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Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
groups to condition membership eligibility on whatever “conduct requirements” they may wish to im pose. If that is the school’s current policy, it is hard to see why CLS may not be registered, for what CLS demands is that members foreswear “unrepentant participation in or advocacy of a sexu immoral lifestyle.” App. 146. That 24 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting should qualify as a conduct requirement. If it does not, then what Hastings’ new policy must mean is that registered groups may impose some, but not all, conduct requirements. And if that is the case, it is incumbent on Hastings to explain which conduct require ments are acceptable, which are not, and why CLS’s re quirement is not allowed. Hastings has made no effort to provide such an explanation.6 VI I come now to the version of Hastings’ policy that the Court has chosen to address. This is not the policy that Hastings invoked when CLS was denied registration. Nor is it the policy that Hastings now proclaims—and pre sumably implements. It is a policy that, as far as the record establishes, was in force only from the time when it was first disclosed by the former dean in July 2005 until Hastings filed its brief in this Court in March 2010. Why we should train our attention on this particular policy and not the other two is a puzzle. But in any event, it is clear that the accept-all-comers policy is not reasonable in light of the purpose of the RSO forum, and it is impossible to say on the present record that it is viewpoint neutral. A Once a state university opens a limited forum, it “must respect the lawful boundaries it has itself set.” Rosenber 515 U.S., Hastings’ regulations on the regis tration of student groups impose only two substantive limitations: A group seeking registration must have stu dent members and must be non-commercial. App. to Pet. for Cert. 82a–83a, Hastings Board of Directors, Policies and Regulations Applying to College Activities, Organiza —————— 6Nor does the Court clarify this point. Suggesting that any conduct requirement must relate to “gross misconduct,” ante, at 4, n. 2, is not helpful. Cite as: 561 U. S. (2010) 25 ALITO, J., dissenting tions and Students (June 22, 1990) (hereinafter Hastings Regulations). Access to the forum is not limited to groups devoted to particular purposes. The regulations provide that a group applying for registration must submit an official document including “a statement of its purpose,” at 83a (Hastings RegulationsA.1 (emphasis
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
“a statement of its purpose,” at 83a (Hastings RegulationsA.1 (emphasis added)), but the regulations make no attempt to define the limits of acceptable purposes. The regulations do not require a group seeking registration to show that it has a certain number of members or that its program is of inter est to any particular number of Hastings students. Nor do the regulations require that a group serve a need not met by existing groups. The regulations also make it clear that the registration program is not meant to stifle unpopular speech. They proclaim that “[i]t is the responsibility of the Dean to ensure an ongoing opportunity for the expression of a variety of viewpoints.” at 82a (Hastings Regulations They also emphatic disclaim any endorse ment of or responsibility for views that student groups may express. at 85a (Hastings RegulationsD). Taken as a whole, the regulations plainly contemplate the creation of a forum within which Hastings students are free to form and obtain registration of essenti the same broad range of private groups that nonstudents may form off campus. That is precisely what the parties in this case stipulated: The RSO forum “seeks to promote a diver sity of viewpoints among registered student organizations, including viewpoints on religion and human sexuality.” App. 216 (emphasis added). The way in which the RSO forum actu developed corroborates this design. As noted, Hastings had more than 60 RSOs in 2004–2005, each with its own independ ently devised purpose. Some addressed serious social issues; others—for example, the wine appreciation and ultimate Frisbee clubs—were simply recreational. Some 26 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting organizations focused on a subject but did not claim to promote a particular viewpoint on that subject (for exam ple, the Association of Communications, Sports & Enter tainment Law); others were defined, not by subject, but by viewpoint. The forum did not have a single Party Politics ; rather, it featured both the Hastings Democratic Caucus and the Hastings Republicans. There was no Reproductive Issues ; the forum included separate pro-choice and pro-life organizations. Students did not see fit to create a Monotheistic Religions but they have formed the Hastings Jewish Law Students Association and the Hastings Association of Muslim Law Students. In short, the RSO forum, true to its design, has allowed Hastings students to replicate on campus a broad array of private, independent, noncommercial organizations that is very similar to those that nonstudents have formed in the outside world. The accept-all-comers policy is antithetical to the design of the
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
The accept-all-comers policy is antithetical to the design of the RSO forum for the same reason that a state-imposed accept-all-comers policy would violate the First Amend ment rights of private groups if applied off campus. As explained above, a group’s First Amendment right of expressive association is burdened by the “forced inclu sion” of members whose presence would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” 530 U.S., The Court has therefore held that the government may not compel a group that engages in “expressive association” to admit such a member unless the government has a compelling interest, “ ‘unrelated to the suppression of ideas, that cannot be achieved through means significantly less re strictive of associational freedoms.’ ” (quoting Rob 4 U. S., at ). There can be no dispute that this standard would not permit a gener applicable law mandating that private religious groups admit members who do not share the Cite as: 561 U. S. (2010) 27 ALITO, J., dissenting groups’ beliefs. Religious groups like CLS obviously en gage in expressive association, and no legitimate state interest could override the powerful effect that an accept all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam. While there can be no question that the State of Califor nia could not impose such restrictions on all religious groups in the State, the Court now holds that Hastings, a state institution, may impose these very same require ments on students who wish to participate in a forum that is designed to foster the expression of diverse viewpoints. The Court lists four justifications offered by Hastings in defense of the accept-all-comers policy and, deferring to the school’s judgment, ante, at 21, the Court finds all those justifications satisfactory, ante, at 21–24. If we carry out our responsibility to exercise our own independent judgment, however, we must conclude that the justifica tions offered by Hastings and accepted by the Court are insufficient. The Court first says that the accept-all-comers policy is reasonable because it helps Hastings to ensure that “ ‘lead ership, educational, and social opportunities’ ” are afforded to all students. Ante, at 21–22 (quoting Brief for Respon dent Hastings College of Law 32). The RSO forum, how ever, is designed to achieve
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
32). The RSO forum, how ever, is designed to achieve these laudable ends in a very different way—by permitting groups of students, no mat ter how small, to form the groups they want. In this way, the forum multiplies the opportunity for students to serve in leadership positions; it allows students to decide which educational opportunities they wish to pursue through participation in extracurricular activities; and it permits 28 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting them to create the “social opportunities” they desire by forming whatever groups they wish to create. Second, the Court approves the accept-all-comers policy because it is easier to enforce than the Nondiscrimination Policy that it replaced. It would be “a daunting labor,” the Court warns, for Hastings to try to determine whether a group excluded a member based on belief as opposed to status. Ante, at 22; see also ante, at 2–3, n. 1 (opinion of STEVENS, J.) (referring to the “impossible task of separating out belief-based from status-based religious discrimination”). This is a strange argument, since the Nondiscrimination Policy prohibits discrimination on substanti the same grounds as the antidiscrimination provisions of many States,7 including California, and except for the inclusion of the prohibition of discrimination based on sexual orien tation, the Nondiscrimination Policy also largely tracks federal antidiscrimination laws.8 Moreover, Hastings now willingly accepts greater burdens under its latest policy, which apparently requires the school to distinguish be tween certain “conduct requirements” that are allowed and others that are not. Nor is Hastings daunted by the labor of determining whether a club admissions exam legitimately tests knowledge or is a pretext for screening —————— 7 See, e.g., Cal. Gov. Code Ann. §40(a) (West 2005); N. J. Stat. Ann. (West 2002); N. Y. Exec. Law Ann. (West 2010). 8 See, e.g., Civil Rights Act of 1964, 42 U.S. C. et seq. (Title VII); Civil Rights Act of 1964, as amended, 42 U.S. C. et seq. (Title VI); Age Discrimination in Employment Act of 1967, as amended, 29 U.S. C. et seq.; Americans with Disabilities Act of 1990, 42 U.S. C. et seq. However, Title VII, which prohibits employment discrimination on the basis of religion, provides that religious associations and schools can hire on the basis of religion and that any employer can hire on the basis of religion if it is a bona fide occupational qualification. 42 U.S. C. §–1(a), 2000e–2(e). Cite as: 561 U. S. (2010) 29 ALITO, J., dissenting out students with disfavored beliefs. Asked at oral argu ment whether CLS could
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
disfavored beliefs. Asked at oral argu ment whether CLS could require applicants to pass a test on the Bible, Hastings’ attorney responded: “If it were truly an objective knowledge test, it would be okay.” Tr. of Oral Arg. 52. The long history of disputes about the meaning of Bible passages belies any suggestion that it would be an easy task to determine whether the grading of such a test was “objective.” Third, the Court argues that the accept-all-comers policy, by bringing together students with diverse views, encourages tolerance, cooperation, learning, and the de velopment of conflict-resolution skills. Ante, at 23. These are obviously commendable goals, but they are not un dermined by permitting a religious group to restrict mem bership to persons who share the group’s faith. Many religious groups impose such restrictions. See, e.g., Brief for Agudath Israel of America as Amicus Curiae 3 (“[B]ased upon millennia-old Jewish laws and traditions, Orthodox Jewish institutions regularly differentiate between Jews and non-Jews”). Such practices are not manifestations of “contempt” for members of other faiths. Cf. ante, at 6 (opinion of STEVENS, J.) (invoking groups that have “contempt for Jews, blacks, and women”). Nor do they thwart the objectives that Hastings endorses. Our country as a whole, no less than the Hastings College of Law, values tolerance, cooperation, learning, and the amicable resolution of conflicts. But we seek to achieve those goals through “[a] confident pluralism that conduces to civil peace and advances democratic consensus building,” not by abridging First Amendment rights. Brief for Gays and Lesbians for Individual Liberty as Amicus Curiae 35. Fourth, the Court observes that Hastings’ policy “incor porates—in fact, subsumes—state-law proscriptions on discrimination.” Ante, at 23. Because the First Amend ment obviously takes precedence over any state law, this 30 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting would not justify the Hastings policy even if it were true— but it is not. The only Hastings policy considered by the Court—the accept-all-comers policy—goes far beyond any California antidiscrimination law. Neither Hastings nor the Court claims that California law demands that state entities must accept all comers. Hastings itself certainly does not follow this policy in hiring or student admissions. Nor is it at all clear that California law requires Hast ings to deny registration to a religious group that limits membership to students who share the group’s religious beliefs. Hastings cites no California court decision or administrative authority addressing this question. In stead, Hastings points to a statute prohibiting discrimina tion on specified grounds, including religion or sexual
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
prohibiting discrimina tion on specified grounds, including religion or sexual orientation, “in any program or activity conducted by” certain postsecondary educational institutions. Cal. Educ. Code Ann. (West Supp. 2010) (emphasis added). Hastings, however, does not conduct the activities of the student groups it registers. Indeed, Hastings disclaims such responsibility, stating both in its regulations and its Handbook for Student Organizations that it “does not sponsor student organizations and therefore does not accept liability for activities of student organizations.” App. to Pet. for Cert. 85a (Hastings RegulationsD); App. 250. In addition, as CLS notes, another provision of California law specific exempts “any funds that are used directly or indirectly for the benefit of student or ganizations” from a ban on state funding of private groups that discriminate on any of the grounds listed in See (West Supp. 2010). The authority to decide whether or any other provision of California law requires religious student groups at covered institutions to admit members who do not share the groups’ religious views is of course a ques tion of state law that we cannot resolve. The materials that have been brought to our attention, however, provide Cite as: 561 U. S. (2010) 31 ALITO, J., dissenting little support for the majority’s suggested interpretation. In sum, Hastings’ accept-all-comers policy is not reason able in light of the stipulated purpose of the RSO forum: to promote a diversity of viewpoints “among”—not within— “registered student organizations.” App. 216 (emphasis added).9 B The Court is also wrong in holding that the accept-all comers policy is viewpoint neutral. The Court proclaims that it would be “hard to imagine a more viewpoint neutral policy,” ante, at 28, but I would not be so quick to jump to this conclusion. Even if it is assumed that the policy is viewpoint neutral on its face,10 there is strong —————— 9 Although we have held that the sponsor of a limited public forum “must respect the lawful boundaries it has itself set,” Rosen, 515 U.S., the Court now says that, if the exclusion of a group is challenged, the sponsor can retroactively redraw the boundary lines in order to justify the exclusion. See ante, at 21, n. 17. This approach does not respect our prior holding. 10 In Board of Regents of Univ. of Wis. 529 U.S. 217 the Court considered a university rule permitting the “defund[ing]” of a registered student group through a student referen dum. See at 224–225. “To the extent the referendum substitutes majority determinations for viewpoint neutrality,” the Court observed, “it would undermine the constitutional protection the [university’s registered student
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
“it would undermine the constitutional protection the [university’s registered student organization] program requires.” “The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.” Hastings’ accept-all-comers policy bears a resemblance to the South wark referendum process. Both permit the majority to silence a disfa vored organization. There is force to CLS’s argument that “[a]llowing all students to join and lead any group, even when they disagree with it, is tantamount to establishing a majoritarian heckler’s veto” and “potenti turn[s] every group into an organ for the already-dominant opinion.” Brief for Petitioner 51. The Court attempts to distinguish Southworth as involving a funding mechanism for student groups that operated selectively, based on groups’ viewpoints. Ante, at 29, n. 25. But that mechanism—a student referendum process—placed all students at risk of “being required to 32 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting evidence in the record that the policy was announced as a pretext. The adoption of a faci neutral policy for the purpose of suppressing the expression of a particular viewpoint is viewpoint discrimination. See (“[A] law neutral on its face still may be unconstitutional if motivated by a discriminatory purpose”). A simple example illustrates this obvious point. Suppose that a hated student group at a state university has never been able to attract more than 10 members. Suppose that the university administration, for the purpose of preventing that group from using the school grounds for meetings, adopts a new rule under which the use of its facilities is restricted to groups with more than 25 members. Although this rule would be neutral on its face, its adoption for a discriminatory reason would be illegal. Here, CLS has made a strong showing that Hastings’ sudden adoption and selective application of its accept-all comers policy was a pretext for the law school’s unlawful denial of CLS’s registration application under the Nondis crimination Policy. Shifting policies. When Hastings denied CLS’s applica tion in the fall of 2004, the only policy mentioned was the Nondiscrimination Policy. In July 2005, the former dean suggested in a deposition that the law school actu followed the very different accept-all-comers policy. In March of this year, Hastings’ brief in this Court rolled out still a third policy. As is recognized in the employment discrimination context, where issues of pretext regularly arise, “[s]ubstantial changes over time in [an] employer’s —————— pay fees which are subsidies for speech they find objectionable, even offensive,” solely upon a majority vote of the student
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
even offensive,” solely upon a majority vote of the student body. See 529 U.S., at 230, 235. That is no different in principle than an accept-all comers policy that places all student organizations at risk of take-over by a majority that is hostile to a group’s viewpoint. Cite as: 561 U. S. (2010) 33 ALITO, J., dissenting proffered reason for its employment decision support a finding of pretext.” Kobrin v. University of Minnesota, 34 F.3d 698, 703 (CA8 1994); see also, e.g., (CA9 2002); v. Borg-Warner Automotive, Inc., 280 F.3d 579, 592 (CA6 2001). Timing. The timing of Hastings’ revelation of its new policies closely tracks the law school’s litigation posture. When Hastings denied CLS registration, it cited only the Nondiscrimination Policy. Later, after CLS alleged that the Nondiscrimination Policy discriminated against reli gious groups, Hastings unveiled its accept-all-comers policy. Then, after we granted certiorari and CLS’s open ing brief challenged the constitutionality—and the plausi bility—of the accept-all-comers policy, Hastings disclosed a new policy. As is true in the employment context, “[w]hen the justification for an adverse action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defen dant’s decision.” 92. Lack of documentation. When an employer has a writ ten policy and then relies on a rule for which there is no written documentation, that deviation may support an inference of pretext. See, e.g., ; Rudin v. Lincoln Land Community College, (CA7 2005); n. 29 (CA5 2005); Russell v. TG Missouri Corp., 340 F.3d 735, 746 (CA8 2003); Mohammed v. Callaway, 698 F.2d 395, 399–400, 401 (CA10 1983). Here, Hastings claims that it has had an accept-all comers policy since 1990, but it has not produced a single written document memorializing that policy. Nor has it cited a single occasion prior to the dean’s deposition when this putative policy was or disclosed to either student groups interested in applying for registration or to the 34 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting Office of Student Services, which was charged with re viewing the bylaws of applicant groups to ensure that they were in compliance with the law school’s policies. Nonenforcement. Since it appears that no one was told about the accept-all-comers policy before July 2005, it is not surprising that the policy was not enforced. The re cord is replete with evidence that Hastings made no effort to enforce the all-comers policy until after it was pro claimed by the former dean. See, e.g., App. to Pet. for Cert. 118a (Hastings Democratic Caucus);
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
e.g., App. to Pet. for Cert. 118a (Hastings Democratic Caucus); at 110a (Association of Trial Lawyers of America at Hastings); a–147a (Vietnamese American Law Society); at 142a–143a (Silent Right); App. 192 (La Raza). See gener at 7–8. If the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead. The Court—understandably—sidesteps this issue. The Court states that the lower courts did not address the “argument that Hastings selectively enforces its all-comer policy,”11 that “this Court is not the proper forum to air the issue in the first instance,” and that “[o]n remand, the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved.” Ante, at 31–32. Because the Court affirms the entry of summary judg ment in favor of respondents, it is not clear how CLS will be able to ask the Ninth Circuit on remand to review its claim of pretext. And the argument that we should not —————— 11 As previously noted, CLS consistently argued in the courts below that Hastings had applied its registration policy in a discriminatory manner. See at 9–10, n. 1. The Court would ignore these arguments because counsel for CLS acknowledged below that Hastings has an all-comers policy. See ante, at 9, n. 5 (quoting examples). But as the Court itself acknowledges, counsel for CLS stated at oral argu ment in this Court that “the Court needs to reach the constitution ality of the all-comers policy as applied to CLS in this case.” Tr. of Oral Arg. 59 (emphasis added); ante, at 9, n. 5. And as the record shows, CLS has never ceded its argument that Hastings applies its accept-all comers policy unequ. Cite as: 561 U. S. (2010) 35 ALITO, J., dissenting address this issue of pretext because the Ninth Circuit did not do so is hard to take, given that the Ninth Circuit barely addressed anything, disposing of this case in pre cisely two sentences. Neither of those two sentences addressed the “novel question,” ante, at 1, to which the bulk of this Court’s opinion is devoted, i.e., whether the accept-all-comers policy is reasonable in light of the purposes of the RSO forum and is viewpoint neutral, see ante, at 17–31. If it is appropriate for us to consider that issue, then the Ninth Circuit’s failure to address the issue of pretext should not stand in the way of review by this Court. C One final aspect of the Court’s decision warrants com ment. In response to the argument that the accept-all comers-policy would permit a small
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
the argument that the accept-all comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its mes sage, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” Ante, at 27. With this concession, the Court tacitly recognizes that Hastings does not re have an accept-all-comers pol icy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague. Here is an example. Not all Christian denominations agree with CLS’s views on sexual morality and other matters. During a recent year, CLS had seven members. Suppose that 10 students who are members of denomina tions that disagree with CLS decided that CLS was mis representing true Christian doctrine. Suppose that these students joined CLS, elected officers who shared their 36 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting views, ended the group’s affiliation with the national organization, and changed the group’s message. The new leadership would likely proclaim that the group was “vi tal” but rectified, while CLS, I assume, would take the view that the old group had suffered its “demise.” Whether a change represents reform or transformation may depend very much on the eye of the beholder. JUSTICE KENNEDY takes a similarly mistaken tack. He contends that CLS “would have a substantial case on the merits if it were shown that the all-comers policy was used to infiltrate the group or challenge its leadership in order to stifle its views,” ante, at 4 (concurring opinion), but he does not explain on what ground such a claim could succeed. The Court holds that the accept-all-comers policy is viewpoint neutral and reasonable in light of the pur poses of the RSO forum. How could those characteristics be altered by a change in the membership of one of the forum’s registered groups? No explanation is apparent. In the end, the Court refuses to acknowledge the conse quences of its holding. A true accept-all-comers policy permits small unpopular groups to be taken over by stu dents who wish to change the views that the group ex presses. Rules requiring that members attend meetings, pay dues, and behave politely, see ante, at 27, would not eliminate this threat. The possibility of such takeovers, however, is by no means the
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
possibility of such takeovers, however, is by no means the most important effect of the Court’s holding. There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the conse quence of an accept-all-comers policy is marginalization. See Brief for Evangelical Scholars (Officers and 24 Former Presidents of the Evangelical Theological Society) et al. as Amici Curiae 19 (affirmance in this case “will allow every public college and university in the United States to ex clude all evangelical Christian organizations”); Brief for Cite as: 561 U. S. (2010) 37 ALITO, J., dissenting Agudath Israel of America as Amicus Curiae 3, 8 (affir mance would “point a judicial dag at the heart of the Orthodox Jewish community in the United States” and permit that community to be relegated to the status of “a second-class group”); Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae 3 (affirmance “could significantly affect the ability of [affiliated] student clubs and youth movements to prescribe requirements for their membership and leaders based on religious be liefs and commitments”). This is where the Court’s deci sion leads. * * * I do not think it is an exagation to say that today’s decision is a serious setback for freedom of expression in this country. Our First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” New York Times (1964). Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direc tion. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.
|
https://www.courtlistener.com/opinion/108745/salyer-land-co-v-tulare-lake-basin-water-storage-dist/
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The vices of this case are fourfold. First. Lessees of farmlands, though residents of the district, are not given the franchise. Second. Residents who own no agricultural lands but live in the district and face all the perils of flood which the district is supposed to control are disfranchised. Third. Only agricultural landowners are entitled to vote and their vote is weighted, one vote for each one hundred dollars of assessed valuation as provided in 41001 of the California Water Code. Fourth. The corporate voter is put in the saddle. There are 189 landowners who own up to 80 acres each. These 189 represent 2.34% of the agricultural acreage of the district. There are 193,000 acres in the district. Petitioner Salyer Land Co. is one large operator, West Lake Farms and South Lake Farms are also large operators. The largest is J. G. Boswell Co. These four farm almost 85% of all the land in the district. Of these, J. G. Boswell Co. commands the greatest number of votes, 37,825, which are enough to give it a majority of the board of directors. As a result, it is permanently in the saddle. Almost all of the 77 residents of the district are disfranchised. The hold of J. G. Boswell Co. is so strong that there has been no election since 1947, making little point of the provision in 41300 of the California Water Code for an election every other year. The result has been calamitous to some who, though landless, have even more to fear from floods than the ephemeral corporation. *736 I In we set out the following test for state election schemes which selectively distribute the franchise: "Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise." Provisions authorizing a selective franchise are disfavored, because they "always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives." In order to overcome this strong presumption, it had to be shown up to now (1) that there is a compelling state interest for the exclusion, and (2) that the exclusions are necessary to promote the State's articulated goal. ; See also Police Jury of Vermillion ; aff'd In my view, appellants in this case have made a sufficient showing to invoke the above principles, and the presumption thus established has not been overcome. Assuming, arguendo, that a State may, in some circumstances, limit the franchise to that
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.
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https://www.courtlistener.com/opinion/108745/salyer-land-co-v-tulare-lake-basin-water-storage-dist/
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State may, in some circumstances, limit the franchise to that portion of the electorate "primarily affected" by the outcome of an election, the limitation may only be upheld if it is demonstrated that "all those excluded are in fact substantially less interested or affected than those the [franchise] includes." The majority concludes that "there is no way that the *737 economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries." But, with all respect, that is a great distortion. In these arid areas of our Nation a water district seeks water in time of drought and fights it in time of flood. One of the functions of water districts in California is to manage flood control. That is general California statutory policy.[1] It is expressly stated in the Water Code that governs water districts.[2] The California Supreme Court ruled some years back that flood control and irrigation are different but complementary aspects of one problem.[3] From its inception in 1926, this district has had repeated flood control problems. Four rivers, Kings, Kern, Tule, and Kaweah, enter Tulare Lake Basin. South of Tulare Lake Basin is Buena Vista Lake. In the past, Buena Vista has been used to protect Tulare Lake Basin by storing Kern River water in the former. That is how Tulare Lake Basin was protected from menacing floods in 1952. But that was not done in the great 1969 flood, the result being that 88,000 of the 193,000 acres in respondent district were flooded. The board of the respondent districtdominated by the big landowner J. G. Boswell Co.voted 6-4 to table the motion that would put into operation the machinery to divert the flood waters to the Buena Vista Lake. The reason is that J. G. Boswell Co. had a long-term agricultural lease in the Buena Vista Lake Basin and flooding it would have interfered with the planting, growing, and harvesting of crops the next season. The result was that water in the Tulare Lake Basin rose to 192.5 USGS datum. Ellison, one of the appellants *738 who lives in the district, is not an agricultural landowner. But his residence was 15 1/2 feet below the water level of the crest of the flood in 1969. The appellee district has large levees; and if they are broken, damage to houses and loss of life are imminent. Landownerslarge or small, resident or nonresident lessees or landlords, sharecroppers[4] or ownersall should have a say. But irrigation, water storage, the building of levees, and flood control, implicate
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.
|
https://www.courtlistener.com/opinion/108745/salyer-land-co-v-tulare-lake-basin-water-storage-dist/
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water storage, the building of levees, and flood control, implicate the entire community. All residents of the district must be granted the franchise. This case, as I will discuss below, involves the performance of vital and important governmental functions by water districts clothed with much of the paraphernalia of government. The weighting of votes according to one's wealth is hostile to our system of government. See *739 aff'd, As a nonlandowning bachelor was held to be entitled to vote on matters affecting education, so all the prospective victims of mismanaged flood control projects should be entitled to vote in water district elections, whether they be resident nonlandowners, resident or nonresident lessees, and whether they own 10 acres or 10,000 acres. Moreover, their votes should be equal regardless of the value of their holdings, for when it comes to performance of governmental functions all enter the polls on an equal basis. The majority, however, would distinguish the water storage district from "units of local government having general governmental powers over the entire geographic area served by the body," and fit this case within the exception contemplated for "a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents." The Avery test was significantly liberalized in Hadley v. Junior College At issue was an election for trustees of a special-purpose district which ran a junior college. We said. "[S]ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. [T]hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions and have sufficient *740 impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here." (Emphasis added; footnote omitted.) Measured by the Hadley test, the Tulare Lake Basin Water Storage surely performs "important governmental functions" which "have sufficient impact throughout the district" to justify the application of the Avery principle. Water storage districts in California are classified as irrigation, reclamation, or drainage districts.[5] Such state agencies "are considered exclusively governmental," and their property is "held only for governmental purpose," not in the "proprietary sense."[6] They are a "public entity," just as "any other political subdivision."[7] That is made explicit in various
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.
|
https://www.courtlistener.com/opinion/108745/salyer-land-co-v-tulare-lake-basin-water-storage-dist/
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"any other political subdivision."[7] That is made explicit in various ways. The Water Code of California states that "[a]ll waters and water rights" of the State "within the district are given, dedicated, and set apart for the uses and purposes of the district."[8] Directors of the district are "public officers of the state."[9] The district possesses the power of eminent domain.[10] Its works may not be taxed.[11] It carries a governmental immunity against suit.[12] A district has powers that relate to irrigation, storage of water, drainage, flood control, and generation of hydroelectric energy.[13] Whatever may be the parameters of the exception alluded to in Avery and Hadley, I cannot conclude that *741 this water storage district escapes the constitutional restraints relative to a franchise within a governmental unit. II When we decided and discussed the problems of malapportionment we thought and talked about peopleof population, of the constitutional right of "qualified citizens to vote," (id., at 554) of "the right of suffrage," (id., at 555) of the comparison of "one man's vote" to that of another man's vote. We said: "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." It is indeed grotesque to think of corporations voting within the framework of political representation of people. Corporations were held to be "persons" for purposes both of the Due Process Clause of the Fourteenth Amendment[14] and of the Equal Protection Clause.[15] Yet, it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. Could a State allot voting rights to its corporations, weighting each vote according to the wealth of the corporation? Or could it follow the rule of one corporation, one vote? *742 It would be a radical and revolutionary step to take, as it would change our whole concept of the franchise. California takes part of that step here by allowing corporations to vote in these water district matters[16] that entail performance of vital governmental functions. One corporation can outvote 77 individuals in this district. Four corporations can exercise these governmental powers as they choose, leaving every individual inhabitant with a weak, ineffective voice. The result is a corporate political kingdom undreamed of by those who wrote our Constitution.
|
Justice Thomas
| 2,011 | 1 |
concurring
|
Ortiz v. Jordan
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https://www.courtlistener.com/opinion/183479/ortiz-v-jordan/
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We granted certiorari to decide the narrow question whether a party may appeal an order denying summary judgment after a full trial on the merits. I agree with the Court that the answer is no. See ante, at 2–3. The Court also reaches beyond that question, however, to address the effect of Jordan and Bright’s failure to renew their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). I would limit our decision to the question presented and remand for consideration of any additional issues. As the Court concludes, a party ordinarily cannot appeal an order denying summary judgment after a full trial on the merits. See ante, at 7–8. Most such orders are not appealable at all, because they neither qualify as “final decisions” capable of appeal under 28 U.S. C. nor come within the narrow class of appealable interlocutory orders under And for those that are appeal able,* the time for filing an appeal will usually have run by the conclusion of the trial. See (holding that some orders denying summary judgment constitute “ ‘final decisions’ ” under the collateral order doctrine). 2 ORTIZ v. JORDAN THOMAS, J., concurring in judgment notice of appeal in a civil case generally must be filed “within thirty days” after entry of the relevant judgment or order); Fed. Rule App. Proc. 4(a)(1)(A). This case is the ordinary case. Even if the order deny ing summary judgment qualified under the collateral order doctrine as an appealable “final decision” under the time for filing that appeal expired long before trial. Ante, at 7–8. The Court of Appeals therefore lacked jurisdiction to review the order. I would reverse the judgment on that ground alone and remand for further proceedings. The majority proceeds to consider the additional ques tion whether Jordan and Bright’s failure to file a Rule 50(b) motion deprived the Court of Appeals of the “ ‘powe[r]’ ” to review the sufficiency of the trial evidence. See ante, at 3–4, 8 ). The Court does so because it concludes that the Court of Appeals did not confine itself to the pretrial record and instead reviewed the trial evidence. Ante, at 3. I do not think it necessary to reach beyond the question presented. It is clear from the opinion that the appeals court reviewed the order denying summary judgment, and that was error. The Court of Appeals explained that “[a]lthough courts normally do not review the denial of a summary judgment motion after a trial on the merits,” this case “is an exception to th[at] rule.” 316 Fed.
|
Justice Thomas
| 2,011 | 1 |
concurring
|
Ortiz v. Jordan
|
https://www.courtlistener.com/opinion/183479/ortiz-v-jordan/
|
this case “is an exception to th[at] rule.” 316 Fed. Appx. 449, 453 (CA6 2009). And to support that conclusion, the court cited in which the Eighth Circuit reviewed an order denying summary Finally, the Court of Appeals equated its re view in this case to the review of an “interlocutory appea[l] of qualified immunity,” which suggests that the court saw itself as reviewing the interlocutory order denying sum mary Whether, in erroneously reviewing the order denying summary judg Cite as: 562 U. S. (2011) 3 THOMAS, J., concurring in judgment ment, the Court of Appeals considered the pretrial or full trial record is beside the point. I also think it unwise to reach the Rule 50 issue and the questions that follow. Ortiz’s opening brief at the merits stage focused on the question presented—whether the Court of Appeals lacked jurisdiction to review an order denying summary It was not until Jordan and Bright’s response brief in this Court, in which they argued that they had not actually appealed the order denying summary judgment, that the Rule 50 issues were ad dressed at any length. This Court normally proceeds more cautiously. Moreover, the Court of Appeals did not address these issues at all, and we are ordinarily “a court of final review and not first view.” Adarand Constructors, (internal quotation marks omitted). This seems a good rule to follow in a case like this, which raises difficult and far-reaching questions of civil procedure. For these reasons, I would resolve only the question on which we granted certiorari. I concur in the judgment
|
Justice Kennedy
| 1,993 | 4 |
concurring
|
Hazen Paper Co. v. Biggins
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https://www.courtlistener.com/opinion/112844/hazen-paper-co-v-biggins/
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I agree with the Court that the Court of Appeals placed improper reliance on respondent's evidence of pension interference and that the standard for determining willfulness announced in Trans World Airlines, applies to individual acts of age discrimination as *618 well as age discrimination manifested in formal, companywide policy. I write to underscore that the only claim based upon the Age Discrimination in Employment Act (ADEA), 29 U.S. C. 621 et seq., asserted by respondent in this litigation is that petitioners discriminated against him because of his age. He has advanced no claim that petitioners' use of an employment practice that has a disproportionate effect on older workers violates the ADEA. See App. 29-30 (amended complaint); 5 Record 71-76 (jury instructions). As a result, nothing in the Court's opinion should be read as incorporating in the ADEA context the so-called "disparate impact" theory of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e to 2000e17. As the Court acknowledges, ante, at 610, we have not yet addressed the question whether such a claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA. See ; ; Note, Age Discrimination and the Disparate Impact Doctrine, It is on the understanding that the Court does not reach this issue that I join in its opinion.
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
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https://www.courtlistener.com/opinion/110323/adams-v-texas/
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This capital case presents the question whether Texas contravened the Sixth and Fourteenth Amendments as construed and applied in when it excluded members of the venire from jury service because they were unable to take an oath that the mandatory penalty of death or imprisonment for life would not "affect [their] deliberations on any issue of fact." We hold that there were exclusions that were inconsistent with Witherspoon, and we therefore reverse the sentence of death imposed on the petitioner. I Trials for capital offense in Texas are conducted in a two-phase proceeding. See Tex. Code Crim. Proc. Ann., Art. 37.071 In the first phase, the jury considers the question of the defendant's guilt or innocence. If the jury finds the defendant guilty of a capital offense, the trial court holds a separate sentencing proceeding at which a wide range of additional evidence in mitigation or aggravation is admissible. The jury is then required to answer the following questions based on evidence adduced during either phase of the trial: "(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and *41 with the reasonable expectation that the death of the deceased or another would result; "(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and "(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." Art. 37.071 If the jury finds beyond a reasonable doubt that the answer to each of these questions is "Yes," the court is required to impose a sentence of death. If the jury finds that the answer to any of the three questions is "No," the court imposes a sentence of life imprisonment. Arts. 37.071 (c), (e). The petitioner in this case was charged with the capital offense of murdering a peace officer.[1] During voir dire examination of individual prospective jurors, the prosecutor, and sometimes the trial judge, intensively inquired as to whether *42 their attitudes about the death penalty permitted them to take the oath set forth in (1974). Section 12.31 provides as follows: "Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact." Typically, the prospective juror
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
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https://www.courtlistener.com/opinion/110323/adams-v-texas/
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deliberations on any issue of fact." Typically, the prospective juror was first advised that the State was seeking the death penalty and asked to state his general views on the subject, which were sometimes explored in considerable depth. He was then informed in detail of the special procedure used by Texas in capital cases, including in particular the fact that "Yes" answers to the three punishment questions would automatically result in the trial judge's imposing the death sentence. Finally, he was asked whether he could state under oath, as required by 12.31 that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact. On the State's submission and over petitioner's objections, the trial judge excused a number of prospective jurors who were unwilling or unable to take the 12.31 oath. The jury selected under this procedure convicted the petitioner of the charged offense and answered the statutory questions affirmatively at the punishment phase, thus causing the trial judge to impose the death sentence as required by Art. 37.071 (e). On appeal, the petitioner argued that prospective jurors had been excluded in violation of this Court's decision in The Texas Court of Criminal Appeals rejected the contention on the authority of its previous cases, which had "consistently held that the statutory scheme for the selection of jurors in capital cases in Texas, and in particular the application of [ 12.31 ] to the punishment issues, comports with the constitutional requirements *43 of Witherspoon." We granted the petition for a writ of certiorari, limited to the following questions: "(1) Is the doctrine of applicable to the bifurcated procedure employed by Texas in capital cases? (2) If so, did the exclusion from jury service in the present case of prospective jurors pursuant to Texas Penal Code 12.31 violate the doctrine of supra?"[2] II A Witherspoon involved a state procedure for selecting juries in capital cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed. In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since "[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him and can thus obey the oath he takes
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
|
https://www.courtlistener.com/opinion/110323/adams-v-texas/
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to him and can thus obey the oath he takes as a juror." The defendant, on the other hand, was seriously prejudiced by the State's practice. The jury which sentenced him to death fell "woefully short of that impartiality to which the petitioner was entitled" on the issue of punishment, By excluding all those who opposed capital punishment, the *44 State "crossed the line of neutrality" and "produced a jury uncommonly willing to condemn a man to die." The Court recognized that the State might well have power to exclude jurors on grounds more narrowly drawn: "[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." This statement seems clearly designed to accommodate the State's legitimate interest in obtaining jurors who could follow their instructions and obey their oaths. For example, a juror would no doubt violate his oath if he were not impartial on the question of guilt. Similarly, the law in effect at the time Witherspoon was decided required the jury at least to consider the death penalty, although it accorded the jury absolute discretion as to whether or not to impose it. A juror wholly unable even to consider imposing the death penalty, no matter what the facts of a given case, would clearly be unable to follow the law of in assessing punishment. In we again emphasized the State's legitimate interest in obtaining jurors able to follow the law: "[I]t is entirely possible that a person who has a `fixed opinion against' or who does not `believe in' capital punishment might nevertheless be perfectly able as a juror to abide by existing lawto follow conscientiously the instructions *45 of a trial judge and to consider fairly the imposition of the death sentence in a particular case." And in we upheld against a Witherspoon challenge the exclusion of several jurors who were unable to respond affirmatively to the following question: "[D]o you feel that you could take an oath to well and truely [sic] try this case and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
|
https://www.courtlistener.com/opinion/110323/adams-v-texas/
|
that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?" This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court. B We have little difficulty in concluding that this rule applies to the bifurcated procedure employed by Texas in capital cases.[3] This procedure differs from the statute in effect at the time Witherspoon was decided in three principal ways: (1) the Witherspoon jury assessed punishment at the same time as it rendered its verdict, whereas in Texas the jury considers punishment in a subsequent penalty proceeding; (2) the Witherspoon jury was given unfettered discretion to impose the death sentence or not, whereas the *46 discretion of a Texas jury is circumscribed by the requirement that it impartially answer the statutory questions; and (3) the Witherspoon jury directly imposed the death sentence, whereas Texas juries merely give answers to the statutory questions, which in turn determine the sentence pronounced by the trial judge. Because of these differences, the jury plays a somewhat more limited role in Texas than it did in If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. Nevertheless, jurors in Texas must determine whether the evidence presented by the State convinces them beyond reasonable doubt that each of the three questions put to them must be answered in the affirmative. In doing so, they must consider both aggravating and mitigating circumstances, whether appearing in the evidence presented at the trial on guilt or innocence or during the sentencing proceedings. Jurors will characteristically know that affirmative answers to the questions will result in the automatic imposition of the death penalty, and each of the jurors whose exclusion is challenged by petitioner was so informed. In essence, Texas juries must be allowed to consider "on the basis of all relevant evidence not only why a death sentence should be imposed,
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
|
https://www.courtlistener.com/opinion/110323/adams-v-texas/
|
evidence not only why a death sentence should be imposed, but also why it should not be imposed." This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths. With these considerations in mind, it is apparent that a Texas juror's views about the death penalty might influence *47 the manner in which he performs his role but without exceeding the "guided jury discretion," permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. Exclusions under 12.31 like other exclusions, must be examined in this light.[4] C The State urges that Witherspoon and 12.31 may coexist as separate and independent bases for excluding jurors in Texas and that exclusion under the statute is consistent with the Sixth and Fourteenth Amendments as construed in Witherspoon. Brief for Respondent 48. It is the State's position that even if some jurors in the present case were excluded on grounds broader than that permitted under Witherspoon, the exclusion was nevertheless proper under 12.31 The State's argument is consistent with the holdings of decisions in the Texas Court of Criminal Appeals which have considered the relationship between Witherspoon and 12.31[5] The argument, such as it is, is unpersuasive. As an initial matter, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective *48 juror. It is rather a limitation on the State's power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on "any broader basis" than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. n. 21. While this point may seem too obvious to bear repetition, it is apparent from their frequent references to Witherspoon as a ground for "disqualifying" prospective jurors[6] that the State, and the Texas Court of Criminal Appeals, might have fallen into the error of assuming that Witherspoon and 12.31 are both grounds for exclusion, so that there is no conflict if 12.31 excludes prospective jurors that Witherspoon does not. Nor do we agree with the State's argument that because it has a different origin and purpose 12.31 cannot and will not lead to exclusions forbidden by Witherspoon. Unlike grounds for exclusion having nothing to do with capital punishment, such as personal bias, ill health, financial hardship, or peremptory challenges, 12.31 focuses the inquiry directly on the prospective juror's beliefs about the death penalty, and hence clearly falls within the scope
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
|
https://www.courtlistener.com/opinion/110323/adams-v-texas/
|
the death penalty, and hence clearly falls within the scope of the Witherspoon doctrine. The State could, consistently with Witherspoon, use 12.31 to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of 12.31 *49 to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. Finally, we cannot agree that 12.31 is "neutral" with respect to the death penalty since under that section the defendant may challenge jurors who state that their views in favor of the death penalty will affect their deliberations on fact issues. Despite the hypothetical existence of the juror who believes literally in the Biblical admonition "an eye for an eye," see it is undeniable, and the State does not seriously dispute, that such jurors will be few indeed as compared with those excluded because of scruples against capital punishment. The appearance of neutrality created by the theoretical availability of 12.31 as a defense challenge is not sufficiently substantial to take the statute out of the ambit of Witherspoon. III Based on our own examination of the record, we have concluded that 12.31 was applied in this case to exclude prospective jurors on grounds impermissible under Witherspoon and related cases. As employed here, the touchstone of the inquiry under 12.31 was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors' performance of their duties. Such a test could, and did, exclude jurors who stated that they would be "affected" by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally.[7]*50 Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be "affected."[8] But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the
|
Justice White
| 1,980 | 6 |
majority
|
Adams v. Texas
|
https://www.courtlistener.com/opinion/110323/adams-v-texas/
|
Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law. We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied 12.31 to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not *51 be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State's legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded. The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty. So ordered. THE CHIEF JUSTICE concurs in the judgment. MR.
|
Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
|
https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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Petitioers coted that a village ordiace makig it a misdemeaor to egage i door-to-door advocacy without first registerig with the mayor ad receivig a permit violates the First Amedmet. Through this facial challege, we cosider the door-to-door cavassig regulatio ot oly as it applies to religious proselytizig, but also to aoymous political speech ad the distributio of hadbills. I Petitioer Watchtower Bible ad Tract Society of New York, Ic., coordiates the preachig activities of Jehovah's Witesses throughout the Uited States ad publishes Bibles ad religious periodicals that are widely distributed. Petitioer Wellsville, Ohio, Cogregatio of Jehovah's Witesses, Ic., supervises the activities of approximately 59 members i a part of Ohio that icludes the Village of Stratto (Village). Petitioers offer religious literature without cost to ayoe iterested i readig it. They allege that they do ot solicit cotributios or orders for the sale of merchadise or services, but they do accept doatios. Petitioers brought this actio agaist the Village ad its mayor i the Uited States District Court for the Souther *54 District of Ohio, seekig a ijuctio agaist the eforcemet of several sectios of Ordiace No. 998-5 regulatig uivited peddlig ad solicitatio o private property i the Village. Petitioers' complait alleged that the ordiace violated several costitutioal rights, icludig the free exercise of religio, free speech, ad the freedom of the press. App. 0a44a. The District Court coducted a bech trial at which evidece of the admiistratio of the ordiace ad its effect o petitioers was itroduced. Sectio 6.0 prohibits "cavassers" ad others from "goig i ad upo" private residetial property for the purpose of promotig ay "cause" without first havig obtaied a permit pursuat to 6.03.[] That sectio provides that ay cavasser who iteds to go o private property to promote a cause must obtai a "Solicitatio Permit" from the office of the mayor; there is o charge for the permit, ad apparetly oe is issued routiely after a applicat *55 fills out a fairly detailed "Solicitor's Registratio Form."[2] The cavasser is the authorized to go upo premises that he listed o the registratio form, but he must carry the permit upo his perso ad exhibit it wheever requested to do so by a police officer or by a residet.[3] The ordiace *56 sets forth grouds for the deial or revocatio of a permit,[4] but the record before us does ot show that ay applicatio has bee deied or that ay permit has bee revoked. Petitioers did ot apply for a permit. A sectio of the ordiace that petitioers do ot challege establishes a procedure by which a residet
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Justice Stevens
| 2,002 | 16 |
majority
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Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
|
https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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do ot challege establishes a procedure by which a residet may prohibit solicitatio eve by holders of permits. If the residet files a "No Solicitatio Registratio Form" with the mayor, ad also posts a "No Solicitatio" sig o his property, o uivited cavassers may eter his property, uless they are specifically authorized to do so i the "No Solicitatio Registratio Form" itself.[5] Oly 32 of the Village's 278 residets *57 filed such forms. Each of the forms i the record cotais a list of 9 suggested exceptios;[6] o oe form, a residet checked 7 exceptios, thereby excludig oly "Jehovah's Witesses" ad "Political Cadidates" from the list of ivited cavassers. Although Jehovah's Witesses do ot cosider themselves to be "solicitors" because they make o charge for their literature or their teachig, leaders of the church testified at trial that they would hoor "o solicitatio" sigs i the Village. They also explaied at trial that they did ot apply for a permit because they derive their authority to *58 preach from Scripture.[7] "For us to seek a permit from a muicipality to preach we feel would almost be a isult to God." App. 32a. Petitioers itroduced some evidece that the ordiace was the product of the mayor's hostility to their miistry, but the District Court credited the mayor's testimoy that it had bee desiged to protect the privacy rights of the Village residets, specifically to protect them "from `flim flam' co artists who prey o small tow populatios." Nevertheless, the court cocluded that the terms of the ordiace applied to the activities of petitioers as well as to "busiess or political cavassers," The District Court upheld most provisios of the ordiace as valid, cotet-eutral regulatios that did ot ifrige o petitioers' First Amedmet rights. The court did, however, require the Village to accept arrowig costructios of three provisios. First, the court viewed the requiremet i 6.03(b)(5) that the applicat must list the specific address of each residece to be visited as potetially ivalid, but cured by the Village's agreemet to attach to the form a list of willig residets. Secod, it held that petitioers could comply with 6.03(b)(6) by merely statig their purpose as "the Jehovah's Witess miistry." Ad third, it held that 6.05, which limited cavassig to the hours before 5 p.m., was ivalid o its face ad should be replaced with a provisio referrig to "reasoable hours of the day." As so modified, the court held the ordiace costitutioally valid as applied to petitioers ad dismissed the case. *59 The Court of Appeals for the Sixth Circuit affirmed. It held
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Justice Stevens
| 2,002 | 16 |
majority
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Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
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https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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Court of Appeals for the Sixth Circuit affirmed. It held that the ordiace was "cotet eutral ad of geeral applicability ad therefore subject to itermediate scrutiy." It rejected petitioers' reliace o the discussio of laws affectig both the free exercise of religio ad free speech i Employmet Div., Dept. of Huma Resources of[8] because that "laguage was dicta ad therefore ot bidig." It also rejected petitioers' argumet that the ordiace is overbroad because it impairs the right to distribute pamphlets aoymously that we recogized i reasoig that "the very act of goig door-to-door requires the cavassers to reveal a portio of their idetities." The Court of Appeals cocluded that the iterests promoted by the Village"protectig its residets from fraud ad udue aoyace"as well as the harm that it seeks to prevet"crimials posig as cavassers i order to defraud its residets"though "by o meas overwhelmig," were sufficiet to justify the regulatio. at 565 566. The court distiguished earlier cases protectig the Jehovah's Witesses miistry because those cases either ivolved *60 a flat prohibitio o the dissemiatio of ideas, e. g., or a ordiace that left the issuace of a permit to the discretio of a muicipal officer, see, e. g., I disset, Judge Gilma expressed the opiio that by subjectig ocommercial solicitatio to the permit requiremets, the ordiace sigificatly restricted a substatial quatity of speech urelated to the Village's iterest i elimiatig fraud ad uwated aoyace. I his view, the Village "failed to demostrate either the reality of the harm or the efficacy of the restrictio." We grated certiorari to decide the followig questio: "Does a muicipal ordiace that requires oe to obtai a permit prior to egagig i the door-to-door advocacy of a political cause ad to display upo demad the permit, which cotais oe's ame, violate the First Amedmet protectio accorded to aoymous pamphleteerig or discourse?" ; Pet. for Cert. i.[9] II For over 50 years, the Court has ivalidated restrictios o door-to-door cavassig ad pamphleteerig.[0] It is more tha historical accidet that most of these cases ivolved First Amedmet challeges brought by Jehovah's Witesses, because door-to-door cavassig is madated by their religio. As we oted i the Jehovah's Witesses "claim to follow the example of Paul, teachig `publickly, ad from house to house.' Acts 20:20. They take literally the madate of the Scriptures, `Go ye ito all the world, ad preach the gospel to every creature.' Mark 6:5. I doig so they believe that they are obeyig a commadmet of God." Moreover, because they lack sigificat fiacial resources, the ability of the Witesses to proselytize is seriously dimiished
|
Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
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https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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the ability of the Witesses to proselytize is seriously dimiished by regulatios that burde their efforts to cavass door-to-door. Although our past cases ivolvig Jehovah's Witesses, most of which were decided shortly before ad durig World War II, do ot directly cotrol the questio we cofrot today, they provide both a historical ad aalytical backdrop for cosideratio of petitioers' First Amedmet claim that the breadth of the Village's ordiace offeds the First Amedmet.[] Those cases ivolved petty offeses that raised costitutioal questios of the most serious magitudequestios that implicated the free exercise of religio, the freedom of speech, ad the freedom of the press. From these decisios, several themes emerge that guide our cosideratio of the ordiace at issue here. First, the cases emphasize the value of the speech ivolved. For example, i Murdock v. Pesylvaia, the Court oted that "had distributio of religious tracts is a age-old form of missioary evagelismas old as the history of pritig presses. It has bee a potet force i various religious movemets dow through the years. This form of religious activity occupies the same high estate uder the First Amedmet as do worship i the churches ad preachig from the pulpits. It has the same claim to protectio as the more orthodox ad covetioal exercises of religio. *62 It also has the same claim as the others to the guaratees of freedom of speech ad freedom of the press." at -09. I additio, the cases discuss extesively the historical importace of door-to-door cavassig ad pamphleteerig as vehicles for the dissemiatio of ideas. I the petitioer was a Jehovah's Witess who had bee covicted of cavassig without a permit based o evidece that she had goe from house to house offerig to leave books or booklets. Writig for the Court, Justice Roberts stated that "pamphlets have proved most effective istrumets i the dissemiatio of opiio. Ad perhaps the most effective way of brigig them to the otice of idividuals is their distributio at the homes of the people. O this method of commuicatio the ordiace imposes cesorship, abuse of which egedered the struggle i Eglad which evetuated i the establishmet of the doctrie of the freedom of the press embodied i our Costitutio. To require a cesorship through licese which makes impossible the free ad uhampered distributio of pamphlets strikes at the very heart of the costitutioal guaratees." Despite the emphasis o the importat role that door-todoor cavassig ad pamphleteerig has played i our costitutioal traditio of free ad ope discussio, these early cases also recogized the iterests a tow may have i some
|
Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
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https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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also recogized the iterests a tow may have i some form of regulatio, particularly whe the solicitatio of moey is ivolved. I the Court held that a ordiace requirig Jehovah's Witesses to obtai a licese before solicitig door to door was ivalid because the issuace of the licese depeded o the exercise of discretio by a city official. Our opiio recogized that "a State may protect its citizes from fraudulet solicitatio by requirig a strager i the commuity, before permittig him publicly to solicit fuds *63 for ay purpose, to establish his idetity ad his authority to act for the cause which he purports to represet." Similarly, i the Court recogized crime prevetio as a legitimate iterest served by these ordiaces ad oted that "burglars frequetly pose as cavassers, either i order that they may have a pretese to discover whether a house is empty ad hece ripe for burglary, or for the purpose of spyig out the premises i order that they may retur later." Despite recogitio of these iterests as legitimate, our precedet is clear that there must be a balace betwee these iterests ad the effect of the regulatios o First Amedmet rights. We "must `be astute to examie the effect of the challeged legislatio' ad must `weigh the circumstaces ad appraise the substatiality of the reasos advaced i support of the regulatio.' " (quotig ). Fially, the cases demostrate that efforts of the Jehovah's Witesses to resist speech regulatio have ot bee a struggle for their rights aloe. I Marti, after catalogig the may groups that rely extesively upo this method of commuicatio, the Court summarized that "[d]oor to door distributio of circulars is essetial to the poorly fiaced causes of little people." -46. That the Jehovah's Witesses are ot the oly "little people" who face the risk of silecig by regulatios like the Village's is exemplified by our cases ivolvig oreligious speech. See, e. g., ; ; I Thomas, the issue was whether a labor leader could be required to obtai a permit before deliverig a speech to prospective uio members. After reviewig the Jehovah's Witesses cases discussed above, the Court observed: *64 "As a matter of priciple a requiremet of registratio i order to make a public speech would seem geerally icompatible with a exercise of the rights of free speech ad free assembly. "If the exercise of the rights of free speech ad free assembly caot be made a crime, we do ot thik this ca be accomplished by the device of requirig previous registratio as a coditio for exercisig them ad makig
|
Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
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https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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previous registratio as a coditio for exercisig them ad makig such a coditio the foudatio for restraiig i advace their exercise ad for imposig a pealty for violatig such a restraiig order. So log as o more is ivolved tha exercise of the rights of free speech ad free assembly, it is immue to such a restrictio. If oe who solicits support for the cause of labor may be required to register as a coditio to the exercise of his right to make a public speech, so may he who seeks to rally support for ay social, busiess, religious or political cause. We thik a requiremet that oe must register before he udertakes to make a public speech to elist support for a lawful movemet is quite icompatible with the requiremets of the First Amedmet." Although these World War II-era cases provide guidace for our cosideratio of the questio preseted, they do ot aswer oe prelimiary issue that the parties adamatly dispute. That is, what stadard of review ought we use i assessig the costitutioality of this ordiace. We fid it uecessary, however, to resolve that dispute because the breadth of speech affected by the ordiace ad the ature of the regulatio make it clear that the Court of Appeals erred i upholdig it. III The Village argues that three iterests are served by its ordiace: the prevetio of fraud, the prevetio of crime, *65 ad the protectio of residets' privacy. We have o difficulty cocludig, i light of our precedet, that these are importat iterests that the Village may seek to safeguard through some form of regulatio of solicitatio activity. We must also look, however, to the amout of speech covered by the ordiace ad whether there is a appropriate balace betwee the affected speech ad the govermetal iterests that the ordiace purports to serve. The text of the Village's ordiace prohibits "cavassers" from goig o private property for the purpose of explaiig or promotig ay "cause," uless they receive a permit ad the residets visited have ot opted for a "o solicitatio" sig. Had this provisio bee costrued to apply oly to commercial activities ad the solicitatio of fuds, arguably the ordiace would have bee tailored to the Village's iterest i protectig the privacy of its residets ad prevetig fraud. Yet, eve though the Village has explaied that the ordiace was adopted to serve those iterests, it has ever coteded that it should be so arrowly iterpreted. To the cotrary, the Village's admiistratio of its ordiace uquestioably demostrates that the provisios apply to a sigificat umber of ocommercial
|
Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
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https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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that the provisios apply to a sigificat umber of ocommercial "cavassers" promotig a wide variety of "causes." Ideed, o the "No Solicitatio Forms" provided to the residets, the cavassers iclude "Camp Fire Girls," "Jehovah's Witesses," "Political Cadidates," "Trick or Treaters durig Hallowee Seaso," ad "Persos Affiliated with Stratto Church." The ordiace uquestioably applies, ot oly to religious causes, but to political activity as well. It would seem to exted to "residets casually solicitig the votes of eighbors,"[2] or rigig doorbells to elist support for employig a more efficiet garbage collector. The mere fact that the ordiace covers so much speech raises costitutioal cocers. It is offesiveot oly to *66 the values protected by the First Amedmet, but to the very otio of a free societythat i the cotext of everyday public discourse a citize must first iform the govermet of her desire to speak to her eighbors ad the obtai a permit to do so. Eve if the issuace of permits by the mayor's office is a miisterial task that is performed promptly ad at o cost to the applicat, a law requirig a permit to egage i such speech costitutes a dramatic departure from our atioal heritage ad costitutioal traditio. Three obvious examples illustrate the pericious effect of such a permit requiremet. First, as our cases ivolvig distributio of usiged hadbills demostrate,[3] there are a sigificat umber of persos who support causes aoymously.[4] "The decisio i favor of aoymity may be motivated by fear of ecoomic or official retaliatio, by cocer about social ostracism, or merely by a desire to preserve as much of oe's privacy as possible." -342. The requiremet that a cavasser must be idetified i a permit applicatio filed i the mayor's office ad available for public ispectio ecessarily results i a surreder of that aoymity. Although it is true, as the Court of Appeals suggested, see that persos who are kow to the residet reveal their allegiace to a group or cause whe they preset themselves at the frot door to advocate a issue or to deliver a hadbill, the Court of Appeals erred i cocludig that the ordiace does ot implicate aoymity iterests. The Sixth Circuit's reasoig is udermied by *67 our decisio i Buckley v. America Costitutioal Law Foudatio, Ic., The badge requiremet that we ivalidated i Buckley applied to petitio circulators seekig sigatures i face-to-face iteractios. The fact that circulators revealed their physical idetities did ot foreclose our cosideratio of the circulators' iterest i maitaiig their aoymity. I the Village, stragers to the residet certaily maitai their aoymity, ad the ordiace may
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Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
|
https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
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the residet certaily maitai their aoymity, ad the ordiace may preclude such persos from cavassig for upopular causes. Such preclusio may well be justified i some situatiosfor example, by the special state iterest i protectig the itegrity of a ballot-iitiative process, see ib or by the iterest i prevetig fraudulet commercial trasactios. The Village ordiace, however, sweeps more broadly, coverig upopular causes urelated to commercial trasactios or to ay special iterest i protectig the electoral process. Secod, requirig a permit as a prior coditio o the exercise of the right to speak imposes a objective burde o some speech of citizes holdig religious or patriotic views. As our World War II-era cases dramatically demostrate, there are a sigificat umber of persos whose religious scruples will prevet them from applyig for such a licese. There are o doubt other patriotic citizes, who have such firm covictios about their costitutioal right to egage i uihibited debate i the cotext of door-to-door advocacy, that they would prefer silece to speech licesed by a petty official. Third, there is a sigificat amout of spotaeous speech that is effectively baed by the ordiace. A perso who made a decisio o a holiday or a weeked to take a active part i a political campaig could ot begi to pass out hadbills util after he or she obtaied the required permit. Eve a spotaeous decisio to go across the street ad urge a eighbor to vote agaist the mayor could ot lawfully be implemeted without first obtaiig the mayor's permissio. *68 I this respect, the regulatio is aalogous to the circulatio licesig tax the Court ivalidated i Grosjea v. America Press Co., I Grosjea, while discussig the history of the Free Press Clause of the First Amedmet, the Court stated that "`[t]he evils to be preveted were ot the cesorship of the press merely, but ay actio of the govermet by meas of which it might prevet such free ad geeral discussio of public matters as seems absolutely essetial to prepare the people for a itelliget exercise of their rights as citizes.' " (quotig 2 T. Cooley, Costitutioal Limitatios 886 (8th ed. 927)); see also Lovell v. City of Griffi, The breadth ad uprecedeted ature of this regulatio does ot aloe reder the ordiace ivalid. Also cetral to our coclusio that the ordiace does ot pass First Amedmet scrutiy is that it is ot tailored to the Village's stated iterests. Eve if the iterest i prevetig fraud could adequately support the ordiace isofar as it applies to commercial trasactios ad the solicitatio of fuds, that iterest
|
Justice Stevens
| 2,002 | 16 |
majority
|
Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton
|
https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/
|
to commercial trasactios ad the solicitatio of fuds, that iterest provides o support for its applicatio to petitioers, to political campaigs, or to elistig support for upopular causes. The Village, however, argues that the ordiace is oetheless valid because it serves the two additioal iterests of protectig the privacy of the residet ad the prevetio of crime. With respect to the former, it seems clear that 07 of the ordiace, which provides for the postig of "No Solicitatio" sigs ad which is ot challeged i this case, coupled with the residet's uquestioed right to refuse to egage i coversatio with uwelcome visitors, provides ample protectio for the uwillig listeer. ("[T]he provisio permittig homeowers to bar solicitors from their property by postig [o solicitatio] sigs suggest[s] the availability of less itrusive ad more effective measures to protect privacy"). The aoyace caused by a *69 uivited kock o the frot door is the same whether or ot the visitor is armed with a permit. With respect to the latter, it seems ulikely that the absece of a permit would preclude crimials from kockig o doors ad egagig i coversatios ot covered by the ordiace. They might, for example, ask for directios or permissio to use the telephoe, or pose as surveyers or cesus takers. See Or they might register uder a false ame with impuity because the ordiace cotais o provisio for verifyig a applicat's idetity or orgaizatioal credetials. Moreover, the Village did ot assert a iterest i crime prevetio below, ad there is a absece of ay evidece of a special crime problem related to doorto-door solicitatio i the record before us. The rhetoric used i the World War II-era opiios that repeatedly saved petitioers' coreligioists from petty prosecutios reflected the Court's evaluatio of the First Amedmet freedoms that are implicated i this case. The value judgmet that the motivated a uited democratic people fightig to defed those very freedoms from totalitaria attack is uchaged. It motivates our decisio today. The judgmet of the Court of Appeals is reversed, ad the case is remaded for further proceedigs cosistet with this opiio. It is so ordered.
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per_curiam
| 1,975 | 200 |
per_curiam
|
Connecticut v. Menillo
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https://www.courtlistener.com/opinion/109325/connecticut-v-menillo/
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In 1971 a jury convicted Patrick Menillo of attempting to procure an abortion in violation of Connecticut's criminal abortion statute. Menillo is not a physician and has never had any medical training. The Connecticut Supreme Court nevertheless overturned Menillo's conviction, holding that under the decisions in and the Connecticut statute was "null and void." As we think the Connecticut court misinterpreted Roe and Doe, we grant the State's petition for certiorari and vacate the judgment. The statute under which Menillo was convicted makes criminal an attempted abortion by "any person."[1] The Connecticut Supreme Court felt compelled to hold this statute null and void, and thus incapable of constitutional *10 application even to someone not medically qualified to perform an abortion, because it read Roe to have done the same thing to the similar Texas statutes. But Roe did not go so far. In Roe we held that Tex. Penal Code, Art. 1196, which permitted termination of pregnancy at any stage only to save the life of the expectant mother, unconstitutionally restricted a woman's right to an abortion. We went on to state that as a result of the unconstitutionality of Art. 1196 the Texas abortion statutes had to fall "as a unit," and it is that statement which the Connecticut Supreme Court and courts in some other States have read to require the invalidation of their own statutes even as applied to abortions performed by nonphysicians.[2] In context, however, our statement had no such effect. Jane Roe had sought to have an abortion " `performed by a competent, licensed physician, under safe, clinical conditions,' " and our opinion recognized only her right to an abortion under those circumstances. That the Texas statutes fell as a unit meant only that they could not be enforced, with or without Art. 1196, in contravention of a woman's right to a clinical abortion by medically competent personnel. We did not hold the Texas statutes unenforceable against a nonphysician abortionist, for the case did not present the issue. Moreover, the rationale of our decision supports continued enforceability of criminal abortion statutes against nonphysicians. Roe teaches that a State cannot restrict *11 a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State's interest in maternal health is predicated upon the first trimester abortion's being as safe for the woman as normal childbirth at term, and that predicate holds
|
per_curiam
| 1,975 | 200 |
per_curiam
|
Connecticut v. Menillo
|
https://www.courtlistener.com/opinion/109325/connecticut-v-menillo/
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woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. See -150, 163; cf. statement of DOUGLAS, J., in denying certiorari in Even during the first trimester of pregnancy, therefore, prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against state interference. And after the first trimester the ever-increasing state interest in maternal health provides additional justification for such prosecutions. As far as this Court and the Federal Constitution are concerned, Connecticut's statute remains fully effective against performance of abortions by nonphysicians. We express no view, of course, as to whether the same is now true under Connecticut law. Accordingly, the petition for certiorari is granted, the judgment of the Supreme Court of Connecticut is vacated, and the case is remanded to that court for its further consideration in light of this opinion. So ordered. MR. JUSTICE WHITE concurs in the result.
|
Justice Brennan
| 1,990 | 13 |
majority
|
Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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Among the regulatory tools available to Government agencies charged with protecting public health and safety are rules which require regulated entities to disclose information directly to employees, consumers, or others. Disclosure rules protect by providing access to information about what dangers exist and how these dangers can be avoided. Today we decide whether the Office of Management and Budget (OMB) has the authority under the Paperwork Reduction Act of 1980, 44 U.S. C. 301 et seq. (1982 ed. and Supp. V), to review such regulations. I In 1983, pursuant to the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S. C. 61 et seq. (1982 ed.), which authorizes the Department of Labor (DOL) to set health and safety standards for workplaces, DOL *29 promulgated a hazard communication standard. 29 CFR 1910.1200 The standard imposed various requirements on manufacturers aimed at ensuring that their employees were informed of the potential hazards posed by chemicals found at their workplace. Specifically, the standard required chemical manufacturers to label containers of hazardous chemicals with appropriate warnings. "Downstream" manufacturers commercial purchasers who used the chemicals in their manufacturing plants were obliged to keep the original labels intact or else transfer the information onto any substitute containers. The standard also required chemical manufacturers to provide "material safety data sheets" to downstream manufacturers. The data sheets were to list the physical characteristics and hazards of each chemical, the symptoms caused by overexposure, and any pre-existing medical conditions aggravated by exposure. In addition, the data sheets were to recommend safety precautions and first aid and emergency procedures in case of over-exposure and provide a source for additional information. Both chemical manufacturers and downstream manufacturers were required to make the data sheets available to their employees and to provide training on the dangers of the particular hazardous chemicals found at each workplace. Respondent United Steelworkers of America, among others, challenged the standard in the Court of Appeals for the Third Circuit. That court held that the Occupational Safety and Health Administration (OSHA) had not adequately explained why the regulation was limited to the manufacturing sector, in view of the OSH Act's clear directive that, to the extent feasible, OSHA is to ensure that no employee suffers material impairment of health from toxic or other harmful agents. The court directed OSHA either to apply the hazard standard rules to workplaces in other sectors or to state reasons why such application would not be feasible. United *30 Steelworkers of When DOL responded by initiating an entirely new rulemaking proceeding, the union and its copetitioners sought enforcement of
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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rulemaking proceeding, the union and its copetitioners sought enforcement of the earlier order. The Third Circuit directed DOL, under threat of contempt, to publish in the Federal Register within 60 days either a hazard communication standard applicable to all workers covered by the OSH Act or a statement of reasons why such a standard was not feasible, on the basis of the existing record, as to each category of excluded workers. United Steelworkers of DOL complied by issuing a revised hazard communication standard that applied to work sites in all sectors of the economy. See At the same time, DOL submitted the standard to OMB for review of any paperwork requirements. After holding a public hearing, OMB approved all but three of its provisions. OMB rejected a requirement that employees who work at multiemployer sites (such as construction sites) be provided with data sheets describing the hazardous substances to which they were likely to be exposed, through the activities of any of the companies working at the same site. The provision permitted employers either to exchange data sheets and make them available at their home offices or to maintain all relevant data sheets at a central location on the work site. 29 CFR 1910.1200(e)(2) OMB also disapproved a provision exempting consumer products used in the workplace in the same manner, and resulting in the same frequency and duration of exposure, as in normal consumer use. 1910.1200(b)(6)(vii). Finally, OMB vetoed an exemption for drugs sold in solid, final form for direct administration to patients. 1910.1200(b)(6)(viii). See OMB disapproved these provisions based on its determination that the requirements were not necessary to protect employees.[1]*31 OMB's objection to the exemptions was that they were too narrow, and that the standard, therefore, applied to situations in which disclosure did not benefit employees.[2]Id., at 46077-46078. DOL disagreed with OMB's assessment, but it published notice that the three provisions were withdrawn. DOL added its reasons for believing that the provisions were necessary, proposed that they be retained, and invited public comment. The union and its copetitioners responded by filing a motion for further relief with the Third Circuit. That court ordered DOL to reinstate the OMB-disapproved provisions. The court reasoned that the provisions represented goodfaith compliance by DOL with the court's prior orders, that *32 OMB lacked authority under the Paperwork Reduction Act to disapprove the provisions, and that, therefore, DOL had no legitimate basis for withdrawing them. United Steelworkers of Petitioners sought review in this Court. We granted certiorari to answer the important question whether the Paperwork Reduction Act authorizes OMB to review and countermand
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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the Paperwork Reduction Act authorizes OMB to review and countermand agency regulations mandating disclosure by regulated entities directly to third parties. We hold that the Paperwork Reduction Act does not give OMB that authority, and therefore affirm. II The Paperwork Reduction Act was enacted in response to one of the less auspicious aspects of the enormous growth of our federal bureaucracy: its seemingly insatiable appetite for data. Outcries from small businesses, individuals, and state and local governments, that they were being buried under demands for paperwork, led Congress to institute controls.[3] Congress designated OMB the overseer of other agencies with respect to paperwork and set forth a comprehensive scheme designed to reduce the paperwork burden. The Act charges OMB with developing uniform policies for efficient information processing, storage, and transmittal systems, both within and among agencies. OMB is directed to reduce federal collection of all information by set percentages, establish a Federal Information Locator System, and develop and implement procedures for guarding the privacy of those providing confidential information. See 44 U.S. C. 304, 30, 311 (1982 ed. and Supp. V). The Act prohibits any federal agency from adopting regulations which impose paperwork requirements on the public unless the information is not available to the agency from another source within the Federal Government, and the agency *33 must formulate a plan for tabulating the information in a useful manner. Agencies are also required to minimize the burden on the public to the extent practicable. See 44 U.S. C. 307(a)(1) (1982 ed. and Supp. V). In addition, the Act institutes a second layer of review by OMB for new paperwork requirements. After an agency has satisfied itself that an instrument for collecting information termed an "information collection request" is needed, the agency must submit the request to OMB for approval. See 44 U.S. C. 307(a)(2) (1982 ed., Supp. V). If OMB disapproves the request, the agency may not collect the information. See 44 U.S. C. 307(a)(3) (1982 ed.). Typical information collection requests include tax forms, Medicare forms, financial loan applications, job applications, questionaires, compliance reports, and tax or business records. See S. Rep., at 3-4. These information requests share at least one characteristic: The information requested is provided to a federal agency, either directly or indirectly.[4] Agencies impose the requirements on private parties in order to generate information to be used by the agency in pursuing some other purpose. For instance, agencies use these information requests in gathering background on a particular subject to develop the expertise with which to devise or finetune appropriate regulations, amassing diffuse data for
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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to devise or finetune appropriate regulations, amassing diffuse data for processing into useful statistical form, and monitoring business records and compliance reports for signs or proof of nonfeasance to determine when to initiate enforcement measures. By contrast, disclosure rules do not result in information being made available for agency personnel to use. The promulgation of a disclosure rule is a final agency action that represents a substantive regulatory choice. An agency charged with protecting employees from hazardous chemicals has a *34 variety of regulatory weapons from which to choose: It can ban the chemical altogether; it can mandate specified safety measures, such as gloves or goggles; or it can require labels or other warnings alerting users to dangers and recommended precautions. An agency chooses to impose a warning requirement because it believes that such a requirement is the least intrusive measure that will sufficiently protect the public, not because the measure is a means of acquiring information useful in performing some other agency function. No provision of the Act expressly declares whether Congress intended the Paperwork Reduction Act to apply to disclosure rules as well as information-gathering rules. The Act applies to "information collection requests" by a federal agency which are defined as "a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information." 44 U.S. C. 302(11) (1982 ed., Supp. V). "Collection of information," in turn, is defined as "the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either "(A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or "(B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes." 44 U.S. C. 302(4) (1982 ed.). Petitioners urge us to read the words "obtaining or soliciting of facts by an agency through reporting or recordkeeping *3 requirements" as encompassing disclosure rules. They contend that an agency is "soliciting facts" when it requires someone to communicate specified data to a third party and that the hazard communication standard's rules are "reporting and recordkeeping requirements" within the meaning of the Act because the employer is required to report hazard information to employees. Petitioners submit that the provisions requiring labeling and employee training are "reporting requirements" and that the provision requiring
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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employee training are "reporting requirements" and that the provision requiring accessible data sheets containing health and safety information is a "recordkeeping requirement." We believe, however, that the language, structure, and purpose of the Paperwork Reduction Act reveal that petitioners' position is untenable because Congress did not intend the Act to encompass these or any other third-party disclosure rules. "On a pure question of statutory construction, our first job is to try to determine congressional intent, using traditional tools of statutory construction." Our "starting point is the language of the statute," but " `in expounding a statute, we are not guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " 11 quoting Pilot Life Ins. 1 See also K mart Petitioners' interpretation of "obtaining or soliciting facts by an agency through reporting or recordkeeping requirements" is not the most natural reading of this language. The commonsense view of "obtaining or soliciting facts by an agency" is that the phrase refers to an agency's efforts to gather facts for its own use and that Congress used the word "solicit" in addition to the word "obtain" in order to cover information requests that rely on the voluntary cooperation of information suppliers as well as rules which make compliance *36 mandatory. Similarly, data sheets consisting of advisory material on health and safety do not fall within the normal meaning of "records," and a Government-imposed reporting requirement customarily requires reports to be made to the Government, not training and labels to be given to someone else altogether. That a more limited reading of the phrase "reporting and recordkeeping requirements" was intended derives some further support from the words surrounding it. The traditional canon of construction, noscitur a sociis, dictates that " `words grouped in a list should be given related meaning.' " at 114-11, quoting The other examples listed in the definitions of "information collection request" and "collection of information" are forms for communicating information to the party requesting that information. If "reporting and recordkeeping requirements" is understood to be analogous to the examples surrounding it, the phrase would comprise only rules requiring information to be sent or made available to a federal agency, not disclosure rules. The same conclusion is produced by a consideration of the object and structure of the Act as a whole. See Offshore Logistics, Particularly useful is the provision detailing Congress' purposes in enacting the statute. The Act declares that its purposes are: "(1) to minimize the Federal paperwork burden for individuals, small businesses,
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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to minimize the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons; "(2) to minimize the cost to the Federal Government of collecting, maintaining, using, and disseminating information; "(3) to maximize the usefulness of information collected, maintained, and disseminated by the Federal Government; *37 "(4) to coordinate, integrate and, to the extent practicable and appropriate, make uniform Federal information policies and practices; "() to ensure that automatic data processing, telecommunications, and other information technologies are acquired and used by the Federal Government in a manner which improves service delivery and program management, increases productivity, improves the quality of decisionmaking, reduces waste and fraud, and wherever practicable and appropriate, reduces the information processing burden for the Federal Government and for persons who provide information to and for the Federal Government; and "(6) to ensure that the collection, maintenance, use and dissemination of information by the Federal Government is consistent with applicable laws relating to confidentiality, including the Privacy Act." 44 U.S. C. 301 (1982 ed. and Supp. V) Disclosure rules present none of the problems Congress sought to solve through the Paperwork Reduction Act, and none of Congress' enumerated purposes would be served by subjecting disclosure rules to the provisions of the Act. The statute makes clear that the first purpose avoiding a burden on private parties and state and local governments refers to avoiding "the time, effort, or financial resources expended by persons to provide information to a Federal agency." 44 U.S. C. 302(3) (1982 ed.) (defining "burden") Because Congress expressed concern only for the burden imposed by requirements to provide information to a federal agency, and not for any burden imposed by requirements to provide information to a third party, OMB review of disclosure rules would not further this congressional aim. Congress' second purpose minimizing the Federal Government's cost of handling information also would not be advanced by review of disclosure rules because such rules do not impose any information processing costs on the Federal *38 Government. Because the Federal Government is not the consumer of information "requested" by a disclosure rule nor an intermediary in its dissemination, OMB review of disclosure rules would not serve Congress' third, fourth, fifth, or sixth purposes. Thus, nothing in Congress' itemized and exhaustive textual description of its reasons for enacting this particular Act indicates any legislative purpose to have OMB screen proposed disclosure rules. We find this to be strong evidence that Congress did not intend the Act to authorize OMB review of such regulations. This conclusion is buttressed by the language and
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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such regulations. This conclusion is buttressed by the language and import of other provisions of the Act. For instance, every federal agency is required to take three internal preliminary steps before adopting an information collection request. The agency must take action to "(A) eliminate, through the use of the Federal Information Locator System and other means, information collections which seek to obtain information available from another source within the Federal Government; "(B) reduce to the extent practicable and appropriate the burden on persons who will provide information to the agency; and "(C) formulate plans for tabulating the information in a manner which will enhance its usefulness to other agencies and to the public." 44 U.S. C. 307(a)(1) (1982 ed.) These requirements affect agencies only when they gather information for their own use. The first directs an agency not to ask for information that it can acquire from another agency.[] The second requires an agency to consider the burden it places on the public, but only as to information provided to the agency. The third encourages an agency to *39 make the information it has obtained useful to others as well. Significantly, no provision relates to disclosure rules. For example, no provision requires agencies to ensure that a paperwork requirement is effective or that its burden on one party is not disproportionate to the benefit afforded a third party. Also instructive are the provisions governing OMB's review of proposed agency information collection requests that cast that review in terms applicable to information-gathering regulations but not to disclosure rules. OMB's examination is limited to "determining whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency." 44 U.S. C. 304(c)(2) (1982 ed.) "Practical utility" is defined in the statute as "the ability of an agency to use information it collects, particularly the capability to process such information in a timely and useful fashion." 44 U.S. C. 302(16) (1982 ed., Supp. V) However, in reviewing the disclosure rules at issue in this case, OMB was unable to consider what OSHA planned to do with information regarding hazardous chemicals at the various work sites, because OSHA was not to be the recipient of this information. Nothing was to be given to OSHA to process in a timely fashion or otherwise. OMB instead disapproved the three OSHA rules on the ground that the mandated disclosures would be of little benefit to the employees OSHA sought to protect. But there is no indication in the
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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sought to protect. But there is no indication in the Paperwork Reduction Act that OMB is authorized to determine the usefulness of agency-adopted warning requirements to those being warned. To the contrary, Congress focused exclusively on the utility of the information to the agency. And the only criteria specified are whether the agency can process the information quickly and use it in pursuit of its substantive mandate. *40 Yet a third provision reinforcing our conclusion that disclosure rules are not subject to the Paperwork Reduction Act is the statute's mechanism for assuring agency compliance with its terms. When OMB approves an information collection request, it issues a control number which is placed on all forms. If a request does not receive OMB approval, it is not issued a control number and the agency is prohibited from collecting the information. See 44 U.S. C. 304(c)(3)(A), 307(f) (1982 ed.). In addition, if the agency nevertheless promulgates the paperwork requirement, members of the public may ignore it without risk of penalty. See 44 U.S. C. 312 (1982 ed.).[6] However, this protection of the public is applicable only to information-gathering rules. Section 312 provides that "no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved does not display a current control number assigned by the [OMB]" While the grammar of this text can be faulted, its meaning is clear: the public is protected under the Paperwork Reduction Act from paperwork regulations not issued in compliance with the Act, only when those regulations dictate that a person maintain information for an agency or provide information to an agency. By its very terms, the statute's enforcement mechanism does not apply to rules which require disclosure to a third party rather than to a federal agency. Thus either Congress intended the Paperwork Reduction Act to cover information-gathering rules only, or Congress intended the Act to cover disclosure rules but intended to exempt them from this agency compliance mechanism. Because the latter is counterintuitive and contrary to clear legislative history,[7] 312 is further evidence that Congress did not intend the Act to cover disclosure rules. *41 III For the foregoing reasons, we find that the terms "collection of information" and "information collection request," when considered in light of the language and structure of the Act as a whole, refer solely to the collection of information by, or for the use of, a federal agency; they cannot reasonably be interpreted to cover rules mandating disclosure of information to a third party. In addition, we find
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Justice Brennan
| 1,990 | 13 |
majority
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Dole v. Steelworkers
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https://www.courtlistener.com/opinion/112374/dole-v-steelworkers/
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of information to a third party. In addition, we find unpersuasive petitioners' claims that there is a "clearly expressed legislative intention [to the] contrary," see Petitioners rely on statements from various stages of the Act's legislative history as evidence that Congress intended "collection of information" to include disclosure rules.[8] However, the statements show merely that the Act was intended *42 to reach not only statistical compilations but also information collected for law enforcement purposes and information filed with an agency for possible dissemination to the public (i. e., when the agency is an intermediary in the process of data dissemination). This sheds no light on the issue before this Court: Whether the Act reaches rules mandating disclosure by one party directly to a third party. Moreover, other statements in the Committee Reports reinforce respondents' position.[9] Because we find that the statute, as a whole, clearly expresses Congress' intention, we decline to defer to OMB's interpretation.[10] See Board of Governors of Federal Reserve *43 ; Chevron U. S. A. We affirm the judgment of the Third Circuit insofar as it held that the Paperwork Reduction Act does not give OMB the authority to review agency rules mandating disclosure by regulated entities to third parties.[11] It is so ordered.
|
Justice O'Connor
| 1,993 | 14 |
dissenting
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Edenfield v. Fane
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https://www.courtlistener.com/opinion/112850/edenfield-v-fane/
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I continue to believe that this Court took a wrong turn with and that it has compounded this error by finding increasingly unprofessional forms of attorney advertising to be protected speech. See ; ; These cases consistently focus on whether the challenged advertisement directly harms the listener: whether it is false or misleading, or amounts to "overreaching, invasion of privacy, [or] the exercise of undue influence," This focus is too narrow. In my view, the States have the broader authority to prohibit commercial speech that, albeit not directly harmful to the listener, is inconsistent with the speaker's membership in a learned profession and therefore damaging to the profession and society at large. See ; ; In particular, the States may prohibit certain "forms of competition usual in the business world," on the grounds that pure profit seeking degrades the public-spirited culture of the profession and that a particular profit-seeking practice is inadequately justified in terms of consumer welfare or other social benefits. Commercialization has an incremental, indirect, yet profound effect on professional culture, as lawyers know all too well. *779 But even if I agreed that the States may target only professional speech that directly harms the listener, I still would dissent in this case. held that an attorney could be sanctioned for the in-person solicitation of two particularly vulnerable potential clients, because of the inherent risk under such circumstances that the attorney's speech would be directly harmful, and because a simple prohibition on fraud or overreaching would be difficult to enforce in the context of in-person solicitation. See The result reached by the majority today cannot be squared with Ohralik. Although Ohralik preceded Central Gas & Electric this Court has understood Ohralik to mean that a rule prohibiting in-person solicitation by attorneys would satisfy the Central test. See Such a rule would "directly advanc[e] the governmental interest [and would not be] more extensive than is necessary to serve that interest." Central A substantial fraction of in-person solicitations are inherently conducive to overreaching or otherwise harmful speech, and these potentially harmful solicitations cannot be singled out in advance (or so a reasonable legislator could believe). I see no constitutional difference between a rule prohibiting in-person solicitation by attorneys, and a rule prohibiting in-person solicitation by certified public accountants (CPA's). The attorney's rhetorical power derives not only from his specific training in the art of persuasion, see ante, at 774-775, but more generally from his professional expertise. His certified status as an expert in a complex subject matter the lawempowers the attorney to overawe inexpert clients. CPA's have an analogous power.
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Justice O'Connor
| 1,993 | 14 |
dissenting
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Edenfield v. Fane
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https://www.courtlistener.com/opinion/112850/edenfield-v-fane/
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attorney to overawe inexpert clients. CPA's have an analogous power. The drafters of Fla. Admin. Code 21A-24.002(2)(c) reasonably could *780 have envisioned circumstances analogous to those in Ohralik, where there is a substantial risk that the CPA will use his professional expertise to mislead or coerce a naive potential client. Indeed, the majority scrupulously declines to question the validity of Florida's rule. The majority never analyzes the rule itself under Central cf. Posadas de Puerto Rico (analyzing "facial" validity of law regulating commercial speech by employing Central test), but instead seeks to avoid this analysis by characterizing Fane's suit as an "as-applied" challenge. See ante, at 763, 767, 770, 771, 774. I am surprised that the majority has taken this approach without explaining or even articulating the underlying assumption: that a commercial speaker can claim First Amendment protection for particular instances of prohibited commercial speech, even where the prohibitory law satisfies Central Board of Trustees of State University of N. appears to say the opposite, see and we recently granted certiorari in a case that poses precisely this issue, see United In any event, the instant case is not an "as-applied" challenge, in the sense that a speaker points to special features of his own speech as constitutionally protected from a valid law. Cf. The majority obscures this point by stating that Florida's rule "cannot be sustained as applied to Fane's proposed speech," ante, at 767, and by paraphrasing Fane's affidavit at length to show that he does not propose to solicit vulnerable clients, ante, at 775-776. But I do not understand the relevance of that affidavit here, because the broad remedy granted by the District Court goes well beyond Fane's own speech. "Florida Administrative Code, 21A-24.002(2) and (3), places an unconstitutional ban on protected commercial speech in violation of the first amendmen[t]. *781 The Board of Accountancy and State are hereby enjoined from enforcing that regulation as it is applied to CPAs who seek clients through in-person, direct, uninvited solicitation in the business context." App. 88. Even if the majority is correct that a law satisfying Central cannot be applied to harmless commercial speech, and that Fane's proposed speech will indeed be harmless, these two premises do not justify an injunction against the enforcement of the anti solicitation rule to all CPA's. The majority also relies on the fact that petitioners were enjoined only from enforcing the rule in the "business context." See ante, at 763, 771. Yet this narrowing of focus, without more, does not salvage the District Court's remedy. I fail to see why 21A-24.002(2)(c) should be
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Justice Kagan
| 2,012 | 3 |
majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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https://www.courtlistener.com/opinion/802400/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/
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A provision of the Indian Reorganization Act (IRA), 25 U.S. C. authorizes the Secretary of the Interior (Secretary) to acquire property “for the purpose of provid- ing land for Indians.” Ch. 5, The Secretary here acquired land in trust for an Indian tribe seeking to open a casino. Respondent David Patchak lives near that land and challenges the Secretary’s decision in a suit brought under the Administrative Procedure Act (APA), 5 U.S. C. et seq. Patchak claims that the Secretary lacked authority under to take title to the land, and alleges economic, environmental, and aesthetic harms from the casino’s operation. We consider two questions arising from Patchak’s ac- 2 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court tion. The first is whether the United States has sovereign immunity from the suit by virtue of the Quiet Title Act (QTA), We think it does not. The second is whether Patchak has prudential standing to challenge the Secretary’s acquisition. We think he does. We therefore hold that Patchak’s suit may proceed. I The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) is an Indian tribe residing in rural Michi- gan. Although the Band has a long history, the Depart- ment of the Interior (DOI) formally recognized it only in 1999. See (1998). Two years later, the Band petitioned the Secretary to exercise her authority under by taking into trust a tract of land in Wayland Township, Michigan, known as the Bradley Property. The Band’s application explained that the Band would use the property “for gaming purposes,” with the goal of generat- ing the “revenue necessary to promote tribal economic development, self-sufficiency and a strong tribal govern- ment capable of providing its members with sorely needed social and educational programs.” App. 52, 41.1 In 2005, after a lengthy administrative review, the Secretary announced her decision to acquire the Bradley Property in trust for the Band. See In accordance with applicable regulations, the Secretary committed to wait 30 days before taking action, so that interested parties could seek judicial review. See ibid.; 25 CFR Within that window, an organiza- tion called Michigan Opposition (or MichGO) —————— 1 Under the Indian Gaming Regulatory Act, 25 U.S. C. an Indian tribe may conduct gaming operations on “Indian lands,” which include lands “held in trust by the United States for the benefit of any Indian tribe,” The application thus re- quested the Secretary to take the action necessary for the Band to open a casino. Cite as: 567 U. S. (2012) 3 Opinion of the Court filed suit alleging that the Secretary’s decision violated environmental and
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Justice Kagan
| 2,012 | 3 |
majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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https://www.courtlistener.com/opinion/802400/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/
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filed suit alleging that the Secretary’s decision violated environmental and gaming statutes. The Secretary held off taking title to the property while that litigation pro- ceeded. Within the next few years, a District Court and the D. C. Circuit rejected MichGO’s claims. See Michigan 27–28 (CADC 2008); Michigan Shortly after the D. C. Circuit ruled against MichGO (but still before the Secretary took title), Patchak filed this suit under the APA advancing a different legal theory. He asserted that did not authorize the Secretary to acquire property for the Band because it was not a feder- ally recognized tribe when the IRA was enacted in 1934. See App. 37. To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irre- versible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental prob- lems.” 0–31. Notably, Patchak did not assert any claim of his own to the Bradley Property. He requested only a declaration that the decision to acquire the land violated the IRA and an injunction to stop the Secretary from accepting title. See 8–39. The Band inter- vened in the suit to defend the Secretary’s decision. In January 2009, about five months after Patchak filed suit, this Court denied certiorari in MichGO’s case, 555 U.S. 1137, and the Secretary took the Bradley Property into trust. That action mooted Patchak’s request for an injunction to prevent the acquisition, and all parties agree that the suit now effectively seeks to divest the Federal Government of title to the land. See Brief for Match-E-Be- Nash-She-Wish Band of Pottawatomi Indians 17 (herein- after Tribal Petitioner); Brief for Federal Petitioners 11; 4 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court Brief for Respondent 24–25. The month after the Gov- ernment took title, this Court held in that authorizes the Secre- tary to take land into trust only for tribes that were “un- der federal jurisdiction” in 1934.2 The District Court dismissed the suit without consider- ing the merits (including the relevance of ), ruling that Patchak lacked prudential standing to challenge the Secretary’s acquisition of the Bradley Property. The court reasoned that the injuries Patchak alleged fell outside ’s “zone of interests.” The D. C. Circuit reversed that determination. See The court also rejected the Secretary’s and the Band’s alternative argument that by virtue of the QTA, sovereign immunity barred the suit. See at 707–712. The
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Justice Kagan
| 2,012 | 3 |
majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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https://www.courtlistener.com/opinion/802400/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/
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QTA, sovereign immunity barred the suit. See at 707–712. The latter ruling conflicted with decisions of three Circuits holding that the United States has immunity from suits like Patchak’s. See Neighbors for Rational Development, 961– 962 (CA10 2004); Metropolitan Water Dist. of South- ern 143–144 (per curiam); Florida Dept. of Bus. Regulation v. Department of Interior, 8 F.2d 1248, 1253–1255 (CA11 1985). We granted certiorari to review both of the D. C. Circuit’s holdings, 565 U. S. and we now affirm. II We begin by considering whether the United States’ sovereign immunity bars Patchak’s suit under the APA. —————— 2 The merits of Patchak’s case are not before this Court. We therefore express no view on whether the Band was “under federal jurisdiction” in 1934, as requires. Nor do we consider how that question relates to Patchak’s allegation that the Band was not “federally recog- nized” at the time. Cf. – (BREYER, J., concurring) (discussing this issue). Cite as: 567 U. S. (2012) 5 Opinion of the Court That requires us first to look to the APA itself and then, for reasons we will describe, to the QTA. We conclude that the United States has waived its sovereign immunity from Patchak’s action. The APA generally waives the Federal Government’s immunity from a suit “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S. C. That waiver would appear to cover Patchak’s suit, which objects to official action of the Secretary and seeks only non-monetary relief. But the APA’s waiver of immunity comes with an important carve-out: The waiver does not apply “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought” by the plaintiff. That provision prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes. The question thus be- comes whether another statute bars Patchak’s demand for relief. The Government and Band contend that the QTA does so. The QTA authorizes (and so waives the Government’s sovereign immunity from) a particular type of action, known as a quiet title suit: a suit by a plaintiff asserting a “right, title, or interest” in real property that conflicts with a “right, title, or interest” the United States claims. 28 U.S. C. The statute, however, contains an exception: The QTA’s authorization of suit “does not apply to trust or restricted Indian lands.” According to the Government and Band, that limitation on quiet
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According to the Government and Band, that limitation on quiet title suits satisfies the APA’s carve-out and so forbids Patchak’s suit. In the Band’s words, the QTA exception retains “the United States’ full immunity from suits seeking to chal- lenge its title to or impair its legal interest in Indian trust lands.” Brief for Tribal Petitioner 18. Two hypothetical examples might help to frame consid- 6 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court eration of this argument. First, suppose Patchak had sued under the APA claiming that he owned the Bradley Prop- erty and that the Secretary therefore could not take it into trust. The QTA would bar that suit, for reasons just sug- gested. True, it fits within the APA’s general waiver, but the QTA specifically authorizes quiet title actions (which this hypothetical suit is) except when they involve Indian lands (which this hypothetical suit does). In such a cir- cumstance, a plaintiff cannot use the APA to end-run the QTA’s limitations. “[W]hen Congress has dealt in par- ticularity with a claim and [has] intended a specified remedy”—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment. (quoting H. R. Rep. No. 94–1656, p. 13 (19)). But now suppose that Patchak had sued under the APA claiming only that use of the Bradley Property was caus- ing environmental harm, and raising no objection at all to the Secretary’s title. The QTA could not bar that suit because even though involving Indian lands, it asserts a grievance altogether different from the kind the statute concerns. JUSTICE SCALIA, in a former life as Assistant Attorney General, made this precise point in a letter to Congress about the APA’s waiver of immunity (which we hasten to add, given the author, we use not as legislative history, but only for its persuasive force). When a statute “is not addressed to the type of grievance which the plain- tiff seeks to assert,” then the statute cannot prevent an APA suit. (May 10, 19, letter of Assistant Atty. Gen. A. Scalia).3 —————— 3 According to the dissent, we should look only to the kind of relief a plaintiff seeks, rather than the type of grievance he asserts, in deciding whether another statute bars an APA action. See post, at 6 (opinion of SOTOMAYOR, J.). But the dissent’s test is inconsistent with the one we adopted in Block, which asked whether Congress had particularly dealt Cite as: 567 U. S. (2012) 7 Opinion of the Court We think that principle controls Patchak’s case:
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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of the Court We think that principle controls Patchak’s case: The QTA’s “Indian lands” clause does not render the Govern- ment immune because the QTA addresses a kind of griev- ance different from the one Patchak advances. As we will explain, the QTA—whose full name, recall, is the Quiet Title Act—concerns (no great surprise) quiet title actions. And Patchak’s suit is not a quiet title action, because although it contests the Secretary’s title, it does not claim any competing interest in the Bradley Property. That fact makes the QTA’s “Indian lands” limitation simply inappo- site to this litigation. In reaching this conclusion, we need look no further than the QTA’s text. From its title to its jurisdictional grant to its venue provision, the Act speaks specifically and repeatedly of “quiet title” actions. See (“An Act [t]o permit suits to adjudicate certain real property quiet title actions”); 28 U.S. C. (giving district courts jurisdiction over “civil actions to quiet title” to property in which the United States claims an interest); (setting forth venue for “[a]ny civil action to quiet title” to property in which the United States claims an interest). That term is universally understood to refer to suits in which a plaintiff not only challenges someone else’s claim, but also asserts his own right to disputed property. See, e.g., Black’s Law Dictionary 34 And the dissent’s approach has no obvious limits. Suppose, for example, that Congress passed a statute authorizing a particular form of injunctive relief in a procurement contract suit except when the suit involved a “discretion- ary function” of a federal employee. Cf. 28 U.S. C. Under the dissent’s method, that exception would preclude any APA suit seeking that kind of injunctive relief if it involved a discretionary function, no matter what the nature of the claim. That implausible result demonstrates that limitations on relief cannot sensibly be un- derstood apart from the claims to which they attach. 8 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever es- topped from asserting it”); Grable & Sons Metal Products, (2005) (“[T]he facts showing the plaintiffs’ title are essential parts of the plaintiffs’ [quiet title] cause of ac- tion” (quoting (1917))). And the QTA’s other provisions make clear that the recurrent statutory term “quiet title action” carries its or- dinary meaning. The QTA directs that the complaint in such an action “shall set forth with particularity the na- ture of the right, title, or interest which the plaintiff claims
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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of the right, title, or interest which the plaintiff claims in the real property.” 28 U.S. C. If the plaintiff does not assert any such right (as Patchak does not), the statute cannot come into play.4 Further, the QTA provides an option for the United States, if it loses the suit, to pay “just compensation,” rather than return the property, to the “person determined to be entitled” to it. That provision makes perfect sense in a quiet title action: If the plaintiff is found to own the property, the Government can satisfy his claim through an award of money (while still retaining the land for its operations). But the provision makes no sense in a suit like this one, —————— 4 The dissent contends that the QTA omits two other historical re- quirements for quiet title suits. See post, at 8. But many States had abandoned those requirements by the time the QTA was passed. See S. Rep. No. 92–575, p. 6 (1971) (noting “wide differences in State statutory and decisional law” on quiet title suits); Steadman, “Forgive the U. S. Its Trespasses?”: Land Title Disputes With the Sovereign— Present Remedies and Prospective Reforms, 1972 Duke L. J. 15, 48–49, and n. (stating that cases had disputed whether a quiet title plaintiff needed to possess the land); 380–381, (allowing a quiet title action when the plaintiff claimed only an easement); Benson v. Fekete, 424 S.W.2d 729 (Mo. 1968) (en banc) (same). So Congress in enacting the QTA essentially chose one contemporaneous form of quiet title action. Cite as: 567 U. S. (2012) 9 Opinion of the Court where Patchak does not assert a right to the property. If the United States loses the suit, an award of just compen- sation to the rightful owner (whoever and wherever he might be) could do nothing to satisfy Patchak’s claim.5 In two prior cases, we likewise described the QTA as addressing suits in which the plaintiff asserts an owner- ship interest in Government-held property. In Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273 (1982), we considered North Dakota’s claim to land that the United States viewed as its own. We held that the State could not circumvent the QTA’s statute of limitations by invoking other causes of action, among them the APA. See at 277–278, The crux of our reasoning was that Congress had enacted the QTA to address exactly the kind of suit North Dakota had brought. Prior to the QTA, we explained, “citizens assert- ing title to or the right to possession of lands
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ing title to or the right to possession of lands claimed by the United States” had no recourse; by passing the stat- ute, “Congress sought to rectify this state of affairs.” 2. Our decision reflected that legislative purpose: Congress, we held, “intended the QTA to provide the exclusive means by which adverse claimants could chal- lenge the United States’ title to real property.” 6. —————— 5 The legislative history, for those who think it useful, further shows that the QTA addresses quiet title actions, as ordinarily conceived. The Senate Report states that the QTA aimed to alleviate the “[g]rave inequity” to private parties “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs.” S. Rep. No. 92–575, at 1. Similarly, the House Report notes that the history of quiet title actions “goes back to the Courts of England,” and provided as examples “a plaintiff whose title to land was continually being subjected to litigation in the law courts,” and “one who feared that an outstanding deed or other interest might cause a claim to be presented in the future.” H. R. Rep. No. 92–1559, p. 6 (1972). From top to bottom, these reports show that Congress thought itself to be author- izing bread-and-butter quiet title actions, in which a plaintiff asserts a right, title, or interest of his own in disputed land. 10 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court We repeat: “adverse claimants,” meaning plaintiffs who themselves assert a claim to property antagonistic to the Federal Government’s. Our decision in United 4 U.S. 834 (1986), is of a piece. There, we considered whether the QTA, or instead the Tucker Act or General Allotment Act, governed the plaintiff’s suit respecting certain allotments of land held by the United States. We thought the QTA the relevant statute because the plaintiff herself asserted title to the property. Our opinion quoted the plaintiff’s own description of her suit: “At no time in this proceeding did [the plaintiff] drop her claim for title. To the contrary, the claim for title is the essence and bottom line of [the plaintiff’s] case.” (quoting Brief for Respondent in Mottaz, O. T. 1985, No. 546, p. 3). That fact, we held, brought the suit “within the [QTA’s] scope”: “What [the plaintiff] seeks is a declaration that she alone possesses valid title.” 4 U. S., So once again, we construed the QTA as addressing suits by adverse claimants. But Patchak is not an adverse claimant—and so the QTA (more specifically, its reservation of sovereign im- munity
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the QTA (more specifically, its reservation of sovereign im- munity from actions respecting Indian trust lands) cannot bar his suit. Patchak does not contend that he owns the Bradley Property, nor does he seek any relief correspond- ing to such a claim. He wants a court to strip the United States of title to the land, but not on the ground that it is his and not so that he can possess it. Patchak’s lawsuit therefore lacks a defining feature of a QTA action. He is not trying to disguise a QTA suit as an APA action to circumvent the QTA’s “Indian lands” exception. Rather, he is not bringing a QTA suit at all. He asserts merely that the Secretary’s decision to take land into trust vio- lates a federal statute—a garden-variety APA claim. See 5 U.S. C. (C) (“The reviewing court shall hold unlawful and set aside agency action not in ac- cordance with law [or] in excess of statutory jurisdiction Cite as: 567 U. S. (2012) 11 Opinion of the Court [or] authority”). Because that is true—because in then- Assistant Attorney General Scalia’s words, the QTA is “not addressed to the type of grievance which [Patchak] seeks to assert,” H. R. Rep. 94–1656, —the QTA’s limitation of remedies has no bearing. The APA’s general waiver of sovereign immunity instead applies. The Band and Government, along with the dissent, object to this conclusion on three basic grounds. First, they contend that the QTA speaks more broadly than we have indicated, waiving immunity from suits “to adjudi- cate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. That language, the argument goes, encompasses all actions contesting the Government’s legal interest in land, regard- less whether the plaintiff claims ownership himself. See Brief for Federal Petitioners 19–20; Reply Brief for Tribal Petitioner 4–6; post, at 8–9 (SOTOMAYOR, J., dissenting). The QTA (not the APA) thus becomes the relevant statute after all—as to both its waiver and its “corresponding” reservation of immunity from suits involving Indian lands. Reply Brief for Tribal Petitioner 6. But the Band and Government can reach that result only by neglecting key words in the relevant provision. That sentence, more fully quoted, reads: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” (emphasis added). And as we have already noted, “this a host of indica- tions that the “civil action” at issue is an ordinary quiet
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Justice Kagan
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majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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that the “civil action” at issue is an ordinary quiet title suit: Just recall the section’s title (“Real property quiet title actions”), and its pleading requirements (the plaintiff “shall set forth with particularity the nature of the right, title, or interest which [he] claims”), and its permission to the Government to remedy an infraction by paying “just compensation.” Read with reference to all 12 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court these provisions (as well as to the QTA’s contemporane ously enacted jurisdictional and venue sections), the waiver clause rebuts, rather than supports, the Band’s and the Government’s argument: That clause speaks not to any suit in which a plaintiff challenges the Government’s title, but only to an action in which the plaintiff also claims an interest in the property. The Band and Government next invoke cases holding that “when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons,” the statute may “impliedly preclude[ ]” judicial review “of those issues at the behest of other persons.” Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984); see United States v. Fausto, 484 U.S. 439, 455 (1988). Here, the Band and Government contend, the QTA’s specific authorization of adverse claimants’ suits creates a negative implication: non- adverse claimants like Patchak cannot challenge Govern- ment ownership of land under any other statute. See Reply Brief for Tribal Petitoner 7–10; Reply Brief for Federal Petitioners 7–9; see also post, –4. The QTA, says the Band, thus “preempts [Patchak’s] more general remedies.” Brief for Tribal Petitioner 23 (internal quota- tion marks omitted). But we think that argument faulty, and the cited cases inapposite, for the reason already given: Patchak is bring- ing a different claim, seeking different relief, from the kind the QTA addresses. See at 7–10. To see the point, consider a contrasting example. Suppose the QTA authorized suit only by adverse claimants who could assert a property interest of at least a decade’s duration. Then suppose an adverse claimant failing to meet that requirement (because, say, his claim to title went back only five years) brought suit under a general statute like the APA. We would surely bar that suit, citing the cases the Government and Band rely on; in our imaginary stat- Cite as: 567 U. S. (2012) 13 Opinion of the Court ute, Congress delineated the class of persons who could bring a quiet title suit, and that judgment would preclude others from doing so. But here, once again, Patchak is not bringing a quiet title action
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Justice Kagan
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majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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once again, Patchak is not bringing a quiet title action at all. He is not claiming to own the property, and he is not demanding that the court transfer the property to him. So to succeed in their argu- ment, the Government and Band must go much further than the cited cases: They must say that in authorizing one person to bring one kind of suit seeking one form of relief, Congress barred another person from bringing another kind of suit seeking another form of relief. Pre- sumably, that contention would extend only to suits in- volving similar subject matter—i.e., the Government’s ownership of property. But that commonality is not itself sufficient. We have never held, and see no cause to hold here, that some general similarity of subject matter can alone trigger a remedial statute’s preclusive effect. Last, the Band and Government argue that we should treat Patchak’s suit as we would an adverse claimant’s because they equally implicate the “Indian lands” excep- tion’s policies. According to the Government, allowing challenges to the Secretary’s trust acquisitions would “pose significant barriers to tribes[’] ability to promote investment and economic development on the lands.” Brief for Federal Petitioners 24. That harm is the same whether or not a plaintiff claims to own the land himself. Indeed, the Band argues that the sole difference in this suit cuts in its direction, because non-adverse claimants like Patchak have “the most remote injuries and indirect interests in the land.” Brief for Tribal Petitioner 13; see Reply Brief for Federal Petitioners 11–12; see also post, at 2, 7, 10.6 —————— 6 In a related vein, the dissent argues that our holding will under- mine the QTA’s “Indian lands” exception by allowing adverse claimants to file APA complaints concealing their ownership interests or to recruit 14 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court That argument is not without force, but it must be addressed to Congress. In the QTA, Congress made a judgment about how far to allow quiet title suits—to a point, but no further. (The “no further” includes not only the “Indian lands” exception, but one for security interests and water rights, as well as a statute of limitations, a bar on jury trials, jurisdictional and venue constraints, and the just compensation option discussed earlier.) Perhaps Congress would—perhaps Congress should—make the identical judgment for the full range of lawsuits pertaining to the Government’s ownership of land. But that is not our call. The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title ac- tions,
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Justice Kagan
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majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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a lesser interest than those bringing quiet title ac- tions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same— that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Govern- ment’s ownership of property. And so when a plaintiff like Patchak brings a suit like this one, it falls within the APA’s general waiver of sovereign immunity. III We finally consider the Band’s and the Government’s alternative argument that Patchak cannot bring this ac- tion because he lacks prudential standing. This Court has long held that a person suing under the APA must satisfy not only Article III’s standing requirements, but an —————— third parties to bring suit on their behalf. See post, at 9–11. But we think that concern more imaginary than real. We have trouble conceiv- ing of a plausible APA suit that omits mention of an adverse claimant’s interest in property yet somehow leads to relief recognizing that very interest. Cite as: 567 U. S. (2012) 15 Opinion of the Court additional test: The interest he asserts must be “arguably within the zone of interests to be protected or regulated by the statute” that he says was violated. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 Here, Patchak asserts that in taking title to the Bradley Property, the Secretary exceeded her authority under which authorizes the acquisition of property “for the purpose of providing land for Indians.” And he alleges that this statutory violation will cause him economic, environmental, and aesthetic harm as a nearby property owner. See The Government and Band argue that the relationship between and Patchak’s asserted interests is insufficient. That is so, they contend, because the statute focuses on land acquisi- tion, whereas Patchak’s interests relate to the land’s use as a casino. See Brief for Tribal Petitioner 46 (“The Secre- tary’s decision to put land into trust does not turn on any particular use of the land, gaming or otherwise[,] [and] thus has no impact on [Patchak] or his asserted inter- ests”); Brief for Federal Petitioners 34 (“[L]and may be taken into trust for a host of purposes that have noth- ing at all to do with gaming”). We find this argument unpersuasive. The prudential
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Justice Kagan
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majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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https://www.courtlistener.com/opinion/802400/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/
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do with gaming”). We find this argument unpersuasive. The prudential standing test Patchak must meet “is not meant to be especially demanding.” We apply the test in keeping with Congress’s “evident intent” when enacting the APA “to make agency action presumptively reviewable.” We do not require any “indication of congressional purpose to benefit the would-be plaintiff.” 99–400.7 And we have always conspicuously —————— 7 For this reason, the Band’s statement that Patchak is “not an Indian or tribal official seeking land” and does not “claim an interest in ad- vancing tribal development,” Brief for Tribal Petitioner 42, is beside the point. The question is not whether seeks to benefit Patchak; everyone can agree it does not. The question is instead, as the Band’s 16 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court included the word “arguably” in the test to indicate that the benefit of any doubt goes to the plaintiff. The test forecloses suit only when a plaintiff’s “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be as- sumed that Congress intended to permit the suit.” 99. Patchak’s suit satisfies that standard, because has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about ’s context and purpose. As the leading treatise on federal Indian law notes, is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Fed- eral Indian Law p. 1010 (2005 ed.) (hereinaf- ter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, and gaming.” Cohen at 965. Section 465 thus func- tions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands suffi- cient to enable Indians to achieve self-support.” Michigan 525 F. 3d, 1 (internal quotation marks omitted); see (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those —————— and the Government’s main argument acknowledges, whether issues of land use (arguably) fall within ’s scope—because if they do, a neighbor complaining about such use may sue to enforce the statute’s limits. See infra this page and 16–17. Cite
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Justice Kagan
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majority
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
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the statute’s limits. See infra this page and 16–17. Cite as: 567 U. S. (2012) 17 Opinion of the Court lands to support economic development. The Department’s regulations make this statutory concern with land use crystal clear. Those regulations permit the Secretary to acquire land in trust under if the “land is necessary to facilitate tribal self- determination, economic development, or Indian housing.” (a)(3). And they require the Secretary to consider, in evaluating any acquisition, both “[t]he pur- poses for which the land will be used” and the “poten- tial conflicts of land use which may arise.” 151.10(f); see For “off-reservation acquisitions” made “for business purposes”—like the Bradley Property— the regulations further provide that the tribe must “provide a plan which specifies the anticipated economic benefits associated with the proposed use.” DOI’s regulations thus show that the statute’s implemen- tation centrally depends on the projected use of a given property. The Secretary’s acquisition of the Bradley Property is a case in point. The Band’s application to the Secretary highlighted its plan to use the land for gaming purposes. See App. 41 (“[T]rust status for this Property is requested in order for the Tribe to acquire property on which it plans to conduct gaming”); at 61–62 (“The Tribe intends to renovate the existing building into a gaming fa- cility to offer Class II and/or Class III gaming”). Simi- larly, DOI’s notice of intent to take the land into trust announced that the land would “be used for the purpose of construction and operation of a gaming facility,” which the Department had already determined would meet the Indian Gaming Regulatory Act’s requirements. 70 Fed. Reg. 25596; 25 U.S. C. So from start to finish, the decision whether to acquire the Bradley Prop- erty under involved questions of land use. And because ’s implementation encompasses these issues, the interests Patchak raises—at least arguably— 18 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court fall “within the zone protected or regulated by the statute.” If the Government had violated a statute specifi- cally addressing how federal land can be used, no one would doubt that a neighboring landowner would have prudential standing to bring suit to enforce the statute’s limits. The difference here, as the Government and Band point out, is that specifically addresses only land ac- quisition. But for the reasons already given, decisions under the statute are closely enough and often enough entwined with considerations of land use to make that difference immaterial. As in this very case, the Secretary will typically acquire land with its eventual use in mind,
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Justice Thomas
| 2,016 | 1 |
second_dissenting
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Montgomery v. Louisiana
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I join JUSTICE SCALIA’s dissent. I write separately to explain why the Court’s resolution of the jurisdictional question, ante, at 5–14, lacks any foundation in the Con- stitution’s text or our historical traditions. We have juris- diction under 28 U.S. C. only if the Louisiana Su- preme Court’s decision implicates a federal right. That condition is satisfied, the Court holds, because the Consti- tution purportedly requires state and federal postconvic- tion courts to give “retroactive effect” to new substantive constitutional rules by applying them to overturn long- final convictions and sentences. Ante, at 8. Because our Constitution and traditions embrace no such right, I re- spectfully dissent. I “[O]ur jurisprudence concerning the ‘retroactivity’ of ‘new rules’ of constitutional law is primarily concerned, not with the question whether a constitutional violation occurred, but with the availability or nonavailability of remedies.” 290–291 (2008). Accordingly, the issue in this case is not whether prisoners who received mandatory life-without-parole sentences for crimes they committed decades ago as juve- niles had an Eighth Amendment right not to receive such a sentence. Rather, the question is how, when, and in 2 MONTGOMERY v. LOUISIANA THOMAS, J., dissenting what forum that newfound right can be enforced. See The Court answers that question one way: It says that state postconviction and federal habeas courts are consti- tutionally required to supply a remedy because a sentence or conviction predicated upon an unconstitutional law is a legal nullity. See ante, at 8–14. But nothing in the Con- stitution’s text or in our constitutional tradition provides such a right to a remedy on collateral review. A No provision of the Constitution supports the Court’s holding. The Court invokes only the Supremacy Clause, asserting that the Clause deprives state and federal post- conviction courts alike of power to leave an unconstitu- tional sentence in place. Ante, at 12–13. But that leaves the question of what provision of the Constitution supplies that underlying prohibition. The Supremacy Clause does not do so. That Clause merely supplies a rule of decision: If a federal constitu- tional right exists, that right supersedes any contrary provisions of state law. See Art. VI, cl. 2 (“This Constitu- tion, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Accordingly, as we reaffirmed just last Term, the Supremacy Clause is no independent font of substantive rights. Armstrong v. Exceptional Child Center, Inc., 575
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second_dissenting
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Montgomery v. Louisiana
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of substantive rights. Armstrong v. Exceptional Child Center, Inc., 575 U. S. (2015) (slip op., at 3). Nor am I aware of any other provision in the Constitu- tion that would support the Court’s new constitutional right to retroactivity. Of the natural places to look— Article III, the Due Process Clauses of the Fifth and Four- teenth Amendments, and the Equal Protection Clause of Cite as: 577 U. S. (2016) 3 THOMAS, J., dissenting the Fourteenth Amendment—none establishes a right to void an unconstitutional sentence that has long been final. To begin, Article III does not contain the requirement that the Court announces today. Article III vests “[t]he judicial Power” in this Court and whatever inferior courts Congress creates, Art. III, and “extend[s]” that power to various “Cases and Controversies,” Art. III, Article III thus defines the scope of federal judicial power. It cannot compel state postconviction courts to apply new substantive rules retroactively. Even if the Court’s holding were limited to federal courts, Article III would not justify it. The nature of “judi- cial power” may constrain the retroactivity rules that Article III courts can apply.* But even our broad modern precedents treat Article III as requiring courts to apply new rules only on direct review. Thus in the Court suggested—based on Justice Harlan’s views—that “after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review.” at 322–323. But, as Jus- tice Harlan had explained, that view of Article III has no force on collateral review: “While the entire theoretical underpinnings of judicial review and constitutional su- premacy dictate that federal courts having jurisdiction on direct review adjudicate every issue of law fairly impli- cated by the trial process below and properly presented on appeal, federal courts have never had a similar obligation on habeas corpus.” Mackey v. United States, 401 U.S. 667, 682 (1971) (opinion concurring in judgment in part and dissenting in part). —————— * For instance, Article III courts cannot arrive at a holding, refuse to apply it to the case at hand, and limit its application to future cases involving yet-to-occur events. The power to rule prospectively in this way is a quintessentially legislative power. See 4 MONTGOMERY v. LOUISIANA THOMAS, J., dissenting The Court’s holding also cannot be grounded in the Due Process Clause’s prohibition on “depriv[ations] of life, liberty, or property, without due process of law.” Amdts. V and XIV, Quite possibly, “ ‘[d]ue process of law’ was originally used as a shorthand expression
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second_dissenting
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Montgomery v. Louisiana
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process of law’ was originally used as a shorthand expression for governmen- tal proceedings according to the ‘law of the land’ as it existed at the time of those proceedings.” In re Winship, (emphasis added); accord, Johnson v. United States, 576 U. S. (2015) (THOMAS, J., concurring in judgment) (slip op., at 17). Under that understanding, due process excluded any right to have new substantive rules apply retroactively. Even if due process required courts to anticipate this Court’s new substantive rules, it would not compel courts to revisit settled convictions or sentences on collateral review. We have never understood due process to require further proceedings once a trial ends. The Clause “does not establish any right to an appeal and certainly does not establish any right to collaterally attack a final judg- ment of conviction.” United States v. MacCollom, 426 U.S. 317, 323 (plurality opinion); see Pennsylvania v. Finley, (“States have no obli- gation to provide [postconviction] relief ”). Because the Constitution does not require postconviction remedies, it certainly does not require postconviction courts to revisit every potential type of error. Cf. 165– 166 (2000) (SCALIA, J., concurring in judgment) (“Since a State could subject its trial-court determinations to no review whatever, it could a fortiori subject them to review which consists of a nonadversarial reexamination of con- victions by a panel of government experts”). Nor can the Equal Protection Clause justify requiring courts on collateral review to apply new substantive rules retroactively. That Clause prohibits a State from “de- Cite as: 577 U. S. (2016) 5 THOMAS, J., dissenting ny[ing] to any person within its jurisdiction the equal protection of the laws.” Amdt. XIV, But under our precedents “a classification neither involving fundamental rights nor proceeding along suspect lines cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Armour v. Indianapo- lis, 566 U. S. (2012) (slip op., at 6) (internal quota- tion marks omitted; ellipsis in original). The disparity the Court eliminates today—between prisoners whose cases were on direct review when this Court announced a new substantive constitutional rule, and those whose convictions had already become final—is one we have long considered rational. “[T]he notion that different standards should apply on direct and collateral review runs throughout our recent habeas jurisprudence.” ; see Brecht v. Abrahamson, Thus, our precedents recognize a right to counsel on direct review, but not in collateral proceedings. Compare Douglas v. California, (courts must provide counsel on an initial direct appeal), with Finley, The Fourth Amendment also applies differently
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Justice Thomas
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Montgomery v. Louisiana
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direct appeal), with Finley, The Fourth Amendment also applies differently on direct and collat- eral review. Compare 654– 660 (1961) (courts on direct review must exclude evidence obtained in violation of the Fourth Amendment), with (no relitiga- tion of such claims on collateral review). These distinctions are reasonable. They reflect the “significant costs” of collateral review, including disrup- tion of “the State’s significant interest in repose for con- cluded litigation.” (internal quota- tion marks omitted). Our equal protection precedents, therefore, do not compel a uniform rule of retroactivity in direct and collateral proceedings for new substantive 6 MONTGOMERY v. LOUISIANA THOMAS, J., dissenting constitutional rules. B The Court’s new constitutional right also finds no basis in the history of state and federal postconviction proceed- ings. Throughout our history, postconviction relief for alleged constitutional defects in a conviction or sentence was available as a matter of legislative grace, not constitu- tional command. The Constitution mentions habeas relief only in the Suspension Clause, which specifies that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, cl. 2. But that Clause does not specify the scope of the writ. And the First Congress, in prescribing federal habeas jurisdiction in the 1789 Judici- ary Act, understood its scope to reflect “the black-letter principle of the common law that the writ was simply not available at all to one convicted of crime by a court of competent jurisdiction.” Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 466 Early cases echoed that under- standing. E.g., Ex parte Watkins, (“An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous”). For nearly a century thereafter, this Court understood the Judiciary Act and successor provisions as limiting habeas relief to instances where the court that rendered the judgment lacked jurisdiction over the general category of offense or the person of the prisoner. See at 285 (recounting history). Federal habeas courts thus afforded no remedy for a claim that a sentence or convic- tion was predicated on an unconstitutional law. Nor did States. Indeed, until 1836, Vermont made no provision for Cite as: 577 U. S. (2016) 7 THOMAS, J., dissenting any state habeas proceedings. See Oaks, Habeas Corpus in the States 1776–1865, Even when States allowed collateral attacks in state court, review was unavailable if the judgment
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Justice Thomas
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second_dissenting
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Montgomery v. Louisiana
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attacks in state court, review was unavailable if the judgment of conviction was rendered by a court with general jurisdic- tion over the subject matter and the defendant. at 261–262. The Court portrays Ex parte Siebold, (1880), as a departure from this history and as the genesis of a constitutional principle that “a conviction obtained under an unconstitutional law warrants habeas relief.” Ante, at 12. But Siebold—a case construing the scope of federal habeas review under the 1789 Judiciary Act—does not support the Court’s position. Ante, at 7–8 (SCALIA, J., dissenting). Siebold did not imply that the Constitution requires courts to stop enforcing convictions under an unconstitutional law. Rather, Siebold assumed that pris- oners would lack a remedy if the federal habeas statute did not allow challenges to such convictions. 100 U.S., at 377 (“It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of re- versing it”). Moreover, when Congress authorized appeals as a mat- ter of right in federal criminal cases, the Court renounced Siebold and stopped entertaining federal habeas chal- lenges to the constitutionality of the statute under which a defendant was sentenced or convicted. See at 473–474, and n. 77. If the Constitution prevented courts from enforcing a void conviction or sentence even after the conviction is final, this Court would have been incapable of withdrawing relief. The Court’s purported constitutional right to retroactiv- ity on collateral review has no grounding even in our mod- ern precedents. In the 1950’s, this Court began recogniz- ing many new constitutional rights in criminal proceed- ings. Even then, however, the Court did not perceive any 8 MONTGOMERY v. LOUISIANA THOMAS, J., dissenting constitutional right for prisoners to vacate their convic- tions or sentences on collateral review based on the Court’s new interpretations of the Constitution. To the contrary, the Court derived Miranda warnings and the exclusionary rule from the Constitution, yet drew the line at creating a constitutional right to retroactivity. E.g., (“[T]he Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, ‘We think the Federal Constitution has no voice upon the subject’ ”). Only in 1987, in did this Court change course and hold that the Constitution requires courts to give constitutional rights some retroac- tive effect. Even then, Griffith was a directive only to courts on direct review. It held that “a new rule for the conduct of criminal prosecutions is to be applied retroac- tively to all cases, state or federal, pending on direct re- view or not yet final.” It
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Justice Thomas
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second_dissenting
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Montgomery v. Louisiana
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pending on direct re- view or not yet final.” It said nothing about what happens once a case becomes final. That was re- solved in —which announced the narrow exceptions to the rule against retroactivity on collateral review—but which did so by interpreting the scope of the federal habeas writ, not the Constitution. II A Not only does the Court’s novel constitutional right lack any constitutional foundation; the reasoning the Court uses to construct this right lacks any logical stopping point. If, as the Court supposes, the Constitution bars courts from insisting that prisoners remain in prison when their convictions or sentences are later deemed unconsti- tutional, why can courts let stand a judgment that wrongly decided any constitutional question? The Court confronted this question when Siebold and Cite as: 577 U. S. (2016) 9 THOMAS, J., dissenting other cases began expanding the federal habeas statute to encompass claims that a sentence or conviction was con- stitutionally void. But the Court could not find a satisfac- tory answer: “A judgment may be erroneous and not void, and it may be erroneous because it is void. The distinc- tions are very nice, and they may fall under the one class or the other as they are regarded for different pur- poses.” Ex parte Lange, The lack of any limiting principle became apparent as the Court construed the federal habeas statute to supply jurisdiction to address prerequisites to a valid sentence or conviction (like an indictment). See 76 Harv. L. Rev., at 467–468, and n. 56, 471. As Justice Bradley, Siebold’s author, later observed for the Court: “It is diffi- cult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s consti- tutional rights, than an unconstitutional conviction and punishment under a valid law.” In re Nielsen, 131 U.S. 176, 183 (1889). I doubt that today’s rule will fare any better. By refash- ioning Siebold as the foundation of a purported constitu- tional right, the Court transforms an unworkable doctrine into an immutable command. Because Justice Bradley’s dicta in Siebold was a gloss on the 1789 Judiciary Act, Congress could at least supply a fix to it. But the Court’s reinvention of Siebold as a constitutional imperative eliminates any room for legislative adjustment. B There is one silver lining to today’s ruling: States still have a way to mitigate its impact on their court systems. As the Court explains, States must enforce a constitutional right to remedies on collateral review only if such pro- ceedings are “open to a claim controlled by federal law.” Ante,
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Justice Thomas
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second_dissenting
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Montgomery v. Louisiana
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are “open to a claim controlled by federal law.” Ante, at 13. State courts, on collateral review, thus must provide remedies for claims under Miller v. Alabama, 567 10 MONTGOMERY v. LOUISIANA THOMAS, J., dissenting U. S. (2012), only if those courts are open to “claims that a decision of this Court has rendered certain sentenc- es illegal under the Eighth Amendment.” See ante, at 13. Unlike the rule the Court announces today, this limita- tion at least reflects a constitutional principle. Only when state courts have chosen to entertain a federal claim can the Supremacy Clause conceivably command a state court to apply federal law. As we explained last Term, private parties have no “constitutional right to enforce federal laws against the States.” Armstrong, 575 U. S., at (slip op., at 4). Instead, the Constitution leaves the initial choice to entertain federal claims up to state courts, which are “tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.” Osborn v. Bank of United States, States therefore have a modest path to lessen the bur- dens that today’s decision will inflict on their courts. States can stop entertaining claims alleging that this Court’s Eighth Amendment decisions invalidated a sen- tence, and leave federal habeas courts to shoulder the burden of adjudicating such claims in the first instance. Whatever the desirability of that choice, it is one the Constitution allows States to make. * * * Today’s decision repudiates established principles of finality. It finds no support in the Constitution’s text, and cannot be reconciled with our Nation’s tradition of consid- ering the availability of postconviction remedies a matter about which the Constitution has nothing to say. I re- spectfully dissent.
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Justice Gorsuch
| 2,020 | 7 |
majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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In 1998, al Qaeda operatives simultaneously detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Hundreds died, thousands were injured. In time, victims and their family members sued the Republic of Sudan in federal court, alleging that it had assisted al Qaeda in perpetrating the attacks. After more than a dec- ade of motions practice, intervening legislative amend- ments, and a trial, the plaintiffs proved Sudan’s role in the attacks and established their entitlement to compensatory and punitive damages. On appeal, however, Sudan argued, and the court agreed, that the Foreign Sovereign Immuni- ties Act barred the punitive damages award. It is that de- cision we now review and, ultimately, vacate. * The starting point for nearly any dispute touching on for- eign sovereign immunity lies in Schooner Exchange v. McFaddon, There, Chief Justice Mar- 2 OPATI v. REPUBLIC OF SUDAN Opinion of the Court shall explained that foreign sovereigns do not enjoy an in- herent right to be held immune from suit in American courts: “The jurisdiction of the nation within its own terri- tory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” Still, Chief Justice Marshall continued, many countries had de- clined to exercise jurisdiction over foreign sovereigns in cases involving foreign ministers and militaries. at 137–140. And, accepting a suggestion from the Executive Branch, the Court agreed as a matter of comity to extend that same immunity to a foreign sovereign in the case at hand. 145–147. For much of our history, claims of foreign sovereign im- munity were handled on a piecework basis that roughly paralleled the process in Schooner Exchange. Typically, af- ter a plaintiff sought to sue a foreign sovereign in an Amer- ican court, the Executive Branch, acting through the State Department, filed a “suggestion of immunity”—case-spe- cific guidance about the foreign sovereign’s entitlement to immunity. See B. V. v. Central Bank of Nigeria, Because foreign sovereign im- munity is a matter of “grace and comity,” Republic of Aus- and so often im- plicates judgments the Constitution reserves to the political branches, courts “consistently deferred” to these sugges- tions. Eventually, though, this arrangement began to break down. In the mid-20th century, the State Department started to take a more restrictive and nuanced approach to foreign sovereign immunity. See at 486–. Some- times, too, foreign sovereigns neglected to ask the State De- partment to weigh in, leaving courts to make immunity de- cisions on their own. See at –488. “Not surprisingly” given these developments, “the governing standards” for foreign sovereign immunity determinations over time
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majority
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Opati v. Republic of Sudan
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“the governing standards” for foreign sovereign immunity determinations over time became “neither clear nor uniformly applied.” Cite as: 590 U. S. (2020) 3 Opinion of the Court at 488. In 1976, Congress sought to remedy the problem and ad- dress foreign sovereign immunity on a more comprehensive basis. The result was the Foreign Sovereign Immunities Act (FSIA). As a baseline rule, the FSIA holds foreign states and their instrumentalities immune from the juris- diction of federal and state courts. See 28 U.S. C. 1604. But the law also includes a number of ex- ceptions. See, e.g., 1607. Of particular relevance today is the terrorism exception Congress added to the law in 1996. That exception permits certain plaintiffs to bring suits against countries who have committed or supported specified acts of terrorism and who are designated by the State Department as state sponsors of terror. Still, as orig- inally enacted, the exception shielded even these countries from the possibility of punitive damages. See Antiterrorism and Effective Death Penalty Act of 1996 (codifying state- sponsored terrorism exception at 28 U.S. C. (generally barring punitive damages in suits pro- ceeding under any of sovereign immunity excep- tions). Two years after Congress amended the FSIA, al Qaeda attacked the U. S. Embassies in Kenya and Tanzania. In response, a group of victims and affected family members led by James Owens sued Sudan in federal district court, invoking the newly adopted terrorism exception and alleg- ing that Sudan had provided shelter and other material support to al Qaeda. As the suit progressed, however, a question emerged. In its recent amendments, had Congress merely withdrawn immunity for state-sponsored terrorism, allowing plaintiffs to proceed using whatever pre-existing causes of action might be available to them? Or had Con- gress gone further and created a new federal cause of action to address terrorism? Eventually, the D. C. Circuit held that Congress had only withdrawn immunity without cre- ating a new cause of action. See Cicippio-Puelo v. Islamic 4 In response to that and similar decisions, Congress amended the FSIA again in the National Defense Authori- zation Act for Fiscal Year 2008 (NDAA), Four changes, all found in a single section, bear mention here. First, in of the NDAA, Congress moved the state- sponsored terrorism exception from its original home in to a new section of the U. S. Code, 28 U.S. C. This had the effect of freeing claims brought under the terrorism exception from the FSIA’s usual bar on puni- tive damages. See (denying punitive damages in suits proceeding under a sovereign immunity exception found in but
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Justice Gorsuch
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majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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suits proceeding under a sovereign immunity exception found in but not A). Second, also in Congress created an express federal cause of action for acts of terror. This new cause of action, codified at 28 U.S. C. A(c), is open to plaintiffs who are U. S. nationals, members of the Armed Forces, U. S. government employees or contractors, and their legal representatives, and it ex- pressly authorizes punitive damages. Third, in of the NDAA, a provision titled “Prior Actions,” Congress addressed existing lawsuits that had been “adversely af- fected on the groun[d] that” prior law “fail[ed] to create a cause of action against the state.” Actions like these, Con- gress instructed, were to be given effect “as if ” they had been originally filed under A(c)’s new federal cause of action. Finally, in of the NDAA, a provision ti- tled “Related Actions,” Congress provided a time-limited opportunity for plaintiffs to file new actions “arising out of the same act or incident” as an earlier action and claim the benefits of 28 U.S. C. Following these amendments, the Owens plaintiffs amended their complaint to include the new federal cause of action, and hundreds of additional victims and family members filed new claims against Sudan similar to those in Owens. Some of these new plaintiffs were U. S. nationals or federal government employees or contractors who sought Cite as: 590 U. S. (2020) 5 Opinion of the Court relief under the new A(c) federal cause of action. But others were the foreign-national family members of U. S. government employees or contractors killed or injured in the attacks. Ineligible to invoke A(c)’s new federal cause of action, these plaintiffs relied on A(a)’s state- sponsored terrorism exception to overcome Sudan’s sover- eign immunity and then advance claims sounding in state law. After a consolidated bench trial in which Sudan declined to participate, the district court entered judgment in favor of the plaintiffs. District Judge John Bates offered detailed factual findings explaining that Sudan had knowingly served as a safe haven near the two United States Embas- sies and allowed al Qaeda to plan and train for the attacks. The court also found that Sudan had provided hundreds of Sudanese passports to al Qaeda, allowed al Qaeda opera- tives to travel over the Sudan-Kenya border without re- striction, and permitted the passage of weapons and money to supply al Qaeda’s cell in Kenya. See The question then turned to damages. Given the exten- sive and varied nature of the plaintiffs’ injuries, the court appointed seven Special Masters to aid its factfinding. Over more than two
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Justice Gorsuch
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majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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Special Masters to aid its factfinding. Over more than two years, the Special Masters conducted individual damages assessments and submitted written re- ports. Based on these reports, and after adding a substan- tial amount of prejudgment interest to account for the many years of delay, the district court awarded a total of approx- imately $10.2 billion in damages, including roughly $4.3 billion in punitive damages to plaintiffs who had brought suit in the wake of the 2008 amendments. At that point, Sudan decided to appear and appeal. Among other things, Sudan sought to undo the district court’s punitive damages award. Generally, Sudan argued, Congress may create new forms of liability for past conduct only by clearly stating its intention to do so. And, Sudan 6 OPATI v. REPUBLIC OF SUDAN Opinion of the Court continued, when Congress passed the NDAA in 2008, it no- where clearly authorized punitive damages for anything countries like Sudan might have done in the 1990s. The court of appeals agreed. It started by addressing the plaintiffs who had proceeded under the new federal cause of action in A(c). The court noted that, in passing the NDAA, Congress clearly authorized individuals to use the Prior Actions and Related Actions provisions to bring new federal claims attacking past conduct. Likewise, the law clearly allowed these plaintiffs to collect compensatory damages for their claims. But, the court held, Congress in- cluded no statement clearly authorizing punitive damages for preenactment conduct. See Separately but for essentially the same reasons, the court held that the for- eign-national family member plaintiffs who had proceeded under state-law causes of action were also barred from seeking and obtaining punitive damages. The petitioners responded by asking this Court to review the first of these rulings and decide whether the 2008 NDAA amendments permit plaintiffs proceeding under the federal cause of action in A(c) to seek and win puni- tive damages for past conduct. We agreed to resolve that question. 588 U. S. (2019). * The principle that legislation usually applies only pro- spectively “is deeply rooted in our jurisprudence, and em- bodies a legal doctrine centuries older than our Republic.” This principle protects vital due process interests, ensuring that “individuals have an opportunity to know what the law is” before they act, and may rest assured after they act that their lawful conduct cannot be second-guessed later. The principle serves vital equal protection interests as well: If legislative majorities could too easily make new Cite as: 590 U. S. (2020) 7 Opinion of the Court laws with retroactive application, disfavored groups could become easy
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Justice Gorsuch
| 2,020 | 7 |
majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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Court laws with retroactive application, disfavored groups could become easy targets for discrimination, with their past ac- tions visible and unalterable. See –267. No doubt, reasons like these are exactly why the Constitution discourages retroactive lawmaking in so many ways, from its provisions prohibiting ex post facto laws, bills of attain- der, and laws impairing the obligations of contracts, to its demand that any taking of property be accompanied by just compensation. See Still, Sudan doesn’t challenge the constitutionality of the 2008 NDAA amendments on these or any other grounds— the arguments we confront today are limited to the field of statutory interpretation. But, as both sides acknowledge, the principle of legislative prospectivity plays an important role here too. In fact, the parties devote much of their brief- ing to debating exactly how that principle should inform our interpretation of the NDAA. For its part, Sudan points to There, the Court observed that, “in decisions spanning two centuries,” we have approached debates about statutory meaning with an assumption that Congress means its legislation to respect the principle of prospectivity and apply only to future con- duct—and that, if and when Congress wishes to test its power to legislate retrospectively, it must say so “clear[ly].” All this is important, Sudan tells us, because when we look to the NDAA we will find no clear statement allowing courts to award punitive damages for past con- duct. But if Sudan focuses on the rule, the petitioners highlight an exception suggested by Because foreign sov- ereign immunity is a gesture of grace and comity, reasoned, it is also something that may be withdrawn ret- roactively without the same risk to due process and equal protection principles that other forms of backward-looking legislation can pose. Foreign sovereign immunity’s “princi- pal purpose,” after all, “has never been to permit foreign 8 OPATI v. REPUBLIC OF SUDAN Opinion of the Court states to shape their conduct in reliance on the promise of future immunity from suit in United States courts.” 541 U.S., at 696. Thus, held, “[i]n th[e] sui generis context [of foreign sovereign immunity], it [is] more ap- propriate, absent contraindications, to defer to the most re- cent decision [of the political branches] than to presume that decision inapplicable merely because it postdates the conduct in question.” And, the petitioners stress, once the presumption of prospectivity is swept away, the NDAA is easily read to authorize punitive damages for completed conduct. Really, this summary only begins to scratch the surface of the parties’ debate. Sudan replies that it may be one thing to retract immunity retroactively
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majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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that it may be one thing to retract immunity retroactively consistent with Alt- mann, because all that does is open a forum to hear an oth- erwise available legal claim. But it is another thing entirely to create new rules regulating primary conduct and impose them retroactively. When Congress wishes to do that, Su- dan says, it must speak just as clearly as com- manded. And, Sudan adds, the NDAA didn’t simply open a new forum to hear a pre-existing claim; it also created a new cause of action governing completed conduct that the peti- tioners now seek to exploit. Cf. – 704 (Scalia, J., concurring). In turn, the petitioners retort that itself might have concerned whether a new forum could hear an otherwise available and pre-existing claim, but its reasoning went further. According to the pe- titioners, the decision also strongly suggested that the pre- sumption of prospectivity does not apply at all when it comes to suits against foreign sovereigns, full stop. These points and more the parties develop through much of their briefing before us. As we see it, however, there is no need to resolve the par- ties’ debate over interpretive presumptions. Even if we as- sume (without granting) that Sudan may claim the benefit of ’s presumption of prospectivity, Congress was Cite as: 590 U. S. (2020) 9 Opinion of the Court as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct using new federal cause of action. After all, in Congress created a federal cause of action that ex- pressly allows suits for damages that “may include eco- nomic damages, solatium, pain and suffering, and punitive damages.” (Emphasis added.) This new cause of action was housed in a new provision of the U. S. Code, 28 U.S. C. A, to which the FSIA’s usual prohibition on punitive damages does not apply. See Then, in § and (c)(3) of the very same statute, Congress allowed cer- tain plaintiffs in “Prior Actions” and “Related Actions” to invoke the new federal cause of action in Both pro- visions specifically authorized new claims for preenactment conduct. Put another way, Congress proceeded in two equally evident steps: (1) It expressly authorized punitive damages under a new cause of action; and (2) it explicitly made that new cause of action available to remedy certain past acts of terrorism. Neither step presents any ambigu- ity, nor is the NDAA fairly susceptible to any competing in- terpretation. Sudan’s primary rejoinder only serves to underscore the conclusion. Like the court of appeals before
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Justice Gorsuch
| 2,020 | 7 |
majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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to underscore the conclusion. Like the court of appeals before it, Sudan stresses that itself contains no express authoriza- tion of punitive damages. But it’s hard to see what differ- ence that makes. Sudan admits that authorizes plaintiffs to bring claims under A(c) for acts commit- ted before the 2008 amendments. Sudan concedes, too, that A(c) authorizes plaintiffs to seek and win “economic damages, solatium, [and] pain and suffering,” for preenact- ment conduct. In fact, except for the two words “punitive damages,” Sudan accepts that every other jot and tittle of A(c) applies to actions properly brought under for past conduct. And we can see no plausible ac- count on which could be clear enough to authorize the retroactive application of all other features of 10 OPATI v. REPUBLIC OF SUDAN Opinion of the Court A(c), just not these two words. Sudan next contends that A(c) fails to authorize ret- roactive punitive damages with sufficient clarity because it sounds equivocal—the provision says only that awards “may” include punitive damages. But this language simply vests district courts with discretion to determine whether punitive damages are appropriate in view of the facts of a particular case. As we have repeatedly observed when dis- cussing remedial provisions using similar language, “the ‘word “may” clearly connotes discretion.’ ” Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. (2016) (slip op., at 8) (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005), in turn quoting ; emphasis added). What’s more, all of the categories of special damages mentioned in A(c) are provided on equal terms: “[D]amages may include economic damages, solatium, pain and suffering, and punitive damages.” (Emphasis added.) Sudan admits that the statute vests the district court with discretion to award the first three kinds of damages for preenactment conduct—and the same can be no less true when it comes to the fourth. That takes us to Sudan’s final argument. Maybe Con- gress did act clearly when it authorized a new cause of ac- tion and other forms of damages for past conduct. But be- cause retroactive damages of the punitive variety raise special constitutional concerns, Sudan says, we should cre- ate and apply a new rule requiring Congress to provide a super-clear statement when it wishes to authorize their use. We decline this invitation. It’s true that punitive dam- ages aren’t merely a form a compensation but a form of pun- ishment, and we don’t doubt that applying new punish- ments to completed conduct can raise serious constitutional questions. See But if Congress Cite as: 590 U. S. (2020) 11
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Justice Gorsuch
| 2,020 | 7 |
majority
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Opati v. Republic of Sudan
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https://www.courtlistener.com/opinion/4754635/opati-v-republic-of-sudan/
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But if Congress Cite as: 590 U. S. (2020) 11 Opinion of the Court clearly authorizes retroactive punitive damages in a man- ner a litigant thinks unconstitutional, the better course is for the litigant to challenge the law’s constitutionality, not ask a court to ignore the law’s manifest direction. Besides, when we fashion interpretive rules, we usually try to en- sure that they are reasonably administrable, comport with linguistic usage and expectations, and supply a stable back- drop against which Congress, lower courts, and litigants may plan and act. See –273. And Sudan’s pro- posal promises more nearly the opposite: How much clearer-than-clear should we require Congress to be when authorizing the retroactive use of punitive damages? Su- dan doesn’t even try to say, except to assure us it knows a super-clear statement when it sees it, and can’t seem to find one here. That sounds much less like an administrable rule of law than an appeal to the eye of the beholder. * With the question presented now resolved, both sides ask us to tackle other matters in this long-running litigation. Perhaps most significantly, the petitioners include a post- script asking us to decide whether Congress also clearly au- thorized retroactive punitive damages in claims brought by foreign-national family members under state law using A(a)’s exception to sovereign immunity. Sudan in- sists that, if we take up that question, we must account for the fact that A(a), unlike A(c), does not ex- pressly discuss punitive damages. And in fairness, Sudan contends, we should also resolve whether litigants may in- voke state law at all, in light of the possibility that A(c) now supplies the exclusive cause of action for claims involving state-sponsored acts of terror. We decline to resolve these or other matters outside the question presented. The petitioners chose to limit their pe- tition to the propriety of punitive damages under the fed- eral cause of action in A(c). See Pet. for Cert. i. The 12 OPATI v. REPUBLIC OF SUDAN Opinion of the Court Solicitor General observed this limitation in the question presented at the petition stage. See Brief for United States as Amicus Curiae 19, n. 8. The parties’ briefing and argu- ment on matters outside the question presented has been limited, too, and we think it best not to stray into new ter- rain on the basis of such a meager invitation and with such little assistance. Still, we acknowledge one implication that necessarily follows from our holding today. The court of appeals re- fused to allow punitive damages awards for foreign-na- tional family members
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Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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This case concerns the preemptive scope of a provision of the Federal Aviation Administration Authorization Act of 1994 (FAAAA or Act) applicable to motor carriers. Codi- fied at 49 U.S. C. the provision reads: “[A] State may not enact or enforce a law, regula- tion, or other provision having the force and effect of law related to a price, route, or service of any motor carrier with respect to the transportation of property.” Plaintiff-respondent Robert Pelkey brought suit under New Hampshire law against defendant-petitioner Dan’s City Used Cars (Dan’s City), a towing company. Pelkey al- leged that Dan’s City took custody of his car after towing it without Pelkey’s knowledge, failed to notify him of its plan to auction the car, held an auction despite Pelkey’s communication that he wanted to arrange for the car’s return, and eventually traded the car away without com- pensating Pelkey for the loss of his vehicle. Disposal of abandoned vehicles by a “storage company” is regulated by chapter 262 of the New Hampshire Revised 2 DAN’S CITY USED CARS, INC. v. PELKEY Opinion of the Court Statutes Annotated. See N. H. Rev. Stat. Ann. to 262:40–c (West 2004 and West Cum. Supp.). Dan’s City relied on those laws to dispose of Pelkey’s vehicle for nonpayment of towing and storage fees. According to Pelkey, however, Dan’s City failed to comply with New Hampshire’s provisions governing the sale of stored vehi- cles and the application of sale proceeds. Pelkey charged that Dan’s City’s disposal of his car without following the requirements contained in chapter 262 violated the New Hampshire Consumer Protection Act, (West 2009), as well as Dan’s City’s statutory and common-law duties as bailee to exercise reasonable care while in pos- session of a bailor’s property. We hold, in accord with the New Hampshire Supreme Court, that state-law claims stemming from the storage and disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier’s service with respect to the transportation of property to warrant pre- emption under The New Hampshire law in point regulates no towing services, no carriage of prop- erty. Instead, it trains on custodians of stored vehicles seeking to sell them. Congress did not displace the State’s regulation of that activity by any federal prescription. I A The Airline Deregulation Act of 1978 (ADA), 92 Stat. 1705, largely deregulated the domestic airline industry. In keeping with the statute’s aim to achieve “maximum reliance on competitive market forces,” Con- gress sought to “ensure that the States would not undo federal deregulation with regulation of their own.” Mo-
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Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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not undo federal deregulation with regulation of their own.” Mo- (1992). Congress therefore included a preemption provi- sion, now codified at 49 U.S. C. prohibiting States from enacting or enforcing any law “related to a Cite as: 569 U. S. (2013) 3 Opinion of the Court price, route, or service of an air carrier.” Two years later, the Motor Carrier Act of 1980, 94 Stat. 793, extended deregulation to the trucking industry. Congress completed the deregulation 14 years thereafter, in 1994, by expressly preempting state trucking regula- tion. Congress did so upon finding that state governance of intrastate transportation of property had become “un- reasonably burden[some]” to “free trade, interstate com- merce, and American consumers.” (citing FAAAA ). Borrowing from the ADA’s preemption clause, but adding a new qualification, of the FAAAA supersedes state laws “related to a price, route, or service of any motor carrier with respect to the transportation of property.” 108 Stat. 1606, now codified at 49 U.S. C. (em- phasis added).1 The Act exempts certain measures from its preemptive scope, including state laws regulating motor vehicle safety, size, and weight; motor carrier in- surance; and the intrastate transportation of household goods. Also exempted from preemp- tion are state laws “relating to the price” of “vehicle trans- portation by a tow truck,” if towing occurs without prior consent of the vehicle owner. This case involves the interaction between the FAAAA’s preemption clause and the State of New Hampshire’s regulation of the removal, storage, and disposal of aban- doned motor vehicles. Chapter 262 of the New Hampshire Revised Statutes Annotated establishes procedures by —————— 1 The term “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.” 49 U.S. C. (2006 ed., Supp. V). We have previously recognized that tow trucks qualify as “motor carriers” under Dan’s City’s qualifica- tion as a motor carrier under the FAAAA is uncontested by the parties. See Brief for Petitioner i; Brief for Respondent 18. 4 DAN’S CITY USED CARS, INC. v. PELKEY Opinion of the Court which an “authorized official” or the “owner of any private property on which a vehicle is parked without permission” may arrange to have the vehicle towed and stored. N. H. Rev. Stat. Ann. to 262:34, 262:40– a(I). It generally makes the owner of a towed vehicle responsible for reasonable removal and storage fees. See (reasonable removal and storage charges “shall be a lien against the vehicle which shall be paid by the owner”); (owner entitled to recover vehicle after “payment of all reasonable towing and storage charges”); (owner of a vehicle towed
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Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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reasonable towing and storage charges”); (owner of a vehicle towed from a parking lot or parking garage is responsible for “removal and storage charges” when the lot or garage conspicuously posts notice of parking restrictions). Under chapter 262, the custodian of a car that remains unclaimed for 30 days following a tow may dispose of the vehicle upon compliance with notice requirements. (II). A “garage owner or keeper” must post notices of an impending sale in public places and provide mail notice to the vehicle owner whenever the owner’s address may “be ascertained by the exercise of reason- able diligence.” If a towed vehicle is not fit for legal use, its custodian need not provide individual or public notice prior to disposal, and sale of the vehicle may occur upon written notice to and approval from New Hampshire’s Department of Public Safety. a(III).2 On compliance with the statutory requirements, the custodian of a stored vehicle may sell the vehicle by public auction at its place of business. The storage company may use the sale proceeds to pay “the amount of the liens and the reasonable expenses incident to the —————— 2 Section 262:36–a has been amended since April 2007, when Dan’s City’s alleged misconduct occurred. The amendments do not bear on the outcome of this case. Cite as: 569 U. S. (2013) 5 Opinion of the Court sale.” (West 2004). Remaining proceeds are payable “to the [vehicle’s] owner if claimed at any time within one year from the date of sale.” B The landlord of the apartment complex in which Pelkey lived required tenants to remove their cars from the park- ing lot in the event of a snowstorm, so that the snow could be cleared. Pelkey’s 2004 Honda Civic remained in the lot during and after a February 2007 snowstorm. At the landlord’s request, Dan’s City towed and stored the vehi- cle. Confined to his bed with a serious medical condition, Pelkey did not know his car had been towed. Soon after removal of his car, Pelkey was admitted to the hospital for a procedure to amputate his left foot, during which he suffered a heart attack. He remained under hospital care until his discharge on April 9, 2007. Unaware of Pelkey’s identity or illness, Dan’s City sought permission from New Hampshire’s Department of Public Safety to sell the Honda at auction without notice. In response, the department identified Pelkey as the last known owner of the vehicle. Dan’s City wrote to Pelkey, notifying him that it had towed and was storing his car. When the post office returned
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Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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and was storing his car. When the post office returned the letter, checking the box “moved, left no address,” Dan’s City scheduled an auction for April 19. Meanwhile, in the days following Pelkey’s discharge from the hospital, his attorney learned from counsel for the apartment complex that the car had been towed by Dan’s City and was scheduled to be sold at pub- lic auction. On April 17, Pelkey’s attorney informed Dan’s City that Pelkey wanted to pay any charges owed and reclaim his vehicle. Dan’s City nevertheless proceeded with the auction. Attracting no bidders, Dan’s City later disposed of the car by trading it to a third party. Pelkey was not notified in advance of the trade, and has received no proceeds from the sale. 6 DAN’S CITY USED CARS, INC. v. PELKEY Opinion of the Court Pelkey brought suit against Dan’s City in New Hamp- shire Superior Court. He alleged that Dan’s City violated the New Hampshire Consumer Protection Act, N. H. Rev. Stat. Ann. by failing to comply with chap- ter 262’s requirements for disposal of stored vehicles, mak- ing false statements about the condition and value of his Honda, and proceeding with the auction despite notice that Pelkey wanted to reclaim the car.3 He also alleged that Dan’s City negligently breached both statutory and common-law duties as a bailee to use reasonable care in disposing of the car. Granting summary judgment to Dan’s City, the New Hampshire Superior Court concluded that Pelkey’s claims were preempted by the FAAAA. The New Hampshire Supreme Court reversed. It held the FAAAA’s preemption clause, 49 U.S. C. inapplicable because Pelkey’s claims related to Dan’s City’s conduct in disposing of his Honda post-storage, not to conduct concerning “the transportation of property.” 163 N. H. 483, –493, (emphasis deleted). Alternatively, the court ruled that, even if Pelkey’s claims could be said to concern the trans- portation of property, they did not “sufficiently relat[e] to a towing company’s ‘service’ to be preempted.” We granted certiorari to resolve a division of opinion in state supreme courts on whether 49 U.S. C. preempts a vehicle owner’s state-law claims against a towing company regarding the company’s post-towing —————— 3 The Consumer Protection Act makes it unlawful for “any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within” New Hamp- shire. N. H. Rev. Stat. Ann. (West 2009). It authorizes a private claim for damages and equitable relief; for a willful or knowing violation, the Act allows the plaintiff to recover
|
Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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or knowing violation, the Act allows the plaintiff to recover “as much as 3 times, but not less than 2 times,” actual damages. ( West Cum. Supp.). Cite as: 569 U. S. (2013) 7 Opinion of the Court disposal of the vehicle. 568 U. S. Compare 163 N. H. 483, (this case), with Weatherspoon v. Tillery Body Shop, Inc., ( preempts state statutory and common-law claims arising out of storage and sale of a towed vehicle). II A Where, as in this case, Congress has superseded state legislation by statute, our task is to “identify the domain expressly pre-empted.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). To do so, we focus first on the statutory language, “which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., The FAAAA’s preemption clause prohibits enforcement of state laws “related to a price, route, or service of any motor carrier with respect to the transportation of property.” 49 U.S. C. In our reading of this language was informed by decisions interpreting the parallel language in the ADA’s preemp- tion clause. The phrase “related to,” we said, embraces state laws “having a connection with or reference to” carrier “ ‘rates, routes, or services,’ ” whether directly or indirectly. (quoting ; em- phasis deleted). See also (“ordinary meaning of words [‘related to’] is a broad one,” thus ADA’s use of those words “expresses a broad pre-emptive purpose”). At the same time, the breadth of the words “related to” does not mean the sky is the limit. We have refused to read the preemption clause of the Employee Retirement Income Security Act of 1974, 29 U.S. C. which supersedes state laws “relate[d] to any employee benefit plan,” with an “uncritical literalism,” else “for all practical purposes pre-emption would never run its course.” New 8 DAN’S CITY USED CARS, INC. v. PELKEY Opinion of the Court York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., (inter- nal quotation marks omitted). And we have cautioned that does not preempt state laws affecting carrier prices, routes, and services “in only a ‘tenuous, remote, or peripheral manner.’ ” 552 U. S., at 371 (quoting ). B The New Hampshire Supreme Court concluded that Pelkey’s state-law claims are “related to” neither the “transportation of property” nor the “service” of a motor carrier. We agree. Pelkey’s claims escape preemption, we hold, because they are not “related to” the service of a motor carrier “with respect to the transportation of property.” Although otherwise tracks the ADA’s air-carrier preemption provision, see 552 U. S., at
|
Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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the ADA’s air-carrier preemption provision, see 552 U. S., at the FAAAA formulation contains one con- spicuous alteration—the addition of the words “with re- spect to the transportation of property.” That phrase “massively limits the scope of preemption” ordered by the FAAAA. Ours (SCALIA, J., dis- senting).4 As the New Hampshire Supreme Court correctly understood, for purposes of FAAAA preemption, it is not sufficient that a state law relates to the “price, route, or service” of a motor carrier in any capacity; the law must also concern a motor carrier’s “transportation of property.” See 163 N. H., at Title 49 defines “transportation,” in relevant part, as “services related to th[e] movement” of property, “includ- ing arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, —————— 4 Although this statement appears in the Ours dissent, noth- ing in the Court’s opinion in that case is in any way inconsistent with the dissent’s characterization of Cite as: 569 U. S. (2013) 9 Opinion of the Court packing, unpacking, and interchange of passengers and property.” Pelkey’s Consumer Protection Act and negligence claims are not “related to th[e] move- ment” of his car. He charges Dan’s City with failure to comply with chapter 262 and neglect of its statutory and common-law duties of care as a bailee of his stored vehicle. Chapter 262 does not limit when, where, or how tow trucks may be operated. The Chapter regulates, instead, the disposal of vehicles once their transportation—here, by towing—has ended. Pelkey does not object to the manner in which his car was moved or the price of the tow; he seeks redress only for conduct subsequent to “transportation,” conduct occurring after the car ceased moving and was stored. Dan’s City maintains that because definition of “transportation” includes “storage” and “han- dling,” Pelkey’s claims, which do concern the storage and handling of his car, fall within ’s preemp- tive ambit. Dan’s City overlooks, however, that under services such as “storage” and “handling” fit within the definition of “transportation” only when those services “relat[e] to th[e] movement” of property. Temporary storage of an item in transit en route to its final destination relates to the movement of property and therefore fits within definition. But prop- erty stored after delivery is no longer in transit. Cf. 49 CFR (distinguishing between “storage-in- transit” and “permanent storage” (regulation of Federal Motor Carrier Safety Administration)). Here, no storage occurred in the course of transporting Pelkey’s vehicle. Dan’s City’s storage of Pelkey’s car after the towing job was done, in short, does not involve “transportation” with- in the
|
Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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done, in short, does not involve “transportation” with- in the meaning of the federal Act. Pelkey’s claims also survive preemption under because they are unrelated to a “service” a motor carrier renders its customers. The transportation 10 DAN’S CITY USED CARS, INC. v. PELKEY Opinion of the Court service Dan’s City provided was the removal of Pelkey’s car from his landlord’s parking lot. That service, which did involve the movement of property, ended months before the conduct on which Pelkey’s claims are based. His claims rely on New Hampshire’s abandoned vehicle disposal regime, prescribed in chapter 262, for the rules governing Dan’s City’s conduct.5 Chapter 262 addresses “storage compan[ies]” and “garage owner[s] or keeper[s],” not transportation activities. See N. H. Rev. Stat. Ann. §a, 262:38. Unlike Maine’s tobacco delivery regulations at issue in chapter 262 has neither a direct nor an indirect connection to any transportation services a motor carrier offers its customers. See 552 U. S., at 371. We need not venture an all-purposes defini- tion of transportation “service[s]” in order to conclude that state-law claims homing in on the disposal of stored vehi- cles fall outside ’s preemptive compass. Our conclusion that state-law claims regarding disposal of towed vehicles are not preempted is in full accord with Congress’ purpose in enacting Concerned that state regulation “impeded the free flow of trade, traffic, and transportation of interstate commerce,” Con- gress resolved to displace “certain aspects of the State regulatory process.” FAAAA (em- phasis added). The target at which it aimed was “a State’s direct substitution of its own governmental commands for competitive market forces in determining (to a signifi- cant degree) the services that motor carriers will pro- vide.” (internal quotation marks omitted). Pelkey’s claims are far removed from Congress’ driving —————— 5 The parties dispute whether, as Pelkey alleges, conduct that violates chapter 262 may qualify as an unfair or deceptive act or practice proscribed by New Hampshire’s Consumer Protection Act. This dispute turns on interpretation of state law, a matter on which we express no opinion. Cite as: 569 U. S. (2013) 11 Opinion of the Court concern. He sued under state consumer protection and tort laws to gain compensation for the alleged unlawful disposal of his vehicle. The state laws in question hardly constrain participation in interstate commerce by requir- ing a motor carrier to offer services not available in the market. Nor do the state laws invoked by Pelkey “freez[e] into place services that carriers might prefer to discon- tinue in the future.” New Hampshire’s laws on dis- posal of stored vehicles, moreover, will not
|
Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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laws on dis- posal of stored vehicles, moreover, will not open the way for “a patchwork of state service-determining laws, rules, and regulations.” As Dan’s City concedes, aban- doned vehicle laws like chapter 262 “do not hamper the operations of tow truckers” and “are not the kind of bur- densome state economic regulation Congress sought to preempt.” Reply Brief 21. C Dan’s City advances two further arguments in favor of preemption. First, Dan’s City contends that Congress’ enumeration of exceptions to preemption, detailed in 49 U.S. C. (3), and (5), permits state regula- tion of motor carriers only when the State’s law comes within a specified exception. Because Pelkey’s claims do not fit within any exception to preemption, Dan’s City urges, those claims must be preempted. This argument exceeds sensible bounds. Exceptions to a general rule, while sometimes a helpful interpretive guide, do not in themselves delineate the scope of the rule. The exceptions to ’s general rule of preemption identify mat- ters a State may regulate when it would otherwise be precluded from doing so, but they do not control more than that. An example may clarify the point. Section 14501(c) does not exempt zoning regulations. Such laws, however, “are peculiarly within the province of state and local legislative authorities.” 422 U.S. 12 DAN’S CITY USED CARS, INC. v. PELKEY Opinion of the Court (1975). It is hardly doubtful that state or local regulation of the physical location of motor-carrier operations falls outside the preemptive sweep of That is so because zoning ordinances ordinarily are not “related to a price, route, or service of any motor carrier with re- spect to the transportation of property.” The same is true of New Hampshire’s regulation of the dis- posal of stored vehicles. Dan’s City, in a second argument, urges otherwise. Pelkey’s claims, Dan’s City maintains, are “related to” the towing service it rendered because selling Pelkey’s car was the means by which Dan’s City obtained payment for the tow. But if such state-law claims are preempted, no law would govern resolution of a non-contract-based dispute arising from a towing company’s disposal of a vehicle previously towed or afford a remedy for wrongful disposal. Federal law does not speak to these issues.6 Thus, not only would the preemption urged by Dan’s City leave vehicle owners without any recourse for damages, it would eliminate the sole legal authorization for a towing com- pany’s disposal of stored vehicles that go unclaimed. No such design can be attributed to a rational Congress. See (“It is difficult to believe that Congress would, without comment, remove all
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Justice Ginsburg
| 2,013 | 5 |
majority
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Dan's City Used Cars, Inc. v. Pelkey
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https://www.courtlistener.com/opinion/867657/dans-city-used-cars-inc-v-pelkey/
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difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”). In sum, Dan’s City cannot have it both ways. It cannot rely on New Hampshire’s regulatory framework as author- ization for the sale of Pelkey’s car, yet argue that Pelkey’s claims, invoking the same state-law regime, are preempted. —————— 6 There is an exception to Congress’ silence, but it is of no aid to Dan’s City: The Act spares from preemption laws “relating to the price of for- hire motor vehicle transportation by a tow truck, if such transportation is performed [as it was here] without the prior consent or authorization of the owner or operator of the motor vehicle.” 49 U.S. C. Cite as: 569 U. S. (2013) 13 Opinion of the Court New Hampshire’s legislation on abandoned vehicles gave rise to Pelkey’s debt and established the conditions under which Dan’s City could collect on that debt by selling Pelkey’s Honda. See N. H. Rev. Stat. Ann. 262:36–a, 262:40–a; at 3–5. Pelkey’s claims, at- tacking Dan’s City’s conduct in disposing of the vehicle, rest on the very same provisions. See Brief for Petitioner 41 (“All of the alleged wrongful conduct of Dan’s City was part of the state sanctioned and regulated process for disposing of abandoned vehicles under Ch. 262.”). * * * For the reasons stated, we hold that 49 U.S. C. does not preempt state-law claims for dam- ages stemming from the storage and disposal of a towed vehicle. The judgment of the New Hampshire Supreme Court is therefore affirmed. It is so ordered
|
Justice Marshall
| 1,986 | 15 |
dissenting
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FDIC v. Philadelphia Gear Corp.
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https://www.courtlistener.com/opinion/111675/fdic-v-philadelphia-gear-corp/
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There is considerable common sense backing the Court's opinion. The standby letter of credit in this case differs considerably from the savings and checking accounts that come most readily to mind when one speaks of an insured deposit. Nevertheless, to reach this common-sense result, the Court must read qualifications into the statute that do not appear *441 there. We recently recognized that even when the ingenuity of businessmen creates transactions and corporate forms that were perhaps not contemplated by Congress, the courts must enforce the statutes that Congress has enacted. See Board of Governors, Congress unmistakably provided that letters of credit backed by promissory notes constitute "deposits" for purposes of the federal deposit insurance program, and the Court's attempt to draw distinctions between different types of letter of credit transactions forces it to ignore both the statute and some settled principles of commercial law. Here, as in Dimension, the inflexibility of the statute as applied to modern financial transactions is a matter for Congress, not the FDIC or this Court, to remedy. It cannot be doubted that the standby letter of credit in this case meets the literal definition of a "deposit" contained in 12 U.S. C. 1813(l)(1). It is "a letter of credit on which the bank is primarily liable issued in exchange for. a promissory note upon which [Orion] is primarily or secondarily liable." The Court, however, holds that the note in this case, whether or not it is a promissory note under the Uniform Commercial Code (UCC) and Oklahoma law, is not a promissory note for purposes of the Federal Deposit Insurance Act. We should assume, absent convincing evidence to the contrary, that Congress intended for the term "promissory note" to derive its meaning from the ordinary sources of commercial law. I believe that there is no such evidence in this case. The Court justifies its restrictive reading of the term "promissory note" in large part by arguing that Congress would not have wanted to include in that term any obligation that was not the present equivalent of money. The keystone of the FDIC's arguments, and of the Court's decision, is that Orion did not entrust "money or its equivalent" to the bank. The note in this case, however, was the equivalent of money, *442 and the Court's reading of Congress' intent is therefore largely irrelevant. FDIC concedes, as it must, that Congress has determined that a promissory note generally constitutes money or its equivalent. Moreover, that statutory definition comports with economic reality. Promissory notes typically are negotiable instruments and therefore readily convertible into cash. The FDIC
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Justice Marshall
| 1,986 | 15 |
dissenting
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FDIC v. Philadelphia Gear Corp.
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https://www.courtlistener.com/opinion/111675/fdic-v-philadelphia-gear-corp/
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negotiable instruments and therefore readily convertible into cash. The FDIC argues, and the Court holds, that the promissory note in this case is "contingent" and therefore not the equivalent of money. However, while the FDIC argues strenuously that Orion's note is not a promissory note in the usual sense of the word, one could more plausibly state that it is not a "contingent" obligation in the usual sense of that word. On its face the note is an unconditional obligation of Orion to pay the holder $145,200 plus accrued interest on August 1, 1982. It sets out no conditions that would affect the negotiability of the note, and therefore is fully negotiable for purposes of the UCC, U.C.C. 3-104(1) (1977); Okla. Stat., Tit. 12A, 3-104(1) (1981). The Court therefore misses the point when it states that at the time of the original banking Acts, the term "promissory note" was not understood to include a contingent obligation. Ante, at 434. The note at issue in this case is an unconditional promise to pay, and satisfies all the requisites of a negotiable promissory note, either under the UCC or the common law as it existed in the 1930's. The only contingencies attached to Orion's obligation arise out of a separate contract. As to such contingencies, the law was well settled long before 1930: "[I]n order to make a note invalid as a promissory note, the contingency to avoid it must be apparent, either upon the face of the note, or upon some contemporaneous written memorandum on the same paper; for, if the memorandum is not contemporaneous, or if it be merely verbal in each case, whatever may be its effect as a matter of defence between the original parties, it is not deemed to be a part of the instrument, and does not affect, *443 much less invalidate, its original character." J. Thorndike, Story on Promissory Notes 34 (7th ed. 1878) (footnotes omitted).[1] It is far from a matter of semantics to state that while Orion and the bank may have an oral understanding concerning the bank's treatment of Orion's note, that note itself is unconditional and equivalent to money. The Court correctly observes that the bank would have breached its oral contract had it attempted to sue on the note; nevertheless, Orion would have had separately to plead and prove a breach of contract in that case, because parol evidence that the contract between the parties differed from the written instrument would have been inadmissible in the bank's action to collect the debt. See American Perforating Similarly, should the note have
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Justice Marshall
| 1,986 | 15 |
dissenting
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FDIC v. Philadelphia Gear Corp.
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https://www.courtlistener.com/opinion/111675/fdic-v-philadelphia-gear-corp/
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the debt. See American Perforating Similarly, should the note have found its way into the hands of a third party, Orion would have had no choice but to honor it, again being left with only the right to sue the bank for breach of the oral contract. Orion's entrustment of the note to the bank was not, therefore, completely risk free. The risk taken on by Orion may not differ substantially from the risk assumed by one who hands over money to the bank to guarantee repayment of funds paid out on a letter of credit. The bank typically undertakes to put such cash collateral into a special account, where it never enters into the general assets of the bank. See U.C.C. 5-117, comment (1977). Should the bank cease operations, the customer will enjoy a preference in bankruptcy, entitling it to receive its money back before general unsecured creditors of the bank *444 are paid. U.C.C. 5-117; Okla. Stat., Tit. 12A, 5-117 (1981). Like Orion, then, that hypothetical customer has little to fear absent misconduct by the bank or a third party. If the federal deposit insurance program should not protect Philadelphia Gear, therefore, it probably should not protect any holder of a letter of credit, whether commercial, standby, funded, or unfunded.[2] That, however, is clearly a matter for Congress to determine. While the Court purports to examine what Congress meant when it said "promissory note," in fact the Court's opinion does not rest on any special attributes of Orion's note. Rather, the Court rules that when an individual entrusts a negotiable instrument to a bank, that instrument is not "money or its equivalent" for purposes of 1813(l)(1) so long as the bank promises not to negotiate it or collect on it until certain conditions are met. That is a proviso that Congress might have been well advised to include in the Act, but did not. I therefore dissent.
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Justice Rehnquist
| 1,994 | 19 |
majority
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United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, *66 shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U.S. C. 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement. Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii. These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U.S. C. 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U.S. C. 371.[1] Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. United States v. Gottesman, No. CR 88-295KN, Findings of Fact ¶ 7 App. to Pet. for Cert. 39a ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scienter *67 requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United (CA9), cert. denied, In that case, the Ninth Circuit had held 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction. On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found 2252 facially unconstitutional. The court first held that 18 U.S. C. 2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated
|
Justice Rehnquist
| 1,994 | 19 |
majority
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United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. It then discussed 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the citing ; New ; and The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari, and now reverse. Title 18 U.S. C. 2252 (1988 ed. and Supp. V) provides, in relevant part: *68 "(a) Any person who "(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if "(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and "(B) such visual depiction is of such conduct; "(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if "(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and "(B) such visual depiction is of such conduct; "shall be punished as provided in subsection (b) of this section." The critical determination which we must make is whether the term "knowingly" in subsections (1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term "knowingly" modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word "knowingly" would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which *69 result from this construction, and because of the respective presumptions that some form of scienter is to be implied in
|
Justice Rehnquist
| 1,994 | 19 |
majority
|
United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions. If the term "knowingly" applies only to the relevant verbs in 2252transporting, shipping, receiving, distributing, and reproducingwe would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package. Some applications of respondents' position would produce results that were not merely odd, but positively absurd. If we were to conclude that "knowingly" only modifies the relevant verbs in 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer "knowingly distributes" a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by 2252, his residential successor could be prosecuted for "knowing receipt" of such Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be "film" "knowingly transports" such film. We do not assume that Congress, in passing laws, intended such results. Public Citi- *70 ; United Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in discussed the commonlaw history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States [s]hall be fined." 18 U.S. C. 641, cited in n. 2. Perhaps even more obviously than in
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Justice Rehnquist
| 1,994 | 19 |
majority
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United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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cited in n. 2. Perhaps even more obviously than in the statute presently before us, the word "knowingly" in its isolated position suggested that it only attached to the verb "converts," and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term "knowingly" also required that the defendant have knowledge of the facts that made the taking a conversioni. e., that the property belonged to the United States. at 271. See also United posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute's use of "knowingly" could be read only to modify "uses, transfers, acquires, alters, or possesses" or it could be read also to modify "in any manner not authorized by [the statute]." Noting that neither interpretation posed constitutional problems, at 424, n. 6, the Court held the scienter requirement applied to *71 both elements by invoking the background principle set forth in In addition, the Court was concerned with the broader reading which would "criminalize a broad range of apparently innocent conduct." Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute. The same analysis drove the recent conclusion in that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U.S. C. 5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within "a long tradition of widespread lawful gun ownership by private individuals." The Court also emphasized the harsh penalties attaching to violations of the statute as a "significant consideration in determining whether the statute should be construed as dispensing with mens rea. " at 616. Applying these principles, we think the Ninth Circuit's plain language reading of 2252 is not so plain. First, 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more
|
Justice Rehnquist
| 1,994 | 19 |
majority
|
United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the "state, the person, property, or public morals," that presume a scienter requirement *72 in the absence of express contrary intent.[2] Second, ' concern with harsh penalties looms equally large respecting 2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U.S. C. 2252(b), 2253, 2254. See also reinforced by instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon "the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items." Age of minority in 2252 indisputably possesses the same status as an elemental fact because nonobscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. ; Sable Communications of Cal., ; FW/PBS, ;[3] In the light of these *73 decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct. The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether "knowingly" in the statute modifies the elements of subsections (1)(A) and (2)(A)that the visual depiction involves the use of a minor engaging in sexually explicit conductor merely the verbs "transport or ship" in subsection (1) and "receive or distribute [or] reproduce" in subsection (2). In 1959, we held in that a statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e. g., 123 Cong. Rec. 30935 ("It is intended that they have knowledge of the type of material proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems"). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. When first passed, 2252 punished *74
|
Justice Rehnquist
| 1,994 | 19 |
majority
|
United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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construed by this Court. When first passed, 2252 punished *74 one who "knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium" if it involved the use of a minor engaged in sexually explicit conduct. Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, "knowingly" was intended to modify "obscene" in the 1978 version. In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v.[4] could be restricted without violating the First Amendment as explained by New When Congress eliminated the adjective "obscene," all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene. The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish between obscene and nonobscene S. Rep. No. 95-, p. 12 In evaluating the proposal, the Justice Department offered its thoughts: "[T]he word `knowingly' in the second line of section 2251 is unnecessary and should be stricken. Unless `knowingly' is deleted here, the bill might be subject to an interpretation requiring the Government to prove *75 the defendant's knowledge of everything that follows `knowingly', including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen. "On the other hand, the use of the word `knowingly' in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant's knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved." at
|
Justice Rehnquist
| 1,994 | 19 |
majority
|
United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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of the nature or character of the material involved." at 28-29. Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department's suggestions; most notably, it restricted the prohibition in 2251 to obscene at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the Committee eliminated 2252 altogether. Ib At that juncture, Senator Roth introduced an amendment which would be another precursor of 2252. In one paragraph, the amendment forbade any person to "knowingly transport [or] ship [any] visual medium depicting a minor engaged in sexually explicit conduct." 123 Cong. Rec. 33047 In an exchange during debate, Senator Percy inquired: "Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, circumstances *76 must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?" Senator Roth replied: "That is absolutely correct. This amendment, limited as it is by the phrase `knowingly,' insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography are subject to prosecution" Ib The parallel House bill did not contain a comparable provision to 2252 of the Senate bill, and limited 2251 prosecutions to obscene The Conference Committee adopted the substance of the Roth amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the 2252 provision somewhat, setting off the age of minority requirement in a separate subclause. S. Conf. Rep. No. 95-601, p. 2 Most importantly, the new bill retained the adverb "knowingly" in 2252 while simultaneously deleting the word "knowingly" from 2251(a). The Conference Committee explained the deletion in 2251(a) as reflecting an "intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child." at 5.[5] Respondents point to the appearance of "knowingly" in *77 2251(c) and argue that 2252 ought to be read like 2251. But this argument depends on the conclusion that 2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from 2251(a). Because 2251(a) and 2251(c) were passed at
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Justice Rehnquist
| 1,994 | 19 |
majority
|
United States v. X-Citement Video, Inc.
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https://www.courtlistener.com/opinion/117881/united-states-v-x-citement-video-inc/
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requirement from 2251(a). Because 2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from 2251(a) does not imply an intent to exclude scienter from 2251(c).[6] The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term "knowingly" apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term "knowingly" applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is *78 difficult to conclude that the word "knowingly" modifies one of the elements in subsections (1)(A) and (2)(A), but not the other. A final canon of statutory construction supports the reading that the term "knowingly" applies to both elements. Cases such as ; ; ; and suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo For all of the foregoing reasons, we conclude that the term "knowingly" in 2252 extends both to the sexually explicit nature of the material and to the age of the performers. As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U.S. C. 2256. These claims were not encompassed in the question on which this Court granted certiorari, but a prevailing party, without cross-petitioning, is "entitled under our precedents to urge any grounds which would lend support to the judgment below." Dayton Bd. of Respondents argue that 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New and because Congress replaced the term "lewd" with the term "lascivious" in defining illegal exhibition of the genitals of children. We regard these claims as insubstantial, *79 and reject them for the reasons stated by the Court of Appeals in its opinion in this case. Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue
|
Justice Rehnquist
| 1,984 | 19 |
majority
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United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
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https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
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A muicipal ordiace of the city of Camde, New Jersey, requires that at least 40% of the employees of cotractors ad subcotractors workig o city costructio projects be Camde residets. Appellat, the Uited Buildig ad Costructio Trades Coucil of Camde Couty ad Viciity (Coucil), challeges that ordiace as a violatio of the Privileges ad Immuities Clause, Art. IV, 2, cl. 1, of the Uited States Costitutio.[1] The Supreme Court of New Jersey rejected appellat's privileges ad immuities attack o the groud that the ordiace discrimiates o the basis of muicipal, ot state, residecy. The court "declie[d] to apply the Privileges ad Immuities Clause i the cotext of a muicipal ordiace that has idetical effects upo out-of-state citizes ad New Jersey citizes ot residig i the locality." 88 N. J. 317, 342, We coclude that the challeged ordiace is properly subject to the strictures of the Clause. We therefore reverse the judgmet of the Supreme Court of New Jersey ad remad the case for a determiatio of the validity of the ordiace uder the appropriate costitutioal stadard. O August 28, 1980, the Camde City Coucil, actig pursuat to a statewide affirmative-actio program,[2] adopted a *211 ordiace settig miority hirig "goals" o all public works cotracts. Ordiace MC 1650, App. to Juris. Statemet A36. The ordiace also created a hirig preferece for Camde residets, with a separate 1-year residecy requiremet triggerig eligibility for that preferece. Ordiace MC 1650 I(5), App. to Juris. Statemet A38. As subsequetly ameded, the ordiace requires that o all costructio projects fuded by the city:[3] "The developer/cotractor, i hirig for jobs, shall make every effort to employ persos residig withi the City of Camde but, i o evet, shall less tha forty percet (40%) of the etire labor force be residets of the City of Camde." Ordiace MC 1653 C(IV)(b), App. to Juris. Statemet A56. *212 The cotractor is also obliged to esure that ay subcotractors workig o such projects adhere to the same requiremet. Ordiace MC 1650 VIII, App. to Juris. Statemet A46. The ameded ordiace was submitted for approval to the Chief Affirmative Actio Officer of the New Jersey Treasury Departmet i November 1980. Followig brief admiistrative proceedigs, the ordiace was desigated as a state-approved affirmative-actio costructio program. Appellat, a associatio of labor orgaizatios represetig private employees i the buildig ad costructio trades i various New Jersey couties,[4] filed a otice of appeal with the Appellate Divisio of the New Jersey Superior Court challegig the fial determiatio of the Treasury Departmet i approvig the Camde pla. The New Jersey Supreme Court certified the appeal directly to
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Justice Rehnquist
| 1,984 | 19 |
majority
|
United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
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https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
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The New Jersey Supreme Court certified the appeal directly to that court to decide all the issues i the case. Appellat challeged state approval of the residet-hirig quota as ultra vires, ad as ucostitutioal uder the Commerce Clause ad the Privileges ad Immuities Clause of Art. IV of the Uited States Costitutio ad uder the Fourteeth Amedmet's Equal Protectio Clause.[5] The New Jersey court sustaied the Treasurer's actio as cosistet both with state law ad the Federal Costitutio. Citig Reeves, ad the court held that the residet quota was ot subject to challege uder the Commerce Clause because the State was actig as a market participat rather tha as a market regulator. 88 *213 N. J., at -. The court also held that the quota did ot violate the Privileges ad Immuities Clause because it was ot aimed primarily at out-of-state residets. "It almost certaily affects more New Jersey residets ot livig i Camde tha it does out-of-state residets. Because the Camde ordiace does ot affect `the States['] treatmet of each other's residets,' it does ot violate ay privilege of state citizeship." 443 A.2d, at Fially, the New Jersey Supreme Court held that the 1-year residecy requiremet did ot violate the right to travel protected by the Equal Protectio Clause, cocludig that oly a ratioal basis is required to uphold a residecy requiremet for city employmet. 443 A.2d, at -161. Appellat the filed this appeal raisig the same three costitutioal challeges to the residet-hirig quota. We oted probable jurisdictio. Sice the Coucil filed its appeal, however, there have bee two sigificat chages i the posture of the case. First, the Court decided which held that a executive order of the Mayor of Bosto, requirig that at least 50% of all jobs o costructio projects fuded i whole or i part by city fuds be filled by boa fide city residets, was immue from scrutiy uder the Commerce Clause because Bosto was actig as a market participat rather tha as a market regular. I light of the decisio i appellat has abadoed its Commerce Clause challege to the Camde ordiace. Secod, i July 1983 Camde ameded its affirmative-actio pla. The 1-year residecy requiremet was deleted, thereby mootig appellat's equal protectio challege based o that duratioal requiremet. Now, a residet of the city of Camde is defied simply as "ay perso who resides i the City of Camde." App. to Brief for Appellees Mayor ad Coucil of the City of Camde A-5. Also, the scope of *214 the ordiace was clarified.[6] It ow applies to ay costructio project "which is fuded i
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Justice Rehnquist
| 1,984 | 19 |
majority
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United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
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https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
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ow applies to ay costructio project "which is fuded i whole or i part with City fuds or fuds which the City expeds or admiisters i accordace with the terms of a grat." at A-4. Fially, the 40% residet-hirig requiremet was chaged from a strict "quota" to a "goal" with which developers ad cotractors must make "every good faith effort" to comply. at A-13. Because of these chages, the oly questio left for our cosideratio is whether the Camde ordiace, as ow writte, violates the Privileges ad Immuities Clause.[7] We first address the argumet, accepted by the Supreme Court of New Jersey, that the Clause does ot eve apply to a muicipal ordiace such as this. Two separate cotetios are advaced i support of this positio: first, that the Clause oly applies to laws passed by a State ad, secod, that the Clause oly applies to laws that discrimiate o the basis of state citizeship. The first argumet ca be quickly rejected. The fact that the ordiace i questio is a muicipal, rather tha a state, law does ot somehow place it outside the scope of the Privileges ad Immuities Clause. First of all, oe caot easily distiguish muicipal from state actio i this case: the muicipal ordiace would ot have goe ito effect without express approval by the State Treasurer. As the New Jersey Supreme Court oted i discussig the costitutioality of the miority hirig goals: "By approvig the Camde pla, the State Treasurer has established a miority hirig goal for the City of Camde that operates o differetly tha every other miority hirig goal established by the State Treasurer. *215. The Coucil's costitutioal challege to the Camde miority hirig goal must therefore be iterpreted as a challege to the State Treasurer's geeral power to issue affirmative actio hirig goals." 88 N. J., at 330, The costitutioal challege to the residet hirig preferece, therefore, must also "be iterpreted as a challege to the State Treasurer's geeral power" to adopt such a preferece.[8] The New Jersey court specifically foud that the State Treasurer's approval of the residet-hirig preferece was "ot ultra vires or a abuse of discretio." More fudametally, a muicipality is merely a political subdivisio of the State from which its authority derives. It is as true of the Privileges ad Immuities Clause as of the Equal Protectio Clause that what would be ucostitutioal if doe directly by the State ca o more readily be accomplished by a city derivig its authority from the State. Memorial ; Thus, eve if the ordiace had bee adopted solely by Camde, ad
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Justice Rehnquist
| 1,984 | 19 |
majority
|
United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
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https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
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if the ordiace had bee adopted solely by Camde, ad ot pursuat to a state program or with state approval, the hirig preferece would still have to comport with the Privileges ad Immuities Clause. The secod argumet merits more cosideratio. The New Jersey Supreme Court cocluded that the Privileges ad Immuities Clause does ot apply to a ordiace that discrimiates solely o the basis of muicipal residecy. The Clause is phrased i terms of state citizeship ad was desiged "to place the citizes of each State upo the same footig with citizes of other States, so far as the advatages *216 resultig from citizeship i those States are cocered." See also ; (1). "The primary purpose of this clause, like the clauses betwee which it is located those relatig to full faith ad credit ad to iterstate extraditio of fugitives from justice was to help fuse ito oe Natio a collectio of idepedet, sovereig States. It was desiged to isure to a citize of State A who vetures ito State B the same privileges which the citizes of State B ejoy. For protectio of such equality the citize of State A was ot to be restricted to the ucertai remedies afforded by diplomatic processes ad official retaliatio." Muicipal residecy classificatios, it is argued, simply do ot give rise to the same cocers. We caot accept this argumet. We have ever read the Clause so literally as to apply it oly to distictios based o state citizeship. For example, i the Court held that the Alaska Territory had o more freedom to discrimiate agaist those ot residig i the Territory tha did ay State to favor its ow citizes. Ad despite some iitial ucertaity, compare ad with ad La it is ow established that the terms "citize" ad "residet" are "essetially iterchageable," for purposes of aalysis of most cases uder the Privileges ad Immuities Clause. See ; A perso who is ot residig i a give State is ipso facto ot residig i a city withi that *217 State. Thus, whether the exercise of a privilege is coditioed o state residecy or o muicipal residecy he will just as surely be excluded. Give the Camde ordiace, a out-of-state citize who vetures ito New Jersey will ot ejoy the same privileges as the New Jersey citize residig i Camde. It is true that New Jersey citizes ot residig i Camde will be affected by the ordiace as well as out-of-state citizes. Ad it is true that the disadvataged New Jersey residets have o claim uder the Privileges ad Immuities Clause.
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Justice Rehnquist
| 1,984 | 19 |
majority
|
United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
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https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
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residets have o claim uder the Privileges ad Immuities Clause. Slaughter-House Cases, (3). But New Jersey residets at least have a chace to remedy at the polls ay discrimiatio agaist them. Out-of-state citizes have o similar opportuity, ad they must ot "be restricted to the ucertai remedies afforded by diplomatic processes ad official retaliatio." at[9] We coclude that Camde's *218 ordiace is ot immue from costitutioal review at the behest of out-of-state residets merely because some i-state residets are similarly disadvataged. Cf. Applicatio of the Privileges ad Immuities Clause to a particular istace of discrimiatio agaist out-of-state residets etails a two-step iquiry. As a iitial matter, the Court must decide whether the ordiace burdes oe of those privileges ad immuities protected by the Clause. Not all forms of discrimiatio agaist citizes of other States are costitutioally suspect. "Some distictios betwee residets ad oresidets merely reflect the fact that this is a Natio composed of idividual States, ad are permitted; other distictios are prohibited because they hider the formatio, the purpose, or the developmet of a sigle Uio of those States. Oly with respect to those `privileges' ad `immuities' bearig upo the vitality of the Natio as a sigle etity must the State treat all citizes, residet ad oresidet, equally." As a threshold matter, the, we must determie whether a out-of-state residet's iterest i employmet o public works cotracts i aother State is sufficietly "fudametal" to the promotio of iterstate harmoy so as to "fall withi the purview of the Privileges ad Immuities Clause." See also Caadia Norther R. ; Certaily, the pursuit of a commo callig is oe of the most fudametal of those privileges protected by the Clause. May, if ot most, of our cases expoudig the Privileges ad Immuities Clause have dealt with this basic ad essetial activity. See, e. g., ; ; ; ; (1). Public employmet, however, is qualitatively differet from employmet i the private sector; it is a subspecies of the broader opportuity to pursue a commo callig. We have held that there is o fudametal right to govermet employmet for purposes of the Equal Protectio Clause. Massachusetts Bd. of Retiremet v. Murgia, Cf. McCarthy v. Philadelphia Civil Service Comm', (rejectig equal protectio challege to muicipal residecy requiremet for muicipal workers). Ad i 7, we held that for purposes of the Commerce Clause everyoe employed o a city public works project is, "i a substatial if iformal sese, `workig for the city.' " It ca certaily be argued that for purposes of the Privileges ad Immuities Clause everyoe affected by the Camde ordiace is also
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