve as a touchstoe to distiguish regulatory "takigs" which require compesatio from regulatory deprivatios that do ot require compesatio. A fortiori the legislature's recitatio of a oxious-use justificatio caot be the basis for departig from our categorical rule that total regulatory takigs must be compesated. If it were, departure would virtually always be allowed. The South Carolia Supreme Court's approach would essetially ullify `s affirmatio of limits to the ocompesable exercise of the police power. Our cases provide o support for this: Noe of them that employed the logic of "harmful use" prevetio to sustai a regulatio ivolved a allegatio that the regulatio wholly elimiated the value of the claimat's lad. See Keystoe Bitumious Coal Ass., -514 (Rehquist, C. J., dissetig).[13] *1027 Where the State seeks to sustai regulatio that deprives lad of all ecoomically beeficial use, we thik it may resist compesatio oly if the logically atecedet iquiry ito the ature of the ower's estate shows that the proscribed use iterests were ot part of his title to begi with.[14] This accords, we thik, with our "takigs" jurisprudece, which has traditioally bee guided by the uderstadigs of our citizes regardig the cotet of, ad the State's power over, the "budle of rights" that they acquire whe they obtai title to property. It seems to us that the property ower ecessarily expects the uses of his property to be restricted, from time to time, by various measures ewly eacted by the State i legitimate exercise of its police powers; "[a]s log recogized, some values are ejoyed uder a implied limitatio ad must yield to the police power." Pesylvaia Coal U. S., at 413. Ad i |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | police power." Pesylvaia Coal U. S., at 413. Ad i the case of persoal property, by reaso of the State's traditioally high degree of cotrol over commercial dealigs, he ought to be aware of the possibility that ew regulatio might eve reder *1028 his property ecoomically worthless (at least if the property's oly ecoomically productive use is sale or maufacture for sale). See Adrus v. Allard, (prohibitio o sale of eagle feathers). I the case of lad, however, we thik the otio pressed by the Coucil that title is somehow held subject to the "implied limitatio" that the State may subsequetly elimiate all ecoomically valuable use is icosistet with the historical compact recorded i the Takigs Clause that has become part of our costitutioal culture.[15] Where "permaet physical occupatio" of lad is cocered, we have refused to allow the govermet to decree it aew (without compesatio), o matter how weighty the asserted "public iterests" ivolved, though we assuredly would permit the govermet to assert a permaet easemet that was a pre-existig limitatio upo the ladower's *1029 title. Compare Scrato v. Wheeler, (0) (iterests of "riparia ower i the submerged lads borderig o a public avigable water" held subject to Govermet's avigatioal servitude), with Kaiser -180 (impositio of avigatioal servitude o maria created ad redered avigable at private expese held to costitute a takig). We believe similar treatmet must be accorded cofiscatory regulatios, i. e., regulatios that prohibit all ecoomically beeficial use of lad: Ay limitatio so severe caot be ewly legislated or decreed (without compesatio), but must ihere i the title itself, i the restrictios that backgroud priciples of the State's law of property ad uisace already place upo lad owership. A law or decree with such a effect must, i other words, do o more tha duplicate the result that could have bee achieved i the courts by adjacet ladowers (or other uiquely affected persos) uder the State's law of private uisace, or by the State uder its complemetary power to abate uisaces that affect the public geerally, or otherwise.[16] O this aalysis, the ower of a lake bed, for example, would ot be etitled to compesatio whe he is deied the requisite permit to egage i a lad fillig operatio that would have the effect of floodig others' lad. Nor the corporate ower of a uclear geeratig plat, whe it is directed to remove all improvemets from its lad upo discovery that the plat sits astride a earthquake fault. Such regulatory actio may well have the effect of elimiatig the lad's oly ecoomically productive use, but |
Justice Scalia | 1,992 | 9 | majority | Lucas v. South Carolina Coastal Council | https://www.courtlistener.com/opinion/112787/lucas-v-south-carolina-coastal-council/ | effect of elimiatig the lad's oly ecoomically productive use, but it does ot proscribe a productive use that was previously permissible *10 uder relevat property ad uisace priciples. The use of these properties for what are ow expressly prohibited purposes was always ulawful, ad (subject to other costitutioal limitatios) it was ope to the State at ay poit to make the implicatio of those backgroud priciples of uisace ad property law explicit. See Michelma, Property, Utility, ad Fairess, Commets o the Ethical Foudatios of "Just Compesatio" Law, 1239 1 I light of our traditioal resort to "existig rules or uderstadigs that stem from a idepedet source such as state law" to defie the rage of iterests that qualify for protectio as "property" uder the Fifth ad Fourteeth Amedmets, Board of Regets of State ; see, e. g., Ruckelshaus v. Mosato ; Hughes v. Washigto, (Stewart, J., cocurrig), this recogitio that the Takigs Clause does ot require compesatio whe a ower is barred from puttig lad to a use that is proscribed by those "existig rules or uderstadigs" is surely uexceptioal. Whe, however, a regulatio that declares "off-limits" all ecoomically productive or beeficial uses of lad goes beyod what the relevat backgroud priciples would dictate, compesatio must be paid to sustai it.[17] The "total takig" iquiry we require today will ordiarily etail (as the applicatio of state uisace law ordiarily etails) aalysis of, amog other thigs, the degree of harm to public lads ad resources, or adjacet private property, *1031 posed by the claimat's proposed activities, see, e. g., Restatemet (Secod) of Torts 826, 827, the social value of the claimat's activities ad their suitability to the locality i questio, see, e. g., 828(a) ad (b), 831, ad the relative ease with which the alleged harm ca be avoided through measures take by the claimat ad the govermet (or adjacet private ladowers) alike, see, e. g., 827(e), 828(c), 8. The fact that a particular use has log bee egaged i by similarly situated owers ordiarily imports a lack of ay commo-law prohibitio The questio, however, is oe of state law to be dealt with o remad. We emphasize that to wi its case South Carolia must do more tha proffer the legislature's declaratio that the uses Lucas desires are icosistet with the public iterest, or the coclusory assertio that they violate a commo-law maxim such as sic utere tuo ut alieum o laedas. As we have said, a "State, by ipse dixit, may ot trasform private property ito public property without compesatio" Webb's Fabulous Pharmacies, Ic. v. Beckwith, Istead, as |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | These cases present First Amendment challenges to three statutory provisions that seek to regulate the broadcasting of "patently offensive" sex-related material on cable television. Cable Television Consumer Protection and Competition Act of ( Act or Act), 10(a), 10(b), and 10(c), 47 U.S. C. 532(h), 532(j), and note following 531. The provisions apply to programs broadcast over cable on what are known as "leased access channels" and "public, educational, or governmental channels." Two of the provisions essentially permit a cable system operator to prohibit the broadcasting of "programming" that the "operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner." *3 Act, 10(a); see 10(c). See also In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of : Indecent Programming and Other Types of Materials on Cable Access Channels, First Report and ; In re Implementation of Section 10 of the Cable Consumer Protection and Competition Act of Indecent Programming and Other Types of Materials on Cable Access Channels, Second Report and The remaining provision requires cable system operators to segregate certain "patently offensive" programming, to place it on a single channel, and to block that channel from viewer access unless the viewer requests access in advance and in writing. Act, 10(b); 47 CFR 76.701(g) We conclude that the first provisionwhich permits the operator to decide whether or not to broadcast such programs on leased access channelsis consistent with the First Amendment. The second provision, which requires leased channel operators to segregate and to block that programming, and the third provision, applicable to public, educational, and governmental channels, violate the First Amendment, for they are not appropriately tailored to achieve the basic, legitimate objective of protecting children from exposure to "patently offensive" material. I Cable operators typically own a physical cable network used to convey programming over several dozen cable channels into subscribers' houses. Program sources vary from channel to channel. Most channels carry programming produced by independent firms, including "many national and regional cable programming networks that have emerged in recent years," System, as well as some programming that the system operator itself (or an operator affiliate) *4 may provide. Other channels may simply retransmit through cable the signals of over-the-air broadcast stations. Certain special channels here at issue, called "leased channels" and "public, educational, or governmental channels," carry programs provided by those to whom the law gives special cable system access rights. A "leased channel" is a channel that federal law requires a cable system operator to reserve for commercial lease by unaffiliated third parties. About 10 |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | reserve for commercial lease by unaffiliated third parties. About 10 to 15 percent of a cable system's channels would typically fall into this category. See 47 U.S. C. 532(b). "[P]ublic, educational, or governmental channels" (which we shall call "public access" channels) are channels that, over the years, local governments have required cable system operators to set aside for public, educational, or governmental purposes as part of the consideration an operator gives in return for permission to install cables under city streets and to use public rights-of-way. See 531; see also H. R. Rep. No. p. 30 (authorizing local authorities to require creation of public access channels). Between 1984 and federal law (as had much pre-1984 state law, in respect to public access channels) prohibited cable system operators from exercising any editorial control over the content of any program broadcast over either leased or public access channels. See 47 U.S. C. 531(e) (public access), 532(c)(2) (leased access). In in an effort to control sexually explicit programming conveyed over access channels, Congress enacted the three provisions before us. The first two provisions relate to leased channels. The first says: "This subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards." Act, 10(a)(2), *5 The second provision, applicable only to leased channels, requires cable operators to segregate and to block similar programming if they decide to permit, rather than to prohibit, its The provision tells the Federal Commission (FCC or Commission) to promulgate regulations that will (a) require "programmers to inform cable operators if the program[ming] would be indecent as defined by Commission regulations"; (b) require "cable operators to place" such material "on a single channel"; and (c) require "cable operators to block such single channel unless the subscriber requests access to such channel in writing." Act, 10(b)(1). The Commission issued regulations defining the material at issue in terms virtually identical to those we have already set forth, namely, as descriptions or depictions of "sexual or excretory activities or organs in a patently offensive manner" as measured by the cable viewing community. First Report and ¶¶ 33 38, at 1003-1004. The regulations require the cable operators to place this material on a single channel and to block it (say, by scrambling). They also require the system operator to provide access to the blocked channel "within 30 days" of a subscriber's written request for access and to reblock it within 30 |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | written request for access and to reblock it within 30 days of a subscriber's request to do so. 47 CFR 76.701(c) The third provision is similar to the first provision, but applies only to public access channels. The relevant statutory section instructs the FCC to promulgate regulations that will "enable a cable operator of a cable system to prohibit the use, on such system, of any channel capacity of any public, educational, or governmental access facility for any programming which contains obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct." Act, 10(c), *6 The FCC, carrying out this statutory instruction, promulgated regulations defining "sexually explicit" in language almost identical to that in the statute's leased channel provision, namely, as descriptions or depictions of "sexual or excretory activities or organs in a patently offensive manner" as measured by the cable viewing community. See 47 CFR 76.702 (incorporating definition from 76.701(g)). The upshot is, as we said at the beginning, that the federal law before us (the statute as implemented through regulations) now permits cable operators either to allow or to forbid the transmission of "patently offensive" sex-related materials over both leased and public access channels, and requires those operators, at a minimum, to segregate and to block transmission of that same material on leased channels. Petitioners, claiming that the three statutory provisions, as implemented by the Commission regulations, violate the First Amendment, sought judicial review of the Commission's First Report and and its Second Report and in the United States Court of Appeals for the District of Columbia Circuit. A panel of that Circuit agreed with petitioners that the provisions violated the First Amendment. Alliance for Community The entire Court of Appeals, however, heard the case en banc and reached the opposite conclusion. It held that all three statutory provisions (as implemented) were consistent with the First Amendment. Alliance for Community Four of the eleven en banc appeals court judges dissented. Two of the dissenting judges concluded that all three provisions violated the First Amendment. Two others thought that either one, or two, but not all three of the provisions, violated the First Amendment. We granted certiorari to review the en banc court's First Amendment determinations. *7 II We turn initially to the provision that permits cable system operators to prohibit "patently offensive" (or "indecent") programming transmitted over leased access channels. Act, 10(a). The Court of Appeals held that this provision did not violate the First Amendment because the First Amendment prohibits only "Congress" (and, through the Fourteenth Amendment, a "State"), not private individuals, from "abridging the freedom |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | Amendment, a "State"), not private individuals, from "abridging the freedom of speech." Although the court said that it found no "state action," it could not have meant that phrase literally, for, of course, petitioners attack (as "abridg[ing] speech") a congressional statutewhich, by definition, is an Act of "Congress." More likely, the court viewed this statute's "permissive" provisions as not themselves restricting speech, but, rather, as simply reaffirming the authority to pick and choose programming that a private entity, say, a private broadcaster, would have had in the absence of intervention by any federal, or local, governmental entity. We recognize that the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speechand this is so ordinarily even where those decisions take place within the framework of a regulatory regime such as broadcasting. Were that not so, courts might have to face the difficult, and potentially restrictive, practical task of deciding which, among any number of private parties involved in providing a program (for example, networks, station owners, program editors, and program producers), is the "speaker" whose rights may not be abridged, and who is the speechrestricting "censor." Furthermore, as this Court has held, the editorial function itself is an aspect of "speech," see and a court's decision that a private party, say, the station owner, is a "censor," could itself interfere *8 with that private "censor's" freedom to speak as an editor. Thus, not surprisingly, this Court's First Amendment broadcasting cases have dealt with governmental efforts to restrict, not governmental efforts to provide or to maintain, a broadcaster's freedom to pick and to choose programming. Columbia System, ; Red Lion ; ; cf. Consolidated Edison Co. of N. ; Central Hudson Gas & Elec. Nonetheless, petitioners, while conceding that this is ordinarily so, point to circumstances that, in their view, make the analogy with private broadcasters inapposite and make these cases special ones, warranting a different constitutional result. As a practical matter, they say, cable system operators have considerably more power to "censor" program viewing than do broadcasters, for individual communities typically have only one cable system, linking broadcasters and other program providers with each community's many subscribers. See Moreover, concern about system operators' exercise of this considerable power originally led government local and federalto insist that operators provide leased and public access channels free of operator editorial control. H. R. Rep. No. -31. To permit system operators to supervise programming on leased access channels will *9 create the very private-censorship risk |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | leased access channels will *9 create the very private-censorship risk that this anticensorship effort sought to avoid. At the same time, petitioners add, cable systems have two relevant special characteristics. They are unusually involved with government, for they depend upon government permission and government facilities (streets, rights-of-way) to string the cable necessary for their services. And in respect to leased channels, their speech interests are relatively weak because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as telephone companies. Under these circumstances, petitioners conclude, Congress' "permissive" law, in actuality, will "abridge" their free speech. And this Court should treat that law as a congressionally imposed, content-based, restriction unredeemed as a properly tailored effort to serve a "compelling interest." See Simon & Schuster, ; of Cal., They further analogize the provisions to constitutionally forbidden content-based restrictions upon speech taking place in "public forums" such as public streets, parks, or buildings dedicated to open speech and communication. See ; Ed. ; see also H. R. Rep. No. And, finally, petitioners say that the legal standard the law contains (the "patently offensive" standard) is unconstitutionally vague. See, e. g., Interstate Circuit, Like petitioners, Justices Kennedy and Thomas would have us decide these cases simply by transferring and applying literally categorical standards this Court has developed in other contexts. For Justice Kennedy, leased access *740 channels are like a common carrier, cablecast is a protected medium, strict scrutiny applies, 10(a) fails this test, and, therefore, 10(a) is invalid. Post, at 796-801, 805-807. For Justice Thomas, the case is simple because the cable operator who owns the system over which access channels are broadcast, like a bookstore owner with respect to what it displays on the shelves, has a predominant First Amendment interest. Post, at 816-817, 822-8. Both categorical approaches suffer from the same flaws: They import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without sacrificing the free exchange of ideas the First Amendment is designed to protect. The history of this Court's First Amendment jurisprudence, however, is one of continual development, as the Constitution's general command that "Congress shall make no law abridging the freedom of speech, or of the press," has been applied to new circumstances requiring different adaptations of prior principles and precedents. The essence of that protection is that Congress may not regulate speech except in cases of extraordinary need and with the exercise of a degree of care that we have |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | the exercise of a degree of care that we have not elsewhere required. See, e. g., ; ; West Virginia Bd. of ; At the same time, our cases have not left Congress or the States powerless to address the most serious problems. See, e. g., ; ; Over the years, this Court has restated and refined these basic First Amendment principles, adopting them more particularly to the balance of competing interests and the special *741 circumstances of each field of application. See, e. g., New York Times ; ; Red Lion ; Arkansas Writers' ; at 131 ; ; Central Hudson Gas & Elec. This tradition teaches that the First Amendment embodies an overarching commitment to protect speech from government regulation through close judicial scrutiny, thereby enforcing the Constitution's constraints, but without imposing judicial formulas so rigid that they become a straitjacket that disables government from responding to serious problems. This Court, in different contexts, has consistently held that government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech. Justices Kennedy and Thomas would have us further declare which, among the many applications of the general approach that this Court has developed over the years, we are applying here. But no definitive choice among competing *742 analogies (broadcast, common carrier, bookstore) allows us to declare a rigid single standard, good for now and for all future media and purposes. That is not to say that we reject all the more specific formulations of the standardthey appropriately cover the vast majority of cases involving government regulation of speech. Rather, aware as we are of the changes taking place in the law, the technology, and the industrial structure related to telecommunications, see, e. g., Telecommunications Act of 1996, ; S. Rep. No. 104-23 ; H. R. Rep. No. 104-204 we believe it unwise and unnecessary definitively to pick one analogy or one specific set of words now. See Columbia ; We therefore think it premature to answer the broad questions that Justices Kennedy and Thomas raise in their efforts to find a definitive analogy, deciding, for example, the extent to which private property can be designated a public forum, post, at 791-793, 794 (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part), with post, at 8-829 (Thomas, J., concurring in judgment in part and dissenting in part); whether public access channels are a public forum, post, at 791-792 (opinion of Kennedy, J.); whether the Government's viewpoint neutral decision to |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | of Kennedy, J.); whether the Government's viewpoint neutral decision to limit a public forum is subject to the same scrutiny as a selective exclusion from a pre-existing public forum, post, at 799 803 (opinion of Kennedy, J.); whether exclusion from common carriage must for all purposes be treated like exclusion from a public forum, post, at 797-798 (opinion of Kennedy, J.); and whether the interests of the owners of communications *743 media always subordinate the interests of all other users of a medium, post, at 816-817 (opinion of Thomas, J.). Rather than decide these issues, we can decide these cases more narrowly, by closely scrutinizing 10(a) to assure that it properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech. The importance of the interest at stake hereprotecting children from exposure to patently offensive depictions of sex; the accommodation of the interests of programmers in maintaining access channels and of cable operators in editing the contents of their channels; the similarity of the problem and its solution to those at issue in ; and the flexibility inherent in an approach that permits private cable operators to make editorial decisions, lead us to conclude that 10(a) is a sufficiently tailored response to an extraordinarily important problem. First, the provision before us comes accompanied with an extremely important justification, one that this Court has often found compellingthe need to protect children from exposure to patently offensive sex-related material. 492 U. S., at ; 390 U.S. -640 ; New 8 U.S. 747, Second, the provision arises in a very particular context congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no path of access to cable channels free of an operator's control. The First Amendment interests involved are therefore complex, and require a balance between those interests served by the access requirements themselves (increasing the availability of avenues of expression to programmers who otherwise would not have them), H. R. Rep. No. at 31-36, and the disadvantage to the First Amendment interests of cable operators and other programmers (those to whom the cable operator would have assigned *744 the channels devoted to access). See -637. Third, the problem Congress addressed here is remarkably similar to the problem addressed by the FCC in and the balance Congress struck is commensurate with the balance we approved there. In this Court considered a governmental ban of a radio broadcast of "indecent" materials, defined in part, like the provisions before us, to include "`language that describes, in |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | the provisions before us, to include "`language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.' " The Court found this ban constitutionally permissible primarily because "broadcasting is uniquely accessible to children" and children were likely listeners to the program there at issuean afternoon radio 750. In addition, the Court wrote, "the broadcast media have established a uniquely pervasive presence in the lives of all Americans," "[p]atently offensive, indecent material confronts the citizen, not only in public, but also in the privacy of the home," generally without sufficient prior warning to allow the recipient to avert his or her eyes or ears, ; and "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs" to hear similar performances, All these factors are present here. Cable television broadcasting, including access channel broadcasting, is as "accessible to children" as over-the-air broadcasting, if not more so. See Heeter, Greenberg, Baldwin, Paugh, Srigley, & Atkin, Parental Influences on Viewing Style, in 140 (children spend more time watching television and view more channels *7 than do their parents, whether their household subscribes to cable or receives television over the air). Cable television systems, including access channels, "have established a uniquely pervasive presence in the lives of all Americans." See Jost, The Future of Television, 4 The CQ Researcher 1131, 1146 (63% of American homes subscribe to cable); Greenberg, Heeter, D'Alessio, & Sipes, Cable and Noncable Viewing Style Comparisons, in "Patently offensive" material from these stations can "confron[t] the citizen" in the "privacy of the home," with little or no prior warning. (while cable subscribers tend to use guides more than do broadcast viewers, there was no difference among these groups in the amount of viewing that was planned, and, in fact, cable subscribers tended to sample more channels before settling on a program, thereby making them more, not less, susceptible to random exposure to unwanted materials). There is nothing to stop "adults who feel the need" from finding similar programming elsewhere, say, on tape or in theaters. In fact, the power of cable systems to control home program viewing is not absolute. Over-the-air broadcasting and direct broadcast satellites already provide alternative ways for programmers to reach the home and are likely to do so to a greater extent in the near future. See generally Telecommunications Act of 1996, 201, 205 (direct broadcast satellite), 302 (video programming by |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | 1996, 201, 205 (direct broadcast satellite), 302 (video programming by telephone companies), and 304 (availability of navigation devices to enhance multichannel programming); L. Johnson, Toward Competition in Cable Television Fourth, the permissive nature of 10(a) means that it likely restricts speech less than, not more than, the ban at issue in The provision removes a restriction as to *746 some speakersnamely, cable operators. See Moreover, although the provision does create a risk that a program will not appear, that risk is not the same as the certainty that accompanies a governmental ban. In fact, a glance at the programming that cable operators allow on their own (nonaccess) channels suggests that this distinction is not theoretical, but real. See App. 393 (regular channel broadcast of Playboy and "Real Sex" programming). Finally, the provision's permissive nature brings with it a flexibility that allows cable operators, for example, not to ban broadcasts, but, say, to rearrange broadcast times, better to fit the desires of adult audiences while lessening the risks of harm to children. See First Report and ¶ 31, at 1003 (interpreting the Act's provisions to allow cable operators broad discretion over what to do with offensive materials). In all these respects, the permissive nature of the approach taken by Congress renders this measure appropriate as a means of achieving the underlying purpose of protecting children. Of course, cable system operators may not always rearrange or reschedule patently offensive programming. Sometimes, as petitioners fear, they may ban the programming instead. But the same may be said of ' s ban. In practice, the FCC's daytime broadcast ban could have become a total ban, depending upon how private operators (programmers, station owners, networks) responded to it. They would have had to decide whether to reschedule the daytime show for nighttime broadcast in light of comparative audience demand and a host of other practical factors that similarly would determine the practical outcomes of the provisions before us. The upshot, in both cases, must be uncertainty as to practical consequencesof the governmental ban in the one case and of the permission in the other. That common uncertainty makes it difficult to say the provision here is, in any respect, more restrictive than the order in *747 At the same time, in the respects we discussed, the provision is significantly less restrictive. The existence of this complex balance of interests persuades us that the permissive nature of the provision, coupled with its viewpoint-neutral application, is a constitutionally permissible way to protect children from the type of sexual material that concerned Congress, while accommodating both the First |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | sexual material that concerned Congress, while accommodating both the First Amendment interests served by the access requirements and those served in restoring to cable operators a degree of the editorial control that Congress removed in 1984. Our basic disagreement with Justice Kennedy is narrow. Like him, we believe that we must scrutinize 10(a) with the greatest care. Like Justices Kennedy and Thomas, we believe that the interest of protecting children that 10(a) purports to serve is compelling. But we part company with Justice Kennedy on two issues. First, Justice Kennedy's focus on categorical analysis forces him to disregard the cable system operators' interests. Post, at 805-806. We, on the other hand, recognize that in the context of cable broadcast that involves an access requirement (here, its partial removal), and unlike in most cases where we have explicitly required "narrow tailoring," the expressive interests of cable operators do play a legitimate role. Cf. -637. While we cannot agree with Justice Thomas that everything turns on the rights of the cable owner, see post, at 823-8, we also cannot agree with Justice Kennedy that we must ignore the expressive interests of cable operators altogether. Second, Justice Kennedy's application of a very strict "narrow tailoring" test depends upon an analogy with a category ("the public forum cases"), which has been distilled over time from the similarities of many cases. Rather than seeking an analogy to a category of cases, however, we have looked to the cases themselves. And, as we have said, we found that provides the *748 closest analogy and lends considerable support to our conclusion. Petitioners and Justice Kennedy, see post, at 797-798, 803-804, argue that the opposite result is required by two other cases: of Cal., a case in which this Court found unconstitutional a statute that banned "indecent" telephone messages, and in which this Court stated that cable broadcast receives full First Amendment protection. See -641. The ban at issue in however, was not only a total governmentally imposed ban on a category of communications, but also involved a communications medium, telephone service, that was significantly less likely to expose children to the banned material, was less intrusive, and allowed for significantly more control over what comes into the home than either broadcasting or the cable transmission system before us. See The Court's distinction in furthermore, between cable and broadcast television, relied on the inapplicability of the spectrum scarcity problem to cable. See -641. While that distinction was relevant in to the justification for structural regulations at issue there (the "must carry" rules), it has little to do with |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | (the "must carry" rules), it has little to do with a case that involves the effects of television viewing on children. Those effects are the result of how parents and children view television programming, and how pervasive and intrusive that programming is. In that respect, cable and broadcast television differ little, if at all. See at 744-7. Justice Kennedy would have us decide that all common carriage exclusions are subject to the highest scrutiny, see post, at 796-799, and then decide these cases on the basis of categories that provide imprecise analogies rather than on the basis of a more contextual assessment, consistent with our First Amendment tradition, of assessing whether Congress carefully and appropriately addressed a serious problem. *749 Petitioners also rely on this Court's "public forum" cases. They point to Ed. 460 U. S., at a case in which this Court said that "public forums" are "places" that the government "has opened for use by the public as a place for expressive activity," or which "by long tradition have been devoted to assembly and debate." See also They add that the Government cannot "enforce a content-based exclusion" from a public forum unless "necessary to serve a compelling state interest" and "narrowly drawn." at They further argue that the statute's permissive provisions unjustifiably exclude material, on the basis of content, from the "public forum" that the Government has created in the form of access channels. Justice Kennedy adds by analogy that the decision to exclude certain content from common carriage is similarly subject to strict scrutiny, and here does not satisfy that standard of review. See post, at 796-799, 805-807. For three reasons, however, it is unnecessary, indeed, unwise, for us definitively to decide whether or how to apply the public forum doctrine to leased access channels. First, while it may be that content-based exclusions from the right to use common carriers could violate the First Amendment, see post, at 796-800 (opinion of Kennedy, J.),it is not at all clear that the public forum doctrine should be imported wholesale into the area of common carriage regulation. As discussed above, we are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area. See Second, it is plain from this Court's cases that a public forum "may be created for a limited purpose." ; see also at *750 (quoting ). Our cases have not yet determined, however, that government's decision to dedicate a public forum to one type of content |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | to dedicate a public forum to one type of content or another is necessarily subject to the highest level of scrutiny. Must a local government, for example, show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)? The answer is not obvious. Cf. But, at a minimum, these cases do not require us to answer it. Finally, and most important, the effects of Congress' decision on the interests of programmers, viewers, cable operators, and children are the same, whether we characterize Congress' decision as one that limits access to a public forum, discriminates in common carriage, or constrains speech because of its content. If we consider this particular limitation of indecent television programming acceptable as a constraint on speech, we must no less accept the limitation it places on access to the claimed public forum or on use of a common carrier. Consequently, if one wishes to view the permissive provisions before us through a "public forum" lens, one should view those provisions as limiting the otherwise totally open nature of the forum that leased access channels provide for communication of other than patently offensive sexual materialtaking account of the fact that the limitation was imposed in light of experience gained from maintaining a totally open "forum." One must still ask whether the First Amendment forbids the limitation. But unless a label alone were to make a critical First Amendment difference (and we think here it does not), the features of these cases that we have already discussedthe Government's interest in protecting children, the "permissive" aspect of the statute, and the nature of the mediumsufficiently justify the "limitation" on the availability of this forum. Finally, petitioners argue that the definition of the materials subject to the challenged provisions is too vague, thereby granting cable system operators too broad a programscreening *751 authority. Cf. Hoffman Estates v. Flipside, Hoffman Estates, 5 U.S. 489, (vague laws may lead to arbitrary enforcement); That definition, however, uses language similar to language previously used by this Court for roughly similar purposes. The provisions, as augmented by FCC regulations, permit cable system operators to prohibit "programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards." Act, 10(a), See also 47 CFR 76.702 (reading approximately the same definition into 10(c)). This language is similar to language adopted by this Court in as a "guidelin[e]" for identifying materials that States may constitutionally regulate as obscene. In |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | identifying materials that States may constitutionally regulate as obscene. In Miller, the Court defined obscene sexual material (material that lacks First Amendment protection) in terms of "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest ; (b) whether the work depicts or describes, in a patently of- fensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The language, while vague, attempts to identify the category of materials that Justice Stewart thought could be described only in terms of "I know it when I see it." In *752 10(a) and the FCC regulations, without Miller `s qualifiers, the language would seem to refer to material that would be offensive enough to fall within that category but for the fact that the material also has "serious literary, artistic, political or scientific value" or nonprurient purposes. This history suggests that the statute's language aims at the kind of programming to which its sponsors referred pictures of oral sex, bestiality, and rape, see 138 Cong. Rec. 981, 985 and not at scientific or educational programs (at least unless done with a highly unusual lack of concern for viewer reaction). Moreover, as this Court pointed out in what is "patently offensive" depends on context (the kind of program on which it appears), degree (not "an occasional expletive"), and time of broadcast (a "pig" is offensive in "the parlor" but not the "barnyard"). 438 U.S., 750. Programming at 2 o'clock in the morning is seen by a basically adult audience and the "patently offensive" must be defined with that fact in mind. Further, the statute protects against overly broad application of its standards insofar as it permits cable system operators to screen programs only pursuant to a "written and published policy." Act, 10(a), A cable system operator would find it difficult to show that a leased access program prohibition reflects a rational "policy" if the operator permits similarly "offensive" programming to run elsewhere on its system at comparable times or in comparable ways. We concede that the statute's protection against overly broad application is somewhat diminished by the fact that it permits a cable operator to ban programming that the operator "reasonably believes " is patently offensive. But the "reasonabl[e] belie[f]" qualifier here, as elsewhere in the law, seems designed not to expand the category at which the law aims, but, rather, to provide a legal excuse, for (at least) one honest mistake, |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | provide a legal excuse, for (at least) one honest mistake, from liability that might otherwise attach. Cf. (public employer's reasonable belief that employee engaged in unprotected speech excuses liability); United 3-5, ; And the contours of the shieldreasonableness constrain the discretion of the cable operator as much as they protect it. If,for example, a court had already found substantially similar programming to be beyond the pale of "patently offensive" material, or if a local authority overseeing the local public, governmental, or educational channels had indicated that materials of the type that the cable operator decides to ban were not "patently offensive" in that community, then the cable operator would be hard pressed to claim that the exclusion of the material was "reasonable." We conclude that the statute is not impermissibly vague. For the reasons discussed, we conclude that 10(a) is consistent with the First Amendment. III The statute's second provision significantly differs from the first, for it does not simply permit, but rather requires, cable system operators to restrict speechby segregating and blocking "patently offensive" sex-related material appearing on leased channels (but not on other channels). Act, 10(b). In particular, as previously mentioned, see this provision and its implementing regulations require cable system operators to place "patently offensive" leased channel programming on a separate channel; to block that channel; to unblock the channel within 30 days of a subscriber's written request for access; and to *754 reblock the channel within 30 days of a subscriber's request for reblocking. Act, 10(b); 47 CFR 76.701(b), (c), (g) Also, leased channel programmers must notify cable operators of an intended "patently offensive" broadcast up to 30 days before its scheduled broadcast date. 76.701(d), (g). These requirements have obvious restrictive effects. The several up-to-30-day delays, along with single channel segregation, mean that a subscriber cannot decide to watch a single program without considerable advance planning and without letting the "patently offensive" channel in its entirety invade his household for days, perhaps weeks, at a time. These restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through "surfing," minute by minute); to viewers who would like occasionally to watch a few, but not many, of the programs on the "patently offensive" channel; and to viewers who simply tend to judge a program's value through channel reputation, i. e. by the company it keeps. Moreover, the "written notice" requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the "patently offensive" channel. Cf. Further, |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | who wish to watch the "patently offensive" channel. Cf. Further, the added costs and burdens that these requirements impose upon a cable system operator may encourage that operator to ban programming that the operator would otherwise permit to run, even if only late at night. The Government argues that, despite these adverse consequences, the "segregate and block" requirements are lawful because they are "the least restrictive means of realizing" a "`compelling interest,' " namely, "`protecting the physical and psychological well-being of minors.' " See Brief for Federal Respondents 11 (quoting 492 U. S., at ). *755 It adds that, in any event, the First Amendment, as applied in "does not require that regulations of indecency on television be subject to the strictest" First Amendment "standard of review." Brief for Federal Respondents 11. We agree with the Government that protection of children is a "compelling interest." See But we do not agree that the "segregate and block" requirements properly accommodate the speech restrictions they impose and the legitimate objective they seek to attain. Nor need we here determine whether, or the extent to which, does, or does not, impose some lesser standard of review where indecent speech is at issue, 438 U.S., at 7 748 (opinion of Stevens, J.) (indecent materials enjoy lesser First Amendment protection), with (refusing to accept a lesser standard for nonobscene, indecent material). That is because once one examines this governmental restriction, it becomes apparent that, not only is it not a "least restrictive alternative" and is not "narrowly tailored" to meet its legitimate objective, it also seems considerably "more extensive than necessary." That is to say, it fails to satisfy this Court's formulations of the First Amendment's "strictest," as well as its somewhat less "strict," requirements. See, e. g., 492 U. S., at ; ; ; as an example of "heightened," less-than-strictest, First Amendment scrutiny); Central Hudson ; Florida Bar v. Went For It, 6 ; The provision before us does not reveal the caution and care that the standards underlying these various verbal formulas impose upon laws that seek to reconcile the critically important interest in protecting free speech with very important, or even compelling, interests that sometimes warrant restrictions. Several circumstances lead us to this conclusion. For one thing, the law, as recently amended, uses other means to protect children from similar "patently offensive" material broadcast on un leased cable channels, i. e., broadcast over any of a system's numerous ordinary, or public access, channels. The law, as recently amended, requires cable operators to "scramble or block" such programming on any (unleased) channel "primarily |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | "scramble or block" such programming on any (unleased) channel "primarily dedicated to sexually-oriented programming." Telecommunications Act of 1996, 505, In addition, cable operators must honor a subscriber's request to block any, or all, programs on any channel to which he or she does not wish to subscribe. 504, And manufacturers, in the future, will have to make television sets with a so-called "V-chip" a device that will be able automatically to identify and block sexually explicit or violent programs. 551, Although we cannot, and do not, decide whether the new provisions are themselves lawful (a matter not before us), we note that they are significantly less restrictive than the provision here at issue. They do not force the viewer to receive (for days or weeks at a time) all "patently offensive" programming or none; they will not lead the viewer automatically to judge the few by the reputation of the many; and they will not automatically place the occasional viewer's name on a special list. They therefore inevitably lead us to ask why, if they adequately protect children from "patently offensive" material broadcast on ordinary channels, they would not offer adequate protection from similar leased channel broadcasts as well? Alternatively, if these provisions *757 do not adequately protect children from "patently offensive" material broadcast on ordinary channels, how could one justify more severe leased channel restrictions when (given ordinary channel programming) they would yield so little additional protection for children? The record does not answer these questions. It does not explain why, under the new Act, blocking alonewithout written access requestsadequately protects children from exposure to regular sex-dedicated channels, but cannot adequately protect those children from programming on similarly sex-dedicated channels that are leased. It does not explain why a simple subscriber blocking request system, perhaps a phone-call-based system, would adequately protect children from "patently offensive" material broadcast on ordinary non-sex-dedicated channels (i. e., almost all channels) but a far more restrictive segregate/block/written-access system is needed to protect children from similar broadcasts on what (in the absence of the segregation requirement) would be non-sex-dedicated channels that are leased. Nor is there any indication Congress thought the new ordinary channel protections less than adequate. The answers to the questions are not obvious. We have no empirical reason to believe, for example, that sexdedicated channels are all (or mostly) leased channels, or that "patently offensive" programming on non-sex-dedicated channels is found only (or mostly) on leased channels. To the contrary, the parties' briefs (and major city television guides) provide examples of what seems likely to be such programming broadcast over both kinds |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | seems likely to be such programming broadcast over both kinds of channels. We recognize, as the Government properly points out, that Congress need not deal with every problem at once. Cf. ; and Congress also must have a degree of leeway in tailoring means to ends. Columbia -103. But in light of the 1996 statute, it seems *758 fair to say that Congress now has tried to deal with most of the problem. At this point, we can take Congress' different, and significantly less restrictive, treatment of a highly similar problem at least as some indication that more restrictive means are not "essential" (or will not prove very helpful). Cf. The record's description and discussion of a different alternativethe "lockbox"leads, through a different route, to a similar conclusion. The Cable Policy Act of 1984 required cable operators to provide "upon the request of a subscriber, a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by the subscriber." 47 U.S. C. 544(d)(2). This devicethe "lockbox"would help protect children by permitting their parents to "lock out" those programs or channels that they did not want their children to see. See FCC 85-179, ¶ 132, 18655 ("[T]he provision for lockboxes largely disposes of issues involving the Commission's standard for indecency"). The FCC, in upholding the "segregate and block" provisions, said that lockboxes protected children (including, say, children with inattentive parents) less effectively than those provisions. See First Report and ¶¶ But it is important to understand why that is so. The Government sets forth the reasons as follows: "In the case of lockboxes, parents would have to discover that such devices exist; find out that their cable operators offer them for sale; spend the time and money to buy one; learn how to program the lockbox to block undesired programs; and, finally, exercise sufficient vigilance to ensure that they have, indeed, locked out *759 whatever indecent programming they do not wish their children to view." Brief for Federal Respondents 37. We assume the accuracy of this statement. But the reasons do not show need for a provision as restrictive as the one before us. Rather, they suggest a set of provisions very much like those that Congress placed in the 1996 Act. No provision, we concede, short of an absolute ban, can offer certain protection against assault by a determined child. We have not, however, generally allowed this fact alone to justify "` "reduc[ing] the adult population to only what is fit for children."` " in turn quoting ); see and n. 10. But, leaving |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | in turn quoting ); see and n. 10. But, leaving that problem aside, the Government's list of practical difficulties would seem to call, not for "segregate and block" requirements, but, rather, for informational requirements, for a simple coding system, for readily available blocking equipment (perhaps accessible by telephone), for imposing cost burdens upon system operators (who may spread them through subscription fees); or perhaps even for a system that requires lockbox defaults to be set to block certain channels (say, sex-dedicated channels). These kinds of requirements resemble those that Congress has recently imposed upon all but leased channels. For that reason, the "lockbox" description and the discussion of its frailties reinforces our conclusion that the leased channel provision is overly restrictive when measured against the benefits it is likely to achieve. (We add that the record's discussion of the "lockbox" does not explain why the law now treats leased channels more restrictively than ordinary channels.) There may, of course, be other explanations. Congress may simply not have bothered to change the leased channel provisions when it introduced a new system for other channels. But responses of this sort, like guesses about the comparative seriousness of the problem, are not legally adequate. *760 In other cases, where, as here, the record before Congress or before an agency provides no convincing explanation, this Court has not been willing to stretch the limits of the plausible, to create hypothetical nonobvious explanations in order to justify laws that impose significant restrictions upon speech. See, e. g., ; Simon & Schuster ; Minneapolis Star & Tribune ; Arkansas Writers' 481 U. S., at Consequently, we cannot find that the "segregate and block" restrictions on speech are a narrowly, or reasonably, tailored effort to protect children. Rather, they are overly restrictive, "sacrific[ing]" important First Amendment interests for too "speculative a gain." Columbia ; see League of Women For that reason they are not consistent with the First Amendment. IV The statute's third provision, as implemented by FCC regulation, is similar to its first provision, in that it too permits a cable operator to prevent transmission of "patently offensive" programming, in this case on public access channels. Act, 10(c); 47 CFR 76.702 But there are four important differences. The first is the historical background. As Justice Kennedy points out, see post, at 788-790, cable operators have traditionally agreed to reserve channel capacity for public, governmental, and educational channels as part of the consideration they give municipalities that award them cable franchises. See H. R. Rep. No. In the terms preferred by Justice Thomas, see post, at 827-828, |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | the terms preferred by Justice Thomas, see post, at 827-828, the requirement to reserve capacity for public access channels is similar to the reservation of a public easement, or a dedication *761 of land for streets and parks, as part of a municipality's approval of a subdivision of land. Cf. post, at 793-794 (opinion of Kennedy, J.). Significantly, these are channels over which cable operators have not historically exercised editorial control. H. R. Rep. No. Unlike 10(a) therefore, 10(c) does not restore to cable operators editorial rights that they once had, and the countervailing First Amendment interest is nonexistent, or at least much diminished. See also post, at 792-793 (opinion of Kennedy, J.). The second difference is the institutional background that has developed as a result of the historical difference. When a "leased channel" is made available by the operator to a private lessee, the lessee has total control of programming during the leased time slot. See 47 U.S. C. 532(c)(2). Public access channels, on the other hand, are normally subject to complex supervisory systems of various sorts, often with both public and private elements. See 531(b) (franchising authorities "may require rules and procedures for the use of the [public access] channel capacity"). Municipalities generally provide in their cable franchising agreements for an access channel manager, who is most commonly a nonprofit organization, but may also be the municipality, or, in some instances, the cable system owner. See D. Brenner, M. Price, & M. Cable Television and Other Nonbroadcast Video04[7] ; P. Aufderheide, Public Access Cable Programming, Controversial Speech, and Free Expression (hereinafter Aufderheide), reprinted in App. 61, 63 (surveying 61 communities; the access manager was: a nonprofit organization in 41, a local government official in 12, the cable operator in 5, and an unidentified entity in 3); D. Agosta, C. Rogoff, & A. Norman, The Participate Report: A Case Study of Public Access Cable Television in New York State 28 (1990) (hereinafter Agosta), attached as Exh. K to Joint Comments for the Alliance for Community Media et al., filed with the FCC under MM Docket No. 92 *762 258 (materials so filed hereinafter FCC Record) ("In 88% [of New York public access systems] access channels were programmed jointly between the cable operator and another institution such as a university, library, or non-profit access organization"); FCC Record; Comments of National Cable Television Association at 14, FCC Record ("Operators often have no involvement in PEG channels that are run by local access organizations"). Access channel activity and management are partly financed with public fundsthrough franchise fees or other payments pursuant to |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | with public fundsthrough franchise fees or other payments pursuant to the franchise agreement, or from general municipal funds, see Brenner, Price, &04[3][c]; Aufderheide, App. 59-60and are commonly subject to supervision by a local supervisory board. See, e. g., D. C. Code Ann. 43-1829 (1990 and Supp. 1996); Lynchburg City Code 12.1 44(d)(2) This system of public, private, and mixed nonprofit elements, through its supervising boards and nonprofit or governmental access managers, can set programming policy and approve or disapprove particular programming services. And this system can police that policy by, for example, requiring indemnification by programmers, certification of compliance with local standards, time segregation, adult content advisories, or even by prescreening individual programs. See Second Report and ¶ ; Comments of Boston Community Access and Programming Foundation, App. 163-164; Aufderheide, ; Comments of Metropolitan Area Commission 2, FCC Record; Reply Comments of Waycross Community Television 4-6, FCC Record; Reply Comments of Columbus Community Cable Access, App. ; Reply Comments of City of St. Paul, ; Reply Comments of Erik *763 Mollberg, Public Access Coordinator, Ft. Wayne, Ind., 3, FCC Record; Comments of Defiance Community Television 3, FCC Record; Comments of Nutmeg Public Access Television, 3-4, FCC Record. Whether these locally accountable bodies prescreen programming, promulgate rules for the use of public access channels, or are merely available to respond when problems arise, the upshot is the same: There is a locally accountable body capable of addressing the problem, should it arise, of patently offensive programming broadcast to children, making it unlikely that many children will in fact be exposed to programming considered patently offensive in that community. See -128; Second Report and ¶ 8 FCC Rcd 42. Third, the existence of a system aimed at encouraging and securing programming that the community considers valuable strongly suggests that a "cable operator's veto" is less likely necessary to achieve the statute's basic objective, protecting children, than a similar veto in the context of leased channels. Of course, the system of access managers and supervising boards can make mistakes, which the operator might in some cases correct with its veto power. Balanced against this potential benefit, however, is the risk that the veto itself may be mistaken; and its use, or threatened use, could prevent the presentation of programming, that, though borderline, is not "patently offensive" to its targeted audience. See Aufderheide, App. 64-66 (describing the programs that were considered borderline by access managers, including sex education, health education, broadcasts of politically marginal groups, and various artistic experiments). And this latter threat must bulk large within a system that already has publicly accountable |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | bulk large within a system that already has publicly accountable systems for maintaining responsible programs. Finally, our examination of the legislative history and the record before us is consistent with what common sense suggests, namely, that the public/nonprofit programming control systems now in place would normally avoid, minimize, or *764 eliminate any child-related problems concerning "patently offensive" programming. We have found anecdotal references to what seem isolated instances of potentially indecent programming, some of which may well have occurred on leased, not public access, channels. See 138 Cong. Rec. 984, 990 (statement of Sen. Wirth) (mentioning "abuses" on Time Warner's New York City channel); but see Comments of Manhattan Neighborhood Network, App. 235, 238 (New York access manager noting that leased, not public access, channels regularly carry sexually explicit programming in New York, and that no commercial programs or advertising are allowed on public access channels); Brief for Time Warner Cable as Amicus Curiae 2-3 (indicating that relevant "abuses" likely occurred on leased channels). See also 138 Cong. Rec., at 989 (statement of Sen. Fowler) (describing solicitation of prostitution); (identifying newspaper headline referring to mayor's protest of a "strip act"); - ; Letter from Mayor of Rancho Palos Verdes, FCC Record; Resolution of San Antonio City Council, No. 92-49-40, FCC Record. But these few examples do not necessarily indicate a significant nationwide pattern. See -128 The Commission itself did not report any examples of "indecent" programs on public access channels. See Second Report and 8 FCC Rcd, at 38; see also Comments of Boston Community Access and Programming Foundation, App. 162-163 did not identify any "inappropriate" programming that actually exists on public *765 access channels). Moreover, comments submitted to the FCC undermine any suggestion that prior to there were significant problems of indecent programming on public access channels. See Agosta 10, 28, FCC Record (surveying 76 public access systems in New York over two years, and finding "only two examples of controversial programming, and both had been settled by the producers and the access channel"); Reply Comments of Staten Island Community Television 2, FCC Record ("Our access channels have been on the air since 1986 without a single incident which would be covered by Section 10 of the new law"); Reply Comments of Waycross Community Television, at 2, FCC Record ("[I]ndecent and obscene programs [have] never been cablecast through Waycross Community Television during our entire ten year programming history"); Reply Comments of Cambridge Community Television, App. 314 ("In Cambridge less than one hour out of 15,000 hours of programming CCTV has run in the past five year[s] may have been |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | has run in the past five year[s] may have been affected by the Act"); ; Reply Comments of Columbus Community Cable Access, at ; Reply Comments of Cincinnati Community Video, ; Comments of Defiance Community Television, at 2-3, FCC Record (in eight years of operation, "there has never been a serious problem with the content of programming on the channel"). At most, we have found borderline examples as to which people's judgment may differ, perhaps acceptable in some communities but not others, of the type that petitioners fear the law might prohibit. See, e. g., Aufderheide, App. 64-66; Brief for Petitioners in No. 95-1, p. 7 (describing depiction *766 of a self-help gynecological examination); Comments of Time Warner Entertainment Co., App. 252 (describing an Austin, Tex., program that included "nude scenes from a movie," and an Indianapolis, Ind., "`safe sex' " program). It is difficult to see how such borderline examples could show a compelling need, nationally, to protect children from significantly harmful materials. Compare 138 Cong. Rec., (justifying regulation of leased access channels in terms of programming that depicts "bestiality" and "rape"). In the absence of a factual basis substantiating the harm and the efficacy of its proposed cure, we cannot assume that the harm exists or that the regulation redresses it. See -665. The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships among local community and nonprofit supervising boards and access managers, which relationships are established through municipal law, regulation, and contract. In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear. At the same time, given present supervisory mechanisms, the need for this particular provision, aimed directly at public access channels, is not obvious. Having carefully reviewed the legislative history of the Act, the proceedings before the FCC, the record below, and the submissions of the parties and amici here, we conclude that the Government cannot sustain its burden of showing that 10(c) is necessary to protect children or that it is appropriately tailored to secure that end. See, e. g., Columbia ; League of Women -399; 492 U. S., at Consequently, we find that this third provision violates the First Amendment. *767 V Finally, we must ask whether 10(a) is severable from the two other provisions. The question is one of legislative intent: Would Congress still "have passed" 10(a) "had it known" that the remaining "provision[s were] invalid"? Brockett v. Spokane Arcades, If so, we |
Justice Breyer | 1,996 | 2 | majority | Denver Area Ed. Telecommunications Consortium, Inc. v. FCC | https://www.courtlistener.com/opinion/118061/denver-area-ed-telecommunications-consortium-inc-v-fcc/ | "provision[s were] invalid"? Brockett v. Spokane Arcades, If so, we need not invalidate all three provisions. New 8 U. S., at 769, n. (citing United (1)). Although the Act contains no express "severability clause," we can find the Act's "severability" intention in its structure and purpose. It seems fairly obvious Congress would have intended its permissive "leased access" channels provision, 10(a), to stand irrespective of 10(c)'s legal fate. That is because the latter provision concerns only public, educational, and governmental channels. Its presence had little, if any, effect upon "leased access" channels; hence its absence in respect to those channels could not make a significant difference. The "segregate and block" requirement's invalidity does make a difference, however, to the effectiveness of the permissive "leased access" provision, 10(a). Together they told the cable system operator: "Either ban a `patently offensive' program or `segregate and block' it." Without the "segregate and block" provision, cable operators are afforded broad discretion over what to do with a patently offensive program, and because they will no longer bear the costs of segregation and blocking if they refuse to ban such programs, cable operators may choose to ban fewer programs. Nonetheless, this difference does not make the two provisions unseverable. Without the "segregate and block" provision, the law simply treats leased channels (in respect to patently offensive programming) just as it treats all other channels. And judging by the absence of similar segregate and block provisions in the context of these other channels, Congress would probably have thought that 10(a), standing *768 alone, was an effective (though, perhaps, not the most effective) means of pursuing its objective. Moreover, we can find no reason why, in light of Congress' basic objective (the protection of children), Congress would have preferred no provisions at all to the permissive provision standing by itself. That provision, capable of functioning on its own, still helps to achieve that basic objective. Consequently, we believe the valid provision is severable from the others. VI For these reasons, the judgment of the Court of Appeals is affirmed insofar as it upheld 10(a); the judgment of the Court of Appeals is reversed insofar as it upheld 10(b) and 10(c). It is so ordered. |
Justice Scalia | 1,993 | 9 | majority | United States v. McDermott | https://www.courtlistener.com/opinion/112837/united-states-v-mcdermott/ | We granted certiorari to resolve the competing priorities of a federal tax lien and a private creditor's judgment lien as to a delinquent taxpayer's after-acquired real property. I On December 9, 1986, the United States assessed Mr. and Mrs. McDermott for unpaid federal taxes due for the tax years 1977 through 1981. Upon that assessment, the law created a lien in favor of the United States on all real and personal property belonging to the McDermotts, 26 U.S. C. 6321 and 6322, including after-acquired property, Glass City Pursuant to 26 U.S. C. 6323(a), however, that lien could "not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof. has been filed." (Emphasis added.) The United States did not file this lien in the Salt Lake County Recorder's Office until September 9, 1987. Before that occurred, howeverspecifically, on July 6, 1987Zions First National Bank, N. A. (Bank), docketed with the Salt Lake County Clerk a state-court judgment it had won against the McDermotts. Under Utah law, that created a judgment lien on all of the McDermotts' real property in Salt Lake County, "owned at the time or thereafter acquired during the existence of said lien." Utah Code Ann. 78-22-1 (1953). *449 On September 23, 1987, the McDermotts acquired title to certain real property in Salt Lake County. To facilitate later sale of that property, the parties entered into an escrow agreement whereby the United States and the Bank released their claims to the real property itself but reserved their rights to the cash proceeds of the sale, based on their priorities in the property as of September 23, 1987. Pursuant to the escrow agreement, the McDermotts brought this interpleader action in state court to establish which lien was entitled to priority; the United States removed to the United States District Court for the District of Utah. On cross-motions for partial summary judgment, the District Court awarded priority to the Bank's judgment lien. The United States Court of Appeals for the Tenth Circuit affirmed. We granted certiorari. II Federal tax liens do not automatically have priority over all other liens. Absent provision to the contrary, priority for purposes of federal law is governed by the common-law principle that "`the first in time is the first in right.' " United ; cf. For purposes of applying that doctrine in the present casein which the competing state lien (that of a judgment creditor) benefits from the provision of 6323(a) that the federal lien shall "not be valid until notice thereof has been filed"we must |
Justice Scalia | 1,993 | 9 | majority | United States v. McDermott | https://www.courtlistener.com/opinion/112837/united-states-v-mcdermott/ | "not be valid until notice thereof has been filed"we must deem the United States' lien to have commenced no sooner than the filing of notice. As for the Bank's lien: Our cases deem a competing state lien to be in existence for "first in time" purposes only when it has been "perfected" in the sense that "the identity of the lienor, the property subject to the lien, and the amount of the lien are established." United *450 ; see also ; United The first question we must answer, then, is whether the Bank's judgment lien was perfected in this sense before the United States filed its tax lien on September 9, 1987. If so, that is the end of the matter; the Bank's lien prevails. The Court of Appeals was of the view that this question was answered (or rendered irrelevant) by our decision in United which it took to "stan[d] for the proposition that a non-contingent lien on all of a person's real property, perfected prior to the federal tax lien, will take priority over the federal lien, regardless of whether after-acquired property is involved."[1] 945 F. 2d, at 1480. That is too expansive a reading. Our opinion in Vermont gives no indication that the property at issue had become subject to the state lien only by application of an after-acquired-property clause to property that the debtor acquired after the federal lien arose. To the contrary, the opinion says that the state lien met (presumably at the critical time when the federal lien arose) "the test laid down in New that `the property subject to the lien [be] established.' "[2]*451 The argument of the United States that we rejected in Vermont was the contention that a state lien is not perfected within the meaning of New if it "attach[es] to all of the taxpayer's property," rather than "to specifically identified portions of that property."[3] We did not consider, and the facts as recited did not implicate, the quite different argument made by the United States in the present case: that a lien in afteracquired property is not "perfected" as to property yet to be acquired. The Bank argues that, as of July 6, 1987, the date it docketed its judgment lien, the lien was "perfected as to all real property then and thereafter owned by" the McDermotts, since "[n]othing further was required of [the Bank] to attach the non-contingent lien on after-acquired property." Brief for Respondent 21. That reflects an unusual notion of what it takes to "perfect" a lien.[4] Under the Uniform *452 Commercial Code, for example, a |
Justice Scalia | 1,993 | 9 | majority | United States v. McDermott | https://www.courtlistener.com/opinion/112837/united-states-v-mcdermott/ | lien.[4] Under the Uniform *452 Commercial Code, for example, a security interest in afteracquired property is generally not considered perfected when the financing statement is filed, but only when the security interest has attached to particular property upon the debtor's acquisition of that property. 9-203(1) and (2), 3 U. L. A. 363 ; 9-303(1), 3A U. L. A. 117 And attachment to particular property was also an element of what we meant by "perfection" in New See ;[5] The Bank concedes that its lien did not actually attach to the property at issue here until the McDermotts acquired rights *453 in that property. Brief for Respondent 16, 21. Since that occurred after filing of the federal tax lien, the state lien was not first in time.[6] But that does not complete our inquiry: Though the state lien was not first in time, the federal tax lien was not necessarily first in time either. Like the state lien, it applied to the property at issue here by virtue of a (judicially inferred) after-acquired-property provision, which means that it did not attach until the same instant the state lien attached, viz., when the McDermotts acquired the property; and, like the state lien, it did not become "perfected" until that time. We think, however, that under the language of 6323(a) ("shall not be valid as against any judgment lien creditor until notice has been filed"), the filing of notice renders the federal tax lien extant for "first in time" priority purposes regardless of whether it has yet attached to identifiable property. That result is also indicated by the provision, two subsections later, which accords priority, even against filed federal tax liens, to security interests arising out of certain agreements, including "commercial transactions financing agreement[s]," entered into before filing of the tax lien. 26 U.S. C. 6323(c)(1). That provision protects certain security interests that, like the afteracquired-property judgment lien here, will have been recorded before the filing of the tax lien, and will attach to the encumbered property after the filing of the tax lien, and simultaneously with the attachment of the tax lien (i. e., upon the debtor's acquisition of the subject property). According special priority to certain state security interests *454 in these circumstances obviously presumes that otherwise the federal tax lien would prevaili. e., that the federal tax lien is ordinarily dated, for purposes of "first in time" priority against 6323(a) competing interests, from the time of its filing, regardless of when it attaches to the subject property.[7] The Bank argues that "[b]y common law, the first lien of record against |
Justice Scalia | 1,993 | 9 | majority | United States v. McDermott | https://www.courtlistener.com/opinion/112837/united-states-v-mcdermott/ | that "[b]y common law, the first lien of record against a debtor's property has priority over those subsequently filed unless a lien-creating statute clearly shows or declares an intention to cause the statutory lien to override." Brief for Respondent Zions First National Bank, N. A., 11.[8] Such a strong "first-to-record" presumption may be appropriate for simultaneously perfected liens under ordinary statutes creating private liens, which ordinarily arise *455 out of voluntary transactions. When two private lenders both exact from the same debtor security agreements with after-acquired-property clauses, the second lender knows, by reason of the earlier recording, that that category of property will be subject to another claim, and if the remaining security is inadequate he may avoid the difficulty by declining to extend credit. The Government, by contrast, cannot indulge the luxury of declining to hold the taxpayer liable for his taxes; notice of a previously filed security agreement covering after-acquired property does not enable the Government to protect itself. A strong "first-to-record" presumption is particularly out of place under the present taxlien statute, whose general rule is that the tax collector prevails even if he has not recorded at all. 26 U.S. C. 6321 and 6322; United Thus, while we would hardly proclaim the statutory meaning we have discerned in this opinion to be "clear," it is evident enough for the purpose at hand. The federal tax lien must be given priority. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of *48 privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments of the United States Constitution. The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times." Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and Personality Parody." Soon after the November issue of Hustler became available to the public, respondent brought this diversity action in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that publication of the ad parody in Hustler entitled *49 him to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial.[1] At the close of the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody could |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | the libel claim, specifically finding that the ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." App. to Pet. for Cert. C1. The jury ruled for respondent on the intentional infliction of emotional distress claim, however, and stated that he should be awarded $100,000 in compensatory damages, as well as $50,000 each in punitive damages from petitioners.[2] Petitioners' motion for judgment notwithstanding the verdict was denied. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. The court rejected petitioners' argument that the "actual malice" standard of New York must be met before respondent can recover for emotional distress. The court agreed that because respondent is concededly a public figure, petitioners are "entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in [respondent's] claim for libel." But this does not mean that a literal application of the actual malice rule is appropriate in the context of an emotional distress claim. In the court's view, the New York decision emphasized the constitutional importance not of the falsity of the statement or the defendant's disregard for the truth, but of the heightened level of culpability embodied in the requirement of "knowing or reckless" conduct. Here, the New York *50 standard is satisfied by the state-law requirement, and the jury's finding, that the defendants have acted intentionally or recklessly.[3] The Court of Appeals then went on to reject the contention that because the jury found that the ad parody did not describe actual facts about respondent, the ad was an opinion that is protected by the First Amendment. As the court put it, this was "irrelevant," as the issue is "whether [the ad's] publication was sufficiently outrageous to constitute intentional infliction of emotional distress."[4] Petitioners then filed a petition for rehearing en banc, but this was denied by a divided court. Given the importance of the constitutional issues involved, we granted certiorari. This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do. At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "[T]he *51 freedom to speak one's mind is not only an aspect of individual liberty and thus a good unto itself but also is essential to the common quest for truth and the vitality of society as a whole." Bose We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea. As Justice Holmes wrote, "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market" The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Associated Press v. Walker, decided with Curtis Publishing Justice Frankfurter put it succinctly in when he said that "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks," New York "[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul!' when an opponent or an industrious reporter attempts *52 to demonstrate the contrary." Monitor Patriot Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made "with knowledge that it was false or with reckless disregard of whether it was false |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | false or with reckless disregard of whether it was false or not." False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective. See 344, n. 9. But even though falsehoods have little value in and of themselves, they are "nevertheless inevitable in free debate," and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted "chilling" effect on speech relating to public figures that does have constitutional value. "Freedoms of expression require " `breathing space.' " Philadelphia Newspapers, (quoting New York ). This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability. Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. Cf. In respondent's view, and in the view of the *53 Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type. Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment: "Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." Webster's New Unabridged Twentieth *54 Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters." Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill 56, 57 (Nov. 1962). Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date, who was associated for many years during the post-Civil War era with Harper's Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been described by one historian of the subject as "a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art." M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast cartoon was achieved "because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners." C. Press, The Political Cartoon 251 (1981). Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal *55 Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them. Respondent contends, however, that the caricature in question here was so "outrageous" as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. See And, as we stated in : "[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. *56 For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." See also Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation, that speech that is " `vulgar,' `offensive,' and `shocking' " is "not entitled to absolute constitutional protection under all circumstances." In we held that a State could lawfully punish an individual for the use of insulting " `fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." These limitations are |
Justice Rehnquist | 1,988 | 19 | majority | Hustler Magazine, Inc. v. Falwell | https://www.courtlistener.com/opinion/112011/hustler-magazine-inc-v-falwell/ | incite an immediate breach of the peace." These limitations are but recognition of the observation in Dun & Bradstreet, that this Court has "long recognized that not all speech is of equal First Amendment importance." But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above. We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a "blind application" of the New York standard, see Time, it reflects our considered judgment that such a standard is necessary to give adequate "breathing space" to the freedoms protected by the First Amendment. *57 Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law.[5] The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury's finding to be that the ad parody "was not reasonably believable," and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed. JUSTICE KENNEDY took no part in the consideration or decision of this case. JUSTICE WHITE, concurring in the judgment. |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | In we held that a district court's rejection of a defendant's qualified-immunity defense is a "final decision" subject to immediate appeal under the general appellate jurisdiction statute, 28 U.S. C. 1291. The question presented in this case is whether a defendant's immediate appeal of an unfavorable qualifiedimmunity ruling on his motion to dismiss deprives the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment. I In 1983, South Coast Savings and Loan Association, a new institution, applied to the Federal Home Loan Bank Board (FHLBB or Board) for the approval necessary to obtain account insurance from the Federal Savings and Loan Insurance Corporation (FSLIC).[1] Under FHLBB regulations, approval of new institutions was to be withheld if their "financial policies or management" were found to be "unsafe" for any of various reasons, including "character of the management." 12 CFR 571.6(b) (1986). Accordingly, when FHLBB approved South Coast for FSLIC insurance in March 1984, it imposed a number of requirements, including the condition that South Coast "provide for employment of a qualified full-time executive managing officer, subject to approval by the Principal Supervisory Agent"FHLBB's term for the president of the regional Home Loan Bank when operating in his oversight capacity on behalf of FHLBB. Record, Exh. B, Resolution No. 84-164, ¶ 10(p) The Board's resolution also required that, for a period of three years, any change in South Coast's chief management position be approved by FHLBB. *302 Shortly after obtaining FHLBB's conditional approval, South Coast was succeeded in interest by Pioneer Savings and Loan Association, another new institution. Pioneer named respondent as its managing officer, subject to FHLBB consent, which Pioneer sought in mid-May 1985. Only a few weeks earlier, however, on April 23, 1985, FHLBB had declared insolvent Beverly Hills Savings and Loan Association, where respondent had at one time held a senior executive position. An inquiry by FSLIC pointed to potential misconduct by high-level management of the failed institution, which ultimately became the subject of an FSLIC lawsuit against several Beverly Hills officers, including respondent. The FSLIC suit had not yet been filed at the time Pioneer sought the Board's consent to hire respondent; but FSLIC's pending investigation into Beverly Hills' collapse caused petitioner Behrens, the FHLBB "Supervisory Agent" then responsible for monitoring Pioneer's operations, to write Pioneer on May 8, 1986, withholding approval and advising that respondent be replaced. On receipt of the letter Pioneer asked respondent to resign and, when he refused, fired him. Three years later, in respondent brought suit in federal court, naming petitioner as |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | in respondent brought suit in federal court, naming petitioner as defendant in a complaint that included Bivens damages claims for two alleged constitutional wrongs. See Respondent charged, first, that petitioner's action in writing a letter that had effectively discharged him from his post at Pioneer, in summary fashion and without notice or opportunity to be heard, violated his right to procedural due process. Second, he claimed that he had been deprived of substantive due process by petitioner's alleged interference with his "clearly established and Constitutionally protected property and liberty rights to specific employment and to pursue his profession free from undue governmental interference." First Amended Complaint ¶ 38, reprinted in App. 7, 16. The complaint alleged *303 that petitioner's letter, along with other, continuing efforts to harm respondent's reputation, had cost respondent not only his position at Pioneer, but also his livelihood within the savings and loan industry. The complaint also contained other claimsagainst petitioner and against the Federal Home Loan Bank of San Francisco (petitioner's immediate employer), FHLBB, and the United States; none of these is relevant to the present appeal. Petitioner filed a motion to dismiss or, in the alternative, for summary judgment. With regard to the Bivens claims, he asserted a statute-of-limitations defense and claimed qualified immunity from suit on the ground that his actions, taken in a governmental capacity, "d[id] not violate clearly established statutory or constitutional rights." The District Court ruled in favor of petitioner on the statute-of-limitations ground and therefore dismissed the procedural due process Bivens claim, and the substantive due process Bivens claim to the extent it related to petitioner's letter and respondent's loss of employment at Pioneer. It refused, however, to dismiss respondent's suit "to the extent [it was] based on other alleged subsequent acts of defendan[t] preventing and continuing to prevent [respondent] from securing employment." No. CV 89-969 reprinted in App. 27-28. The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery. Petitioner immediately appealed the District Court's implicit denial of his qualified-immunity defense regarding the remaining Bivens claim. The Court of Appeals entertained the appeal, notwithstanding its interlocutory nature, holding that "a denial of qualified immunity is an appealable `final' order under the test set forth in regardless of whether that denial takes the form of a refusal to grant a defendant's *304 motion to dismiss or a denial of summary judgment." It said in dictum, however, that a defendant claiming qualified immunity could not "take advantage of the several opportunities for immediate appeal afforded him by bringing |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | the several opportunities for immediate appeal afforded him by bringing repeated pretrial appeals," and that "[o]ne such interlocutory appeal is all that a government official is entitled to and all that we will entertain." at -871. On the merits of the appeal, the court rejected the argument that petitioner enjoyed qualified immunity because he had not violated any "clearly established right." It said that the question whether respondent had a constitutionally protected property interest in his Pioneer employment (subject, as it was, to regulatory approval) was not properly before the court, since the claims relating specifically to his discharge had been dismissed as time barred. (The Court of Appeals noted in dictum, however, that the District Court had applied an unduly short limitations period.) With respect to the claimed deprivation of post-Pioneer employment, the court held that the "nebulous theories of conspiracy" set out in respondent's complaintalthough "insufficient to survive a motion for summary judgment"made out a proper Bivens claim. -873. Upon remand, the District Court reversed its earlier statute-of-limitations ruling in light of the Court of Appeals' dictum, and reinstated the claims relating to employment at Pioneer. After discovery, petitioner moved for summary judgment on qualified-immunity grounds, contending that his actions had not violated any "clearly established" right of respondent regarding his employment at Pioneer or elsewhere. The District Court denied the motion with the unadorned statement that "[m]aterial issues of fact remain as to defendant Behrens on the Bivens claim." No. CV 89-0969 reprinted in App. to Pet. for Cert. *305 5a. Petitioner filed a notice of appeal, which, on respondent's motion, the District Court certified as frivolous. In an unpublished order, the Ninth Circuit dismissed the appeal "for lack of jurisdiction." No. 94-56507 reprinted in App. to Pet. for Cert. 1a. We granted certiorari, II Section 1291 of Title 28, U. S. C., gives courts of appeals jurisdiction over "all final decisions" of district courts, except those for which appeal is to be had to this Court. The requirement of finality precludes consideration of decisions that are subject to revision, and even of "fully consummated decisions [that] are but steps towards final judgment in which they will merge." It does not, however, bar review of all prejudgment orders. In Cohen, we described a "small class" of district court decisions that, though short of final judgment, are immediately appealable because they "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | itself to require that appellate consideration be deferred until the whole case is adjudicated." See also Puerto Rico and Sewer The issue in the present case is the extent to which orders denying governmental officers' assertions of qualified immunity come within the Cohen category of appealable decisions. As set forth in the qualified-immunity defense "shield[s] [government agents] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," at ). adopted this criterion of "objective legal reasonableness," rather than good faith, precisely in order to "permit the defeat of insubstantial claims without resort to trial." 813. Unsurprisingly, then, we later found the immunity to be "an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal [immunity] question." And, as with district-court rejection of claims to other such entitlements distinct from the merits, see, e. g., Puerto Rico ; we held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S. C. 1291 notwithstanding the absence of a final judgment." See also While did not say that a defendant could appeal from denial of a qualified-immunity defense more than once,[2] it clearly contemplated that he could raise the defense at successive stages: "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence *307 sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Thus, clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a "final" judgment subject to immediate appeal. Since an unsuccessful appeal from a denial of dismissal cannot possibly render the later denial of a motion for summary judgment any less "final," it follows that petitioner's appeal falls within 1291 and dismissal was improper. Indeed, it is easier to argue that the denial of summary judgmentthe order sought to be appealed hereis the more "final" of the two orders. That is the reasoning the First Circuit adopted in holding that denial of a motion to dismiss on absolute-immunity grounds was not "final" where the defendant |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | dismiss on absolute-immunity grounds was not "final" where the defendant had stated that, if unsuccessful, he would later seek summary judgment on qualified-immunity grounds: "Since the district court has not yet determined whether [the defendant] has qualified immunity, and that he will have to stand trial, its decision is not an appealable collateral order." The problem with this approach, however, is that it would logically bar any appeal at the motion-to-dismiss stage where there is a possibility of presenting an immunity defense on summary judgment; that possibility would cause the motion-to-dismiss decision to be not "final" as to the defendant's right not to stand trial. The First Circuit sought to avoid this difficulty by saying that the defendant could render the motion-todismiss denial final by waiving his right to appeal the summary judgment denial. See But quite obviously, eliminating the ability to appeal the second order does not eliminate the possibility that the second order will vindicate the defendant's right not to stand trial, and therefore *308 does not eliminate the supposed reason for declaring the first order nonfinal. The source of the First Circuit's confusion was its mistaken conception of the scope of protection afforded by qualified immunity. and make clear that the defense is meant to give government officials a right, not merely to avoid "standing trial," but also to avoid the burdens of "such pretrial matters as discovery as `[i]nquiries of this kind can be peculiarly disruptive of effective government.' " (quoting from ). Whether or not a later summary judgment motion is granted, denial of a motion to dismiss is conclusive as to this right. We would have thought that these and other statements from and had settled the point, questioned by Justice Breyer, see post, at 317, that this right is important enough to support an immediate appeal. If it were not, however, the consequence would be, not that only one pretrial appeal could be had in a given case, as Justice Breyer proposes, but rather, that there could be no immediate appeal from denial of a motion to dismiss but only from denial of summary judgment. That conclusion is foreclosed by which unmistakably envisioned immediate appeal of "[t]he denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity." The Court of Appeals in the present case, in the first of its two decisions, rested its "one-appeal" pronouncement upon the proposition that resolving the question of entitlement to qualified immunity "should not require more than one judiciously timed appeal." 968 F. 2d, at 871. It did not explain how |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | 968 F. 2d, at 871. It did not explain how this proposition pertains to the question of finality, but we suppose it could be argued that a category of appeals thought to be needless or superfluous does not raise a claim of right "too important to be denied review," as our Cohen finality jurisprudence requires, see 337 U.S., at *309 In any event, the proposition is not sound. That one appeal on the immunity issue may not be enough is illustrated by the history of respondent's claims for loss of employment at Pioneer in the present case. Because these claims had initially been dismissed as time barred, the Court of Appeals refused to decide (and thus evidently regarded as an open question) whether one who holds his job subject to regulatory approval can assert a constitutionally cognizable expectation of continued employment. See Thus, the question whether petitioner was entitled to immunity on these claims was not presented to any court until petitioner's summary judgment motionand, by operation of the Ninth Circuit's one-appeal rule, has never been addressed by an appellate court. That is assuredly an unusual set of circumstances, but even in a case proceeding in a more normal fashion resolution of the immunity question may "require more than one judiciously timed appeal," because the legally relevant factors bearing upon the question will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for "objective legal reasonableness." On summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the inquiry. It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment.[3] *310 The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F.2d, at -871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred. To the contrary, successive pretrial assertions of immunity seem to be a rare occurrence.[4] Moreover, if and when abuse does occur, as we observed in the analogous context of |
Justice Scalia | 1,996 | 9 | majority | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | does occur, as we observed in the analogous context of interlocutory appeals on the issue of double jeopardy, "[i]t is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims." Abney 431 U. S., at n. 8. In the present case, for example, the District Court appropriately certified petitioner's immunity appeal as "frivolous" in light of the Court of Appeals' (unfortunately erroneous) one-appeal precedent. This practice, which has been embraced by several Circuits, enables the district court to retain *311 jurisdiction pending summary disposition of the appeal, and thereby minimizes disruption of the ongoing proceedings. See, e. g., ; ; ; F.2d 1335, In any event, the question before us herewhether there is jurisdiction over the appeal, as opposed to whether the appeal is frivolousmust be determined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order. "Appeal rights cannot depend on the facts of a particular case." See also Digital Equipment As we have said, an order denying qualified immunity, to the extent it turns on an "issue of law," 472 U. S., is immediately appealable. III Our rejection of the one-interlocutory-appeal rule does not dispose of this case. Respondent proposes two other reasons why appeal of denial of the summary judgment motion is not available. First, he argues that no appeal is available where, even if the District Court's qualified-immunity ruling is reversed, the defendant will be required to endure discovery and trial on matters separate from the claims against which immunity was asserted. Respondent reasons that a ruling which does not reach all the claims does not "conclusively determin[e] the defendant's claim of right not to stand trial, " at 527, and thus the order denying immunity cannot be said to be "final" within the meaning of Cohen. It is far from clear that, given the procedural posture of the present case, respondent would be entitled to the benefit of the proposition for which he argues; but we will address the proposition on its merits. The Courts of Appeals have *312 almost unanimously rejected it,[5] and so do we. The right to immunity is a right to immunity from certain claims, not from litigation in general; when immunity with respect to those claims has been finally denied, appeal must be available, and cannot be foreclosed by the mere addition of other claims to the suit. Making appealability depend upon such a factor, particular to the case at hand, would violate the principle discussed above, that |
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