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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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We granted certiorari to decide whether in a state civil proceeding a lawyer may be cited for contempt for advising his client, a party to the litigation, that the client may refuse on Fifth Amendment grounds to produce subpoenaed material. I Petitioner is a lawyer. In January 1973 his client was convicted before a Municipal Court in the city of Temple, Texas, of selling seven obscene magazines in violation of a Temple ordinance. Six days later the client, Michael McKelva, was served by a Bell County deputy sheriff with a subpoena duces tecum directing him to produce 52 magazines before the 1th Judicial District Court. The titles of the magazines were given, but no other description was contained in the warrant. Under the Texas Penal Code[1] upon application by *451 any city attorney the district courts may issue injunctions to prevent illegal distribution of obscene matter. The subpoena here was requested by the Temple City Attorney in order to obtain such an injunction. Besides commanding production of the magazines it ordered petitioner's client to appear at a hearing on February 1, 1973, and give testimony. McKelva appeared represented by petitioner and an associate, Karl A. Maley. Earlier, Maley had filed a written motion to quash the subpoena. The motion claimed, inter alia, that the issuance of the subpoena was merely an attempt to require materials and testimony in violation of McKelva's constitutional right not to incriminate himself. At the hearing petitioner orally argued the motion to quash. He, too, contended that the city was attempting, through a civil proceeding, to discover evidence which properly should be discovered, if at all, through criminal process. He freely admitted that the magazines dealt explicitly with acts of a sexual nature, and that they were "of the same character" as the magazines for distribution *452 of which McKelva previously had been convicted.[2] Thus, he argued, it was quite clear that a "substantial possibility of self-incrimination" existed if McKelva was required to produce the magazines. Petitioner foresaw possible criminal prosecution either under the Temple ordinance[3] again, or under Art. 527 itself. Although petitioner claimed the Fifth Amendment's protection was available in any proceeding whether civil or criminal, he also urged that under the circumstances the injunctive proceeding for which the magazines were subpoenaed was quasi-criminal in nature. He noted that it was brought under the Penal Code of Texas and concluded that the city should secure a search warrant, describing with particularity the magazines it desired produced. The City Attorney responded that the proceeding was purely civil and that "there is no contention on the
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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purely civil and that "there is no contention on the part of the City or any attempt on the part of the City to get any evidence for any criminal prosecution," and thus any material produced would not be incriminating. Further, he maintained, because there "are no criminal sanctions. there will be no evidence that would be incriminating under the rules" In reply petitioner drew an analogy to tax cases where, he argued, courts have prohibited the Internal Revenue *453 Service from using subpoenas to discover records which might tend to incriminate taxpayers. Petitioner contended that the nature of the proceeding in which evidence is sought is irrelevant to the compass of the Fifth Amendment, and that the character of the material requested is the only relevant inquiry. He asserted that the sole test is whether production of the material would create a substantial probability of criminal prosecution for his client. He noted that the City Attorney's representation that the city is not interested in a criminal prosecution "certainly does not bind for example the County Attorney, or anyone else who might be interested in prosecuting such a case." The court then denied the motion to quash and petitioner's client, McKelva, took the stand. In answer to preliminary questions he gave his name and address and stated that he was the operator of Mike's News in Temple. He admitted to having been served with the subpoena, but when he was asked whether he had brought the magazines he replied: "[U]nder the advice of Counsel, I refuse to answer on the grounds that it may tend to incriminate me." The City Attorney then moved the court to instruct the witness to answer, and if he failed to do so to hold him in contempt. The court asked petitioner's counsel what would be a reasonable time to allow for the witness to bring the magazines into court, because the court understood the applicable rule to require time for compliance before a motion for contempt should be entertained. Counsel replied that according to their position no time need be allowed because, in any event, the subpoena would require production of evidence which would tend to incriminate the witness. The court then recessed until the afternoon and instructed the witness to return at that time with the requested magazines. Petitioner's cocounsel said he understood the instruction. *454 When the court reconvened, McKelva was recalled, and he responded negatively when the City Attorney asked whether he had made any effort to obtain the subpoenaed magazines. He did, however, acknowledge that he had understood the court's
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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He did, however, acknowledge that he had understood the court's order to bring them. After he indicated that the sole reason for his failure to comply was his belief that if he did so it would entail a substantial possibility of self-incrimination, the City Attorney again moved for a contempt citation. This time the court found McKelva in contempt and stated that the failure to respond would be treated as an admission that the subpoenaed magazines are obscene. Petitioner objected, arguing that a person may not be penalized for asserting a constitutional right by way of making an adverse finding against him. The judge replied that no finding had been made, but in view of petitioner's admission that the magazines were of the same nature as those for which his client previously had been convicted, there was justification for treating a refusal to produce them as an admission to be considered with other evidence.[4] Petitioner responded that he was obliged to assert that although the other magazines had been held obscene the subpoenaed magazines were not. After other testimony was heard, McKelva was again recalled and the court asked him if his disobedience was his own decision, or if it was on the advice of counsel. McKelva replied that it was on the advice of counsel, specifically petitioner and Maley. Petitioner then asked his client whether he would produce the magazines if counsel advised him they were not incriminatory. McKelva replied that he would. This made it clear that but for the advice of counsel McKelva would have produced the subpoenaed matter. *455 After a short recess the court ruled the subpoenaed magazines obscene, and enjoined their continued exhibition and sale. Finally, the court held petitioner and his counsel in contempt, as well as their client,[5] and fixed punishment for each of them at 10 days' confinement and a $200 fine. The judge noted his reluctance to find the attorneys in contempt, stating this was the first time he had ever done so, but he felt that the attorneys had usurped the authority of the court: "This Court has not been permitted to rule on the admissibility of that evidence. You have ruled on it" Before the hearing ended, however, petitioner stated that he and his counsel had not deliberately and intentionally attempted to frustrate the court. Petitioner felt there was merely a philosophical difference between counsel and the court as to the scope of the Fifth Amendment protection. The court responded that the self-incrimination defense could have been reached either by a motion to suppress the evidence after it
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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either by a motion to suppress the evidence after it had been produced for injunctive purposes, or by an objection to an attempt to introduce it at a criminal trial. The record shows no indication whatsoever of contumacious conduct on the part of petitioner or his cocounsel. The court appears to have been offended, in a strictly legal sense, only by the lawyers' advice which caused their client to decline on Fifth Amendment grounds to produce subpoenaed material. There is nothing in the record to suggest that petitioner or his counsel acted otherwise than in the good-faith belief that if their client produced the materials he would run a substantial risk of self-incrimination. *456 The day the contempt citation was issued petitioner, on behalf of McKelva, applied to the Supreme Court of Texas for an original writ of habeas corpus. The same day that court denied the application pending further information to complete the record, and then finally denied the writ on February 5, 1973. On February 8, 1973, petitioner filed an application on behalf of McKelva for a writ of habeas corpus in the United District Court for the Western District of Texas, Waco Division. However, at 10 a. m. that day the judge who issued the contempt citation ordered McKelva released from custody although he had only served seven of his 10 days. The release was "for good behavior." Pursuant to Texas procedure[6] the citation of the attorneys was reviewed by another state district judge, the respondent here, Judge James R. Meyers. A hearing was held on May 11, 1973, with the Texas Attorney General's office appearing in support of the contempt *457 citation. The parties agreed that the burden of proof was on the Attorney General, and also agreed that the record of the injunction hearing would provide the basis for the court's decision. The court noted that it felt that the record supported a finding beyond a reasonable doubt that the client was advised not to bring the materials, and the court was dubious that materials displayed for public sale are protected by the Fifth Amendment. However, the court also stated, "I think it is a very close point." Counsel for petitioner agreed that the record clearly reflected that petitioner had advised his client that he had a Fifth Amendment privilege on the issue, but claimed that it did not reflect that petitioner had instructed him not to bring the subpoenaed materials. On October 1, 1973, Judge Meyers affirmed the finding of contempt but changed the penalty to a $500 fine with no confinement. It is
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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penalty to a $500 fine with no confinement. It is that judgment which is under review here. Both Texas appellate courts refused to review the judgment. The Texas Court of Criminal Appeals denied petitioner's motion for leave to file an original application for a writ of habeas corpus, and the Supreme Court of Texas also denied a petition for a writ of habeas corpus. Both courts' orders were entered October 11. By order of Judge Meyers, personal recognizance bonds of petitioner and Maley were continued in order that Maley could seek a writ of habeas corpus from the United District Court for the Western District of Texas and petitioner could petition for a writ of certiorari from this Court. On December 20, 1973, Judge Jack Roberts of the United District Court for the Western District of Texas, Waco Division, granted Maley's petition for a writ of habeas corpus. He noted that even incorrect *458 orders from courts ordinarily must be obeyed until set aside, but he concluded that McKelva had asserted a valid Fifth Amendment privilege, and therefore neither he nor his lawyer could be held in contempt for asserting that privilege. Since civil and criminal liability under Art. 527 arise from the same act the judge also concluded that the Fifth Amendment applied even in the injunctive action. Indeed, he noted that the leading case of involved forfeiture proceedings which, "though they may be civil in form, are in their nature criminal." He held that since Maley was only acting to protect rights guaranteed by the Constitution to his client, "he cannot be held in contempt." An appeal has been filed from that judgment and is now pending before the United Court of Appeals for the Fifth Circuit. On April 15, 1974, we granted the petition for a writ of certiorari, ; we are advised that the case is being held pending our decision in this case. II The narrow issue in this case is whether a lawyer may be held in contempt for advising his client, during the trial of a civil case, to refuse to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith the material may tend to incriminate his client. We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. *459 ; The orderly and expeditious administration of justice by the courts requires that "an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings." United This principle is especially applicable to orders issued during trial. E. g., Such orders must be complied with promptly and completely, for the alternative would be to frustrate and disrupt the progress of the trial with issues collateral to the central questions in litigation. This does not mean, of course, that every ruling by a presiding judge must be accepted in silence. Counsel may object to a ruling. An objection alerts opposing counsel and the court to an issue so that the former may respond and the latter may be fully advised before ruling. United But, once the court has ruled, counsel and others involved in the action must abide by the ruling and comply with the court's orders. While claims of error may be preserved in whatever way the applicable rules provide, counsel should neither engage the court in extended discussion once a ruling is made, nor advise a client not to comply.[7] A lawyer who counsels *460 his client not to comply with a court order during trial would, first, subject his client to contempt, and in addition, if he persisted the lawyer would be exposed to sanctions for obstructing the trial. Remedies for judicial error may be cumbersome but the injury flowing from an error generally is not irreparable, and orderly processes are imperative to the operation of the adversary system of justice. When a court during trial orders a witness to reveal information, however, a different situation may be presented. Compliance could cause irreparable injury because appellate courts cannot always "unring the bell" once the information has been released. Subsequent appellate vindication does not necessarily have its ordinary consequence of totally repairing the error. In those situations we have indicated the person to whom such an order is directed has an alternative: "[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. ]; ; cf. United ; ;" United *461 This method of achieving precompliance review is particularly appropriate where the Fifth Amendment privilege[8] against self-incrimination is involved. The privilege has ancient roots, see, e. g., ; ; see especially at 458 n. 27. This Court has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action. ; The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. In view of the place this privilege occupies in the Constitution and in our adversary system of justice, as well as the traditional respect for the individual that undergirds the privilege, the procedure described in seems an eminently reasonable method to allow precompliance review. In the present case the City Attorney argued that if petitioner's client produced the magazines he was amply protected because in any ensuing criminal action he could *462 always move to suppress,[9] or object on Fifth Amendment grounds to the introduction of the magazines into evidence. Laying to one side possible waiver problems that might arise if the witness followed that course, cf. we nevertheless cannot conclude that it would afford adequate protection. Without something more[10] "he would be compelled to surrender the very protection which the privilege is designed to guarantee." at Our views as to the effectiveness of a later objection or motion to suppress do not conflict with United There we said: "Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial." But the crucial distinction between that case and the instant question is that there the Government indeed "did acquire" the information. Blue had turned it over *463 during a civil investigation without asserting the Fifth Amendment privilege. Here, on the contrary, petitioner's client had not yet delivered the subpoenaed material, and he consistently and vigorously asserted his privilege. Here the "cat" was not yet "out of the bag" and reliance upon a later objection or motion to suppress would "let the cat out" with no assurance whatever of putting
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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"let the cat out" with no assurance whatever of putting it back. Thus in advising his client to resist and risk a contempt citation, thereby allowing precompliance appellate review of the claim, petitioner counseled a familiar procedure. Although it is clear that noncompliance risked both an immediate contempt citation and a final criminal contempt judgment against the witness if, on appeal, petitioner's advice proved to be wrong, the issue here is whether petitioner, as counsel, can be penalized for good-faith advice to claim the privilege. It appears that here the trial judge rejected the Fifth Amendment claim primarily because it was raised in a civil[11] and not a criminal case. The City Attorney relied most heavily on that distinction in his argument in opposition to the motion to quash.[12] Just as vigorously, petitioner contended that the privilege against self-incrimination protected his client regardless of the nature of the proceeding. He said: "It is very clear that the coverage of the Fifth Amendment is not to be determined by the nature of the proceeding in which it is asserted. The Fifth *464 Amendment applies to all proceedings, to injunctive proceedings, to administrative proceedings, and to criminal proceedings. It applies to interrogation by Police Officers out of Court. It applies across the board. We are not talking about the context of the proceedings in which the privilege against self-incrimination is asserted. We are talking about the character of material that is sought to be taken from the person who is subject to the subpoena. ". [T]he test in those circumstances is whether there is a substantial probability in requiring the party that is served with the subpoena to produce the evidence, which evidence would entail self-incrimination, and with the production of the magazines for possible use in a criminal prosecution, and we say that this would amount to a violation of the privilege under the Fifth Amendment, and we contend that it most certainly would, and that it must." App. 13-14. In overruling the claimed privilege the trial judge seems to have accepted the City Attorney's contention that the claim is not available in a civil proceeding. We disagree. In Kastigar v. United we recently reaffirmed the principle that the privilege against self-incrimination can be asserted "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." ; ; ; ; United v. Saline Bank, ; cf. The trial judge seems to have proceeded upon the mistaken premise that petitioner's client was misadvised even to assert the privilege in a civil proceeding, regardless of its ultimate merit. This error explains the
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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proceeding, regardless of its ultimate merit. This error explains the severe sanction the court placed *465 albeit reluctantlyupon petitioner because his advice seemed to have caused the witness' refusal to obey.[13] Thus the issue is whether in a civil proceeding a lawyer may be held in contempt for counselling a witness in good faith to refuse to produce court-ordered materials on the ground that the materials may tend to incriminate the witness in another proceeding. We hold that on this record petitioner may not be penalized even though his advice caused the witness to disobey the court's order. The privilege against compelled self-incrimination would be drained of its meaning if counsel, being lawfully present,[14] as here, could be penalized for advising *466 his client in good faith to assert it. The assertion of a testimonial privilege, as of many other rights, often depends upon legal advice from someone who is trained and skilled in the subject matter, and who may offer a more objective opinion. A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege.[15] It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion. If performance of a lawyer's duty to advise a client that a privilege is available exposes a lawyer to the threat of contempt for giving honest advice it is hardly debatable that some advocates may lose their zeal for forthrightness and independence.[16] *467 There is a crucial distinction between citing a recalcitrant witness for contempt. United and citing the witness' lawyer for contempt based only on advice given in good faith to assert the privilege against self-incrimination. The witness, once advised of the right, can choose for himself whether to risk contempt in order to test the privilege before evidence is produced. That decision is, and should be, for the witness. But, if his lawyer may be punished for advice so given there is a genuine risk that a witness exposed to possible self-incrimination will not be advised of his right. Then the witness may be deprived of the opportunity to decide whether or not to assert the privilege. An early example of this situation is found in In re Watts, There lawyers advised their clients in good faith that state, not federal, courts had bankruptcy jurisdiction over a certain property in the hands of a state receiver. This advice led to a collision between the state and federal courts, and contempt citations for the lawyers. Although this Court held that the lawyer's advice was
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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lawyers. Although this Court held that the lawyer's advice was substantively incorrect, it refused to allow the federal contempt convictions to stand because there was no evidence the advice was given in bad faith. Mr. Chief Justice Fuller, speaking for the Court, said: "In the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment. The preservation of the independence *468 of the bar is too vital to the due administration of justice to allow of the application of any other general rule." We conclude that an advocate is not subject to the penalty of contempt for advising his client, in good faith, to assert the Fifth Amendment privilege against self-incrimination in any proceeding embracing the power to compel testimony. To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation. When a witness is so advised the advice becomes an integral part of the protection accorded the witness by the Fifth Amendment. III In applying these principles it is important to note what this case does not involve: the claim is not based solely on privacy; this is not a case where state law is clear that a response to compulsory process under protest renders the response inadmissible in any criminal prosecution against the witness; most important, there is no contention here as to lack of good faith or reasonable grounds for assertion of a Fifth Amendment claim. Both in a pretrial written motion and orally during trial, petitioner cogently stated his reasons for believing the privilege applied: "In view of the fact that there is this substantial possibility of self-incrimination; in view of the fact that seven other magazines that are of the same character as the magazines named in the subpoena, that they have provided the basis for past criminal prosecutions; in view of the fact that criminal prosecutions are not only a very definite possibility, they are in fact a pronounced possibility, and so there is little reasonable doubt in these circumstances that the subpoena should be quashed *4 because in fact it seeks to compel the person named in the subpoena to incriminate himself, and, of course, this is prohibited by the Fifth Amendment to the Constitution of the United" App. 9-10. Petitioner stated that the magazines were "of the same character"[17] as magazines for distribution of which his client had recently suffered a criminal conviction. There was therefore,
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Justice Burger
| 1,975 | 12 |
majority
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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client had recently suffered a criminal conviction. There was therefore, at the very least, a reasonable basis for petitioner to assume that a risk of further criminal prosecution existed.[18] Both sides agree that the record is devoid of evidence of contumacious conduct or any disrespect for the court, cf., e. g., In re Little, 4 U.S. 553, The highly professional tone of the proceeding is revealed by the statements of the judge, and by petitioner's closing comments to the judge after he had been cited for contempt: "If it please the Court, I certainly appreciate the Court's position. I think what we have here is not a situation, and I hope this is correct, where Counsel have deliberately and intentionally attempted to frustrate the Court. I think that rather what we have is where there is a philosophical difference between Counsel for the Defendant and the Court with regard to the applicable law as to self-incrimination and the production of evidence in a civil case." App. 32. *470 On this record, with no state statute or rule guaranteeing a privilege or assuring that at a later criminal prosecution the compelled magazines would be inadmissible, it appears that there was no avenue other than assertion of the privilege, with the risk of contempt, that would have provided assurance of appellate review in advance of surrendering the magazines. We are satisfied that petitioner properly performed his duties as an advocate here, and he cannot suffer any penalty for performing such duties in good faith.[19] Reversed. MR. JUSTICE STEWART, with whom MR. JUSTICE BLACKMUN joins, concurring in the result. The Court today holds that the constitutional privilege against compulsory self-incrimination embraces the right of a testifying party to the unfettered advice of counsel in a civil proceeding. As the Court puts the matter, a "layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege. It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion. [I]f his lawyer may be punished for advice so given there is a genuine risk that a witness exposed to possible self-incrimination will not be advised of his right. Then the witness may be deprived of the opportunity to decide whether or not to assert the privilege." Ante, at 466-467. *471 The premise underlying the conclusion that the constitutional privilege against compulsory self-incrimination includes the right to the unfettered advice of counsel in civil proceedings must be that there is a constitutional right, also derived from the privilege against compulsory
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Justice Burger
| 1,975 | 12 |
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Maness v. Meyers
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https://www.courtlistener.com/opinion/109130/maness-v-meyers/
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a constitutional right, also derived from the privilege against compulsory self-incrimination, to some advice of counsel concerning the privilege in the first place. The Court's rationale thus inexorably implies that counsel must be appointed for any indigent witness, whether or not he is a party, in any proceeding in which his testimony can be compelled. For surely few indigents will be more cognizant than was Maness' client of the privilege against compulsory self-incrimination, let alone aware of the "nuances" of the privilege. Unless counsel is appointed, these indigents will be deprived, just as surely as Maness' client would have been had he not been advised by Maness, of the opportunity to decide whether to assert their constitutional privilege. "To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation." Ante, at 468. I am unwilling to go that far toward recognizing an unqualified right to appointed counsel in civil proceedings in a case that does not demand it. But I concur in the Court's judgment upon a wholly different ground. More than years ago the Court recognized a due process right to retained counsel in civil proceedings. "If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." It requires no expansion of this well-established principle to hold that just as a state court may not arbitrarily prohibit retained counsel's presence in a courtroom, so too it may *472 not arbitrarily prohibit or punish good-faith advice given by retained counsel. The "right to be heard by counsel" is frustrated equally by denying the right to have counsel present during trial as by preventing counsel, once in the courtroom, from giving good-faith professional advice to his client. The right to be advised by retained counsel in a civil proceeding does not, of course, guarantee a lawyer absolute immunity for advice he gives to his client. Whether a contempt citation constitutes an arbitrary interference with the constitutionally protected attorney-client relationship depends on both the tenor of the advice and the circumstances under which it is given. It does not depend solely on the nature of the legal issue involved. Advice to invoke a state-recognized testimonial privilege, for example, may be just as essential to the discharge of a lawyer's responsibility to his client as was Maness' advice to invoke the constitutional privilege against compulsory
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| 1,975 | 12 |
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Maness v. Meyers
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was Maness' advice to invoke the constitutional privilege against compulsory self-incrimination. The Court's opinion and MR. JUSTICE WHITE'S concurring opinion fully explain the circumstances that in this case justified Maness' advice to his client to refuse to comply with the trial judge's order to produce the subpoenaed material. Under these circumstances Maness did no more than properly perform the conventional service of a lawyer. To punish him for performing his professional duty in good faith would be an arbitrary interference with his client's right to the presence and advice of retained counseland thus a denial of due process of law. MR. JUSTICE WHITE, concurring in the result. The issue in this case is not simply whether a lawyer may be held in contempt for advising his client to plead the Fifth Amendment. Obviously, put that *473 way, he may not. The issue is whether, after his client's self-incrimination objection to testifying or complying with a subpoena is overruled and his client is ordered to answer, the lawyer is in contempt of court when he advises the client not to obey the court's order. I agree with the Court's judgment that the contempt judgment against the lawyer cannot stand in the circumstances of this case. Although the proceeding in which he is called is not criminal, it is established that a witness may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him. The object of the Amendment "was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime." ; ; In any of these noncriminal contexts, therefore, "a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant." ; Kastigar v. United If the witness, having objected on Fifth Amendment grounds, is granted immunity against the use of his testimony and its fruits in a later prosecution, our cases hold that the danger of self-incrimination is removed and the privilege wholly satisfied. The purpose of the relevant part of the Fifth Amendment is to prevent compelled self-incrimination, not to protect private information. Testimony demanded of a witness may be very private indeed, but unless it is incriminating and protected
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| 1,975 | 12 |
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Maness v. Meyers
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very private indeed, but unless it is incriminating and protected by *474 the Amendment or unless protected by one of the evidentiary privileges, it must be disclosed. When the objection interposed is that of self-incrimination, a grant of immunity removes any ground for a refusal to answer and for a good-faith suggestion by counsel that the client not answer, however private his information may be. Should the attorney then advise his client not to answer, there should be no barrier to his conviction for contempt. But what of the case, such as we have here, where the claim of privilege is overruled because the witness has not carried his burden of demonstrating to the satisfaction of the trial judge that the sought-after answer may incriminate him and there is apparently no occasion for an assurance of immunity? It seems to me that in such event the witness is nevertheless protected by a constitutionally imposed use immunity if he answers in response to the order and under threat of contempt. If, contrary to the expectations of the judge but consistent with the claim of the witness and his lawyer, the State later finds the answer or its fruits incriminating and offers either against the witness in a criminal prosecution, the witness has a valid objection to the evidence on the ground that he was coerced by a court order to reveal it and that it is therefore compelled self-incrimination barred from use by the Fifth Amendment. In the State Attorney General summoned police officers to an inquiry into the fixing of traffic tickets. Following warnings that if they did not answer they would be removed from office and that anything they said might be used against them in a criminal proceeding, they were interrogated about the conduct of their official duties. No immunity of any kind was offered or available under state law. The questions were answered and the answers later used over their objections in a conspiracy prosecution of *475 the officers. The Court held that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic." reaffirmed this -, and declared that absent formal immunity protections, "if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United [ ]; [ ]." Given this ultimate immunity from being incriminated by his responses to his interrogation, a refusal
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| 1,975 | 12 |
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Maness v. Meyers
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being incriminated by his responses to his interrogation, a refusal to answer should subject the witness to contempt without the necessity of appellate review extending to the merits of the Fifth Amendment claim. If the State makes sufficiently clear that it recognizes this established rule, the attorney would have no business advising his client to disobey the court's order to answer. But the possibility, much less the reality, of a compelled answer, along with its fruits, being immunized from later use was hardly brought home to this petitioner or to his client. Had the client been granted immunity or had he been advised of its functional equivalentthat although he was not immune from criminal prosecution with respect to the subject matter of his answers, neither his answer nor its fruits could later be used against him, Kastigar v. United suprait may well have been that his choice, and the advice of petitioner, would have been quite different. As the matter stands, nothing of the sort was clear in this case to either the petitioner or to his client. As far as can be ascertained from this record, the trial judge insisted that petitioner's client answer without any assurance *476 then that the forthcoming answers could not be used to convict him in the event that the judge was wrong about their not being incriminating. I therefore agree that it was error to hold the attorney in contempt for advising his client not to answer. Cf. ; Sanitation At the very least, if there were still a live controversy between the State and petitioner's client, which apparently there is not, the contempt judgment would be vacated and the client would be given another opportunity to answer, having in mind the controlling constitutional principles.
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Mayor of Philadelphia v. Educational Equality League
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In 1965 the voters of Philadelphia approved a public education supplement to their city charter establishing the present structure of the Philadelphia Board of Education (the School Board or Board). The supplement, which appears as Art. XII of the city charter,[1] vests in the Mayor a double appointment power with regard to the School Board. The Mayor appoints the nine *607 members of the Board, but he is assisted-in that task by another entity that he also appoints, the Educational Nominating Panel (the Nominating Panel or Panel). The function of the Panel is to seek out qualified candidates for service on the School Board by polling civic organizations and the citizenry at large, to interview those candidates, to deliberate on their qualifications, and to submit selected nominees to the Mayor. The Panel submits three nominees for every vacancy on the Board. In his discretion, the Mayor may request an additional three nominees per vacancy. The Mayor must then make appointments to the School Board from among the nominees submitted by the Panel. The Nominating Panel consists of 13 members. Under the terms of the city charter, the Mayor appoints four members of the Panel from the citizenry at large. Each of the remaining members must be the highest ranking officer of one of nine categories of citywide organizations or institutions, such as a labor union council, a commerce organization, a public school parent-teachers association, a degree-granting institution of higher learning, and the like.[2] Although the city charter describes with *608 substantial specificity the nine categories of organizations or institutions whose leaders may serve on the Nominating Panel, the charter does not designate any particular organization or institution by name. Accordingly, it is possible for more than one such citywide entity to qualify under any given category. The members of the Nominating Panel serve two-year terms. A new Panel is appointed and convened in every odd-numbered year, when, in the ordinary course, three vacancies occur on the School Board.[3] Thus, since 1965 there have been five Panels. Mayor James J. H. Tate, whose term expired in 1972, appointed the 1965, 1967, 1969, and Panels. The present Mayor, Frank Rizzo, appointed the Panel. Respondents include the Educational Equality League,[4] the president of the League, another citizen of Philadelphia, and two students attending the city's public schools. Shortly after Mayor Tate's appointment *609 of the Nominating Panel, respondents filed this suit as a class action in the United States District Court for the Eastern District of Pennsylvania, relying on 42 U.S. C. 1983 and 28 U.S. C. 1343 (3). The gravamen of their
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Mayor of Philadelphia v. Educational Equality League
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and 28 U.S. C. 1343 (3). The gravamen of their complaint, which named the Mayor of Philadelphia and the Nominating Panel as defendants, was that Mayor Tate had violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against Negroes in his appointments to the Panel. Respondents sought an injunction barring the Panel from submitting nominees for the Board to the Mayor and a declaratory judgment that Mayor Tate had violated the Constitution. They also requested an order directing the Mayor to appoint a Nominating Panel "fairly representative of the racial composition of the school community." Respondents did not challenge the racial composition of the School Board, which consisted of two Negroes and seven whites when respondents filed their complaint and which now consists of three Negroes and six whites.[5] They did not allege that the Panel discriminated in its submission of School Board nominees to the Mayor.[6] Such an attack would have been difficult to *610 mount in any event. Of the nine nominees submitted to the Mayor by the Panel, four were Negroes and five were whites.[7] Moreover, respondents did not dispute the validity of the qualifications set forth in the city charter with regard to the Nominating Panel. Finally, despite the prayer in their complaint for an order directing the appointment of a Panel "fairly representative of the racial composition of the school community." respondents disclaimed any effort to impose a racial quota on the Mayor in his appointments to the Panel.[8] Respondents sought solely to establish that the Mayor unconstitutionally excluded qualified Negroes from consideration for membership on the Nominating Panel and to remedy that alleged defect prospectively as well as retrospectively.[9] Following two days of hearings, the District Court dismissed respondents' complaint Educational Equality In its findings of fact, the court noted that approximately 34% of the population of Philadelphia and approximately 60% of the students attending the city's various schools were Negroes. The court found the following racial composition of the Nominating *611 Panels from 1965 to : the 1965 Panel had 10 whites and three Negroes; the 1967 Panel had 11 whites and two Negroes; the 1969 Panel had 12 whites and one Negro; and the Panel had 11 whites and two Negroes.[10] at 1204. The court further found that "several organizations reflecting the views and participation of the black community" could qualify as organizations whose highest ranking officers might serve on the Nominating Panel. The court also found that Deputy Mayor Zecca, the person assigned by Mayor Tate to assist in selecting qualifying organizations and institutions, at the time of the
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selecting qualifying organizations and institutions, at the time of the hearing was unaware of the existence of many of these "black organizations." On the basis of its finding of fact, the District Court concluded that respondents had failed to prove that the Panel was appointed in violation of the Fourteenth Amendment. It held that differences between the percentage of Negroes in the city's population (34%) or in the student body of the public school system (60%) and the percentage of Negroes on the Nominating Panel (15%) had no significance. In large part this was because the number of positions on the Panel was too small to provide a reliable sample; the addition or subtraction of a single Negro meant an 8% change in racial composition. The court also rejected as unreliable data submitted by respondents in an effort to show that Mayor Tate's appointments to various positions in the city government other than the Panel reflected a disproportionately low *612 percentage of Negroes and a pattern of discrimination. Moreover, the court dismissed as inadmissible hearsay a 1969 newspaper account of an alleged statement by Mayor Tate that at that time he would appoint no more Negroes to the School Board. The Court of Appeals for the Third Circuit reversed. Educational Equality[11] Relying on statistical data about the Panel rejected by the District Court and going outside that court's findings of fact in other respects, the Court of Appeals concluded that respondents had established an unrebutted prima facie case of unlawful exclusion of Negroes from consideration for service on the Panel. Moreover, although the Mayor's office had changed hands while the case was sub judice and although there was nothing in the record addressed to the appointment practices of the new Mayor with regard to the Nominating Panel, the Court of Appeals directed the issuance of extensive injunctive relief against the new Mayor. In particular, the Court of Appeals ordered the District Court to undertake an ongoing supervision of the new Mayor's appointments to the Panel and future Panels. [12] *613 We granted the Mayor's petition for certiorari. We conclude that the Court of Appeals erred in overturning the District Court's findings and conclusions. We also hold that it erred in ordering prospective injunctive relief against the new Mayor in a case devoted exclusively to the personal appointment policies of his predecessor. I The Mayor's principal contention is that judicial review of the discretionary appointments of an executive officer contravenes basic separation-of-powers principles. The Mayor cites cases concerning discretionary appointments in the Federal Executive Branch, such as and He notes that
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the Federal Executive Branch, such as and He notes that Pennsylvania, like the Federal Government, has a tripartite governmental structure, and he argues that the principles shaping the appropriate scope of judicial review are the same at the state level as at the federal level. Neither the District Court nor the Court of Appeals addressed this argument at length. The District Court expressed its "reservations" about exerting control over "an elected chief executive in the exercise of his discretionary appointive power." 333 F. Supp., but that court based its dismissal of respondents' complaint on the absence of proof of discrimination. The Court of Appeals brushed aside the "reservations" of the District Court, concluding that the Nominating Panel was not intended to operate as part of the Mayor's staff and thus that the appointments were not discretionary. *614 472 F. 2d, at 617. And, although nine of the seats on the Panel are subject to restrictive qualifications embodied in the city charter, which are not challenged by respondents, the Court of Appeals proceeded as though this were a case where access to participation in a governmental or other entity or function is open to all citizens equally. Drawing by analogy from cases dealing with such incidents of citizenship as jury service and the right to nondiscrimination in employment, e. g., and (CA3), cert. denied, sub nom. New the court declared that "a prima facie case is established by a demonstration that blacks were under-represented [on the Panel] and that there was an opportunity for racial discrimination." 472 F.2d, We disagree with the Court of Appeals' conclusion that the appointments at issue are not discretionary. The court's view that the Panel is not a part of the staff of the mayor is not self-evident, as we understand the functions of the Panel. But in any event this is irrelevant to whether the Mayor's power to appoint the Panel is discretionary. Executive officers are often vested with discretionary appointment powers over officials who by no stretch of the imagination are members of the staff of the appointing officer. The appointment of judges is a familiar example. Likewise, the appointments to the Panel are discretionary by any reasonable measure. With regard to the four seats on the Panel devoted to the citizenry at large, the city charter holds the Mayor accountable only at the polls. And, although the charter narrows the Mayor's range of choice in filling the other nine seats, it remains true that the final selection of the membership of the Panel rests with the Mayor, subject always to the oversight of
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rests with the Mayor, subject always to the oversight of the voters. *615 It is also our view that the Court of Appeals did not assign appropriate weight to the constitutional considerations raised by the Mayor. To be sure, the Mayor's reliance on federal separation-of-powers precedents is in part misplaced, because this case, unlike those authorities, has nothing to do with the tripartite arrangement of the Federal Constitution.[13] But, to the degree that the principles cited by the Mayor reflect concern that judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency, they are in point. There are also delicate issues of federal-state relationships underlying this case. The federalism questions are made particularly complex by the interplay of the Equal Protection Clause of the Fourteenth Amendment, with its special regard for the status of the rights of minority groups and for the role of the Federal Government in protecting those rights. The difficulty of the issues at stake has been alluded to by the Court, without elaboration, as recently as in concerned a state governor's alleged discriminatory exclusion of Negroes in his discretionary appointments to a county jury commission. The Court found on the record an absence of proof of discrimination, but it nevertheless recognized "the problems that would be involved in a federal court's ordering the Governor of a State to exercise his discretion in a particular way"[14] *616 Were we to conclude that respondents had established racial discrimination in the selection process for the Panel, we would be compelled to address the "problems" noted in and raised by the Mayor. We need not go so far, however, because we find that this case founders on an absence of proof, even under the approach taken by the Court of Appeals. II The Court of Appeals bottomed its conclusion that the Fourteenth Amendment had been violated on three indicia, only one of which was based on a finding by the District Court. Whether taken singly or in combination, these factors provide no adequate basis for the court's conclusion that respondents had established a prima facie case of racial discrimination. First, the Court of Appeals relied on an alleged statement by Mayor Tate in 1969 that in filling the vacancies then open on the School Board he would appoint no Negroes in addition to the two already on -616. Respondents presented two items as evidence of this statement. During cross-examination of Deputy Mayor Zecca, counsel for respondents directed Mr. Zecca's attention to a 1969 newspaper article dealing with the
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Mayor of Philadelphia v. Educational Equality League
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Zecca's attention to a 1969 newspaper article dealing with the alleged statement. Deputy Mayor Zecca denied the accuracy of the newspaper account;[15] the *617 District Court ruled that the newspaper account was inadmissible hearsay.[16] The Court of Appeals made no mention of this newspaper account. Rather, although nothing that the District Court had made no finding on the subject, the court focused on the testimony of one of respondents' witnesses that Mayor Tate had made the 1969 statement.[17] The court apparently assumed the *618 truth of the statement, for it declared that the testimony was made "without contradiction or objection"[18] In our view, the Court of Appeals' reliance on the alleged 1969 statement was misplaced. Assuming the admissibility and reliability of such double hearsay,[19] we are unable to conclude that an ambiguous statement purportedly made in 1969 with regard to the racial composition of the then School Board proves anything with regard to the Mayor's motives two years later in appointing the Nominating Panel. The Court of Appeals noted that if the Mayor had in 1969 decided to exclude Negro nominees from appointment to the Board, "an inference may be drawn that the Mayor in similar manner excluded blacks from consideration as members *619 of the Panel." n. 9. That inference is supposition. It cannot be viewed as probative of a future intent to discriminate on the basis of race with regard to a different governmental entity. Furthermore, it is refuted by the fact that the Mayor later appointed Negroes to the Panel and, for that matter, to the School Board itself. Second, the Court of Appeals cited the District Court's finding that Deputy Mayor Zecca had been unaware of many "black-oriented organizations" that could qualify under the categories of organizations and institutions set out in the city charter. The court thought that, given Mr. Zecca's important position in the appointment process in his ignorance would "support an inference that the selection process had a discriminatory effect." This is another speculative inference. Deputy Mayor Zecca did not make the appointments to the Panels. That task belonged to Mayor Tate. It is unlikely that an elected mayor would be ignorant of any viable citywide organization or institution, particularly if he had held office for a number of years. Thus Deputy Mayor Zecca's unfamiliarity with certain organizations may not be imputed automatically to the official holding the appointment power. Moreover, there has been no showing in this record that Mr. Zecca's unawareness of organizations or institutions was restricted to what the Court of Appeals referred to as "black-oriented organizations." The Deputy Mayor
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Mayor of Philadelphia v. Educational Equality League
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of Appeals referred to as "black-oriented organizations." The Deputy Mayor may well have been equally uninformed of the existence of many other Philadelphia organizations and groups. As a third indicator of the exclusion of Negroes, the Court of Appeals again went outside the District Court's findings. As noted earlier, the District Court rejected as unreliable, percentage comparisons of the racial composition *620 of the Panel and of the population of 333 F. Supp., 1207. The Court of Appeals thought it unfortunate that "the parties did not introduce the expert testimony of a statistician on whether the frequency of black appointments to the 13-member Panel fell outside the range to be expected were race not a factor." 472 F.2d, but nevertheless found the small proportion of Negroes on the Panel "significant." This led the court to conclude that "the small proportion of blacks on the Panel points toward the possibility of discrimination." Statistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination in access to service on governmental bodies, particularly where, as in the case of jury service, the duty to serve falls equally on all citizens. E. g., ; ; See McDonnell Douglas But the simplistic percentage comparisons undertaken by the Court of Appeals lack real meaning in the context of this case. Respondents do not challenge the qualifications for service on the Panel set out in the charter, whereby nine of the 13 seats are restricted to the highest ranking officers of designated categories of citywide organizations and institutions. Accordingly, this is not a case in which it can be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded. At least with regard to nine seats on the Panel and assuming, arguendo, that percentage comparisons are meaningful in a case involving discretionary appointments, the relevant universe for comparison purposes consists of the highest ranking officers of the categories of *621 organizations and institutions specified in the city charter, not the population at large. The Court of Appeals overlooked this distinction. Furthermore, the District Court's concern for the smallness of the sample presented by the 13-member Panel was also well founded. The Court of Appeals erred in failing to recognize the importance of this flaw in straight percentage comparisons. In sum, the Court of Appeals' finding of racial discrimination rests on ambiguous testimony as to an alleged statement in 1969 by then Mayor Tate with regard to the 1969 School Board, not the Panel; the unawareness of certain organizations on
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Mayor of Philadelphia v. Educational Equality League
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Board, not the Panel; the unawareness of certain organizations on the part of a city official who did not have final authority over or responsibility for the challenged appointments; and racial-composition percentage comparisons that we think were correctly rejected by the District Court as meaningless. In our view, this type of proof is too fragmentary and speculative to support a serious charge in a judicial proceeding.[20] III The Court of Appeals prefaced its discussion of appropriate relief by noting that it would be "the district court's function to determine the precise nature *622 of the relief to which [respondents] are entitled." 472 F.2d, Nevertheless, the court held, in part, that the District Court "should enjoin the present Mayor from discriminating in regard to the or future Panels and should require that before the Panel is selected, the Mayor or his staff submit to the court evidence that organizations in the black community have received proper consideration." (Footnote omitted.) Mayor Tate was succeeded by Mayor Rizzo on January 3, 1972. The Court of Appeals issued its opinion on January 11, Accordingly, the injunctive orders mandated by the court with regard to the and future Panels would have run against Mayor Rizzo, not Mayor Tate. As its sole reason for directing such relief against Mayor Rizzo, the Court of Appeals noted that Mr. Zecca continued as Deputy Mayor under the Rizzo administration. n. 21. But petitioner alleges, and respondents do not deny, that under Mayor Rizzo's stewardship, Mr. Zecca no longer has any responsibility with regard to Panel appointments. Moreover, the entire case has been focused on the appointments made by Mayor Tate. Nothing in the record speaks to the appointment policies of Mayor Rizzo with regard to the Panel. Thus, the record does not support the premise that Mayor Rizzo's appointment record for the Panel will track that of his predecessor. Where there have been prior patterns of discrimination by the occupant of a state executive office but an intervening change in administration, the issuance of prospective coercive relief against the successor to the office must rest, at a minimum, on supplemental findings of fact indicating that the new officer will continue the practices of his predecessor. E. g., The Court of Appeals did not have the benefit of such findings at the time it instructed *623 the District Court to enter injunctive relief against Mayor Rizzo with regard to future Panels. The Court of Appeals therefore erred in its decision on remedies, as well as in concluding that respondents had established a violation of the Fourteenth Amendment. IV We turn,
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Mayor of Philadelphia v. Educational Equality League
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established a violation of the Fourteenth Amendment. IV We turn, finally, to the dissent's argument that this case should be remanded to the District Court for resolution of state law issues under the court's pendent jurisdiction or, in the alternative, for abstention so that the case may be tried from scratch in state court. This approach ignores what the parties have briefed and argued before us, espouses on behalf of respondents state law claims of barely colorable relevance to the instant suit, and would produce a result inconsistent with a commonsense application of the pendent jurisdiction and abstention doctrines. As the dissent concedes, post, at 642, its state law arguments were neither raised in the petition, argued in the briefs, nor articulated in oral argument before this Court. To address them would require us to disregard the admonition of Supreme Court Rule 23.1 (c) that "[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court." See also, e. g., ; National Licorice ; General Talking Pictures Moreover, the assertion that pendent jurisdiction is appropriate and that pendent state claims should be decided first presumes that the state claims have color and make it possible for the case to be "decided without reference to questions arising under the Federal Constitution." That is not true here. In their complaint, respondents set out the following four points of state law and no others: that the Panel was convened on May 28, whereas the Charter required May 25; that the Mayor appointed the chairman of the Panel, although the Charter allegedly restricts that appointment responsibility to the Panel itself; that one of the Mayor's appointees was not the highest ranking officer of the organization he represented; and that the Mayor appointed certain city officials to the Panel, in alleged contravention of the Charter. A decision for respondents on all of these issues would not have approached resolving the case nor would it have provided a basis for granting the relief to which respondents laid claim. These state law claims were wholly tangential to the principal theme of respondents' lawsuitan alleged violation of the Equal Protection Clause of the Fourteenth Amendment. It is hardly surprising that respondents have not pursued these claims at either stage of appellate review. In fact, respondents scarcely addressed them in the District Court. At the opening of the evidentiary hearings, the District Court asked counsel for respondents to describe the basis of the su Counsel responded that "the single issue in the case, as we have presented it, is whether there has
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Mayor of Philadelphia v. Educational Equality League
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case, as we have presented it, is whether there has been racial discrimination in violation of the Fourteenth Amendment in the composition of the Nominating Panel." Tr., Aug. 25, p. 4. There could be no clearer statement that a litigant's case turns on federal, rather than state, law. And respondents presented their case, as they had drafted their complaint, essentially as an exposition of federal law. To ignore all of this and to compel the District Court now to decide nondispositive state law questions would require a unique reading of the pendent jurisdiction doctrine. *625 Despite the language of the complaint, respondents' counsel's characterization of the suit before the District Court, and the almost exclusively federal character of the record, the dissent attributes to respondents an independent state law argument that the charter requires "a balanced racial composition on the Panel as a whole." (Emphasis added.) Post, at 638. In our view, this is a misreading of the record. Midway through the hearing, the District Court asked respondents whether they were asserting a claim under the language of the charter. Respondents' counsel replied in a manner that makes clear that he viewed the charter as merely supportive of the federal law claim and as a part only of a general "picture" or "image" of racial discrimination, not as an independent requirement of racial balance on the Panel as a whole.[21] *626 A reluctance by respondents to assert an independent claim that the charter requires racial balance on the whole Panel is not surprising if one focuses on the language of the charter itself. The only conceivably pertinent provision is 12-206 (c): "In order to represent adequately the entire community, the four other members of the Educational Nominating Panel shall be appointed by the Mayor from the citizenry at large." (Emphasis added.) As should be immediately apparent, the emphasized phrase, on which the dissent relies and which it apparently views as a requirement of racial balance, speaks only to the four at-large seats. The phrase does not address the nine seats restricted to the head of designated categories of citywide organizations and thus plainly does not address the Panel "as a whole." Thus, assuming the language is capable of carrying the meaning that the dissent would import to it and overlooking the fact that respondents did not set it out as an independent ground in their complaint or elsewhere, the provision is simply incapable of resolving a lawsuit addressed at all 13 seats on the Panel. As the District Court noted, "failing to appoint at-large members to adequately represent the entire
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Mayor of Philadelphia v. Educational Equality League
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"failing to appoint at-large members to adequately represent the entire community [is] not relevant in determining whether racial discrimination was involved with the appointments [to the Panel]"[22] *627 We also believe that the dissent's view of pendent jurisdiction as something akin to subject matter jurisdiction that may be raised sua sponte at any stage and that is capable of aborting prior federal court proceedings is a misreading of the law. "It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Mine See 6 C. Wright & A. Miller, Federal Practice and Procedure 813 To argue that the doctrine requires us to wipe out three levels of federal court litigation of a federal law issue on the off chance that a peripheral state law claim might have merit ignores the Court's recognition that the doctrine's "justification lies in considerations of judicial economy, convenience and fairness to litigants" Gibbs, at[23] *628 The dissent suggests in the alternative that the District Court be directed to abstain while the parties start this case all over again in state courts. This proposal comes nearly three years after the filing of the complaint and would produce delay attributable to abstention that the Court in recent years has sought to minimize. See, e. g., And abstention would be pointless since the state issues put forward by the dissent are plainly insufficient to merit such treatment. Moreover, the dissent's theme of the "paramount concern of avoiding constitutional questions, where possible" strikes a particularly jarring note in a civil rights case in which the plaintiffs asserted that "the single issue. is whether there has been racial discrimination in violation of the Fourteenth Amendment." Although we have no occasion to decide the issue here, there is substantial authority for the proposition that abstention is not favored in an equal protection, civil rights case brought as was this one under 42 U.S. C. 1983 and 28 U.S. C. 1343.[24] *629 We are in general accord, of course, with the dissent's view of the importance of the constitutional decision-avoidance principles articulated by Mr. Justice Brandeis in (6). But those standards are susceptible of misuse.[25] And we think that to commence relitigation of this case on an insubstantial state issue abandoned by the parties would be a serious abuse of the Ashwander standards. There simply is not "present some other ground upon which the case may be disposed of." The judgment is reversed. It is so ordered. APPENDIX TO OPINION OF THE COURT Philadelphia Home Rule Charter ARTICLE XII PUBLIC EDUCATION CHAPTER 1 THE HOME RULE
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Charter ARTICLE XII PUBLIC EDUCATION CHAPTER 1 THE HOME RULE SCHOOL DISTRICT Section 12-100. The Home Rule School District. A separate and independent home rule school district is hereby established and created to be known as "The School District of " Section 12-101. The New District to Take Over All Assets and Assume All Liabilities of the Predecessor School District. *630 The home rule school district shall (a) succeed directly the now existing school district for all purposes, including, but not limited to, receipt of all grants, gifts, appropriations, subsidies or other payments; (b) take over from the now existing school district all assets, property, real and personal, tangible and intangible, all easements and all evidences of ownership in part or in whole, and all records, and other evidences pertaining thereto; and (c) assume all debt and other contractual obligations of the now existing school district, any long term debt to be issued, secured and retired in the manner now provided by law. CHAPTER 2 THE BOARD OF EDUCATION Section 12-200. The Board Created; Its Function. There shall be a Board of Education of the School District of Philadelphia which shall be charged with the administration, management and operation of the home rule school district. Section 12-201. Members of the Board; Method of Selection. There shall be nine members of the Board of Education who shall be appointed by the Mayor from lists of names submitted to him by the Educational Nominating Panel Section 12-202. Eligibility for Board Membership. Members of the Board of Education shall be registered voters of the City. No person shall be eligible to be appointed to more than two full six-year terms. Section 12-203. Terms of Board Members. The terms of members of the Board of Education shall begin on the first Monday in December and shall be six *631 years except that (1) of the first members of the Board appointed three shall be appointed for terms of two years, three for terms of four years, and three for terms of six years. Section 12-204. Removal of Members of the Board. Members of the Board of Education may be removed as provided by law. Section 12-205. Vacancies on the Board. A vacancy in the office of member of the Board of Education shall be filled for the balance of the unexpired term in the same manner in which the member was selected who died or resigned. If a member of the Board is removed from office, the resulting vacancy shall be filled as provided by law. Section 12-206. Educational Nominating Panel; Method of Selection.
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https://www.courtlistener.com/opinion/108989/mayor-of-philadelphia-v-educational-equality-league/
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by law. Section 12-206. Educational Nominating Panel; Method of Selection. (a) The Mayor shall appoint an Educational Nominating Panel consisting of thirteen (13) members. Members of the Panel shall be registered voters of the City and shall serve for terms of two years from the dates of their appointment. (b) Nine members of the Educational Nominating Panel shall be the highest ranking officers of City-wide organizations or institutions which are, respectively: (1) a labor union council or other organization of unions of workers and employes organized and operated for the benefit of such workers and employes, (2) a council, chamber, or other organization established for the purpose of general improvement and benefit of commerce and industry, (3) a public school parent-teachers association, (4) a community organization of citizens established for the purpose of improvement of public education, *632 (5) a federation, council, or other organization of non-partisan neighborhood or community associations, (6) a league, association, or other organization established for the purpose of improvement of human and inter-group relations, (7) a non-partisan committee, league, council, or other organization established for the purpose of improvement of governmental, political, social, or economic conditions, (8) a degree-granting institution of higher education whose principal educational facilities are located within Philadelphia, and (9) a council, association, or other organization dedicated to community planning of health and welfare services or of the physical resources and environment of the City. (c) In order to represent adequately the entire community, the four other members of the Educational Nominating Panel shall be appointed by the Mayor from the citizenry at large. (d) In the event no organization as described in one of the clauses (1) through (9) of subsection (b) exists within the City, or in the event there is no such organization any one of whose officers is a registered voter of the City, the Mayor shall appoint the highest ranking officer who is a registered voter of the City from another organization or institution which qualifies under another clause of the subsection. (e) A vacancy in the office of member of the Educational Nominating Panel shall be filled for the balance of the unexpired term in the same manner in which the member was selected who died, resigned, or was removed. (f) The Educational Nominating Panel shall elect its own officers and adopt rules of procedure. *633 Section 12-207. The Educational Nominating Panel; Duties and Procedure. (a) The Mayor shall appoint and convene the Educational Nominating Panel (1) not later than May twenty-fifth of every odd-numbered year, and (2) whenever a vacancy occurs in the membership of
|
Justice Powell
| 1,974 | 17 |
majority
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Mayor of Philadelphia v. Educational Equality League
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https://www.courtlistener.com/opinion/108989/mayor-of-philadelphia-v-educational-equality-league/
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and (2) whenever a vacancy occurs in the membership of the Board of Education. (b) The Panel shall within forty (40) days submit to the Mayor three names of qualified persons for every place on the Board of Education which is to be filled. If the Mayor wishes an additional list of names, he shall so notify the Panel within twenty (20) days. Thereupon the Panel shall within thirty (30) days send to the Mayor an additional list of three qualified persons for each place to be filled. The Mayor shall within twenty (20) days make an appointment (d) The Educational Nominating Panel shall invite business, civic, professional, labor, and other organizations, as well as individuals, situated or resident within the City to submit for consideration by the Panel the names of persons qualified to serve as members of the Board of Education. (e) Nothing herein provided shall preclude the Panel from recommending and the Mayor from appointing or nominating persons who have previously served on any board of public education other than the Board of Education created by these charter provisions. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, and with whom MR.
|
Justice Marshall
| 1,986 | 15 |
dissenting
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New York v. PJ Video, Inc.
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https://www.courtlistener.com/opinion/111635/new-york-v-pj-video-inc/
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Under New York law, a film depicting specified sexual acts in a patently offensive manner is obscene if "the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex," and if "considered as a whole, it lacks serious literary, artistic, political, and scientific value." N. Y. Penal Law 235.00(1)(a), (c) (McKinney 1980). The question before this Court is whether three New York state courts erred in holding that the affidavits at issue in this case failed to establish probable cause that those standards were met.[1] The determination of what the standards of *885 235.00(1) mean and how they should be applied in individual cases, of course, is in the first instance a matter of state law and the rightful province of the state courts. While the majority describes it as "clear beyond peradventure," ante, at 876, that the affidavits set out the requisite probable cause, I do not find that result "clear" at all, and I would not overturn the state courts' contrary judgment. I The affidavits at issue in this case were first found inadequate at a suppression hearing in the Depew Justice Court. The court, per Justice Wick, noted that the issuing Magistrate had apparently not himself viewed the films, and that the retired state trooper who compiled the affidavits had "obviously paid no attention to contemporary community standards" and "made no further determination if the presentations had any literary, artistic, political or scientific value." App. to Pet. for Cert. A-37. Without stating clearly the exact basis of its decision, the court noted that "[t]he material contained [in the films] may be of the type proscribed by Section 235.05 of the Penal Law but equally, it may be `coarse, puerile, offensive and distasteful (and still not) obscene under the law or proscribable.' " at A-38, quoting The court granted respondents' suppression motion. The Erie County Court affirmed. Justice LaMendola noted the absence of a transcript of the proceedings, if any, before the issuing Magistrate, and declared it within the lower court's discretion to hold that "under New York law, the issuing magistrate had failed to make an adequate finding of probable cause because he relied solely on the affidavits of the police officers without any further investigation or viewing of the materials to be confiscated." App. to Pet. *886 for Cert. A-33. Justice LaMendola's reference to "further investigation or viewing" makes it plain that she did not regard the issuing Magistrate's viewing of the film as an invariable requisite to issuance of a warrant. The
|
Justice Marshall
| 1,986 | 15 |
dissenting
|
New York v. PJ Video, Inc.
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https://www.courtlistener.com/opinion/111635/new-york-v-pj-video-inc/
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as an invariable requisite to issuance of a warrant. The affidavits in this case, however, unsupported by further investigation, provided insufficient basis for a warrant authorization. The New York Court of Appeals affirmed. The court recognized that "the task of the issuing magistrate was not to decide guilt or innocence but to determine in a preliminary way from the information submitted and available to him whether there was probable cause to believe that the material to be seized was obscene within the tripartite definition of the statute." Applying that standard, it held the affidavits insufficient. Near the beginning of its opinion, the New York court reiterated this Court's recent direction that the Fourth Amendment be applied with " `scrupulous exactitude' " in cases of searches for and seizures of presumptively protected materials, ; see also and noted a "higher standard" for warrant determinations when books and films are seized, citing The New York court did not go on, however, to apply any extraordinary standard of scrutiny to the determination of probable cause. Rather, its holding was a simple one: "There must be enough information before [the issuing magistrate] in one form or other to enable him to judge the obscenity of the film, not of isolated scenes from it." The affidavits, the court explained, merely cataloged offensive sex acts depicted in the films. Such catalogs say nothing about the "predominant appeal" of a film, its impact "considered as a whole," or its overall literary or artistic value. "Undoubtedly, similar lists could readily be compiled by excerpting descriptions of scenes from books and movies having recognized *887 merit. Stanley Kubrick's `Clockwork Orange' and Federico Fellini's `Satyricon' come quickly to mind." Because obscenity law requires examination of the films as a whole, the court held, probable cause cannot be inferred from the description of a few excerpted scenes. II Taken in the abstract, the New York court's reasoning is unassailable. A mere listing of sex acts depicted in a film, or a description of excerpted scenes, says little about the predominant effect of the film considered as a whole. It says nothing about whether the film, considered as a whole, has any artistic value. And it says nothing about how the film should be regarded in light of contemporary community standards. Such a description, then, cannot establish even probable cause to believe that the film is obscene. "[S]ex and obscenity are not synonymous."[2] A magistrate armed only with such a description cannot " `focus searchingly on the question of obscenity,' " as the majority, ante, at 874, concedes he is obligated to
|
Justice Marshall
| 1,986 | 15 |
dissenting
|
New York v. PJ Video, Inc.
|
https://www.courtlistener.com/opinion/111635/new-york-v-pj-video-inc/
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the majority, ante, at 874, concedes he is obligated to do. The majority's rejection of the New York court's reasoning appears to derive from a largely unarticulated feeling that that reasoning is inappropriately applied in the present case. As a result, notwithstanding the sweeping legal principles set out in the majority's opinion, the decision of this case ultimately rests on the mundane application of clear law to *888 undisputed facts. The majority suggests that the New York court wrongly applied its law because the affidavits described more than excerpted scenes: they allowed the Magistrate to discern the " `general theme and serious value' " of the films, and established that sex acts " `pervaded' " each film. Ante, at 877. The problem with the majority's approach is that it is unsupported in the texts of the affidavits. Although a boilerplate sentence in each affidavit invokes the "content" of the films, and two of the affidavits conclusorily assert that certain sex acts are depicted "throughout" the film, the affidavits do not attempt to describe every scene in the films or even most of the scenes. Rather, the scenes described in the affidavits are simply those the author chose to describe. While descriptions of sex acts pervade the affidavits, it is hardly clear that depictions of sex acts pervade the films. Similarly, while the "general tone" of the affidavits is clear, we have little basis for a conclusion about the "general tone" of the films. The affidavits do not purport to be exhaustive. They can be meaningful in considering the artistic value of the films, taken as a whole, or the films' predominant appeal, only if one assumes that everything, or almost everything, worth noting in the films was incorporated into the affidavits. Nothing in the affidavits, however, justifies that assumption. The affidavits are precisely what the New York Court of Appeals condemned: mere listings of selected scenes from the films that involved depictions of sex. The films described could as well be "Last Tango in Paris." The majority's decision upholding a warrant authorization uninformed by any information relating to crucial elements of the definition of obscenity is especially incongruous because the majority overrules the institution most closely attuned to the content of those elements: the New York courts. The New York courts are well suited to decide whether, on the basis of "contemporary community standards," the information *889 supporting a warrant authorization allows the magistrate to focus searchingly on the question of obscenity, and to find probable cause that given material is obscene. The New York courts have unanimously held in
|
Justice Stevens
| 1,976 | 16 |
dissenting
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Buffalo Forge Co. v. Steelworkers
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https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
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A contractual undertaking not to strike is the union's normal quid pro quo for the employer's undertaking to submit grievances to binding The question in this case is whether that quid pro quo is severable into two partsone which a federal court may enforce by injunction and another which it may not. Less than three years ago all eight of my Brethren joined in an opinion which answered that question quite directly by stating that whether a district court has authority to enjoin a work stoppage "depends on whether the union was under a contractual duty not to strike." Gateway[1] The Court today holds that only a part of the union's quid pro quo is enforceable by injunction.[2] The principal *414 bases for the holding are (1) the Court's literal interpretation of the Norris-LaGuardia Act; and (2) its fear that the federal judiciary would otherwise make a "massive" entry into the business of contract interpretation heretofore reserved for arbitrators. The first argument has been rejected repeatedly in cases in which the central concerns of the Norris-LaGuardia Act were not implicated. The second is wholly unrealistic[3] and was implicitly rejected in Gateway when the Court held that "a substantial question of contractual interpretation" was a sufficient basis for federal equity jurisdiction. That case held that an employer might enforce a somewhat ambiguous quid pro quo; today the Court holds that a portion of the quid pro quo is unenforceable no matter how unambiguous it may be. With all respect, I am persuaded that a correct application of the reasoning underlying the landmark decision in Boys requires a different result. In order to explain my conclusion adequately, I first review the rationale of Boys Markets and then relate that rationale to the question presented by this case. *415 I Eight years before Boys Markets, the Court squarely held that the Norris-LaGuardia Act precluded a federal district court from enjoining a strike in breach of a no-strike obligation under a collective-bargaining agreement requiring arbitration of the underlying dispute. Sinclair Refining[4] To authorize the injunction in Boys Markets, the Court was therefore required to overrule a decision directly in point as well as to harmonize its holding with the language of the Norris-LaGuardia The Court found several reasons that compelled this result. First, the Court noted that injunctions enforcing a contractual commitment to arbitrate a grievance were not among the abuses against which the Norris-LaGuardia Act was aimed.[5] This of course, is clear from the declaration of policy in the Norris-LaGuardia Act itself,[6]*416 which plainly identifies a primary concern with protecting labor's ability to
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
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https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
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plainly identifies a primary concern with protecting labor's ability to organize and to bargain collectively. It was the history of injunctions against strike activity in furtherance of union organization, recognition, and collective bargaining, rather than judicial enforcement of collective-bargaining agreements, that led to the enactment of the Norris-LaGuardia Act in 1932.[7] As the *417 Court observed in Boys Markets, the climate of labor relations has been transformed since the passage of the Norris-LaGuardia Act, -251, and "the central purpose of the Norris-LaGuardia Act to foster the growth and viability of labor organizations is hardly retardedif anything, this goal is advancedby a remedial device that merely enforces the obligation that the union freely undertook under a specifically enforceable agreement to submit disputes to " It is equally clear that the present case does not implicate the central concerns of the Norris-LaGuardia Act; for it also deals with the enforceability of a collective-bargaining agreement rather than with the process by which such agreements are negotiated and formed. Second, the Court emphasized the relevance of the subsequently enacted statute enlarging the jurisdiction of federal courts to grant relief in labor disputes. Section 301 (a) of the Labor Management Relations Act expressly authorized federal jurisdiction of suits for violation of collective-bargaining agreements without respect to the amount in controversy or the citizenship of the parties. That provision was viewed as supporting the collective-bargaining process, for employers would have more incentive to enter into agreements with unions *418 if they were mutually enforceable than if they were not. With specific reference to the value of an enforceable commitment to arbitrate grievance disputes, Boys Markets emphasized the importance of the union's no-strike commitment as the quid pro quo for the employer's undertaking to submit disputes to [8] And in many collective-bargaining agreements, the employer *419 has agreed to mandatory arbitration only in exchange for a no-strike clause that extends beyond strikes over arbitrable disputes.[9] It is therefore simply wrong to argue, as the Court does, that the strike in this case could not have had the purpose or effect "of depriving the employer of his bargain." Ante, at 408. If the sympathy strike in this case violates the Union's no-strike pledge, the same public interest in an enforceable quid pro quo is present here as in Boys Markets. The Union contends, however, that this strike did not violate its contract, or at least, that it has not yet been decided that it does. Accordingly, this portion of the rationale of Boys Markets applies only to the extent of the certainty that the sympathy strike falls within
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
extent of the certainty that the sympathy strike falls within the no-strike clause. Third, the Court relied upon a line of cases in which the language of the Norris-LaGuardia Act had not been given controlling effect. Several decisions had held that the federal courts could issue injunctions in labor disputes to compel employers and unions to fulfill their obligations under the Railway Labor Act,[10] notwithstanding "the earlier and more general provisions of the Norris-LaGuardia " Virginian R. Accord, Railroad ; These decisions culminated in Railroad which held that a federal court could enjoin a strike by a railroad union over a dispute subject to mandatory arbitration under the Railway Labor The Norris-LaGuardia Act was held not to bar the injunction because of "the need to accommodate *420 two statutes, when both were adopted as a part of a pattern of labor legislation." See Chicago & N. W. R. In Textile the Court relied on the same rationale to hold that 301 (a) of the Labor Management Relations Act conferred jurisdiction upon the district courts to grant the union specific enforcement of an arbitration clause in a collective-bargaining agreement. Speaking for the Court, Mr. Justice Douglas noted that the legislative history of 301 (a) "is somewhat cloudy and confusing" but that the conference report had stated that once the parties had made a collective-bargaining agreement, its enforcement " `should be left to the usual processes of the law.' " quoting H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 42 (1947). He added: "Both the Senate and the House took pains to provide for `the usual processes of the law' by provisions which were the substantial equivalent of 301 (a) in its present form. Both the Senate and the House indicate a primary concern that unions as well as employees should be bound to collective bargaining contracts. But there was also a broader concern a concern with a procedure for making such agreements enforceable in the courts by either party. At one point the Senate [S. Rep. No. 105, 80th Cong., 1st Sess. (1947),] states, `We feel that the aggrieved party should also have a right of action in the Federal courts. Such a policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was "to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made" ' *421 "Congress was also interested in promoting collective bargaining that ended with agreements not to strike. The Senate p. 16 states: " `If unions
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
to strike. The Senate p. 16 states: " `If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract. " `Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entities in the Federal courts in disputes affecting commerce.' "Thus collective bargaining contracts were made `equally binding and enforceable on both parties.' As stated in the House [H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947),] p. 6, the new provision `makes labor organizations equally responsible with employers for contract violations and provides for suit by either against the other in the United States district courts.' To repeat, the Senate summed up the philosophy of 301 as follows: `Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. *422 It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace.' "Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way." -455 With direct reference to the argument that jurisdiction was withdrawn by the Norris-LaGuardia Act, Mr. Justice Douglas pointed out that even though a literal reading of that statute might bring the dispute within its terms, there was no policy justification for restricting 301 (a) to damages suits and subjecting specific performance of an agreement to arbitrate grievance disputes to the inapposite provisions of that These decisions and the holding of Boys Markets itself, make clear that the literal wording of the Norris-LaGuardia Act is not an insuperable obstacle to specific enforcement of a no-strike commitment in accordance with "the usual processes of the
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
no-strike commitment in accordance with "the usual processes of the law."[11] *423 Fourth, Boys Markets stressed one anomalous consequence of Sinclair. In many state jurisdictions a no-strike clause could be enforced by injunction. The enactment of 301 (a), which was intended to provide an additional forum for the enforcement of collective bargaining agreements,[12] made it possible to remove state litigation to the federal forum,[13] and then to foreclose any injunctive relief by reliance on the Norris-LaGuardia -247. This incongruous result could not easily be squared with the intent of Congress in 301 (a) to confer concurrent jurisdiction upon the state courts. That argument applies with equal force to this case. Finally, Boys Markets emphasized the strong federal policy favoring settlement of labor disputes by -243. Since, apart from statutory authorization, this method of settling disputes is available only when authorized by agreement between the parties, the policy favoring arbitration equally favors the making of enforceable agreements to arbitrate. For that reason, Boys Markets also emphasized the importance of ensuring enforceability of the union's quid pro quo for the employer's agreement to submit grievance disputes to A sympathy strike in violation of a no-strike clause does *424 not directly frustrate the arbitration process, but if the clause is not enforceable against such a strike, it does frustrate the more basic policy of motivating employers to agree to binding arbitration by giving them an effective "assurance of uninterrupted operation during the term of the agreement."[14] This portion of Boys Markets is therefore not entirely applicable to the present case. Accordingly, it is essential to consider the importance of arbitration to the holding in Boys Markets. To that question I now turn. II The Boys Markets decision protects the arbitration process. A court is authorized to enjoin a strike over a grievance which the parties are contractually bound to arbitrate, but that authority is conditioned upon a finding that the contract does so provide, that the strike is in violation of the agreement, and further that the issuance of an injunction is warranted by ordinary principles of equity.[15] These conditions plainly stated in Boys Markets demonstrate that the interest in protecting the arbitration process is not simply an end in *425 itself which exists at large and apart from other fundamental aspects of our national labor policy. On the one hand, an absolute precondition of any Boys Markets injunction is a contractual obligation. A court may not order arbitration unless the parties have agreed to that process; nor can the court require the parties to accept an arbitrator's decision unless they have agreed
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
parties to accept an arbitrator's decision unless they have agreed to be bound by it. Accord, Gateway -384. If the union reserves the right to resort to self-help at the conclusion of the arbitration process, that agreement must be respected.[16] The court's power is limited by the contours of the agreement between the parties.[17] On the other hand, the arbitration procedure is not merely an exercise; it performs the important purpose of determining what the underlying agreement actually means as applied to a specific setting. If the parties have agreed to be bound by the arbitrator's decision, the reasons which justify an injunction against a strike that would impair his ability to reach a decision must equally justify an injunction requiring the parties to abide by a decision that a strike is in violation of the no-strike clause.[18] The arbitration mechanism would hardly retain its respect as a method of resolving disputes if the *426 end product of the process had less significance than the process itself. The net effect of the arbitration process is to remove completely any ambiguity in the agreement as it applies to an unforeseen, or undescribed, set of facts. But if the specific situation is foreseen and described in the contract itself with such precision that there is no need for interpretation by an arbitrator, it would be reasonable to give the same legal effect to such an agreement prior to the arbitrator's decision.[19] In this case, the question whether the sympathy strike violates the no-strike clause is an arbitrable issue. If the court had the benefit of an arbitrator's resolution of the issue in favor of the employer, it could enforce that decision just as it could require the parties to submit the issue to And if the agreement were so plainly unambiguous that there could be no bona fide issue to submit to the arbitrator, there must be the same authority to enforce the parties' bargain pending the arbitrator's final decision.[20] *427 The Union advances three arguments against this conclusion: (1) that interpretation of the collective-bargaining agreement is the exclusive province of the arbitrator; (2) that an injunction erroneously entered pending arbitration will effectively deprive the union of the right to strike before the arbitrator can render his decision; and (3) that it is the core purpose of the Norris-LaGuardia Act to eliminate the risk of an injunction against a lawful strike.[21] Although I acknowledge the force of these arguments, I think they are insufficient to take this case outside the rationale of Boys Markets. The Steelworkers trilogy[22] establishes that a collective-bargaining agreement
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
Boys Markets. The Steelworkers trilogy[22] establishes that a collective-bargaining agreement submitting all questions of contract interpretation to the arbitrator deprives the courts of *428 almost all power to interpret the agreement to prevent submission of a dispute to arbitration or to refuse enforcement of an arbitrator's award. Boys Markets itself repeated the warning that it was not for the courts to usurp the functions of the arbitrator. -243. And Gateway held that an injunction may issue to protect the arbitration process even if a "substantial question of contractual interpretation" must be answered to determine whether the strike is over an arbitrable -384. In each of these cases, however, the choice was between interpretation of the agreement by the court or interpretation by the arbitrator; a decision that the dispute was not arbitrable, or not properly arbitrated, would have precluded an interpretation of the agreement according to the contractual grievance procedure. In the present case, an interim determination of the no-strike question by the court neither usurps nor precludes a decision by the arbitrator. By definition, issuance of an injunction pending the arbitrator's decision does not supplant a decision that he otherwise would have made. Indeed, it is the ineffectiveness of the damages remedy for strikes pending arbitration that lends force to the employer's argument for an injunction.[23] The court does not oust the arbitrator of his proper function but fulfills a role that he never served. The Union's second point, however, is that the arbitrator will rarely render his decision quickly enough to prevent an erroneously issued injunction from effectively depriving the union of its right to strike. The Union relies particularly upon decisions of this Court that recognize that even a temporary injunction can quickly end a strike.[24] But this argument demonstrates only that *429 arbitration, to be effective, must be prompt, not that the federal courts must be deprived entirely of jurisdiction to grant equitable relief. Denial of an injunction when a strike violates the agreement may have effects just as devastating to an employer as the issuance of an injunction may have to the union when the strike does not violate the agreement. Furthermore, a sympathy strike does not directly further the economic interests of the members of the striking local or contribute to the resolution of any dispute between that local, or its members, and the employer.[25] On the contrary, it is the source of a new dispute which, if the strike goes forward, will impose costs on the strikers, the employer, and the public without prospect of any direct benefit to any of these parties.
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
prospect of any direct benefit to any of these parties. A rule that authorizes postponement of a sympathy strike pending an arbitrator's clarification of the no-strike clause will not critically impair the vital interests of the striking local even if the right to strike is upheld, and will avoid the costs of interrupted production if the arbitrator concludes that the no-strike clause applies. *430 Finally, the Norris-LaGuardia Act cannot be interpreted to immunize the union from all risk of an erroneously issued injunction. Boys Markets itself subjected the union to the risk of an injunction entered upon a judge's erroneous conclusion that the dispute was arbitrable and that the strike was in violation of the no-strike clause, 398 U.S., Gateway subjected the union to a still greater risk, for the court there entered an injunction to enforce an implied no-strike clause despite the fact that the arbitrability of the dispute, and hence the legality of the strike over the dispute, presented a "substantial question of contractual interpretation." ; see at n. 10. The strict reading that the Union would give the Norris-LaGuardia Act would not have permitted this result.[26] *431 These considerations, however, do not support the conclusion that a sympathy strike should be temporarily enjoined whenever a collective-bargaining agreement contains a no-strike clause and an arbitration clause. The accommodation between the Norris-LaGuardia Act and 301 (a) of the Labor Management Relations Act allows the judge to apply "the usual processes of the law" but not to take the place of the arbitrator. Because of the risk that a federal judge, less expert in labor matters than an arbitrator, may misconstrue general contract language, I would agree that no injunction or temporary restraining order should issue without first giving the union an adequate opportunity to present evidence and argument, particularly upon the proper interpretation of the collective-bargaining agreement; the judge should not issue an injunction without convincing evidence that the strike is clearly within the no-strike clause.[27] Furthermore, to protect the efficacy of arbitration, any such injunction should require the parties to submit the issue immediately to the contractual grievance procedure, and if the union so requests, at the last stage and upon an expedited schedule that assures a decision by the arbitrator as soon as practicable. Such stringent conditions would insure that only strikes in violation of the agreement would be enjoined and that the union's access to the arbitration process would not be foreclosed by the combined effect of a temporary injunction and protracted grievance procedures. Finally, as in Boys *432 Markets, the normal conditions of equitable relief
|
Justice Stevens
| 1,976 | 16 |
dissenting
|
Buffalo Forge Co. v. Steelworkers
|
https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/
|
in Boys *432 Markets, the normal conditions of equitable relief would have to be met.[28] Like the decision in Boys Markets, this opinion reflects, on the one hand, my confidence that experience during the decades since the Norris-LaGuardia Act was passed has dissipated any legitimate concern about the impartiality of federal judges in disputes between labor and management, and on the other, my continued recognition of the fact that judges have less familiarity and expertise than arbitrators and administrators who regularly work in this specialized area. The decision in Boys Markets requires an accommodation between the Norris-LaGuardia Act and the Labor Management Relations I would hold only that the terms of that accommodation do not entirely deprive the federal courts of all power to grant any relief to an employer, threatened with irreparable injury from a sympathy strike clearly in violation of a collective-bargaining agreement, regardless of the equities of his claim for injunctive relief pending Since in my view the Court of Appeals erroneously held that the District Court had no jurisdiction to enjoin the Union's sympathy strike, I would reverse and remand for consideration of the question whether the employer is entitled to an injunction.
|
Justice Blackmun
| 1,988 | 11 |
dissenting
|
Bowen v. Kendrick
|
https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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In 1981, Congress enacted the Adolescent Family Life Act (AFLA), 42 US C 300z et seq (1982 ed and Supp IV), thereby "involv[ing] families[,] religious and charitable organizations, voluntary associations, and other groups," 300z-5(a)(21), in a broad-scale effort to alleviate some of the problems associated with teenage pregnancy It is unclear whether Congress ever envisioned that public funds would pay for a program during a session of which parents and teenagers would be instructed: "You want to know the church teachings on sexuality You are the church You people sitting here are the body of Christ The teachings of you and the things you value are, in fact, the values of the Catholic Church" App 226 Or of curricula that taught: "The Church has always taught that the marriage act, or intercourse, seals the union of husband and wife, (and is a representation of their union on all levels) Christ commits Himself to us when we come to ask for the sacrament of marriage We ask Him to be active in our life God is love We ask Him to share His love in ours, and God procreates with us, He enters into our physical union with Him, and we begin new life" Or the teaching of a method of family planning described on the grant application as "not only a method of birth regulation but also a philosophy of procreation," and promoted as helping "spouses who are striving to transform their married life into testimony[,] to cultivate their matrimonial spirituality[, and] to make themselves better instruments *626 in God's plan," and as "facilitat[ing] the evangelization of homes" Whatever Congress had in mind, however, it enacted a statute that facilitated and, indeed, encouraged the use of public funds for such instruction, by giving religious groups a central pedagogical and counseling role without imposing any restraints on the sectarian quality of the participation As the record developed thus far in this litigation makes all too clear, federal tax dollars appropriated for AFLA purposes have been used, with Government approval, to support religious teaching Today the majority upholds the facial validity of this statute and remands the action to the District Court for further proceedings concerning appellees' challenge to the manner in which the statute has been applied Because I am firmly convinced that our cases require invalidating this statutory scheme, I dissent I The District Court, troubled by the lack of express guidance from this Court as to the appropriate manner in which to examine Establishment Clause challenges to an entire statute as well as to specific instances of its implementation,
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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statute as well as to specific instances of its implementation, reluctantly proceeded to analyze the AFLA both "on its face" and "as applied" Thereafter, on cross-motions for summary judgment supported by an extensive record of undisputed facts, the District Court applied the three-pronged analysis of and declared the AFLA unconstitutional both facially and as applied The majority acknowledges that this Court in some cases has passed on the facial validity of a legislative enactment and in others limited its analysis to the particular applications at issue; yet, while confirming that the District Court was justified in analyzing the AFLA both ways, the Court fails to elaborate on the consequences that flow from the analytical division *627 While the distinction is sometimes useful in constitutional litigation, the majority misuses it here to divide and conquer appellees' challenge[1] By designating appellees' broad attack on the statute as a "facial" challenge, the majority justifies divorcing its analysis from the extensive record developed in the District Court, and thereby strips the challenge of much of its force and renders the evaluation of the Lemon "effects" prong particularly sterile and meaningless By characterizing appellees' objections to the real-world operation of the AFLA an "as-applied" challenge, the Court risks misdirecting the litigants and the lower courts toward piece-meal litigation continuing indefinitely throughout the life of the AFLA In my view, a more effective way to review Establishment Clause challenges is to look to the type of relief *628 prayed for by the plaintiffs, and the force of the arguments and supporting evidence they marshal Whether we denominate a challenge that focuses on the systematically unconstitutional operation of a statute a "facial" challenge because it goes to the statute as a whole or an "as-applied" challenge because we rely on real-world events the Court should not blind itself to the facts revealed by the undisputed record[2] As is evident from the parties' arguments, the record compiled below, and the decision of the District Court, this law-suit has been litigated primarily as a broad challenge to the statutory scheme as a whole, not just to the awarding of grants to a few individual applicants The thousands of pages of depositions, affidavits, and documentary evidence were not intended to demonstrate merely that particular grantees should not receive further funding Indeed, because of the 5-year grant cycle, some of the original grantees are no longer AFLA participants This record was designed to show that the AFLA had been interpreted and implemented by the Government in a manner that was clearly unconstitutional, and appellees sought declaratory and
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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manner that was clearly unconstitutional, and appellees sought declaratory and injunctive relief as to the entire statute *629 In discussing appellees' as-applied challenge, the District Court recognized that their objections went further than the validity of the particular grants under review: "The undisputed record before the Court transforms the inherent conflicts between the AFLA and the Constitution into reality While the Court will not engage in an exhaustive recitation of the record, references to representative portions of the record reveal the extent to which the AFLA has in fact `directly and immediately' advanced religion, funded `pervasively sectarian' institutions, or permitted the use of federal tax dollars for education and counseling that amounts to the teaching of religion" The majority declines to accept the District Court's characterization of the record, yet fails to review it independently, relying instead on its assumptions and casual observations about the character of the grantees and potential grantees[3]*630 See ante, at 610, 611-612, 616-617 In doing so, the Court neglects its responsibilities under the Establishment Clause and gives uncharacteristically short shrift to the District Court's understanding of the facts[4] II Before proceeding to apply Lemon's three-part analysis to the AFLA, I pause to note a particular flaw in the majority's method A central premise of the majority opinion seems to be that the primary means of ascertaining whether a statute that appears to be neutral on its face in fact has the effect of advancing religion is to determine whether aid flows to "pervasively sectarian" institutions See ante, at 609-610, 616, 621 This misplaced focus leads the majority to ignore the substantial body of case law the Court has developed in analyzing programs providing direct aid to parochial schools, *631 and to rely almost exclusively on the few cases in which the Court has upheld the supplying of aid to private colleges, including religiously affiliated institutions "Pervasively sectarian," a vaguely defined term of art, has its roots in this Court's recognition that government must not engage in detailed supervision of the inner workings of religious institutions, and the Court's sensible distaste for the "picture of state inspectors prowling the halls of parochial schools and auditing classroom instruction," ; see also ; Under the "effects" prong of the Lemon test, the Court has used one variant or another of the pervasively sectarian concept to explain why any but the most indirect forms of government aid to such institutions would necessarily have the effect of advancing religion For example, in the Court explained: "[I]t would simply ignore reality to attempt to separate secular educational functions from the predominantly
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools and to then characterize Act 195 as channeling aid to the secular without providing direct aid to the sectarian" See also The majority first skews the Establishment Clause analysis by adopting a cramped view of what constitutes a pervasively sectarian institution Perhaps because most of the Court's decisions in this area have come in the context of aid to parochial schools, which traditionally have been characterized as pervasively sectarian, the majority seems to equate the characterization with the institution[5] In support of that *632 illusion, the majority relies heavily on three cases in which the Court has upheld direct government funding to liberal arts colleges with some religious affiliation, noting that such colleges were not "pervasively sectarian" But the happenstance that the few cases in which direct-aid statutes have been upheld have concerned religiously affiliated liberal arts colleges no more suggests that only parochial schools should be considered "pervasively sectarian," than it suggests that the only religiously affiliated institutions that may ever receive direct government funding are private liberal arts colleges In fact, the cases on which the majority relies have stressed that the institutions' "predominant higher education mission is to provide their students with a secular education" ; see (internal quotations omitted); In sharp contrast, the District Court here concluded that AFLA grantees and participants included "organizations with institutional ties to religious denominations and corporate requirements that the organizations abide by and not contradict religious doctrines In addition, other recipients of AFLA funds, while not explicitly affiliated with a religious denomination, are religiously inspired and dedicated to teaching the dogma that inspired them" (emphasis *633 added) On a continuum of "sectarianism" running from parochial schools at one end to the colleges funded by the statutes upheld in Hunt, and at the other, the AFLA grantees described by the District Court clearly are much closer to the former than to the latter More importantly, the majority also errs in suggesting that the inapplicability of the label is generally dispositive While a plurality of the Court has framed the inquiry as "whether an institution is so `pervasively sectarian' that it may receive no direct state aid of any kind," the Court never has treated the absence of such a finding as a license to disregard the potential for impermissible fostering of religion The characterization of an institution as "pervasively sectarian" allows us to eschew further inquiry into the use that will be made of direct government aid In that
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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that will be made of direct government aid In that sense, it is a sufficient, but not a necessary, basis for a finding that a challenged program creates an unacceptable Establishment Clause risk The label thus serves in some cases as a proxy for a more detailed analysis of the institution, the nature of the aid, and the manner in which the aid may be used The voluminous record compiled by the parties and reviewed by the District Court illustrates the manner in which the AFLA has been interpreted and implemented by the agency responsible for the aid program, and eliminates whatever need there might be to speculate about what kind of institutions might receive funds and how they might be selected; the record explains the nature of the activities funded with Government money, as well as the content of the educational programs and materials developed and disseminated There is no basis for ignoring the volumes of depositions, pleadings, and undisputed facts reviewed by the District Court simply because the recipients of the Government funds may not in every sense resemble parochial schools *634 III As is often the case, it is the effect of the statute, rather than its purpose, that creates Establishment Clause problems Because I have no meaningful disagreement with the majority's discussion of the AFLA's essentially secular purpose, and because I find the statute's effect of advancing religion dispositive, I turn to that issue directly A The majority's holding that the AFLA is not unconstitutional on its face marks a sharp departure from our precedents While aid programs providing nonmonetary, verifiably secular aid have been upheld notwithstanding the indirect effect they might have on the allocation of an institution's own funds for religious activities, see, e g, of ; Everson v of Education, direct cash subsidies have always required much closer scrutiny into the expected and potential uses of the funds, and much greater guarantees that the funds would not be used inconsistently with the Establishment Clause Parts of the AFLA prescribing various forms of outreach, education, and counseling services[6] specifically authorize the expenditure of funds in ways previously held unconstitutional For example, the Court has upheld the use of public funds to support a parochial school's purchase of secular textbooks already approved for use in public schools, see ; -362, or its grading and administering of state-prepared tests, Committee for Public Education & Religious When the books, teaching materials, or examinations were to *635 be selected or designed by the private schools themselves, however, the Court consistently has held that such government aid risked advancing
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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Court consistently has held that such government aid risked advancing religion impermissibly See, e g, -251; ; -621 The teaching materials that may be purchased, developed, or disseminated with AFLA funding are in no way restricted to those already selected and approved for use in secular contexts[7] Notwithstanding the fact that Government funds are paying for religious organizations to teach and counsel impressionable adolescents on a highly sensitive subject of considerable religious significance, often on the premises of a church or parochial school and without any effort to remove religious symbols from the -1566, the majority concludes that the AFLA is not facially invalid The majority acknowledges the constitutional proscription on *636 government-sponsored religious indoctrination but, on the basis of little more than an indefensible assumption that AFLA recipients are not pervasively sectarian and consequently are presumed likely to comply with statutory and constitutional mandates, dismisses as insubstantial the risk that indoctrination will enter counseling Ante, at 611-612 Similarly, the majority rejects the District Court's conclusion that the subject matter renders the risk of indoctrination unacceptable, and does so, it says, because "the likelihood that some of the religious institutions who receive AFLA funding will agree with the message that Congress intended to deliver to adolescents through the AFLA" does not amount to the advancement of religion Ante, at 613 I do not think the statute can be so easily and conveniently saved (1) The District Court concluded that asking religious organizations to teach and counsel youngsters on matters of deep religious significance, yet expect them to refrain from making reference to religion is both foolhardy and unconstitutional The majority's rejection of this view is illustrative of its doctrinal misstep in relying so heavily on the college-funding cases The District Court reasoned: "To presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic Even if it were possible, government would tread impermissibly on religious liberty merely by suggesting that religious organizations instruct on doctrinal matters without any conscious or unconscious reference to that doctrine Moreover, the statutory scheme is fraught with the possibility that religious beliefs might infuse instruction and never be detected by the impressionable and unlearned adolescent to whom the instruction is directed" (emphasis in original) *637 The majority rejects the District Court's assumptions as unwarranted outside the context of a pervasively sectarian institution In doing so, the majority places inordinate weight on the nature of the institution receiving the funds, and ignores altogether the targets of the funded message and
|
Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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and ignores altogether the targets of the funded message and the nature of its content I find it nothing less than remarkable that the majority relies on statements expressing confidence that administrators of religiously affiliated liberal arts colleges would not breach statutory proscriptions and use government funds earmarked "for secular purposes only," to finance theological instruction or religious worship, see ante, at 612, citing -761, and in order to reject a challenge based on the risk of indoctrination inherent in "educational services relating to family life and problems associated with adolescent premarital sexual relations," or "outreach services to families of adolescents to discourage sexual relations among unemancipated minors" 300z-1(a)(4)(G), (O) The two situations are simply not comparable[8] *638 The AFLA, unlike any statute this Court has upheld, pays for teachers and counselors, employed by and subject to the direction of religious authorities, to educate impressionable young minds on issues of religious moment Time and again we have recognized the difficulties inherent in asking even the best-intentioned individuals in such positions to make "a total separation between secular teaching and religious doctrine" Accord, ; -371; ; ; Grand Rapids School Where the targeted audience is composed of children, of course, the Court's insistence on adequate safeguards has always been greatest See, e g, Grand Rapids School 390; Committee for Public Education & Religious v Nyquist, -624 In those cases in which funding of colleges with religious affiliations has been upheld, the Court has relied on the assumption that "college students are less impressionable and less susceptible to religious indoctrination The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations" See also (2) By observing that the alignment of the statute and the religious views of the grantees do not render the AFLA a statute which funds "specifically religious activity," the majority *639 makes light of the religious significance in the counseling provided by some grantees Yet this is a dimension that Congress specifically sought to capture by enlisting the aid of religious organizations in battling the problems associated with teenage pregnancy See S Rep No 97-161, pp 15-16 ; S Rep No 98-496, pp 9-10 (1984) Whereas there may be secular values promoted by the AFLA, including the encouragement of adoption and premarital chastity and the discouragement of abortion, it can hardly be doubted that when promoted in theological terms by religious figures, those values take on a religious nature Not surprisingly, the record is replete with observations to that effect[9] It *640 should be undeniable by now
|
Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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to that effect[9] It *640 should be undeniable by now that religious dogma may not be employed by government even to accomplish laudable secular purposes such as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature" Abington School ; [10] It is true, of course, that the Court has recognized that the Constitution does not prohibit the government from supporting secular social-welfare services solely because they are provided by a religiously affiliated organization See ante, at 609 But such recognition has been closely tied to the nature of the subsidized social service: "the State may send a *641 cleric, indeed even a clerical order, to perform a wholly secular task" There is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them The risk of advancing religion at public expense, and of creating an appearance that the government is endorsing the medium and the message, is much greater when the religious organization is directly engaged in pedagogy, with the express intent of shaping belief and changing behavior, than where it is neutrally dispensing medication, food, or shelter[11] There is also, of course, a fundamental difference between government's employing religion because of its unique appeal to a higher authority and the transcendental nature of its message, and government's enlisting the aid of religiously committed individuals or organizations without regard to their sectarian motivation In the latter circumstance, religion plays little or no role; it merely explains why the individual or organization has chosen to get involved in the publicly funded program In the former, religion is at the core of the subsidized activity, and it affects the manner in which the "service" is dispensed For some religious organizations, *642 the answer to a teenager's question "Why shouldn't I have an abortion?" or "Why shouldn't I use barrier contraceptives?" will undoubtedly be different from an answer based solely on secular considerations[12] Public funds may not be used to endorse the religious message B The problems inherent in a statutory scheme specifically designed to involve religious organizations in a government-funded pedagogical program are compounded by the lack of any statutory restrictions on the use of federal tax dollars to promote religion Conscious of the remarkable omission from the AFLA of any restriction whatsoever on the use of public funds for sectarian purposes, the Court disingenuously argues that we have "never stated that a statutory restriction is constitutionally required" Ante, at 6
|
Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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that a statutory restriction is constitutionally required" Ante, at 6 In this Court upheld a statute providing grants and loans to colleges for the construction of academic facilities because it "expressly prohibit[ed] their use for religious instruction, training, or worship and the record show[ed] that some church-related institutions ha[d] been required to disgorge benefits for failure to obey" the restriction, -680, but severed and struck a provision of the statute that permitted the restriction to lapse after 20 years The Court noted that the statute required applicants to *643 provide assurances only that use of the funded facility would be limited to secular purposes for the initial 20-year period, and that this limitation, "obviously opens the facility to use for any purpose at the end of that period" Because they expired after 20 years, "the statute's enforcement provisions [were] inadequate to ensure that the impact of the federal aid will not advance religion" The majority interprets "to indicate that the constitutional limitations on use of federal funds, as embodied in the statutory restriction, could not simply `expire' " after 20 years, but concludes that the absence of a statutory restriction in the AFLA is not troubling, because "there is also no intimation in the statute that at some point, or for some grantees, religious uses are permitted" Ante, at 6 Although there is something to the notion that the lifting of a pre-existing restriction may be more likely to be perceived as affirmative authorization than would the absence of any restriction at all, there was in no provision that stated that after 20 years facilities built under the aid program could be converted into chapels What there was in was an express statutory provision, which lapsed, leaving no restrictions; it was that vacuum that the Court found constitutionally impermissible In the AFLA, by way of contrast, there is a vacuum right from the start[13] *644 If were indeed the only indication that cash-grant programs must include prohibitions on the use of public funds to advance or endorse religion, one might argue more plausibly that ordinary reporting requirements, in conjunction with some presumption that Government agencies administer federal programs in a constitutional fashion,[] might suffice to *645 protect a statute against facial challenge That, however, is simply not the case In Committee for Public Education & Religious for example, the Court upheld a state program whereby private schools were reimbursed for the actual cost of administering state-required tests The statute specifically required that no payments be made for religious instruction and incorporated an extensive auditing system The Court warned, however: "Of
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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incorporated an extensive auditing system The Court warned, however: "Of course, under the relevant cases the outcome would likely be different were there no effective means for insuring that the cash reimbursements would cover only secular services" In this regard, the Court merely echoed and reaffirmed what was already well established In Committee for Public Education & Religious v Nyquist, the Court explained: "Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facilities Absent appropriate restrictions on expenditures for these and similar purposes, it simply cannot be denied that this section has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools" *646 See ; 403 U S, at 621 See also ; [15] Despite the glaring omission of a restriction on the use of funds for religious purposes, the Court attempts to resurrect the AFLA by noting a legislative intent not to promote religion, and observing that various reporting provisions of the statute "create a mechanism whereby the Secretary can police the grants" Ante, at 615 However effective this "mechanism" might prove to be in enforcing clear statutory directives, it is of no help where, as here, no restrictions are found on the face of the statute, and the Secretary has not promulgated any by regulation Indeed, the only restriction *647 on the use of AFLA funds for religious purposes is found in the Secretary's "Notice of Grant Award" sent to grantees, which specifies that public funds may not be used to "teach or promote religion," n 13, and apparently even that clause was not inserted until after this litigation was underway Furthermore, the "enforcement" of the limitation on sectarian use of AFLA funds, such as it is, lacks any bite There is no procedure pursuant to which funds used to promote religion must be refunded to the Government, as there was, for example, in Indeed, nothing in the AFLA precludes the funding of even "pervasively sectarian" organizations, whose work by definition cannot be segregated into religious and secular categories And, unlike a pre-enforcement challenge, where there is no record to review, or a limited challenge to a specific grant, where the Court is reluctant to invalidate a statute "in anticipation that particular applications may result in unconstitutional use of funds," 426 U S, at 761, in this litigation the District Court expressly
|
Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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S, at 761, in this litigation the District Court expressly found that funds have gone to pervasively sectarian institutions and tax dollars have been used for the teaching of religion Moreover, appellees have specifically called into question the manner in which the grant program was administered and grantees were selected See n supra These objections cannot responsibly be answered by reliance on the Secretary's enforcement mechanism See, e g, 413 U S, at 480 ; *648 C By placing unsupportable weight on the "pervasively sectarian" label, and recharacterizing appellees' objections to the statute, the Court attempts to create an illusion of consistency between our prior cases and its present ruling that the AFLA is not facially invalid But the Court ignores the unwavering vigilance that the Constitution requires against any law "respecting an establishment of religion," U S Const, Amdt 1, which, as we have recognized time and again, calls for fundamentally conservative decisionmaking: our cases do not require a plaintiff to demonstrate that a government action necessarily promotes religion, but simply that it creates such a substantial risk See, e g, Grand Rapids School 473 U S, at 387 (observing a "substantial risk that, overtly or subtly, the religious message will infuse the supposedly secular classes"); Committee for Public Education & Religious 444 U S, at 656 ; ; 421 U S, ; 413 U S, at 480 (finding dispositive "the substantial risk that examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church"); Given the nature of the subsidized activity, the lack of adequate safeguards, and the chronicle of past experience with this statute, there is no room for doubt that the AFLA creates a substantial risk of impermissible fostering of religion *649 IV While it is evident that the AFLA does not pass muster under Lemon's "effects" prong, the unconstitutionality of the statute becomes even more apparent when we consider the unprecedented degree of entanglement between Church and State required to prevent subsidizing the advancement of religion with AFLA funds The majority's brief discussion of Lemon's "entanglement" prong is limited to (a) criticizing it as a "Catch-22," and (b) concluding that because there is "no reason to assume that the religious organizations which may receive grants are `pervasively sectarian' in the same sense as the Court has held parochial schools to be," there is no need to be concerned about the degree of monitoring which will be necessary to ensure compliance with the AFLA and the Establishment
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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necessary to ensure compliance with the AFLA and the Establishment Clause Ante, at 615-616 As to the former, although the majority is certainly correct that the Court's entanglement analysis has been criticized in the separate writings of some Members of the Court, the question whether a government program leads to " `an excessive government entanglement with religion' " nevertheless is and remains a part of the applicable constitutional inquiry 403 U S, at 613, quoting Walz v Tax Comm'n, 397 US 664, I accept the majority's conclusion that "[t]here is no doubt that the monitoring of AFLA grants is necessary to ensure that public money is to be spent in a way that comports with the Establishment Clause," ante, at 615, but disagree with its easy characterization of entanglement analysis as a "Catch-22" To the extent any metaphor is helpful, I would be more inclined to characterize the Court's excessive entanglement decisions as concluding that to implement the required monitoring, we would have to kill the patient to cure what ailed him See, e g, 403 U S, at 6-615; ; 473 U S, at 413-4 *650 As to the Court's conclusion that our precedents do not indicate that the Secretary's monitoring will have to be exceedingly intensive or entangling, because the grant recipients are not sufficiently like parochial schools, I must disagree As discussed above, the majority's excessive reliance on the distinction between the Court's parochial-school-aid cases and college-funding cases is unwarranted Lemon, Meek, and Aguilar cannot be so conveniently dismissed solely because the majority declines to assume that the "pervasively sectarian" label can be applied here To determine whether a statute fosters excessive entanglement, a court must look at three factors: (1) the character and purpose of the institutions benefited; (2) the nature of the aid; and (3) the nature of the relationship between the government and the religious organization See 403 U S, at 6-615 Thus, in Lemon, it was not solely the fact that teachers performed their duties within the four walls of the parochial school that rendered monitoring difficult and, in the end, unconstitutional It seems inherent in the pedagogical function that there will be disagreements about what is or is not "religious" and which will require an intolerable degree of government intrusion and censorship "What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion " Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of
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Justice Blackmun
| 1,988 | 11 |
dissenting
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Bowen v. Kendrick
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https://www.courtlistener.com/opinion/112138/bowen-v-kendrick/
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of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment" Accord, 473 U S, at 413 See also New York v Cathedral Academy, 434 US 125, (noting that the State "would have to undertake a search *651 for religious meaning in every classroom examination The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment") In and Hunt, the Court relied on "the ability of the State to identify and subsidize separate secular functions carried out at the school, without on-the-site inspections being necessary to prevent diversion of the funds to sectarian purposes," 426 U S, at 765 and on the fact that one-time grants require "no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures on secular as distinguished from religious activities" 403 U S, at 688 AFLA grants, of course, are not simply one-time construction grants As the majority readily acknowledges, the Secretary will have to "review the programs set up and run by the AFLA grantees[, including] a review of, for example, the educational materials that a grantee proposes to use" Ante, at 616-617 And, as the majority intimates, monitoring the use of AFLA funds will undoubtedly require more than the "minimal" inspection "necessary to ascertain that the facilities are devoted to secular education," 403 U S, at Since teachers and counselors, unlike buildings, "are not necessarily religiously neutral, greater governmental surveillance would be required to guarantee that state salary aid would not in fact subsidize religious instruction" at -688 V The AFLA, without a doubt, endorses religion Because of its expressed solicitude for the participation of religious organizations in all AFLA programs in one form or another, the statute creates a symbolic and real partnership between the clergy and the fisc in addressing a problem with substantial *652 religious overtones Given the delicate subject matter and the impressionable audience, the risk that the AFLA will convey a message of Government endorsement of religion is overwhelming The statutory language and the extensive record established in the District Court make clear that the problem lies in the statute and its systematically unconstitutional operation, and not merely in isolated instances of misapplication I therefore would find the statute unconstitutional without remanding to the District Court I trust, however, that after all its labors thus far, the District Court will not grow weary prematurely and read into the Court's decision a suggestion that the AFLA has been constitutionally
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Justice Thomas
| 2,001 | 1 |
concurring
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Whitman v. American Trucking Assns., Inc.
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https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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I agree with the majority that 109's directive to the agency is no less an "intelligible principle" than a host of other directives that we have approved. Ante, at 474-476. I also agree that the Court of Appeals' remand to the agency to make its own corrective interpretation does not accord with our understanding of the delegation issue. Ante, at 472-473. I write separately, however, to express my concern *487 that there may nevertheless be a genuine constitutional problem with 109, a problem which the parties did not address. The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W. Hampton, Jr., & the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, 1 I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative." As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers. Justice Stevens, with whom Justice Souter joins, concurring in part and concurring in the judgment. Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, ante, at 472-476, the Court convincingly explains why the Court of Appeals erred when it concluded that 109 effected "an unconstitutional delegation of legislative power." American Trucking Assns., *488 I wholeheartedly endorse the Court's result and endorse its explanation of its reasons, albeit with the following caveat. The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is "legislative" but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the
|
Justice Thomas
| 2,001 | 1 |
concurring
|
Whitman v. American Trucking Assns., Inc.
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https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not "legislative power." Despite the fact that there is language in our opinions that supports the Court's articulation of our holding,[1] I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is "legislative power."[2] The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it. See Black's Law Dictionary 899 (6th ed. 1990) (defining "legislation" as, inter alia, "[f]ormulation of rule[s] for the future"); 1 K. Davis & R. Pierce, Administrative Law Treatise 2.3, p. 37 (3d ed. 1994) ("If legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely by *489 promulgating what are candidly called `legislative rules' "). If the NAAQS that the EPA promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of "legislative power." The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress. My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested "All legislative Powers" in the Congress, Art. I, 1, just as in Article II they vested the "executive Power" in the President, Art. II, 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See ("Despite the statement in Article I of the Constitution that `All legislative powers herein granted shall be vested in a Congress of the United States,' it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers"); ("[L]egislative power can be exercised by independent agencies and Executive departments"); 1 Davis & Pierce, Administrative Law Treatise 2.6, at 66 ("The Court was probably mistaken from the outset in interpreting Article I's grant of power to Congress as an implicit limit on Congress' authority to delegate legislative power"). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as "Executive" even though not exercised by the President. Cf. (arguing that the independent counsel exercised "executive power" unconstrained by the President). It seems clear that an executive agency's exercise of rulemaking authority pursuant to a valid delegation from Congress is
|
Justice Thomas
| 2,001 | 1 |
concurring
|
Whitman v. American Trucking Assns., Inc.
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https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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rulemaking authority pursuant to a valid delegation from Congress is "legislative." As long as the delegation provides a *490 sufficiently intelligible principle, there is nothing inherently unconstitutional about it. Accordingly, while I join Parts I, II, and IV of the Court's opinion, and agree with almost everything said in Part III, I would hold that when Congress enacted 109, it effected a constitutional delegation of legislative power to the EPA. Justice Breyer, concurring in part and concurring in the judgment. I join Parts I, III, and IV of the Court's opinion. I also agree with the Court's determination in Part II that the Clean Air Act does not permit the Environmental Protection Agency to consider the economic costs of implementation when setting national ambient air quality standards under 109(b)(1) of the Act. But I would not rest this conclusion solely upon 109's language or upon a presumption, such as the Court's presumption that any authority the Act grants the EPA to consider costs must flow from a "textual commitment" that is "clear." Ante, at 468. In order better to achieve regulatory goalsfor example, to allocate resources so that they save more lives or produce a cleaner environmentregulators must often take account of all of a proposed regulation's adverse effects, at least where those adverse effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation. In these cases, however, other things are not equal. Here, legislative history, along with the statute's structure, indicates that 109's language reflects a congressional decision not to delegate to the agency the legal authority to consider economic costs of compliance. For one thing, the legislative history shows that Congress intended the statute to be "technology forcing." Senator Edmund Muskie, the primary sponsor of the 1970 amendments *491 to the Act, introduced them by saying that Congress' primary responsibility in drafting the Act was not "to be limited by what is or appears to be technologically or economically feasible," but "to establish what the public interest requires to protect the health of persons," even if that means that "industries will be asked to do what seems to be impossible at the present time." 116 Cong. Rec. 32901-32902 (1970), 1 Legislative History of the Clean Air Amendments of 1970 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-18, p. 227 (1974) (hereinafter Leg. Hist.) The Senate directly focused upon the technical feasibility
|
Justice Thomas
| 2,001 | 1 |
concurring
|
Whitman v. American Trucking Assns., Inc.
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https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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Leg. Hist.) The Senate directly focused upon the technical feasibility and cost of implementing the Act's mandates. And it made clear that it intended the Administrator to develop air quality standards set independently of either. The Senate Report for the 1970 amendments explains: "In the Committee discussions, considerable concern was expressed regarding the use of the concept of technical feasibility as the basis of ambient air standards. The Committee determined that 1) the health of people is more important than the question of whether the early achievement of ambient air quality standards protective of health is technically feasible; and, 2) the growth of pollution load in many areas, even with application of available technology, would still be deleterious to public health. "Therefore, the Committee determined that existing sources of pollutants either should meet the standard of the law or be closed down" S. Rep. No. 91-1196, pp. 2-3 (1970), 1 Leg. Hist. 402-403 Indeed, this Court, after reviewing the entire legislative history, concluded that the 1970 amendments were "expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible." Union Co. And the Court added that the 1970 amendments were intended to be a "drastic remedy to a serious and otherwise uncheckable problem." Subsequent legislative history confirms that the technology-forcing goals of the 1970 amendments are still paramount in today's Act. See Clean Air Conference Report (1977): Statement of Intent; Clarification of Select Provisions, 123 Cong. Rec. 27070 (1977) (stating, regarding the 1977 amendments to the Act, that "this year's legislation retains and even strengthens the technology forcing goals of the 1970 Act"); S. Rep. No. 101-228, p. 5 (1989) (stating that the 1990 amendments to the Act require ambient air quality standards to be set at "the level that `protects the public health' with an `adequate margin of safety,' without regard to the economic or technical feasibility of attainment" ). To read this legislative history as meaning what it says does not impute to Congress an irrational intent. Technology-forcing hopes can prove realistic. Those persons, for example, who opposed the 1970 Act's insistence on a 90% reduction in auto emission pollutants, on the ground of excessive cost, saw the development of catalytic converter technology that helped achieve substantial reductions without the economic catastrophe that some had feared. See 6(a) of the Clean Air Act Amendments of 1970, amending 202(b)(1)(A), (B), (codified at 42 U.S. C. 1(b)(1)(A), (B)) (requiring a 90% reduction in emissions); 1 Leg. Hist. 238, 240 (statement of Sen. Griffin) (arguing that the emissions standards
|
Justice Thomas
| 2,001 | 1 |
concurring
|
Whitman v. American Trucking Assns., Inc.
|
https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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240 (statement of Sen. Griffin) (arguing that the emissions standards could "force [the automobile] industry out of existence" because costs "would not be taken into account"); see generally Reitze, Mobile Source Air Pollution Control, 6 Env. Law. 309, 326-327 (2000) (discussing the development of the catalytic converter). At the same time, the statute's technology-forcing objective makes regulatory efforts to determine the costs of implementation both less important and more difficult. It *493 means that the relevant economic costs are speculative, for they include the cost of unknown future technologies. It also means that efforts to take costs into account can breed time-consuming and potentially unresolvable arguments about the accuracy and significance of cost estimates. Congress could have thought such efforts not worth the delays and uncertainties that would accompany them. In any event, that is what the statute's history seems to say. See Union -259. And the matter is one for Congress to decide. Moreover, the Act does not, on this reading, wholly ignore cost and feasibility. As the majority points out, ante, at 466-467, the Act allows regulators to take those concerns into account when they determine how to implement ambient air quality standards. Thus, States may consider economic costs when they select the particular control devices used to meet the standards, and industries experiencing difficulty in reducing their emissions can seek an exemption or variance from the state implementation plan. See Union The Act also permits the EPA, within certain limits, to consider costs when it sets deadlines by which areas must attain the ambient air quality standards. 42 U.S. C. 7502(a)(2)(A) (providing that "the Administrator may extend the attainment date for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures"); 7502(a)(2)(C) (permitting the Administrator to grant up to two additional 1-year extensions); cf. 7511(a)(1), (5) (setting more rigid attainment deadlines for areas in nonattainment of the ozone standard, but permitting the Administrator to grant up to two 1-year extensions). And Congress can change those statutory limits if necessary. Given the ambient air quality *494 standards' substantial effects on States, cities, industries, and their suppliers and customers, Congress will hear from those whom compliance deadlines affect adversely, and Congress can consider whether legislative change is warranted. See, e. g., Steel Industry Compliance Extension Act of 1981, (codified at 42 U.S. C. 7413(e) (1988 ed.)) (repealed 1990) (granting the Administrator discretion to extend the ambient air quality standard attainment date set in the 1977 Act by up to three years
|
Justice Thomas
| 2,001 | 1 |
concurring
|
Whitman v. American Trucking Assns., Inc.
|
https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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set in the 1977 Act by up to three years for steelmaking facilities). Finally, contrary to the suggestion of the Court of Appeals and of some parties, this interpretation of 109 does not require the EPA to eliminate every health risk, however slight, at any economic cost, however great, to the point of "hurtling" industry over "the brink of ruin," or even forcing "deindustrialization." American Trucking Assns., ; see also Brief for Cross-Petitioners in No. 99-1426, p. 25. The statute, by its express terms, does not compel the elimination of all risk; and it grants the Administrator sufficient flexibility to avoid setting ambient air quality standards ruinous to industry. Section 109(b)(1) directs the Administrator to set standards that are "requisite to protect the public health" with "an adequate margin of safety." But these words do not describe a world that is free of all riskan impossible and undesirable objective. See Industrial Union Dept., (the word "safe" does not mean "riskfree"). Nor are the words "requisite" and "public health" to be understood independent of context. We consider football equipment "safe" even if its use entails a level of risk that would make drinking water "unsafe" for consumption. And what counts as "requisite" to protecting the public health will similarly vary with background circumstances, such as the public's ordinary tolerance of the particular health risk in the particular context at issue. The Administrator can *495 consider such background circumstances when "decid[ing] what risks are acceptable in the world in which we live." Natural Resources Defense Council, The statute also permits the Administrator to take account of comparative health risks. That is to say, she may consider whether a proposed rule promotes safety overall. A rule likely to cause more harm to health than it prevents is not a rule that is "requisite to protect the public health." For example, as the Court of Appeals held and the parties do not contest, the Administrator has the authority to determine to what extent possible health risks stemming from reductions in tropospheric ozone (which, it is claimed, helps prevent cataracts and skin cancer) should be taken into account in setting the ambient air quality standard for ozone. See -1053 The statute ultimately specifies that the standard set must be "requisite to protect the public health" "in the judgment of the Administrator," 109(b)(1), a phrase that grants the Administrator considerable discretionary standard-setting authority. The statute's words, then, authorize the Administrator to consider the severity of a pollutant's potential adverse health effects, the number of those likely to be affected, the distribution of the adverse effects, and
|
Justice Thomas
| 2,001 | 1 |
concurring
|
Whitman v. American Trucking Assns., Inc.
|
https://www.courtlistener.com/opinion/118410/whitman-v-american-trucking-assns-inc/
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to be affected, the distribution of the adverse effects, and the uncertainties surrounding each estimate. Cf. Sunstein, Is the Clean Air Act Unconstitutional?, They permit the Administrator to take account of comparative health consequences. They allow her to take account of context when determining the acceptability of small risks to health. And they give her considerable discretion when she does so. This discretion would seem sufficient to avoid the extreme results that some of the industry parties fear. After all, the EPA, in setting standards that "protect the public health" *496 with "an adequate margin of safety," retains discretionary authority to avoid regulating risks that it reasonably concludes are trivial in context. Nor need regulation lead to deindustrialization. Preindustrial society was not a very healthy society; hence a standard demanding the return of the Stone Age would not prove "requisite to protect the public health." Although I rely more heavily than does the Court upon legislative history and alternative sources of statutory flexibility, I reach the same ultimate conclusion. Section 109 does not delegate to the EPA authority to base the national ambient air quality standards, in whole or in part, upon the economic costs of compliance.
|
Justice Burger
| 1,985 | 12 |
majority
|
California v. Carney
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https://www.courtlistener.com/opinion/111423/california-v-carney/
|
We granted certiorari to decide whether law enforcement agents violated the Fourth Amendment when they conducted a warrantless search, based on probable cause, of a fully mobile "motor home" located in a public place. I On May 31, 1979, Drug Enforcement Agency Agent Robert Williams watched respondent, Charles Carney, approach *388 a youth in downtown San Diego. The youth accompanied Carney to a Dodge Mini Motor Home parked in a nearby lot. Carney and the youth closed the window shades in the motor home, including one across the front window. Agent Williams had previously received uncorroborated information that the same motor home was used by another person who was exchanging marihuana for sex. Williams, with assistance from other agents, kept the motor home under surveillance for the entire one and one-quarter hours that Carney and the youth remained inside. When the youth left the motor home, the agents followed and stopped him. The youth told the agents that he had received marihuana in return for allowing Carney sexual contacts. At the agents' request, the youth returned to the motor home and knocked on its door; Carney stepped out. The agents identified themselves as law enforcement officers. Without a warrant or consent, one agent entered the motor home and observed marihuana, plastic bags, and a scale of the kind used in weighing drugs on a table. Agent Williams took Carney into custody and took possession of the motor home. A subsequent search of the motor home at the police station revealed additional marihuana in the cupboards and refrigerator. Respondent was charged with possession of marihuana for sale. At a preliminary hearing, he moved to suppress the evidence discovered in the motor home. The Magistrate denied the motion, upholding the initial search as a justifiable search for other persons, and the subsequent search as a routine inventory search. Respondent renewed his suppression motion in the Superior Court. The Superior Court also rejected the claim, holding that there was probable cause to arrest respondent, that the search of the motor home was authorized under the automobile exception to the Fourth Amendment's warrant requirement, and that the motor home itself could be seized without a warrant as an instrumentality of the crime. Respondent *389 then pleaded nolo contendere to the charges against him, and was placed on probation for three years. Respondent appealed from the order placing him on probation. The California Court of Appeal affirmed, reasoning that the vehicle exception applied to respondent's motor home. The California Supreme Court reversed the conviction. The Supreme Court did not disagree with the conclusion of the
|
Justice Burger
| 1,985 | 12 |
majority
|
California v. Carney
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https://www.courtlistener.com/opinion/111423/california-v-carney/
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Supreme Court did not disagree with the conclusion of the trial court that the agents had probable cause to arrest respondent and to believe that the vehicle contained evidence of a crime; however, the court held that the search was unreasonable because no warrant was obtained, rejecting the State's argument that the vehicle exception to the warrant requirement should apply.[1] That court reached its decision by concluding that the mobility of a vehicle "is no longer the prime justification for the automobile exception; rather, `the answer lies in the diminished expectation of privacy which surrounds the automobile.' " The California Supreme Court held that the expectations of privacy in a motor home are more like those in a dwelling than in an automobile because the primary function of motor homes is not to provide transportation but to "provide the occupant with living quarters." We granted certiorari, We reverse. *390 II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer. There are, of course, exceptions to the general rule that a warrant must be secured before a search is undertaken; one is the so-called "automobile exception" at issue in this case. This exception to the warrant requirement was first set forth by the Court 60 years ago in There, the Court recognized that the privacy interests in an automobile are constitutionally protected; however, it held that the ready mobility of the automobile justifies a lesser degree of protection of those interests. The Court rested this exception on a long-recognized distinction between stationary structures and vehicles: "[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." The capacity to be "quickly moved" was clearly the basis of the holding in and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception. See, e. g., ; ; ; *391 ; South In Chambers, for example, commenting
|
Justice Burger
| 1,985 | 12 |
majority
|
California v. Carney
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https://www.courtlistener.com/opinion/111423/california-v-carney/
|
; ; *391 ; South In Chambers, for example, commenting on the rationale for the vehicle exception, we noted that "the opportunity to search is fleeting since a car is readily movable." More recently, in United we once again emphasized that "an immediate intrusion is necessary" because of "the nature of an automobile in transit." The mobility of automobiles, we have observed, "creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible." South at However, although ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception, we have said, are 428 U.S., at "Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception. See, e. g., In some cases, the configuration of the vehicle contributed to the lower expectations of privacy; for example, we held in at 0, that, because the passenger compartment of a standard automobile is relatively open to plain view, there are lesser expectations of privacy. But even when enclosed "repository" areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, a sealed package in a car trunk, a closed compartment under the dashboard, Chambers *392 v. the interior of a vehicle's upholstery, or sealed packages inside a covered pickup truck, United These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. As we explained in South an inventory search case: "Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order." The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, "individuals always
|
Justice Burger
| 1,985 | 12 |
majority
|
California v. Carney
|
https://www.courtlistener.com/opinion/111423/california-v-carney/
|
of this compelling governmental need for regulation. Historically, "individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts." at n. 8. In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met. When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes temporary or otherwise the two justifications for the vehicle exception *393 come into play.[2] First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable. While it is true that respondent's vehicle possessed some, if not many of the attributes of a home, it is equally clear that the vehicle falls clearly within the scope of the exception laid down in and applied in succeeding cases. Like the automobile in respondent's motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police. Furthermore, the vehicle was licensed to "operate on public streets; [was] serviced in public places; and [was] subject to extensive regulation and inspection." And the vehicle was so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle. Respondent urges us to distinguish his vehicle from other vehicles within the exception because it was capable of functioning as a home. In our increasingly mobile society, many vehicles used for transportation can be and are being used not only for transportation but for shelter, i. e., as a "home" or "residence." To distinguish between respondent's motor home and an ordinary sedan for purposes of the vehicle exception would require that we apply the exception depending upon the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to vehicles *394 such as a
|
Justice Burger
| 1,985 | 12 |
majority
|
California v. Carney
|
https://www.courtlistener.com/opinion/111423/california-v-carney/
|
to apply the exception to vehicles *394 such as a motor home ignores the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic and other illegal activity. In United we declined to distinguish between "worthy" and "unworthy" containers, noting that "the central purpose of the Fourth Amendment forecloses such a distinction." We decline today to distinguish between "worthy" and "unworthy" vehicles which are either on the public roads and highways, or situated such that it is reasonable to conclude that the vehicle is not being used as a residence. Our application of the vehicle exception has never turned on the other uses to which a vehicle might be put. The exception has historically turned on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation.[3] These two requirements for application of the exception ensure that law enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute criminal activity, and that the legitimate privacy interests of the public are protected. Applying the vehicle exception in these circumstances allows the essential purposes served by the exception to be fulfilled, while assuring that the exception will acknowledge legitimate privacy interests. III The question remains whether, apart from the lack of a warrant, this search was unreasonable. Under the vehicle exception to the warrant requirement, "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize." *395 This search was not unreasonable; it was plainly one that the magistrate could authorize if presented with these facts. The DEA agents had fresh, direct, uncontradicted evidence that the respondent was distributing a controlled substance from the vehicle, apart from evidence of other possible offenses. The agents thus had abundant probable cause to enter and search the vehicle for evidence of a crime notwithstanding its possible use as a dwelling place. The judgment of the California Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
|
per_curiam
| 1,978 | 200 |
per_curiam
|
Chase Manhattan Bank v. South Acres Dev. Co.
|
https://www.courtlistener.com/opinion/109758/chase-manhattan-bank-v-south-acres-dev-co/
|
The issue in this case is whether Congress has authorized the District Court of Guam to exercise federal diversity Respondent brought suit in the Guam District Court, claiming that the court had jurisdiction over its action on the basis of diverse citizenship. The court agreed, denied petitioner's motion to dismiss for lack of and a divided Court of Appeals affirmed. Because Congress has neither explicitly nor implicitly granted diversity jurisdiction to the District Court of Guam, we reverse. As part of the Organic Act of Guam, Congress created the District Court of Guam. 48 U.S. C. 1424 (a). *237 The District Court was established "under Art. IV, 3, of the Federal Constitution rather than under Art. III,"[2] and Congress provided that the District Court would have the following jurisdiction: "The District Court of Guam shall have the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties, and laws of the United States, regardless of the sum or value of the matter in controversy, shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine." 48 U.S. C. 1424 (a). Conspicuously absent in this provision is any mention of federal diversity The provision's first clause follows the language of the federal-question statute, 28 U.S. C. 1331, and the federal-question clause of Art. III, 2. The second clause establishes original jurisdiction over local causes of action without regard to diversity of citizenship. The second clause is not applicable to this case, however, because in 1974 the Guam Legislature transferred jurisdiction of all cases arising under the laws of Guam from the District Court to the local courts.[3] Thus, the only issue before us is *238 whether the first clause, which grants federal-question jurisdiction to the District Court, see also encompasses diversity The Court of Appeals apparently reasoned that any cause of action with diverse parties "arises under the laws of the United States," since 28 U.S. C. 1332, the diversity statute, is a law of the United States. By this logic, any cause of action with diverse parties under 1332 would be within the scope of federal-question But as we stated in "whatever may be the ambiguities of the phrase `arising under [the Constitution, treaties, and laws of the United States]'it does not embrace all civil cases that may present questions of federal law." By the same token, it does not embrace federal diversity The short
|
per_curiam
| 1,978 | 200 |
per_curiam
|
Chase Manhattan Bank v. South Acres Dev. Co.
|
https://www.courtlistener.com/opinion/109758/chase-manhattan-bank-v-south-acres-dev-co/
|
same token, it does not embrace federal diversity The short answer to the contention that diversity jurisdiction is merely a species of federal-question jurisdiction is that the Constitution itself distinguishes between these two types of jurisdictions. "The Constitution certainly contemplates these as distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over the other The discrimination made between them, in the Constitution, is, we think, conclusive against their identity." American Insurance We also reject the notion that Congress, by extending the Privileges and Immunities Clauses of the Federal Constitution to Guam, 48 U.S. C. 1421b (u), intended and implicitly authorized the Guam District Court to exercise federal diversity This Court has never held that the Privileges and Immunities Clauses prohibit Congress from withholding or restricting diversity jurisdiction,[4]*239 and there is nothing in the legislative history of 1421b (u) to suggest that Congress intended that provision to have any effect on the Guam District Court's original [5] Without support in the language or legislative history of the section, it is simply untenable to interpret 1421b (u) either as conferring diversity jurisdiction by its own terms or as impliedly expanding the grant of original jurisdiction contained in 1424 (a). We recognize that Congress' jurisdictional grant to the District Court of Guam is unique. All other federal district courts in the States and Territories exercise either diversity jurisdiction or concurrent original jurisdiction over many local causes of action. See n. 18 (Sneed, J., dissenting). Whether or not this peculiar treatment of the Guam District Court is preferable or even wise, however, we are constrained by the principle that federal courts are courts *240 of limited Where, as here, Congress has clearly established appropriate limitations on the District Court's original jurisdiction, we are compelled to respect those limits. The petition for a writ of certiorari is granted, and the decision of the Court of Appeals is reversed. So ordered.
|
Justice Blackmun
| 1,985 | 11 |
majority
|
Heckler v. Turner
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https://www.courtlistener.com/opinion/111360/heckler-v-turner/
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This litigation concerns the proper computation of benefits to working recipients of Aid to Families with Dependent Children (AFDC), provided pursuant to subch IV, pt A, of the Social Security Act of 1935 (Act), as amended, 42 US C 601 et seq Specifically, we must decide whether, in calculating a household's need, the responsible state agency is to treat mandatory tax withholdings as a work expense encompassed within the flat-sum disregard of 402(8)(A)(ii) of the Act, 42 US C 602(8)(A)(ii), or whether the agency is to deduct such sums in determining "income" under 402(7)(A) of the Act, 42 US C 602(7)(A) The latter interpretation, of course, would accrue to the benefit of the recipient I Before 1981, 402(7) of the Act required the state agency responsible for calculating a family's eligibility for AFDC benefits to "take into consideration any income and resources of any child claiming aid," as well as any *187 "expenses reasonably attributable to the earning of any such income" See Pub L 87-543, 106(b), (1962) The Omnibus Budget Reconciliation Act of 1981 (OBRA), Stat 357, however, effected amendments of 402(7) While preserving the language that instructs the State to consider a family's income and resources, Congress, in 2302 of OBRA, eliminated the requirement that the State take into account "expenses reasonably attributable to the earning of any such income" At the same time, by 2301, Congress placed in 402(8)(A)(ii), 42 US C 602(8)(A)(ii), a flat $75 "work expense" deduction or "disregard" to be taken from an individual's "earned income" In response to these amendments, petitioner Secretary of Health and Human Services advised the responsible state agencies that mandatory payroll deductions were to be included in the new $75 work-expense disregard and that this disregard was to be taken from gross rather than net income The State of California promptly issued regulations implementing these directions;[1] this had the effect of significantly reducing benefits paid to approximately 45,000 California AFDC families with working members Respondents, a class of all past, present, and future California AFDC recipients who have been or will be affected by the changes wrought in the AFDC program by OBRA, brought this action in the United States District Court for the Northern District of California to challenge the California regulations implementing the Secretary's directions They contended that the regulations misconstrued the term "income" in 402(7) to mean gross income, and thereby incorrectly relegated mandatory payroll deductions to the work expenses covered by the flat-sum disregard of 402(8); instead, according to respondents, they were entitled to have these mandatory payroll items disregarded by the State when *188
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these mandatory payroll items disregarded by the State when *188 calculating income and resources under 402(7) The State of California brought the Secretary into the litigation as a third-party defendant The District Court agreed with the plaintiff class It therefore granted respondents' motion for summary judgment, as well as the State's motion for summary judgment against the Secretary The court enjoined the State from implementing its new regulations and the Secretary from terminating federal matching funds due the State On appeal, the United States Court of Appeals for the Ninth Circuit affirmed Finding the statutory language unhelpful, it scrutinized the legislative history and the administrative interpretation of the two statutory provisions before relying primarily on "congressional purpose" to conclude that 402(7) "income" had always been net income after deduction of amounts mandatorily withheld for payment of social security, federal, state, and local taxes Therefore, it concluded, the substitution of the flat-sum disregard of 402(8) for the work-expense disregard of 402(7) had had no effect on the independent deduction of tax withholdings in determining need The other Courts of Appeals to address the issue have concluded that Congress intended the flat work-expense disregard of 402(8) to encompass mandatory payroll withholdings, and that "income" for purposes of 402(7) was gross income[2] We granted certiorari to resolve the conflict On July 19, after the writ had issued but before this Court heard oral argument, the Deficit Reduction Act of Stat 494, became law This new legislation includes a provision, 26 *189 that directly addresses the issue raised by this case On the basis of that congressional action, JUSTICE REHNQUIST, in his capacity as Circuit Justice for the Ninth Circuit, prospectively stayed the injunction from July 18, We now reverse the judgment of the Court of Appeals II "The AFDC program is based on a scheme of cooperative federalism" Established by Title IV of the Social Security Act of 1935, "to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them," the federal program reimburses each State which chooses to participate with a percentage of the funds it expends 403, 42 US C 603 In return, the State must administer its assistance program pursuant to a state plan that conforms to applicable federal statutes and regulations 402, 42 US C 602 Among these provisions are the two relevant here 402(7), which requires consideration of "income" for purposes of determining need, and 402(8), which requires the State to disregard certain sums from a recipient's income in making that determination[3] *1 The present controversy has its
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in making that determination[3] *1 The present controversy has its roots in a series of amendments to these two sections As originally enacted in 1935, the Act did not expressly require a State to decrease AFDC grants to families with other income sources Effective July 1, 1941, however, Congress added 402(7), which mandated that a state agency, in determining need, shall "take into consideration any income and resources of any child claiming aid to dependent children" Social Security Act Amendments of 1939, 401(b), This amendment, in its turn, created a new problem Because "families with working members incurred certain employment-related expenses that reduced available income but were not taken into account by the States in determining eligibility for AFDC assistance," the Social Security Board soon "recognized that a failure to consider work-related expenses could result in a disincentive to seek or retain employment" To avoid defeating the purpose of the Act to encourage employment even where it did not wholly eliminate the need for public assistance, ibid; see 401, 42 US C 601, the Board encouraged the State, in determining a family's need, to take account of the additional incidental expenses encountered by a working person[4] In 1962, Congress converted this administrative prompting into a statutory requirement It amended 402(7) to *191 oblige the State to consider, in addition to "income and resources," all "expenses reasonably attributable to the earning of any such income" Public Welfare Amendments of 1962, Pub L 87-543, 106(b), The amendment made "mandatory the widespread but then optional practice of deducting employment expenses from total income in determining eligibility for assistance" The statute again was amended, effective July 1, 1969, to alter fundamentally the statutory treatment of earned income Social Security Amendments of 1967, Pub L -248, 202(b), Instead of merely protecting against the possibility of a disincentive, Congress moved to create an affirmative incentive to employment by adding several new deductions, or earned-income disregards While it left intact the language of 402(7), requiring the State to take into account both a family's "income and resources" and "any expenses reasonably attributable to the earning of any such income," the amended version subjected this requirement to a new provision, 402(8) In part, the new section required the State, in computing income for purposes of determining need, to disregard the first $30 of "earned income" in any month, "plus one-third of the remainder of such income for such month" 81 State 881[5] The effect, of course, was *192 to decrease the amount of "earned income" and thereby to increase a family's benefits In response to the new section,
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increase a family's benefits In response to the new section, the Department of Health, Education, and Welfare, which, as successor to the Social Security Board and predecessor of the Department of Health and Human Services, was then administering the AFDC program, issued regulations defining "earned income" for purposes of 402(8), and incorporating the new disregards into the benefit calculations "Earned income" was defined as the "total amount" of "commissions, wages, or salary," and calculated "irrespective of personal expenses, such as income-tax deductions " 45 CFR 23320(6)(iv) In 1981, by OBRA, Congress again significantly altered the treatment of work expenses As noted above, in place of the requirement of 402(7) that the State consider expenses "reasonably attributable" to the earning of income, Congress substituted in 402(8) a child-care disregard of up to $160, and a flat $75 disregard, "in lieu of itemized work expenses" S Rep No 97-139, p 435 (1981) In addition, Congress restricted the "$30 plus one-third" disregard to the first four months of a recipient's employment, 402(8)(B)(ii)(II), 42 US C 602(8)(B)(ii)(II), and reduced its impact by requiring that the calculation be made after the work-expense and child-care disregards had been subtracted, 402(8)(A)(iv), 42 US C 602(8)(A)(iv)[6] *193 III A In determining how Congress intended these tandem provisions to operate, we look first, as always, to the language of the statute North We do not find this language, as informed by the structure and pattern of amendment of the relevant provisions, as unhelpful as did the Court of Appeals *194 The statute makes no explicit provision for the deduction of mandatory payroll-tax withholdings Nor does it qualify the meaning of "income" for purposes of 402(7) Instead, that section provides that, "except as may be otherwise provided in" 402(8), the state agency's determination of need must take account of "any other income and resources" of an AFDC recipient Section 402(8), in turn, requires that specified amounts of a recipient's "earned income" be disregarded "in making the determination" under 402(7) Successive paragraphs of the statute, then, employ twin usages of the term "income" the first expressly unqualified, the second limited to that "earned" Absent contrary indications, it seems to us to make sense to read "earned income" to represent a subset of the broader term "income" Since those portions of one's salary or wages withheld to meet tax obligations are nonetheless "earned," a common-sense meaning of "earned income" would include tax withholdings Such an interpretation is reflected, in any event, in the Secretary's longstanding definition of the term as "the total amount [of commissions, wages, or salary], irrespective of personal
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total amount [of commissions, wages, or salary], irrespective of personal expenses, such as income-tax deductions" 45 CFR 23320(6)(iv) [7] The OBRA Congress must have had that definition in mind when it re-employed the term in 402(8) Since earned income includes mandatory tax withholdings, so too does the broader category of "income" Thus, the calculation of need must include all income, unless the recipient has earned income In that event, the recipient gets the benefit of the disregards of 402(8) Any authorization for the deduction from 402(7) income of a working recipient's tax liabilities, even if mandatorily withheld from pay, must be found in the earned-income disregards of 402(8) Among those disregards is the flat sum of $75 monthly 402(8)(A)(ii) As the congressional Reports accompanying *195 the 1981 amendments make clear, Congress provided this flat sum "in lieu of itemized work expenses" S Rep No 97-139, p 435 (1981); H R Conf Rep No 97-208, p 979 (1981) The substitution is apparent, as well, from the simultaneous elimination from 402(7) of the language requiring States to consider "expenses reasonably attributable to the earning of income" Tax liabilities indisputably are so attributable Indeed, they are the paradigmatic work expense: while transportation, food, clothing, and the like often are susceptible to economies, the proverbial certainty attaches to taxes Further, the new version of 402(8) provides a separate disregard, up to $160 monthly, for child-care expenditures, another species of work expense In contrast, the absence of a special provision conferring independent authorization to disregard mandatory tax withholdings indicates that they were thought to come within the flat deduction In sum, there is no support in language or structure for any inference that, notwithstanding the unqualified benchmark of "any other income" in 402(7) and the specified earned-income disregards of 402(8), Congress contemplated an additional but unmentioned deduction for tax liabilities The administrative background against which the OBRA Congress worked also supports the conclusion that mandatory tax withholdings were among the items Congress intended to include within the flat-sum disregard of 402(8)(A)(ii) Until 1962, there was no statutory or regulatory requirement that the States disregard work-related expenses in assessing a working recipient's income, although the successive federal agencies responsible for the AFDC program urged the States to do so as a matter of sound administrative practice It appears that virtually all States acceded to that urging, at least to the extent of deducting mandatory tax withholdings, although practices varied widely as to other types of expenses See App 30-36, Bureau of Public Assistance, Social Security Administration, Department of Health, Education, and Welfare, Public Assistance Report No
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Department of Health, Education, and Welfare, Public Assistance Report No 43: State Methods *196 for Determining Need in the Aid to Dependent Children Program (March 1961) The practice of deducting withholdings continued after 402(7) was amended in 1962 expressly to require a State to take account of work expenses in determining income; of course, during this period the deduction and computation would have been the same whether the withholdings were subtracted from income pursuant to the work-expense disregard or not included in income in the first place The addition of the work-incentive disregard in 1967, however, made it necessary to detail the steps in the determination of need In response, HEW promulgated detailed regulations on the application of these disregards to earned income As noted above, one regulation, which has remained unchanged since its initial promulgation, defined "earned income" to mean "the total amount [of commissions, wages, or salary], irrespective of personal expenses, such as income-tax deductions, lunches, and transportation to and from work, and irrespective of expenses of employment which are not personal, such as the cost of tools, materials, special uniforms, or transportation to call on customers" 45 CFR 23320(6)(iv) Another regulation which has also remained unchanged, though after OBRA it no longer applied to AFDC calculations set forth the procedure by which the disregards would be applied: "The applicable amounts of earned income to be disregarded will be deducted from the gross amount of `earned income,' and all work expenses, personal and non-personal, will then be deducted Only the net amount remaining will be applied in determining need and the amount of the assistance payment" 45 CFR 23320(7)(i) The second regulation, echoing the terminology of the first, clearly treated mandatory tax withholdings as "personal" *197 work expenses The authority for deducting such expenses, of course, by then was the work-expense disregard of 402(7)[8] Administrative practice reflected the taxonomy of the regulations Sometime after 1962, but well before the OBRA Congress acted, many States had come to treat tax withholdings as expenses "reasonably attributable to the earning of income" A 1972 HEW study reported that virtually every State subjected mandatory payroll withholdings to the work-expense provision of 402(7) See App 47, Department of Health, Education, and Welfare, Memorandum, Assistance Payments Administration, Social and Rehabilitation Service (Feb 1, 1972) The Colorado program under consideration in Shea was said to treat mandatory payroll deductions as "expenses reasonably attributable to employment," -5, and the Shea Court assumed as much, And, in 1977, the House Committee on Government Operations received a comprehensive report on the AFDC program which appeared to
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a comprehensive report on the AFDC program which appeared to indicate that all of the 43 States that responded to the inquiry treated mandatory tax withholdings as deductible work expenses Congressional Research Service, Administration of the AFDC Program: A Report to the Committee on Government Operations 98 (Comm Print 1977) There is no reason to suppose that the Congress that enacted OBRA legislated in ignorance of the then generally accepted categorization of mandatory tax withholdings as work expenses To the contrary, the Senate Report described Congress' understanding of existing law: "In determining AFDC benefits, States are required to disregard from the recipient's total income: (1) the first $30 earned monthly, plus one-third of additional *198 earnings; and (2) any expenses (including child care) reasonably attributable to the earning of such income " S Rep No 97-139, p 501 (1981) It is unlikely that Congress would have omitted so important an independent step as the disregard of tax liabilities Instead, the parenthetical mention of child-care expenditures presages their treatment in the revised 402(8) as the only type of work expense separately disregarded The House Conference Report describes the new provisions to the same effect: "States would be required to disregard the following amount of earnings, in the following order: " Eligibility Determination the first $75 of monthly earnings for full time employment (in lieu of itemized work expenses); and the cost of care for a child or incapacitated adult, up to $160 per child per month "(b) Benefit Calculation the first $75 of monthly earnings for full time employment; child care costs up to $160 per child per month; and $30 plus one-third of earnings not previously disregarded" H R Conf Rep No 97-208, pp 978-979 (1981) Again, we find it implausible that Congress would have provided an otherwise complete description of the proposed calculation, yet neglect to mention that "earnings" or "monthly earnings" did not include mandatory tax withholdings We acknowledge that the legislative history of the 1962 amendments, which codified the administrative policy that a state agency take account of work expenses in determining need, does not mention mandatory tax withholdings See S Rep No 1589, 87th Cong, 2d Sess, 17-18 (1962); H R Rep No 1414, 87th Cong, 2d Sess, 23 (1962) It is also true that in amending its guide to the States in response to the 1962 amendment of 402(7), HEW did not include such withholdings in its list of expenses reasonably attributable *199 to the earning of income See App 39-41, Department of Health, Education, and Welfare, Handbook of Public Assistance Administration, pt
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Health, Education, and Welfare, Handbook of Public Assistance Administration, pt IV, 3140 (Apr 22, 1964) This silence is at best ambiguous, however The failure to mention these expenses well may have resulted from Congress' and HEW's recognition that the States, acquiescing in the longstanding policy of the federal agencies administering AFDC that state agencies attempt realistically to ascertain recipients' need, already deducted these expenses in determining eligibility and benefit levels As the Court of Appeals recognized, the source of the authority to reduce countable income by the amount of various work expenses was unclear at this time In any event, we must identify Congress' intention in 1981 It is clear that by then the practice of disregarding amounts withheld to satisfy tax liabilities had found a statutory home in the work-expense disregard of 402(7) It is equally clear that they were among the "itemized work expenses" which the OBRA Congress intended the flat-sum disregard to replace B The Court of Appeals recognized that "if mandatory payroll deductions enter into income at all, they must be treated as work-related expenses subject to the $75 ceiling enacted by OBRA, because no separate disregard for payroll withholdings exists" It avoided this conclusion, however, by rejecting its premise According to the Court of Appeals, mandatory tax withholdings always had been excluded from the calculation of a working recipient's income by virtue of a long-enshrined principle of "actual availability," which, independently of any explicit statutory disregards, governed the definition of "income" for purposes of 402(7) Therefore, the substitution of the flat $75 disregard of 402(8) for the work-expense disregard of 402(7) had no effect on the treatment of tax payments, *200 which should continue to be deducted from a working recipient's earnings as the first step in any determination of need We disagree Contrary to the conclusion of the Court of Appeals, the principle of actual availability has not been understood to distinguish the treatment of tax withholdings from that of other work expenses Rather, it has served primarily to prevent the States from conjuring fictional sources of income and resources by imputing financial support from persons who have no obligation to furnish it or by overvaluing assets in a manner that attributes nonexistent resources to recipients The availability principle traces its origins to congressional consideration of the 1939 amendments to the Act At that time, some Members expressed concern, specifically with regard to the old-age assistance program, that state agencies not assume financial assistance from potential sources, such as children, who actually might not contribute See 3 Hearings Relative to the Social Security Act
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contribute See 3 Hearings Relative to the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong, 1st Sess, 24 (1939) (statement of A J Altmeyer, Chairman, Social Security Board); 84 Cong Rec 6851 (1939) (statement of Rep Poage) Shortly after passage of the 1939 amendments, the Board adopted a policy statement applicable to various aid programs, including AFDC See App 17-20, Social Security Board Memorandum (Dec 20, 1940) The statement cautioned the States that in effecting the new statutory directive to take into account a recipient's "income and resources," they must ensure that any such income or resources "actually exist," be not "fictitious" or "imputed," and "be actually on hand or ready for use when it is needed" A short time later, this policy statement was incorporated in substantially the same form in the Board's guidelines to the States, see App 21-23, and successive federal agencies administering the AFDC program have continued to endorse the principle See, e g, HEW Handbook of Public Assistance Administration, pt IV, 31317 *201 (1967) ) At no time, however, have the federal AFDC agencies suggested that it demanded special treatment of mandatory tax withholdings This Court, too, has viewed the actual availability principle "clearly [to] comport with the statute," n 16, and has not hesitated to give it effect in that case and others See Van But the Court's cases applying the principle clearly reflect that its purpose is to prevent the States from relying on imputed or unrealizable sources of income artificially to depreciate a recipient's need For example, in the Court considered the actual availability regulation in holding that Alabama could not deny assistance to otherwise eligible children solely on the basis of their mother's cohabitation with a "substitute father," not their own, without regard to whether the putative substitute actually contributed to the children's support -320, and n 16 The failure of the federal agencies administering AFDC to apply the availability principle to distinguish mandatory tax withholdings is not surprising The sums they consume are no less available for living expenses than other sums mandatorily withheld from the worker's paycheck and other expenses necessarily incurred while employed In implicit recognition of this analytic difficulty, the Court of Appeals, without helpful explanation,[9] purported to clarify the District Court's ruling by excluding "non-governmental deductions" from its compass, specifying that only federal, state, and local income taxes, social security taxes, and "state disability and equivalent governmental programs" could properly be denominated "non-income items" The *202 individual respondents make an identical concession, Brief for AFDC Respondents 46, but
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make an identical concession, Brief for AFDC Respondents 46, but they, also, fail to trace a similarly circumscribed rationale Yet sums mandatorily withheld for obligations such as union dues, medical insurance, or retirement programs no more pass through the wage earner's hands than do mandatory tax withholdings Insofar as the Court of Appeals' definition pivots on availability to meet family expenses, any distinction between various species of payroll withholdings would be "metaphysical indeed" aff'd, cert pending sub nom James v Cohen, No 83-6168 Likewise, the expenditure of funds on other work-related expenses, such as transportation, meals, and uniforms, just as effectively precludes their use for the needs of the family That they first pass through the wage earner's hands is a difference of no apparent import: "the time of payment seems but a superficial distinction; all necessary expenses must be met sometime" cert pending, No 83-6769 There is no reason, then, why the actual availability principle, once applied to exclude mandatory tax withholdings from the definition of income, would not similarly apply to other mandatory payroll withholdings and other standard work expenses, both of which also render a portion of a wage earner's income unavailable to meet the recipient family's needs Yet this would negate Congress' enactment of the flat-sum work-expense disregard in 1981 The failure of the Court of Appeals to outline a principled limit to the applicability of the availability principle to sums deducted from gross income is telling The Court of Appeals, however, thought it "clear that the agency charged with the administration of this statute has long regarded it as dealing with net income exclusively" To support this conclusion, it cited the then-current regulation embodying the availability principle, *203 which, as republished after OBRA, provided that " `in determining need and the amount of the assistance payment [n]et income and resources available shall be considered ' " Ib quoting 45 CFR 23320(3)(ii)(D) as amended by 5675 (emphasis supplied by Court of Appeals)[10] The court, in our view, however, ignored the context in which the term "net income" appeared The "net income" to which the regulation then referred was that for which the recipient family must account "after all policies governing the reserves and allowances and disregard or setting aside of income and resources have been uniformly applied" 45 CFR 23320(3)(ii) ; see also 45 CFR 23320(3)(ii) Among those "policies governing disregard" was that governing earned income, which provided that "[o]nly the net amount remaining" after application of the work-incentive and work-expense disregards would be applied in determining need 45 CFR 23320(7)(i) This Court recognized the proper
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determining need 45 CFR 23320(7)(i) This Court recognized the proper referent of "net income and resources" in where we observed with regard to an earlier version of the regulation: "The `income and resources' attributable to an applicant, defined in 45 CFR 23320(6) consist generally of `only such net income as is actually available for current use on a regular basis and only currently available resources' 45 CFR 23320(3)(ii)(c) In determining net income, any expenses reasonably attributable to the earning of income are deducted from gross income 42 US C ″ 602(7) If, taking into *204 account these deductions and other deductions not at issue in the instant case, the net amount of `earned income' is less than the predetermined statewide standard of need, the applicant is eligible for participation in the program and the amount of the assistance payments will be based upon that difference 45 CFR 23320 (3)(ii) and (c)" (emphasis supplied) 416 US, at -4 Thus, it is apparent that the net amount to which the regulation refers is that remaining after AFDC disregards, not simply payroll withholdings Finally, even accepting the view of the Court of Appeals that 402(7) "income" does not encompass mandatory tax withholdings, one reaches a much more limited result than respondents seek In the face of the straightforward regulatory definition of "earned income" and Congress' reemployment of that term in reworking the 402(8) disregards, it is clear that the flat-sum disregard is to be deducted from total earned income, including mandatory tax withholdings, as provided by 402(8) and its implementing regulations The putative rule excluding tax withholdings as "non-income items" under 402(7) income would also take total earnings as its starting point Thus, the benefits each provides would be duplicative until deductions exceeded $75 Respondents' understanding of 402(7) would simply require the state agency to permit recipients to deduct the greater of either actual payroll deductions or $75 No party urges this construction, of course, because it would have been a senseless and cumbersome way for Congress to achieve such a result But, for us, it demonstrates the implausibility of respondents' view of the interplay of 402(7) and 402(8) C Notwithstanding its conclusion that the actual availability principle had always governed the treatment of mandatory tax withholdings in calculating an AFDC family's need, and *205 continued to do so after enactment of OBRA, the Court of Appeals looked "primarily to congressional purpose" for its holding that these withholdings should be deducted independently of the flat-sum disregard 707 F2d, at 1110 As the court noted, the AFDC statute has long sought to "enabl[e] each
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noted, the AFDC statute has long sought to "enabl[e] each State to furnish financial assistance to needy dependent children and the parents or relatives with whom they are living and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection " 401, 42 US C 601 See 416 U S, at While acknowledging the cost-cutting focus of the OBRA amendments, the Court of Appeals reasoned that its construction best accommodated what it saw as the competing purposes of the 76th and 97th Congresses First, citing the elimination after the first four months of employment of the $30 and one-third, work-incentive disregard, which it regarded as OBRA's "chief economizing feature," as well as the imposition of a cap on the child-care and work-expense disregards, the court opined that other changes in the statutory disregards fully accomplished any budgetary savings intended by the OBRA Congress Next, it reasoned that the unchanged statement of statutory purpose compelled its construction, which still resulted in a disincentive to employment, because it produced a lesser disincentive than that effected by the Secretary's regulations Finally, seeing "no reason to believe that AFDC recipients will work in order to pay handsomely for the privilege," it decided that in the long term the OBRA Congress' desire to reduce welfare expenditures would best be accomplished by avoiding or minimizing financial penalties on employed recipients 707 F2d, at 1123 We agree with the Court of Appeals that the OBRA Congress neither changed the language of the AFDC statement of purpose nor abandoned the statutory goals We also *206 agree that the new scheme, as implemented by the Secretary, threatens to dissipate any incentive to employment, in some cases perhaps even forcing recipients who wish to work to apportion a smaller sum to family expenses than if they stayed at home Unlike the Court of Appeals, however, we hesitate to tell Congress that it might have achieved its budgetary objectives by less than the full range of changes it chose to utilize, particularly when the information provided Congress by its own Budget Office, on which it presumably relied, belies that conclusion See S Rep No 97-139, at 447, 552 More importantly, it seems plain to us that the risk of creating disincentives to employment that would lead to increased expenditures down the road did not trouble the OBRA Congress During the House hearings on the OBRA changes to the AFDC statute, Representative Stark voiced concern that the new scheme would put a working mother
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concern that the new scheme would put a working mother to the distressing choice of either quitting her job or making do with less money to devote to her family's needs See Administration's Proposed Savings in Unemployment Compensation, Public Assistance, and Social Services Programs: Hearings before the Subcommittee on Public Assistance and Unemployment Compensation of the House Committee on Ways and Means, 97th Cong, 1st Sess, Ser No 97-7, p 3 (Comm Print 1981) Representative Rangel feared that "[t]he marginally poor, actually penalized for working, would have a great disincentive to continue to work" Id, Other Members and numerous private witnesses issued similar warnings See, e g, (Rep Russo); (Rep Chisholm); (Kevin M Aslanian, Welfare Recipients League, Inc) And the report of the Congressional Budget Office, included in the Senate Report, expressly called Congress' attention to the possibility that the work-expense cap and temporal limitation on the work incentive disregard would "increase the work disincentives found in the current AFDC program" S Rep No 97-139, at 552 *207 In the face of these warnings, we must assume that Congress enacted the proposed changes in full awareness of the employment disincentives some Members felt the changes threatened to create Indeed, the concerns which underlay the decision of the Court of Appeals in this case prompted the House Subcommittee on Public Assistance and Unemployment Compensation to draft a version of 402(8) which would have increased substantially the flat work-expense disregard The Subcommittee proposed to allow a work-expense deduction of the lesser of 20% of earned income or $175 See 127 Cong Rec 14476 (1981) But the House rejected this version and, instead, passed a substitute identical to that passed by the Senate See ; H R Conf Rep No 97-208, at 978-979 Again, Members sounded warnings of the consequences of the administration substitute See 127 Cong Rec 14104 (1981) (Rep Rostenkowski); (Rep Biaggi) These concerns, however, did not deter the OBRA Congress Instead, as the Court of Appeals for the Third Circuit has observed, the legislative history indicates that, "[h]aving determined that providing financial incentives for work was not achieving the goal of self-sufficiency and that such incentives were leading to ever-increasing public expenditures Congress embarked on a new course" 715 F 2d, at 809 In proposing to limit the $30 and one-third disregard to the first four months of employment, for example, the Senate Budget Committee expressed impatience that the program then in effect was not inducing AFDC mothers to achieve self-sufficiency S Rep No 97-139, at 502-503 As a result, Congress sought other means that, in combination with the now
|
Justice Blackmun
| 1,985 | 11 |
majority
|
Heckler v. Turner
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https://www.courtlistener.com/opinion/111360/heckler-v-turner/
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Congress sought other means that, in combination with the now temporally limited work-incentive disregard, might "decrease welfare dependency, and emphasize the principle that AFDC should not be regarded as a permanent income guarantee" Ibid It chose to authorize the States to establish programs aimed at promoting employment *208 among AFDC recipients A State could establish a "community work experience program designed to improve the employability of participants through actual work experience and training," 409(1), 42 US C 609(1), and it could condition AFDC eligibility on participation in the program H R Conf Rep No 97-208, at 980 A State could establish a "work supplementation program," under which it would "make jobs available, on a voluntary basis, as an alternative to aid otherwise provided under the State plan" 414, 42 US C 614 "Under this approach, recipients would be given a choice between taking a job or depending upon a lower AFDC grant " H R Conf Rep No 97-208, at 980 And the State could establish a "work-incentive demonstration program" as an alternative to current work-incentive programs 445, 42 US C 645; see H R Conf Rep No 97-208, at 981 Participation in such a program would also be mandatory for persons eligible for AFDC 445(b)(1)(B), 42 US C 645(b)(1)(B) See also 402(19), 42 US C 602(19) In conjunction with the amendments to the earned-income disregards, these provisions suggest a change in strategy on Congress' part away from financial incentives and toward programs designed to find employment for recipients and oblige them to take it Thus, it is clear that the OBRA Congress elected to pursue unchanged goals by new methods By concluding that Congress could not have intended to include mandatory tax withholdings in the new $75 disregard because such a rule would dilute financial incentives to work, the Court of Appeals ignored the congressional choices manifest in the departure from approaches previously favored D Were there any doubt remaining as to Congress' intention in 1981, subsequent congressional action would dispel it In the immediately succeeding session, certain Members of the *209 House Committee on Ways and Means introduced H R 6369, 97th Cong, 2d Sess by which they attempted to restore the financial work incentives eliminated by OBRA The attempt failed The Report accompanying the bill, however, describes the pre-OBRA state of the law The Committee first noted that the "countable income" which determined eligibility equaled "gross income minus the disregards" H R Rep No 97-587, pt 1, p 6 Later, it referred to the potential disincentive posed, prior to the 1962 and 1967 amendments, by "any
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Justice Blackmun
| 1,985 | 11 |
majority
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Heckler v. Turner
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https://www.courtlistener.com/opinion/111360/heckler-v-turner/
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posed, prior to the 1962 and 1967 amendments, by "any work-related expenses such as transportation and child day care costs, and mandatory tax and other wage deductions" Id, It also listed the components of an AFDC family's pre-OBRA "disposable income (wages minus work expenses plus AFDC benefits)" Ibid Finally, it recounted the pre-OBRA calculation of need: "States were required to reduce the State monthly payment by the amount of the family's earnings that remained after the following amounts had been excluded or disregarded: (1) the first $30 of earnings; (2) plus one-third of remaining earnings; (3) plus work expenses for the month (any expenses, including child day care, reasonably attributable to the earning of income)" Ibid Each of these statements indicates that the OBRA Congress regarded mandatory tax withholdings as standard work expenses; none admits of the possibility that they might have constituted an independent deduction We take great care, of course, before relying on the understandings of Members of a subsequent Congress as to the actions of an earlier one, but we by no means eschew what guidance they offer Consumer Product Safety Comm'n v GTE Sylvania, Inc, 447 US 102, 117-120, n 13 ; Cannon v University of Chicago, 441 US 677, 686-687, n 7 Here, we face the considered statements of a Committee whose Members were in the thick of the fight over earned-income disregards in the preceding session of the same Congress And those statements clearly reveal the *210 common ground of that fight that the existing scheme did not independently disregard mandatory tax withholdings, but grouped them with other work expenses which the new flat-sum disregard would subsume The most recent confirmation of Congress' intentions in this matter came with enactment of the Deficit Reduction Act of Stat 494, which, by its 26, amends 402(8) to provide that "in implementing [the section], the term `earned income' shall mean gross earned income, prior to any deductions for taxes or for any other purposes" The legislative history demonstrates that Congress enacted this provision in order to resolve the very dispute presented here Specifically noting that the Courts of Appeals had come to conflicting conclusions on the matter and that this Court had granted the petition for certiorari in this case, the Conference Report leaves no doubt that Congress intended to endorse the competing construction H R Conf Rep No 98-861, pp 1394-1395 The Senate echoed the House explanation: "The statute would be amended to make clear that the term `earned income' means the gross amount of earnings, prior to the taking of payroll or other deductions
|
Justice Blackmun
| 1,985 | 11 |
majority
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Heckler v. Turner
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https://www.courtlistener.com/opinion/111360/heckler-v-turner/
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earnings, prior to the taking of payroll or other deductions The provisions in the AFDC statute which require that specified amounts of earned income be disregarded in determining eligibility and benefits have historically been interpreted as requiring that such amounts be deducted from gross, rather than net, earnings "The Committee agrees with the Department that there was no intention to change this interpretation when it approved the 1981 AFDC amendments The Committee notes that when the Congressional Budget Office estimated the savings expected to be derived from the changes in 1981, it followed the interpretation shared by the Department and the Committee that the proposed disregards would apply to gross earnings" 1 Senate *211 Committee on Finance, Deficit Reduction Act of 98th Cong, 2d Sess, 982 Thus, the 98th Congress reiterated its immediate predecessor's intentions not just by words but by deed not only did it express in legislative history the "histori[c] interpret[ation]" of the relevant income, but it found it sufficient in resolving the disagreement to amend only 402(8) This legislation, which, it was said, sought to "[c]larif[y] current law," Senate Print, at 79, leaves no doubt as to the prospective interpretation of the statute,[11] but it carries in addition considerable retrospective weight Fidelity Federal Savings & Loan Assn v De la Cuesta, 458 US 141, and n 19 ; Red Lion Broadcasting Co v FCC, 395 US 367, ; FHA v The Darlington, Inc, 358 US 84, In conjunction with contemporaneous evidence and the House Report, it removes all doubt IV In sum, while it appears that from the early days of the AFDC program the States regularly have excluded mandatory tax withholdings when determining need, it is clear to us that from some time after the addition in 1962 of the work-expense disregard of 402(7), and certainly by the time of OBRA, they did so pursuant to the directive of that section to disregard expenses "reasonably attributable" to the earning of income All the available evidence indicates that the Congress that enacted the OBRA changes in the AFDC program also viewed tax liabilities as work expenses subject to the 402(7) disregard That congressional understanding compels the conclusion that mandatory tax withholdings were among the items encompassed by the flatsum disregard of 402(8) *212 Respondents and their amici have offered various policy reasons why the disincentive to employment effected by the failure fully to account for work expenses is wrong They point to the value, both pecuniary and inherent, of the search for and maintenance of employment, as well as to the long-term costs to the States
|
Justice Kennedy
| 1,990 | 4 |
concurring
|
Holland v. Illinois
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https://www.courtlistener.com/opinion/112358/holland-v-illinois/
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I join JUSTICE SCALIA'S opinion and agree with him that we must reject petitioner's claim that the fair-cross-section requirement under the Sixth Amendment was violated. The contention is not supported by our precedents and admits of no limiting principle to make it workable in practice. I write this separate concurrence to note that our disposition of the Sixth Amendment claim does not alter what I think to be the established rule, which is that exclusion of a juror on the basis of race, whether or not by use of a peremptory challenge, is a violation of the juror's constitutional rights. I agree with JUSTICE MARSHALL, post, at 490-491, that this case does not resolve the question whether a defendant of a race different from that of the juror may challenge the race-motivated exclusion of jurors under the constitutional principles that underpin Like JUSTICE MARSHALL, I find it essential to make clear that if the claim here were based on the Fourteenth Amendment Equal Protection Clause, it would have merit. Many of the concerns expressed in a case where a black defendant objected to the exclusion of black jurors, support as well an equal protection claim by a defendant whose race or ethnicity is different from the dismissed juror's. To bar the claim whenever the defendant's race is not the same as the juror's would be to concede that racial exclusion of citizens from the duty, and honor, of jury service will *489 be tolerated, or even condoned. We cannot permit even the inference that this principle will be accepted, for it is inconsistent with the equal participation in civic life that the Fourteenth Amendment guarantees. I see no obvious reason to conclude that a defendant's race should deprive him of standing in his own trial to vindicate his own jurors' right to sit. As JUSTICE MARSHALL states, is based in large part on the right to be tried by a jury whose members are selected by nondiscriminatory criteria and on the need to preserve public confidence in the jury system. These are not values shared only by those of a particular color; they are important to all criminal defendants. Support can be drawn also from our established rules of standing, given the premise that a juror's right to equal protection is violated when he is excluded because of his race. See Individual jurors subjected to peremptory racial exclusion have the legal right to bring suit on their own behalf, but as a practical matter this sort of challenge is most unlikely. The reality is that a juror dismissed because of
|
Justice Kennedy
| 1,990 | 4 |
concurring
|
Holland v. Illinois
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https://www.courtlistener.com/opinion/112358/holland-v-illinois/
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unlikely. The reality is that a juror dismissed because of his race will leave the courtroom with a lasting sense of exclusion from the experience of jury participation, but possessing little incentive or resources to set in motion the arduous process needed to vindicate his own rights. We have noted that a substantial relation may entitle one party to raise the rights of another. See An important bond of this type links the accused and an excluded juror. In sum, the availability of a Fourteenth Amendment claim by a defendant not of the same race as the excluded juror is foreclosed neither by today's decision nor by did contain language indicating that the peremptory challenge of jurors of the same race as the defendant presents a different situation from the peremptory challenge of jurors of another race, but I consider the significance of the discussion to be procedural. An explicit part of the evidentiary *490 scheme adopted in was the defendant's showing that he was a member of a "cognizable racial group," and that the excluded juror was a member of the same group. See -98. The structure of this scheme rests upon grounds for suspicion where the prosecutor uses his strikes to exclude jurors whose only connection with the defendant is the irrelevant factor of race. It is reasonable in this context to suspect the presence of an illicit motivation, the "belief that blacks could not fairly try a black defendant." Where this obvious ground for suspicion is absent, different methods of proof may be appropriate. With these observations touching upon the matters raised in JUSTICE MARSHALL'S dissent, I concur in the opinion of the Court.
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
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https://www.courtlistener.com/opinion/111198/schall-v-martin/
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The New York Family Court Act governs the treatment of persons between 7 and 16 years of age who are alleged to have committed acts that, if committed by adults, would *282 constitute crimes.[1] The Act contains two provisions that authorize the detention of juveniles arrested for offenses covered by the Act[2] for up to 17 days pending adjudication of their guilt.[3] Section 320.5(3)(a) empowers a judge of the New York Family Court to order detention of a juvenile if he finds "there is a substantial probability that [the juvenile] will not appear in court on the return date." Section 320.5(3)(b), the provision at issue in these cases, authorizes detention if the judge finds "there is a serious risk [the juvenile] may before the return date commit an act which if committed by an adult would constitute a crime."[4] *283 There are few limitations on 320.5(3)(b). Detention need not be predicated on a finding that there is probable cause to believe the child committed the offense for which he was arrested. The provision applies to all juveniles, regardless of their prior records or the severity of the offenses of which they are accused. The provision is not limited to the prevention of dangerous crimes; a prediction that a juvenile if released may commit a minor misdemeanor is sufficient to justify his detention. Aside from the reference to "serious risk," the requisite likelihood that the juvenile will misbehave before his trial is not specified by the statute. The Court today holds that preventive detention of a juvenile pursuant to 320.5(3)(b) does not violate the Due Process Clause. Two rulings are essential to the Court's decision: that the provision promotes legitimate government objectives important enough to justify the abridgment of the detained juveniles' liberty interests, ante, at 274; and that the provision incorporates procedural safeguards sufficient to prevent unnecessary or arbitrary impairment of constitutionally protected rights, ante, at 277, 279-280. Because I disagree with both of those rulings, I dissent. I The District Court made detailed findings, which the Court of Appeals left undisturbed, regarding the manner in which 320.5(3)(b) is applied in practice. Unless clearly erroneous, those findings are binding upon us, see Fed. Rule Civ. Proc. 52(a), and must guide our analysis of the constitutional questions presented by these cases. The first step in the process that leads to detention under 320.5(3)(b) is known as "probation intake." A juvenile may arrive at intake by one of three routes: he may be brought there directly by an arresting officer; he may be detained for a brief period after his arrest and
|
Justice Marshall
| 1,984 | 15 |
dissenting
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Schall v. Martin
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https://www.courtlistener.com/opinion/111198/schall-v-martin/
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be detained for a brief period after his arrest and then taken to intake; he may be released upon arrest and directed to appear at a designated time. United ex rel. The heart of the intake procedure is a 10-to-40-minute interview of the juvenile, the arresting officer, and sometimes the juvenile's parent or guardian. The objectives of the probation officer conducting the interview are to determine the nature of the offense the child may have committed and to obtain some background information on him. On the basis of the information derived from the interview and from an examination of the juvenile's record, the probation officer decides whether the case should be disposed of informally ("adjusted") or whether it should be referred to the Family Court. If the latter, the officer makes an additional recommendation regarding whether the juvenile should be detained. "There do not appear to be any governing criteria which must be followed by the probation officer in choosing between proposing detention and parole" The actual decision whether to detain a juvenile under 320.5(3)(b) is made by a Family Court judge at what is called an "initial appearance" a brief hearing resembling an arraignment.[5] The information on which the judge makes his determination is very limited. He has before him a "petition for delinquency" prepared by a state agency, charging the juvenile with an offense, accompanied with one or more affidavits attesting to the juvenile's involvement. Ordinarily the judge has in addition the written report and recommendation of the probation officer. However, the probation officer who prepared the report rarely attends the hearing. Nor is the complainant likely to appear. Consequently, "[o]ften there is no one present with personal knowledge of what happened." In the typical case, the judge appoints counsel for the juvenile at the time his case is called. Thus, the lawyer has no opportunity to make an independent inquiry into the juvenile's background or character, and has only a few minutes to *285 prepare arguments on the child's behalf. The judge ordinarily does not interview the juvenile, makes no inquiry into the truth of allegations in the petition, and does not determine whether there is probable cause to believe the juvenile committed the offense.[6] The typical hearing lasts between 5 and 15 minutes, and the judge renders his decision immediately afterward. Neither the statute nor any other body of rules guides the efforts of the judge to determine whether a given juvenile is likely to commit a crime before his trial. In making detention decisions, "each judge must rely on his own subjective *286 judgment,
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
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https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
"each judge must rely on his own subjective *286 judgment, based on the limited information available to him at court intake and whatever personal standards he himself has developed in exercising his discretionary authority under the statute." Family Court judges are not provided information regarding the behavior of juveniles over whose cases they have presided, so a judge has no way of refining the standards he employs in making detention decisions. After examining a study of a sample of 34 cases in which juveniles were detained under 320.5(3)(b)[7] along with various statistical studies of pretrial detention of juveniles in New York,[8] the District Court made findings regarding the *287 circumstances in which the provision habitually is invoked. Three of those findings are especially germane to appellees' challenge to the statute. First, a substantial number of "first offenders" are detained pursuant to 320.5(3)(b). For example, at least 5 of the 34 juveniles in the sample had no prior contact with the Family Court before being detained and at least 16 had no prior adjudications of delinquency.[9] Second, many juveniles are released for periods ranging from five days to several weeks after their arrests and are then detained under 320.5(3)(b), despite the absence of any evidence of misconduct during the time between their arrests and "initial appearances." Sixteen of the thirty-four cases in the sample fit this pattern. Third, "the overwhelming majority" of the juveniles detained under 320.5(3)(b) are released either before or immediately after their trials, either unconditionally or on parole. At least 23 of the juveniles in the sample fell into this category. ; see 5 F. Supp., Finally, the District Court made a few significant findings concerning the conditions associated with "secure detention" pursuant to 320.5(3)(b).[10] In a "secure facility," "[t]he juveniles are subjected to strip-searches, wear institutional clothing and follow institutional regimen. At Spofford [Juvenile Detention Center], which is a secure facility, some juveniles who have had dispositional determinations and were awaiting *288 placement (long term care) commingle with those in pretrial detention (short term care)." It is against the backdrop of these findings that the contentions of the parties must be examined. II A As the majority concedes, ante, at 263, the fact that 320.5(3)(b) applies only to juveniles does not insulate the provision from review under the Due Process Clause. "[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Examination of the provision must of course be informed by a recognition that juveniles have different needs and capacities than adults, see but the provision still "must measure up
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
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https://www.courtlistener.com/opinion/111198/schall-v-martin/
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than adults, see but the provision still "must measure up to the essentials of due process and fair treatment," To comport with "fundamental fairness," 320.5(3)(b) must satisfy two requirements. First, it must advance goals commensurate with the burdens it imposes on constitutionally protected interests. Second, it must not punish the juveniles to whom it applies. The majority only grudgingly and incompletely acknowledges the applicability of the first of these tests, but its grip on the cases before us is undeniable. It is manifest that 320.5(3)(b) impinges upon fundamental rights. If the "liberty" protected by the Due Process Clause means anything, it means freedom from physical restraint. ; Board of Only a very important government interest can justify deprivation of liberty in this basic sense.[11] *289 The majority seeks to evade the force of this principle by discounting the impact on a child of incarceration pursuant to 320.5(3)(b). The curtailment of liberty consequent upon detention of a juvenile, the majority contends, is mitigated by the fact that "juvenile, unlike adults, are always in some form of custody." Ante, at 265. In any event, the majority argues, the conditions of confinement associated with "secure detention" under 320.5(3)(b) are not unduly burdensome. Ante, at 271. These contentions enable the majority to suggest that 320.5(3)(b) need only advance a "legitimate state objective" to satisfy the strictures of the Due Process Clause. Ante, at 256-257, 263-264, 274.[12] The majority's arguments do not survive scrutiny. Its characterization of preventive detention as merely a transfer of custody from a parent or guardian to the State is difficult to take seriously. Surely there is a qualitative difference between imprisonment and the condition of being subject to *290 the supervision and control of an adult who has one's best interests at heart. And the majority's depiction of the nature of confinement under 320.5(3)(b) is insupportable on this record. As noted above, the District Court found that secure detention entails incarceration in a facility closely resembling a jail and that pretrial detainees are sometimes mixed with juveniles who have been found to be Evidence adduced at trial reinforces these findings. For example, Judge Quinones, a Family Court Judge with eight years of experience, described the conditions of detention as follows: "Then again, Juvenile Center, as much as we might try, is not the most pleasant place in the world. If you put them in detention, you are liable to be exposing these youngsters to all sorts of things. They are liable to be exposed to assault, they are liable to be exposed to sexual assaults. You are taking the risk
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
be exposed to sexual assaults. You are taking the risk of putting them together with a youngster that might be much worse than they, possibly might be, and it might have a bad effect in that respect." App. 270. Many other observers of the circumstances of juvenile detention in New York have come to similar conclusions.[] *291 In short, fairly viewed, pretrial detention of a juvenile pursuant to 320.5(3)(b) gives rise to injuries comparable to those associated with imprisonment of an adult. In both situations, the detainee suffers stigmatization and severe limitation of his freedom of movement. See In re Winship, ; In re Indeed, the impressionability of juveniles may make the experience of incarceration more injurious to them than to adults; all too quickly juveniles subjected to preventive detention come to see society at large as hostile and oppressive and to regard themselves as irremediably ""[14] Such serious injuries to presumptively innocent persons encompassing the curtailment of their constitutional rights to liberty can be justified only by a weighty public interest that is substantially advanced by the statute.[15] The applicability of the second of the two tests is admitted even by the majority. In the Court held that an adult may not be punished prior to determination that he is guilty of a crime.[16] The majority concedes, as it must, that this principle applies to juveniles. Ante, at 264, 269. Thus, if the only purpose substantially advanced by 320.5(3)(b) is punishment, the provision must be struck down. For related reasons, 320.5(3)(b) cannot satisfy either of the requirements discussed above that together define "fundamental fairness" in the context of pretrial detention. B Appellants and the majority contend that 320.5(3)(b) advances a pair of intertwined government objectives: "protecting the community from crime," ante, at 264, and "protecting a juvenile from the consequences of his criminal activity," ante, at 266. More specifically, the majority argues that detaining a juvenile for a period of up to 17 days prior to his trial has two desirable effects: it protects society at large from the crimes he might have committed during that period if released; and it protects the juvenile himself "both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child." Ante, at 264-266. Appellees and some amici argue that public purposes of this sort can never justify incarceration of a person who has not been adjudicated guilty of a crime, at least in the
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
been adjudicated guilty of a crime, at least in the absence of a determination that there exists probable cause to believe he committed a criminal offense.[17] We need not reach that *293 categorial argument in these cases because, even if the purposes identified by the majority are conceded to be compelling, they are not sufficiently promoted by detention pursuant to 320.5(3)(b) to justify the concomitant impairment of the juveniles' liberty interests.[18] To state the case more precisely, two circumstances in combination render 320.5(3)(b) invalid in toto: in the large majority of cases in which the provision is invoked, its asserted objectives are either not advanced at all or are only minimally promoted; and, as the provision is written and administered by the state courts, the cases in which its asserted ends are significantly advanced cannot practicably be distinguished from the cases in which they are not. 1 Both of the courts below concluded that only occasionally and accidentally does pretrial detention of a juvenile under 320.5(3)(b) prevent the commission of a crime. Three subsidiary findings undergird that conclusion. First, Family Court judges are incapable of determining which of the juveniles who appear before them would commit offenses before their trials if left at large and which would not. In part, this incapacity derives from the limitations of current knowledge concerning the dynamics of human behavior. On the basis of evidence adduced at trial, supplemented by a thorough review of the secondary literature, see 5 F. Supp., -712, and nn. 31-32, the District Court found that "no diagnostic tools have as yet been devised which enable even the most highly trained criminologists to predict reliably which juveniles will engage in violent crime." The evidence supportive of this finding is overwhelming.[19]*294 An independent impediment to identification of the defendants who would misbehave if released is the paucity of data available at an initial appearance. The judge must make his decision whether to detain a juvenile on the basis of a set of allegations regarding the child's alleged offense, a cursory review of his background and criminal record, and the recommendation of a probation officer who, in the typical case, has seen the child only once. In view of this scarcity of relevant information, the District Court credited the testimony of appellees' expert witness, who "stated that he would be surprised if recommendations based on intake interviews were better than chance and assessed the judge's subjective prognosis about the probability of future crime as only 4% better than chance virtually wholly unpredictable."[20] *295 Second, 320.5(3)(b) is not limited to classes of juveniles
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
*295 Second, 320.5(3)(b) is not limited to classes of juveniles whose past conduct suggests that they are substantially more likely than average juveniles to misbehave in the immediate future. The provision authorizes the detention of persons arrested for trivial offenses[21] and persons without any prior contacts with juvenile court. Even a finding that there is probable cause to believe a juvenile committed the offense with which he was charged is not a prerequisite to his detention. See and n. 6.[22] *296 Third, the courts below concluded that circumstances surrounding most of the cases in which 320.5(3)(b) has been invoked strongly suggest that the detainee would not have committed a crime during the period before his trial if he had been released. In a significant proportion of the cases, the juvenile had been released after his arrest and had not committed any reported crimes while at large, see ; it is not apparent why a juvenile would be more likely to misbehave between his initial appearance and his trial than between his arrest and initial appearance. Even more telling is the fact that "the vast majority" of persons detained under 320.5(3)(b) are released either before or immediately after their ; see 5 F. Supp., The inference is powerful that most detainees, when examined more carefully than at their initial appearances, are deemed insufficiently dangerous to warrant further incarceration.[23] The rarity with which invocation of 320.5(3)(b) results in detention of a juvenile who otherwise would have committed a crime fatally undercuts the two public purposes assigned to the statute by the State and the majority. The argument that 320.5(3)(b) serves "the State's `parens patriae interest in preserving and promoting the welfare of the child,' " ante, at 265 (citation omitted), now appears particularly hollow. Most juveniles detained pursuant to the provision are not *297 benefited thereby, because they would not have committed crimes if left to their own devices (and thus would not have been exposed to the risk of physical injury or the perils of the cycle of recidivism, see ante, at 266). On the contrary, these juveniles suffer several serious harms: deprivation of liberty and stigmatization as "delinquent" or "dangerous," as well as impairment of their ability to prepare their legal defenses.[24] The benefits even to those few juveniles who would have committed crimes if released are not unalloyed; the gains to them are partially offset by the aforementioned injuries. In view of this configuration of benefits and harms, it is not surprising that Judge Quinones repudiated the suggestion that detention under 320.5(3)(b) serves the interests of the detainees. App.
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
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detention under 320.5(3)(b) serves the interests of the detainees. App. 269-270. The argument that 320.5(3)(b) protects the welfare of the community fares little better. Certainly the public reaps no benefit from incarceration of the majority of the detainees who would not have committed any crimes had they been released. Prevention of the minor offenses that would have been committed by a small proportion of the persons detained confers only a slight benefit on the community.[25] Only in occasional cases does incarceration of a juvenile pending his trial serve to prevent a crime of violence and thereby significantly promote the public interest. Such an infrequent and haphazard gain is insufficient to justify curtailment of the liberty *298 interests of all the presumptively innocent juveniles who would have obeyed the law pending their trials had they been given the chance.[26] 2 The majority seeks to deflect appellees' attack on the constitutionality of 320.5(3)(b) by contending that they have framed their argument too broadly. It is possible, the majority acknowledges, that "in some circumstances detention of a juvenile [pursuant to 320.5(3)(b)] would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-case basis." Ante, at 273; see ante, at 268-269, n. 18. The majority thus implies that, even if the Due Process Clause is violated by most detentions under 320.5(3)(b) because those detainees would not have committed crimes if released, the statute nevertheless is not invalid "on its face" because detention of those persons who would have committed a serious crime comports with the Constitution. Separation of the properly detained juveniles from the improperly detained juveniles must be achieved through "case-by-case" adjudication. There are some obvious practical impediments to adoption of the majority's proposal. Because a juvenile may not be incarcerated under 320.5(3)(b) for more than 17 days, it *299 would be impracticable for a particular detainee to secure his freedom by challenging the constitutional basis of his detention; by the time the suit could be considered, it would have been rendered moot by the juvenile's release or long-term detention pursuant to a delinquency adjudication.[27] Nor could an individual detainee avoid the problem of mootness by filing a suit for damages or for injunctive relief. This Court's declaration that 320.5(3)(b) is not unconstitutional on its face would almost certainly preclude a finding that detention of a juvenile pursuant to the statute violated any clearly established constitutional rights; in the absence of such a finding all state officials would be immune from liability in damages, see And, under current doctrine pertaining to the standing of an individual victim
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
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current doctrine pertaining to the standing of an individual victim of allegedly unconstitutional conduct to obtain an injunction against repetition of that behavior, it is far from clear that an individual detainee would be able to obtain *300 an equitable remedy. Compare with Los But even if these practical difficulties could be surmounted, the majority's proposal would be inadequate. Precisely because of the unreliability of any determination whether a particular juvenile is likely to commit a crime between his arrest and trial, see no individual detainee would be able to demonstrate that he would have abided by the law had he been released. In other words, no configuration of circumstances would enable a juvenile to establish that he fell into the category of persons unconstitutionally detained rather than the category constitutionally detained.[28] Thus, to protect the rights of the majority of juveniles whose incarceration advances no legitimate state interest, 320.5(3)(b) must be held unconstitutional "on its face." C The findings reviewed in the preceding section lend credence to the conclusion reached by the courts below: 320.5(3)(b) "is utilized principally, not for preventive purposes, but to impose punishment for unadjudicated criminal acts." ; see 5 F. Supp., at 715-717. The majority contends that, of the many factors we have considered in trying to determine whether a particular sanction constitutes "punishment," see the most useful are "whether an alternative purpose to which [the sanction] may *301 rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned," See ante, at 269. Assuming, arguendo, that this test is appropriate, but cf. -565 it requires affirmance in these case. The alternative purpose assigned by the State to 320.5(3)(b) is the prevention of crime by the detained juveniles. But, as has been shown, that objective is advanced at best sporadically by the provision. Moreover, 320.5(3)(b) frequently is invoked under circumstances in which it is extremely unlikely that the juvenile in question would commit a crime while awaiting trial. The most striking of these cases involve juveniles who have been at large without mishap for a substantial period of time prior to their initial appearances, see and detainees who are adjudged delinquent and are nevertheless released into the community. In short, 320.5(3)(b) as administered by the New York courts surely "appears excessive in relation to" the putatively legitimate objectives assigned to it. The inference that 320.5(3)(b) is punitive in nature is supported by additional materials in the record. For example, Judge Quinones and even appellants' counsel acknowledged that one of the reasons juveniles detained pursuant to 320.5(3)(b) usually
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
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https://www.courtlistener.com/opinion/111198/schall-v-martin/
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one of the reasons juveniles detained pursuant to 320.5(3)(b) usually are released after the determination of their guilt is that the judge decides that their pretrial detention constitutes sufficient -371, and nn. 27-28. Another Family Court Judge admitted using "preventive detention" to punish one of the juveniles in the 5 F. Supp.,[29] *302 In summary, application of the litmus test the Court recently has used to identify punitive sanctions supports the finding of the lower courts that preventive detention under 320.5(3)(b) constitutes Because punishment of juveniles before adjudication of their guilt violates the Due Process Clause, see the provision cannot stand. III If the record did not establish the impossibility, on the basis of the evidence available to a Family Court judge at a 320.5(3)(b) hearing, of reliably predicting whether a given juvenile would commit a crime before his trial, and if the purposes relied upon by the State were promoted sufficiently to justify the deprivations of liberty effected by the provision, I would nevertheless still strike down 320.5(3)(b) because of the absence of procedural safeguards in the provision. As Judge Newman, concurring in the Court of Appeals observed, "New York's statute is unconstitutional because it permits liberty to be denied, prior to adjudication of guilt, in the exercise of unfettered discretion as to an issue of considerable uncertainty likelihood of future criminal behavior." Appellees point out that 320.5(3)(b) lacks two crucial procedural constraints. First, a New York Family Court judge is given no guidance regarding what kinds of evidence he should consider or what weight he should accord different sorts of material in deciding whether to detain a juvenile.[30] For example, there is no requirement in the statute that the *303 judge take into account the juvenile's background or current living situation. Nor is a judge obliged to attach significance to the nature of a juvenile's criminal record or the severity of the crime for which he was arrested.[31] Second, 320.5(3)(b) does not specify how likely it must be that a juvenile will commit a crime before his trial to warrant his detention. The provision indicates only that there must be a "serious risk" that he will commit an offense and does not prescribe the standard of proof that should govern the judge's determination of that issue.[32] Not surprisingly, in view of the lack of directions provided by the statute, different judges have adopted different ways of estimating the chances whether a juvenile will misbehave in the near future. "Each judge follows his own individual approach to [the detention] determination." 5 F. Supp., ; see App. 265 (testimony
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
detention] determination." 5 F. Supp., ; see App. 265 (testimony of Judge Quinones). This discretion exercised by Family Court judges in making detention decisions gives rise to two related constitutional problems. First, it creates an excessive risk that juveniles will be detained "erroneously" i. e., under circumstances in which no public interest would be served by their incarceration. Second, it fosters arbitrariness and inequality in a decisionmaking process that impinges upon fundamental rights. A One of the purposes of imposing procedural constraints on decisions affecting life, liberty, or property is to reduce the *304 incidence of error. See In the Court identified a complex of considerations that has proved helpful in determining what protections are constitutionally required in particular contexts to achieve that end: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." As Judge Newman -376, a review of these three factors in the context of New York's preventive-detention scheme compels the conclusion that the Due Process Clause is violated by 320.5(3)(b) in its present form. First, the private interest affected by a decision to detain a juvenile is personal liberty. Unnecessary abridgment of such a fundamental right, see should be avoided if at all possible. Second, there can be no dispute that there is a serious risk under the present statute that a juvenile will be detained erroneously i. e., despite the fact that he would not commit a crime if released. The findings of fact reviewed in the preceding sections make it apparent that the vast majority of detentions pursuant to 320.5(3)(b) advance no state interest; only rarely does the statute operate to prevent crime. See This high incidence of demonstrated error should induce a reviewing court to exercise utmost care in ensuring that no procedures could be devised that would improve the accuracy of the decisionmaking process. Opportunities for improvement in the extant regime are apparent *305 even to a casual observer. Most obviously, some measure of guidance to Family Court judges regarding the evidence they should consider and the standard of proof they should use in making their determinations would surely contribute to the quality of their detention determinations.[33] The majority purports to see no
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
of their detention determinations.[33] The majority purports to see no value in such additional safeguards, contending that activity of estimating the likelihood that a given juvenile will commit a crime in the near future involves subtle assessment of a host of variables, the precise weight of which cannot be determined in advance. Ante, at 279. A review of the hearings that resulted in the detention of the juveniles included in the sample of 34 cases reveals the majority's depiction of the decisionmaking process to be hopelessly idealized. For example, the operative portion of the initial appearance of Tyrone Parson, the three-card monte player,[34] consisted of the following: "COURT OFFICER: Will you identify yourself. "TYRONE PARSON: Tyrone Parson, Age 15. "THE COURT: Miss Brown, how many times has Tyrone been known to the Court? "MISS BROWN: Seven times. *306 "THE COURT: Remand the respondent." Petitioners' Exhibit 18a.[35] This kind of parody of reasoned decisionmaking would be less likely to occur if judges were given more specific and mandatory instructions regarding the information they should consider and the manner in which they should assess it. Third and finally, the imposition of such constraints on the deliberations of the Family Court judges would have no adverse effect on the State's interest in detaining dangerous juveniles and would give rise to insubstantial administrative burdens. For example, a simple directive to Family Court judges to state on the record the significance they give to the seriousness of the offense of which a juvenile is accused and to the nature of the juvenile's background would contribute materially to the quality of the decisionmaking process without significantly increasing the duration of initial appearances. In summary, the three factors enumerated in Mathews in combination incline overwhelmingly in favor of imposition of more stringent constraints on detention determinations under 320.5(3)(b). Especially in view of the impracticability of correcting erroneous decisions through judicial review, see the absence of meaningful procedural safeguards in the provision renders it invalid. See B A principle underlying many of our prior decisions in various doctrinal settings is that government officials may not be accorded unfettered discretion in making decisions that *307 impinge upon fundamental rights. Two concerns underlie this principle: excessive discretion fosters inequality in the distribution of entitlements and harms, inequality which is especially troublesome when those benefits and burdens are great; and discretion can mask the use by officials of illegitimate criteria in allocating important goods and rights. So, in striking down on vagueness grounds a vagrancy ordinance, we emphasized the "unfettered discretion it places in the hands of the police." Such flexibility
|
Justice Marshall
| 1,984 | 15 |
dissenting
|
Schall v. Martin
|
https://www.courtlistener.com/opinion/111198/schall-v-martin/
|
it places in the hands of the police." Such flexibility was deemed constitutionally offensive because it "permits and encourages an arbitrary and discriminatory enforcement of the law." Partly for similar reasons, we have consistently held violative of the First Amendment ordinances which make the ability to engage in constitutionally protected speech "contingent upon the uncontrolled will of an official as by requiring a permit or license which may be granted or withheld in the discretion of such official." 355 U.S. 3, ; accord, Analogous considerations inform our understanding of the dictates of the Due Process Clause. Concurring in the judgment in striking down a statute that conditioned the right to marry upon the satisfaction of child-support obligations, JUSTICE POWELL aptly observed: "Quite apart from any impact on the truly indigent, the statute appears to `confer upon [the judge] a license for arbitrary procedure,' in the determination of whether an applicant's children are `likely thereafter to become public charges.' A serious question of procedural due process is raised by this feature of standardless discretion, particularly in light of the hazards of prediction in this area." (quoting ). *308 The concerns that powered these decisions are strongly implicated by New York's preventive-detention scheme. The effect of the lack of procedural safeguards constraining detention decisions under 320.5(3)(b) is that the liberty of a juvenile arrested even for a petty crime is dependent upon the "caprice" of a Family Court judge. See 5 F. Supp., at 707. The absence of meaningful guidelines creates opportunities for judges to use illegitimate criteria when deciding whether juveniles should be incarcerated pending their trials for example, to detain children for the express purpose of punishing them.[36] Even the judges who strive conscientiously to apply the law have little choice but to assess juveniles' dangerousness on the basis of whatever standards they deem appropriate.[37] The resultant variation in detention decisions gives rise to a level of inequality in the deprivation of a fundamental right too great to be countenanced under the Constitution. IV The majority acknowledges indeed, founds much of its argument upon the principle that a State has both the power and the responsibility to protect the interests of the children within its jurisdiction. See Yet the majority today upholds a statute whose net impact on the juveniles who come within its purview is overwhelmingly detrimental. Most persons detained under the provision reap no benefit and suffer serious injuries thereby. The welfare of only a minority of the detainees is even arguably enhanced. The inequity of this regime, combined with *309 the arbitrariness with
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
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Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
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The employees in these cases complain that their em- ployers have underpaid them in violation of the wage hours prescriptions of the Fair Labor Stards Act of 1938 (FLSA), 29 U.S. C. et seq., analogous state laws. Individually, their claims are small, scarcely of a size warranting the expense of seeking redress alone. See Ruan, What’s Left To Remedy Wage Theft? How Arbitra- tion Mates That Bar Class Actions Impact Low-Wage 2 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting Workers, 1118–1119 (Ruan). But by joining together others similarly circum- stanced, employees can gain effective redress for wage underpayment commonly experienced. See at 1108– 1111. To block such concerted action, their employers required them to sign, as a condition of employment, arbitration agreements banning collective judicial arbitral proceedings of any kind. The question presented: Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U.S. C. et seq., permit employers to insist that their employees, whenever seeking redress for commonly expe- rienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U.S. C. 51 et seq., “to engage in concerted activities” for their “mutual aid or protection”? 57. The answer should be a resounding “No.” In the NLRA its forerunner, the Norris-LaGuardia Act (NLGA), 29 U.S. C. 01 et seq., Congress acted on an acute awareness: For workers striving to gain from their employers decent terms conditions of employment, there is strength in numbers. A single employee, Con- gress understood, is disarmed in dealing an employer. See NLRB v. Jones & Laughlin Corp., 301 U.S. 1, 33–34 (1). The Court today subordinates employee- protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA the NLRA, ignores the destructive consequences of diminishing the right of em- ployees “to b together in confronting an employer.” (1984). Congressional correction of the Court’s elevation of the FAA over workers’ rights to act in concert is urgently in order. To explain why the Court’s decision is egregiously wrong, I first refer to the extreme imbalance once preva- lent in our Nation’s workplaces, Congress’ aim in the Cite as: 584 U. S. (2018) 3 GINSBURG, J., dissenting NLGA the NLRA to place employers employees on a more equal footing. I then explain why the Arbitra- tion Act, sensibly read, does not shrink the NLRA’s protec- tive sphere. I It was once the dominant view of this Court that “[t]he right of a person to sell his labor upon such terms as he
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