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Justice Rehnquist
| 1,984 | 19 |
majority
|
United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
|
https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
|
Immuities Clause everyoe affected by the Camde ordiace is also "workig for the city" ad, therefore, has o grouds for complait whe the city favors its ow residets. But we declie to trasfer mechaically ito this cotext a aalysis fashioed to fit the Commerce Clause. Our decisio i tured o a distictio betwee the city actig as a market participat ad the city actig as a market regulator. The questio whether employees of cotractors ad subcotractors o public works projects were or were ot, i some sese, workig for the city was crucial to that aalysis. The questio had to be aswered i order to chart the boudaries of the distictio. But the distictio betwee *220 market participat ad market regulator relied upo i to dispose of the Commerce Clause challege is ot dispositive i this cotext. The two Clauses have differet aims ad set differet stadards for state coduct. The Commerce Clause acts as a implied restrait upo state regulatory powers. Such powers must give way before the superior authority of Cogress to legislate o (or leave uregulated) matters ivolvig iterstate commerce. Whe the State acts solely as a market participat, o coflict betwee state regulatio ad federal regulatory authority ca arise. ; Reeves, -437; The Privileges ad Immuities Clause, o the other had, imposes a direct restrait o state actio i the iterests of iterstate harmoy. at ; at ; 8 Wall., at This cocer with comity cuts across the market regulator-market participat distictio that is crucial uder the Commerce Clause. It is discrimiatio agaist out-of-state residets o matters of fudametal cocer which triggers the Clause, ot regulatio affectig iter-state commerce. Thus, the fact that Camde is merely settig coditios o its expeditures for goods ad services i the marketplace does ot preclude the possibility that those coditios violate the Privileges ad Immuities Clause. I we struck dow as a violatio of the Privileges ad Immuities Clause a "Alaska Hire" statute cotaiig a residet-hirig preferece for all employmet related to the developmet of the State's oil ad gas resources.[10] Alaska argued i that case that "because the oil ad gas that are the subject of Alaska Hire are owed *221 by the State, this owership, of itself, is sufficiet justificatio for the Act's discrimiatio agaist oresidets, ad takes the Act totally without the scope of the Privileges ad Immuities Clause." We cocluded, however, that the State's iterest i cotrollig those thigs it claims to ow is ot absolute. "Rather tha placig a statute completely beyod the Clause, a State's owership of the property with which the statute is
|
Justice Rehnquist
| 1,984 | 19 |
majority
|
United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
|
https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
|
State's owership of the property with which the statute is cocered is a factor although ofte the crucial factor to be cosidered i evaluatig whether the statute's discrimiatio agaist ocitizes violates the Clause." See also Much the same aalysis, we thik, is appropriate to a city's efforts to bias private employmet decisios i favor of its residets o costructio projects fuded with public moeys. The fact that Camde is expedig its ow fuds or fuds it admiisters i accordace with the terms of a grat is certaily a factor perhaps the crucial factor to be cosidered i evaluatig whether the statute's discrimiatio violates the Privileges ad Immuities Clause. But it does ot remove the Camde ordiace completely from the purview of the Clause. I sum, Camde may, without fear of violatig the Commerce Clause, pressure private employers egaged i public works projects fuded i whole or i part by the city to hire city residets. But that same exercise of power to bias the employmet decisios of private cotractors ad sub-cotractors agaist out-of-state residets may be called to accout uder the Privileges ad Immuities Clause. A determiatio of whether a privilege is "fudametal" for purposes of that Clause does ot deped o whether the employees of private cotractors ad subcotractors egaged i public works projects ca or caot be said to be "workig for the city." The opportuity to seek employmet with such private employers is "sufficietly basic to the livelihood of the Natio," as to fall withi the purview of the Privileges *222 ad Immuities Clause eve though the cotractors ad sub-cotractors are themselves egaged i projects fuded i whole or part by the city. The coclusio that Camde's ordiace discrimiates agaist a protected privilege does ot, of course, ed the iquiry. We have stressed i prior cases that "[l]ike may other costitutioal provisios, the privileges ad immuities clause is ot a absolute." It does ot preclude discrimiatio agaist citizes of other States where there is a "substatial reaso" for the differece i treatmet. "[T]he iquiry i each case must be cocered with whether such reasos do exist ad whether the degree of discrimiatio bears a close relatio to them." As part of ay justificatio offered for the discrimiatory law, oresidets must somehow be show to "costitute a peculiar source of the evil at which the statute is aimed." The city of Camde coteds that its ordiace is ecessary to couteract grave ecoomic ad social ills. Spirallig uemploymet, a sharp declie i populatio, ad a dramatic reductio i the umber of busiesses located i the
|
Justice Rehnquist
| 1,984 | 19 |
majority
|
United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden
|
https://www.courtlistener.com/opinion/111097/united-building-constr-trades-council-of-camden-cty-v-mayor-and/
|
dramatic reductio i the umber of busiesses located i the city have eroded property values ad depleted the city's tax base. The residet-hirig preferece is desiged, the city coteds, to icrease the umber of employed persos livig i Camde ad to arrest the "middle-class flight" curretly plaguig the city. The city also argues that all o-Camde residets employed o city public works projects, whether they reside i New Jersey or Pesylvaia, costitute a "source of the evil at which the statute is aimed." That is, they "live off" Camde without "livig i" Camde. Camde coteds that the scope of the discrimiatio practiced i the ordiace, with its muicipal residecy requiremet, is carefully tailored to alleviate this evil without ureasoably harmig oresidets, who still have access to 60% of the available positios. Every iquiry uder the Privileges ad Immuities Clause "must be coducted with due regard for the priciple that *223 the States should have cosiderable leeway i aalyzig local evils ad i prescribig appropriate cures." This cautio is particularly appropriate whe a govermet body is merely settig coditios o the expediture of fuds it cotrols. See The Alaska Hire statute at issue i swept withi its strictures ot oly cotractors ad subcotractors dealig directly with the State's oil ad gas; it also covered suppliers who provided goods ad services to those cotractors ad subcotractors. We ivalidated the Act as "a attempt to force virtually all busiesses that beefit i some way from the ecoomic ripple effect of Alaska's decisio to develop its oil ad gas resources to bias their employmet practices i favor of the State's residets." No similar "ripple effect" appears to ifect the Camde ordiace. It is limited i scope to employees workig directly o city public works projects. Noetheless, we fid it impossible to evaluate Camde's justificatio o the record as it ow stads. No trial has ever bee held i the case. No fidigs of fact have bee made. The Supreme Court of New Jersey certified the case for direct appeal after the brief admiistrative proceedigs that led to approval of the ordiace by the State Treasurer. It would ot be appropriate for this Court either to make factual determiatios as a iitial matter or to take judicial otice of Camde's decay. We, therefore, deem it wise to remad the case to the New Jersey Supreme Court. That court may decide, cosistet with state procedures, o the best method for makig the ecessary fidigs. The judgmet of the Supreme Court of New Jersey is reversed, ad the case is remaded for proceedigs ot i-cosistet with this
|
Justice Thomas
| 2,002 | 1 |
second_dissenting
|
United States v. Craft
|
https://www.courtlistener.com/opinion/118497/united-states-v-craft/
|
The Court today allows the Internal Revenue Service (IRS) to reach proceeds from the sale of real property that did not belong to the taxpayer, respondent's husband, Don Craft,[] because, in the Court's view, he "possesse[d] individual rights in the [tenancy by the entirety] estate sufficient to constitute `property' or `rights to property' for the purposes of the lien" created by 26 U.S. C. 632. Ante, at 276. The Court does not contest that the tax liability the IRS seeks to satisfy is Mr. Craft's alone, and does not claim that, under Michigan law, real property held as a tenancy by the entirety belongs to either spouse individually. Nor does the Court *29 suggest that the federal tax lien attaches to particular "rights to property" held individually by Mr. Craft. Rather, borrowing the metaphor of "property as a `bundle of sticks' a collection of individual rights which, in certain combinations, constitute property," ante, at 278, the Court proposes that so long as sufficient "sticks" in the bundle of "rights to property" "belong to" a delinquent taxpayer, the lien can attach as if the property itself belonged to the taxpayer, ante, at 285. This amorphous construct ignores the primacy of state law in defining property interests, eviscerates the statutory distinction between "property" and "rights to property" drawn by 632, and conflicts with an unbroken line of authority from this Court, the lower courts, and the IRS. Its application is all the more unsupportable in this case because, in my view, it is highly unlikely that the limited individual "rights to property" recognized in a tenancy by the entirety under Michigan law are themselves subject to lien. I would affirm the Court of Appeals and hold that Mr. Craft did not have "property" or "rights to property" to which the federal tax lien could attach. I Title 26 U.S. C. 632 provides that a federal tax lien attaches to "all property and rights to property, whether real or personal, belonging to" a delinquent taxpayer. It is uncontested that a federal tax lien itself "creates no property rights but merely attaches consequences, federally defined, to rights created under state law." United Consequently, the Government's lien under 632 "cannot extend beyond the property interests held by the delinquent taxpayer," United under state law. Before today, no one disputed that the IRS, by operation of 632, "steps into the taxpayer's shoes," and has the same rights as the taxpayer in property or rights to property subject *292 to the lien. B. Bittker & M. McMahon, Federal Income Taxation of Individuals ¶ 44.5[4][a] (2d ed. 995
|
Justice Thomas
| 2,002 | 1 |
second_dissenting
|
United States v. Craft
|
https://www.courtlistener.com/opinion/118497/united-states-v-craft/
|
Federal Income Taxation of Individuals ¶ 44.5[4][a] (2d ed. 995 and 2000 Cum. Supp.) (hereinafter Bittker). I would not expand "`the nature of the legal interest' " the taxpayer has in the property beyond those interests recognized under state law. A If the Grand Rapids property "belong[ed] to" Mr. Craft under state law prior to the termination of the tenancy by the entirety, the federal tax lien would have attached to the Grand Rapids property. But that is not this case. As the Court recognizes, pursuant to Michigan law, as under English common law, property held as a tenancy by the entirety does not belong to either spouse, but to a single entity composed of the married persons. See ante, at 280-2. Neither spouse has "any separate interest in such an " 8 ; see also An entireties estate constitutes an indivisible "sole tenancy." See ; see also Because Michigan does not recognize a separate spousal interest in the Grand Rapids property, it did not "belong" to either respondent or her husband individually when the IRS asserted its lien for Mr. Craft's individual tax liability. Thus, the property was not property to which the federal tax lien could attach for Mr. Craft's tax liability. *293 The Court does not dispute this characterization of Michigan's law with respect to the essential attributes of the tenancy by the entirety However, relying on which in turn relied upon United and United the Court suggests that Michigan's definition of the tenancy by the entirety estate should be overlooked because federal tax law is not controlled by state legal fictions concerning property ownership. Ante, at 279. But the Court misapprehends the application of to this case. like Irvine and before it, was concerned not with whether state law recognized "property" as belonging to the taxpayer in the first place, but rather with whether state laws could disclaim or exempt such property from federal tax liability after the property interest was created. held only that a state-law disclaimer could not retroactively undo a vested right in an estate that the taxpayer already held, and that a federal lien therefore attached to the taxpayer's interest in the Similarly, in Irvine, the Court held that a state law allowing an individual to disclaim a gift could not force the Court to be "struck blind" to the fact that the transfer of "property" or "property rights" for which the gift tax was due had already occurred; "state property transfer rules do not transfer into federal taxation rules." 240 (emphasis added). See also Extending this Court's "state law fiction"
|
Justice Thomas
| 2,002 | 1 |
second_dissenting
|
United States v. Craft
|
https://www.courtlistener.com/opinion/118497/united-states-v-craft/
|
(emphasis added). See also Extending this Court's "state law fiction" jurisprudence to determine whether property or rights to property exist under state law in the first place works a sea change in the *294 role States have traditionally played in "creating and defining" property interests. By erasing the careful line between state laws that purport to disclaim or exempt property interests after the fact, which the federal tax lien does not respect, and state laws' definition of property and property rights, which the federal tax lien does respect, the Court does not follow but rather creates a new federal common law of property. This contravenes the previously settled rule that the definition and scope of property is left to the States. See at n. 3 (recognizing unsoundness of leaving the definition of property interests to a nebulous body of federal law, "because it ignores the long-established role that the States have played in creating property interests and places upon the courts the task of attempting to ascertain a taxpayer's property rights under an undefined rule of federal law"). B That the Grand Rapids property does not belong to Mr. Craft under Michigan law does not end the inquiry, however, since the federal tax lien attaches not only to "property" but also to any "rights to property" belonging to the taxpayer. While the Court concludes that a laundry list of "rights to property" belonged to Mr. Craft as a tenant by the entirety,[2] it does not suggest that the tax lien attached to any of these particular rights.[3] Instead, the Court gathers *295 these rights together and opines that there were sufficient sticks to form a bundle, so that "respondent's husband's interest in the entireties property constituted `property' or `rights to property' for the purposes of the federal tax lien statute." Ante, at 288, 285. But the Court's "sticks in a bundle" metaphor collapses precisely because of the distinction expressly drawn by the statute, which distinguishes between "property" and "rights to property." The Court refrains from ever stating whether this case involves "property" or "rights to property" even though 632 specifically provides that the federal tax lien attaches to "property" and "rights to property" "belonging to" the delinquent taxpayer, and not to an imprecise construct of "individual rights in the estate sufficient to constitute `property' or `rights to property' for the purposes of the lien." Ante, at 276.[4] *296 Rather than adopt the majority's approach, I would ask specifically, as the statute does, whether Mr. Craft had any particular "rights to property" to which the federal tax lien could attach. He
|
Justice Thomas
| 2,002 | 1 |
second_dissenting
|
United States v. Craft
|
https://www.courtlistener.com/opinion/118497/united-states-v-craft/
|
property" to which the federal tax lien could attach. He did not.[5] Such "rights to property" that have been subject to the 632 lien are valuable and "pecuniary," i. e., they can be attached, and levied upon or sold by the Government.[6], -60, and n. 7. With such rights subject to lien, the taxpayer's interest has "ripen[ed] into a present estate" of some form and is more than a mere expectancy, and thus the taxpayer has an apparent right "to channel that value to [another]," In contrast, a tenant in a tenancy by the entirety not only lacks a present divisible vested interest in the property and control with respect to the sale, encumbrance, and transfer of the property, but also does not possess the ability to devise any portion of the property because it is subject to the other's indestructible right of survivorship. This latter fact makes the property significantly different from community property, where each spouse has a present one-half vested interest in the whole, which may be devised by will or otherwise to a person other than the spouse. See 4 G. Thompson, Real Property 37.4(a) (noting that a married person's power to devise one-half of the community property is "consistent with the fundamental characteristic of community property": "community ownership means that each spouse owns 50% of each community asset").[7] See also 528 U. S., It is clear that some of the individual rights of a tenant in entireties property are primarily personal, dependent upon the taxpayer's status as a spouse, and similarly not susceptible to a tax lien. For example, the right to use the property in conjunction with one's spouse and to exclude all others appears particularly ill suited to being transferred to another, see ib and to lack "exchangeable value," Nor do other identified rights rise to the level of "rights to property" to which a 632 lien can attach, because they represent, at most, a contingent future interest, or an "expectancy" that has not "ripen[ed] into a present " ("Nor do we mean to suggest that an expectancy *298 that has pecuniary value and is transferable under state law would fall within 632 prior to the time it ripens into a present estate"). Cf. 357 U. S., at -56 By way of example, the survivorship right wholly depends upon one spouse outliving the other, at which time the survivor gains "substantial rights, in respect of the property, theretofore never enjoyed by [the] survivor." While the Court explains that it is "not necessary to decide whether the right to survivorship alone would qualify as
|
Justice Thomas
| 2,002 | 1 |
second_dissenting
|
United States v. Craft
|
https://www.courtlistener.com/opinion/118497/united-states-v-craft/
|
decide whether the right to survivorship alone would qualify as `property' or `rights to property' " under 632, ante, at 285, the facts of this case demonstrate that it would not. Even assuming both that the right of survivability continued after the demise of the tenancy estate and that the tax lien could attach to such a contingent future right, creating a lienable interest upon the death of the nonliable spouse, it would not help the IRS here; respondent's husband predeceased her in 998, and there is no right of survivorship at issue in this case. Similarly, while one spouse might escape the absolute limitations on individual action with respect to tenancy by the entirety property by obtaining the right to one-half of the property upon divorce, or by agreeing with the other spouse to sever the tenancy by the entirety, neither instance is an event of sufficient certainty to constitute a "right to property" for purposes of 632. Finally, while the federal tax lien could arguably have attached to a tenant's right to any "rents, products, income, or profits" of real property held as tenants by the entirety, Mich. Comp. Laws Ann. 7.7 (West 988), the Grand Rapids property created no rents, products, income, or profits for the tax lien to attach to. In any event, all such rights to property, dependent as they are upon the existence of the tenancy by the entirety *299 estate, were likely destroyed by the quit claim deed that severed the tenancy. See n. Unlike a lien attached to the property itself, which would survive a conveyance, a lien attached to a "right to property" falls squarely within the maxim that "the tax collector not only steps into the taxpayer's shoes but must go barefoot if the shoes wear out." Bittker ¶ 44.5[4][a] (noting that "a state judgment terminating the taxpayer's rights to an asset also extinguishes the federal tax lien attached thereto"). See also Elliott ¶ 9.09[3][d][i] (explaining that while a tax lien may attach to a taxpayer's option on property, if the option terminates, the Government's lien rights would terminate as well). Accordingly, I conclude that Mr. Craft had neither "property" nor "rights to property" to which the federal tax lien could attach. II That the federal tax lien did not attach to the Grand Rapids property is further supported by the consensus among the lower courts. For more than 50 years, every federal court reviewing tenancies by the entirety in States with a similar understanding of tenancy by the entirety as Michigan has concluded that a federal tax lien cannot
|
Justice Thomas
| 2,002 | 1 |
second_dissenting
|
United States v. Craft
|
https://www.courtlistener.com/opinion/118497/united-states-v-craft/
|
as Michigan has concluded that a federal tax lien cannot attach to such property to satisfy an individual spouse's tax liability.[8] This *300 consensus is supported by the IRS' consistent recognition, arguably against its own interest, that a federal tax lien against one spouse cannot attach to property or rights to property held as a tenancy by the entirety.[9] That the Court fails to so much as mention this consensus, let alone address it or give any reason for overruling it, is puzzling. While the positions of the lower courts and the IRS do not bind this Court, one would be hard pressed to explain why the combined weight of these judicial and administrative sourcesincluding the IRS' instructions to its own employeesdo not constitute relevant authority. *30 III Finally, while the majority characterizes Michigan's view that the tenancy by the entirety property does not belong to the individual spouses as a "state law fiction," ante, at 276, our precedents, including -60, hold that state, not federal, law defines property interests. Ownership by "the marriage" is admittedly a fiction of sorts, but so is a partnership or corporation. There is no basis for ignoring this fiction so long as federal law does not define property, particularly since the tenancy by the entirety property remains subject to lien for the tax liability of both tenants. Nor do I accept the Court's unsupported assumption that its holding today is necessary because a contrary result would "facilitat[e] abuse of the federal tax system." Ante, at 285. The Government created this straw man, Brief for United States 30-32, suggesting that the property transfer from the tenancy by the entirety to respondent was somehow improper, see at 30-3, n. 20 even though it chose not to appeal the lower court's contrary assessment. But the longstanding consensus in the lower courts that tenancy by the entirety property is not subject to lien for the tax liability of one spouse, combined with the Government's failure to adduce any evidence that this has led to wholesale tax fraud by married individuals, suggests that the Court's policy rationale for its holding is simply unsound. Just as I am unwilling to overturn this Court's longstanding precedent that States define and create property rights and forms of ownership, 363 U. S., at n. 3, I am equally unwilling to redefine or dismiss as fictional forms of property ownership that the State has recognized in favor of an amorphous federal common-law definition of property. I respectfully dissent.
|
Justice Breyer
| 1,999 | 2 |
dissenting
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
This case involves a settlement of an estimated 186,000 potential future asbestos claims against a single company, Fibreboard, for approximately $1.535 billion. The District Court, in approving the settlement, made 446 factual findings, on the basis of which it concluded that the settlement was equitable, that the potential claimants had been well represented, and that the distinctions drawn among different categories of claimants were reasonable. Ahearn v. Fibreboard Corp., 162 F. R. D. 505 (ED Tex. 1995); App. to Pet. for *866 Cert. 248a-468a. The Court of Appeals, dividing 2 to 1, held that the settlement was lawful. In re Asbestos I would not set aside the Court of Appeals' judgment as the majority does. Accordingly, I dissent. I A Four special background circumstances underlie this settlement and help to explain the reasonableness and consequent lawfulness of the relevant District Court determinations. First, as the majority points out, the settlement comprises part of an "elephantine mass of asbestos cases," which "defies customary judicial administration." Ante, 21. An estimated 13-to-21 million workers have been exposed to asbestos. See Report of the Judicial Conference Ad Hoc Committee on Asbestos 6-7 (Mar. 1991) (hereinafter Report). Eight years ago the Judicial Conference spoke of the mass of related cases having "reached critical dimensions," threatening "a disaster of major proportions." In the Eastern District of Texas, for example, one out of every three civil cases filed in was an asbestos case. See In the past decade nearly 80,000 new federal asbestos cases have been filed; more than 10,000 new federal asbestos cases were filed last year. See U. S. District Courts Civil Cases Commenced by Nature of Suit, Administrative Office of the Courts Statistics (Table C2-A) (hereinafter AO Statistics). The Judicial Conference found that asbestos cases on average take almost twice as long as other lawsuits to resolve. See Report 10-11. Judge Parker, the experienced trial judge who approved this settlement, noted in one 3,000member asbestos class action over which he presided that 448 of the original class members had died while the litigation was pending. And yet, Judge Parker *867 went on to state, if the District Court could close "thirty cases a month, it would [still] take six and one-half years to try these cases and [due to new filings] there would be pending over 5,000 untouched cases" at the end of that time. His subsequent efforts to accelerate final decision or settlement through the use of sample cases produced a highly complex trial (133 trial days, more than 500 witnesses, half a million pages of documents) that eventually closed only about 160
|
Justice Breyer
| 1,999 | 2 |
dissenting
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
million pages of documents) that eventually closed only about 160 cases because efforts to extrapolate from the sample proved fruitless. See The consequence is not only delay but also attorney's fees and other "transaction costs" that are unusually high, to the point where, of each dollar that asbestos defendants pay, those costs consume an estimated 61 cents, with only 39 cents going to victims. See Report 13. Second, an individual asbestos case is a tort case, of a kind that courts, not legislatures, ordinarily will resolve. It is the number of these cases, not their nature, that creates the special judicial problem. The judiciary cannot treat the problem as entirely one of legislative failure, as if it were caused, say, by a poorly drafted statute. Thus, when "calls for national legislation" go unanswered, ante, 21, judges can and should search aggressively for ways, within the framework of existing law, to avoid delay and expense so great as to bring about a massive denial of justice. Third, in that search the district courts may take advantage of experience that appellate courts do not have. Judge Parker, for example, has written of "a disparity of appreciation for the magnitude of the problem," growing out of the difference between the trial courts' "daily involvement with asbestos litigation" and the appellate courts' "limited" exposure to such litigation in infrequent appeals. Cimino, 751 F. Supp., at Fourth, the alternative to class-action settlement is not a fair opportunity for each potential plaintiff to have his or her *868 own day in court. Unusually high litigation costs, unusually long delays, and limitations upon the total amount of resources available for payment together mean that most potential plaintiffs may not have a realistic alternative. And Federal Rule of Civil Procedure 23 was designed to address situations in which the historical model of individual actions would not, for practical reasons, work. See generally Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 696 (discussing, in relation to Rule 23(b)(1)(B), instances in which individual judgments, "while not technically concluding the other members, might do so as a practical matter"). For these reasons, I cannot easily find a legal answer to the problems this case raises by referring, as does the majority, to "our `deep-rooted historic tradition that everyone should have his own day in court.' " Ante, 46 (citation omitted). Instead, in these circumstances, I believe our Court should allow a district court full authority to exercise every bit of discretionary power that the law provides. See generally ; And, in doing so, the Court
|
Justice Breyer
| 1,999 | 2 |
dissenting
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
provides. See generally ; And, in doing so, the Court should prove extremely reluctant to overturn a fact-specific or circumstance-specific exercise of that discretion, where a court of appeals has found it lawful. Cf. Universal Camera This cautionary principle of review leads me to an ultimate conclusion different from that of the majority. B The case before us involves a class of individuals (and their families) exposed to asbestos manufactured by Fibreboard *869 who, for the most part, had not yet sued or settled with Fibreboard as of August 1993. The negotiating parties estimated that Fibreboard faced approximately 186,000 of these future claims. See App. to Pet. for Cert. 321a; cf. AO Statistics, Table C2-A (total number of all civil cases filed in federal district courts in was 252,994). Although the District Court was unable to give a precise figure, see App. to Pet. for Cert. 356a-357a, there is no doubt that a realistic assessment of the value of these claims far exceeds Fibreboard's total net worth. But, as of 1993, one potentially short-lived additional asset promised potential claimants a greater recovery. That asset consisted of two insurance policies, one issued by Continental Casualty, the other by Pacific Indemnity. If the policies were valid (i. e., if they covered most of the relevant claims), they were worth several billion dollars; but if they were invalid, this asset was worth nothing. At that time, a separate case brought by Fibreboard against the insurance companies in California state court seemed likely to resolve the value of the policies in the near future. That separate litigation had a settlement value for the insurance companies. At the time the parties were negotiating, prior to the California court's decision, the insurance policies were worth, as the majority puts it, the value of "unlimited policy coverage" (i. e., perhaps the insurance companies' entire net worth) "discounted by the risk that Fibreboard would ultimately lose the coverage dispute litigation." Ante, 51. The insurance companies offered to settle with both Fibreboard and those persons with claims against Fibreboard (who might have tried to sue the insurance companies directly). The settlement negotiations came to a head in August 1993, just as a California state appeals court was poised to decide the validity of the insurance policies. This fact meant speed was important, for the California court could well decide that the policies were worth nothing. It also meant that it was important to certify a non-opt-out class of Fibreboard plaintiffs. *870 If the class that entered into the settlement were an opt-out class, then members of that class could
|
Justice Breyer
| 1,999 | 2 |
dissenting
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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were an opt-out class, then members of that class could wait to see what the California court did. If the California court found the policies valid (hence worth many billions of dollars), they would opt out of the class and sue for everything they could get; if the California court found the policies invalid (and worth nothing), they would stick with the settlement. The insurance companies would gain little from that kind of settlement, and they would not agree to it. See In re Asbestos After eight days of hearings, the District Court found that the insurance policies plus Fibreboard's net worth amounted to a "limited fund," valued at $1.77 billion (the amount the insurance companies were willing to contribute to the settlement plus Fibreboard's value). See App. to Pet. for Cert. 492a. The court entered detailed factual See generally 162 F. R. D., at 518-519. It certified a "non-opt-out" class. And the court approved the parties' Global Settlement Agreement. The Global Settlement Agreement allows those exposed to asbestos (and their families) to assert their Fibreboard claims against a fund that it creates. It does not limit recoveries for particular types of claims, but allows for individual determinations of damages based on all historically relevant individual factors and circumstances. See It contains spendthrift provisions designed to limit the total payouts for any particular year, and a requirement that the claimants with the most serious injuries be paid first in any year in which there is a shortfall. It also permits an individual who wishes to retain his right to bring an ordinary action in court to opt out of the arrangement (albeit after mediation and nonbinding arbitration), but sets a ceiling of $500,000 upon the recovery obtained by any person who does so. See generally 162 F. R. D., at 518-519. The question here is whether the court's certification of the class under Rule 23(b)(1)(B) violates the law. The majority seems to limit its holding (though not its discussion) *871 to that question, and so I limit the focus of my dissent to the Rule 23(b)(1)(B) issues as well. II The District Court certified a class consisting primarily of individuals (and their families) who had been exposed to Fibreboard's asbestos but who had not yet made claims. See ante, 25-827, and n. 5. It did so under the authority of Federal Rule of Civil Procedure 23(b)(1)(B), which, by analogy to pre-Rules "limited fund" cases, permits certification of a non-opt-out class where "the prosecution of separate actions by or against individual members of the class would create a risk of adjudications
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Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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members of the class would create a risk of adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." The majority thinks this class could not be certified under Rule 23(b)(1)(B). I, on the contrary, think it could. The case falls within the Rule's language as long as there was a significant "risk" that the total assets available to satisfy the claims of the class members would fall well below the likely total value of those claims, for in such circumstances the money would go to those claimants who brought their actions first, thereby "`substantially impair[ing]' " the "`ability' " of later claimants "`to protect their interests.' " And the District Court found there was indeed such a "`risk.' " 162 F. R. D., at 526. Conceptually speaking, that "risk" was no different from the risk inherent in a classic pre-Rules "limited fund" case. Suppose a broker agrees to invest the funds of 10 individuals who each give the broker $100. The broker misuses the money, and the customers sue. (1) Suppose their claims total $1,000, but the broker's total assets amount to $100. *872 (2) Suppose the same broker has no assets left, but he does have an insurance policy worth $100. (3) Suppose the broker has both $100 in assets and a $100 insurance policy. The first two cases are classic limited fund cases. See ante, 34-836 cert. denied, an investors' suit for the return of misused funds); ante, 37 a suit to distribute insurance proceeds to third party beneficiaries). The third case simply combines the first two, and that third case is the case before us. Of course the value of the insurance policies in our case is not as precise as the $100 in my example, nor was it certain at the time of settlement. But that uncertainty makes no difference. It was certain that the insurance policies' value was limited. And that limitation was created by the likelihood of an independent judicial determination of the meaning of words in the policy, in respect to which the merits or value of the underlying tort claims against Fibreboard were beside the point. Nor does it matter that the value of the insurance policies in our case might have fluctuated over time. Long before the Federal Rules of Civil Procedure, courts permitted actions by one group of insurance policyholders to bind all policyholders, even where the group proceeded
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Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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policyholders to bind all policyholders, even where the group proceeded against an insurance-company-administered fund that fluctuated over time. See Hartford Life Ins. Neither does it matter that the insurance policies might be worth much more money if the California court decided the coverage dispute in Fibreboard's favor. A trust worth, say, $1 million (faced with $2 million in claims) is a limited fund, despite the possibility that a company whose stock it *873 holds might strike oil and send the value of the trust skyrocketing. Limitation is a matter of present value, which takes appropriate account of such future possibilities. I need not pursue the conceptual matter further, however, for the majority apparently concedes the conceptual point that a fund's limit may equal its "value discounted by risk." Ante, 51. But the majority sets forth three additional conditions that it says are "sufficient to justify binding absent members of a class under Rule 23(b)(1)(B), from which no one has the right to secede." Ante, 38. The three are: Condition One: That "the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims." ; Part IV-A, ante. Condition Two: That "the claimants identified by a common theory of recovery were treated equitably among themselves." Ante, 39; Part IV-B, ante. Condition Three: That "the whole of the inadequate fund was to be devoted to the overwhelming claims." Ante, 39; Part IV-C, ante. I shall discuss each condition in turn. A In my view, the first condition is substantially satisfied. No one doubts that the "totals of the aggregated" claims well exceed the value of the assets in the "fund available for satisfying them," at least if the fund totaled about what the District Court said it did, namely, $1.77 billion at most. The District Court said that the limited fund equaled in value "the sum of the value of Fibreboard plus the value of its insurance coverage," or $235 million plus $1.535 billion. App. to Pet. for Cert. 492a. The Court of Appeals upheld *874 the finding. And the finding is adequately supported. The District Court found that the insurance policies were not worth substantially more than $1.535 billion in part because there was a "significant risk" that the insurance policies would soon turn out to be worth nothing at all. 162 F. R. D., at 526. The court wrote that "Fibreboard might lose" its coverage, i. e., that it might lose "on one or more issues in the [California] Coverage Case, or
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Justice Breyer
| 1,999 | 2 |
dissenting
|
Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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one or more issues in the [California] Coverage Case, or that Fibreboard might lose its insurance coverage as a result of its assignment settlement program." Two California insurance law experts, a Yale professor and a former state court of appeals judge, testified that there was a good chance that Fibreboard would lose all or a significant part of its insurance coverage once the California appellate courts decided the And that conclusion is not surprising. The Continental policy (for which Fibreboard had paid $10,000 per year) carried limits of $500,000 "per-person" and $1 million "per-occurrence," had been in effect only between May 1957 and March 1959, and arguably denied Fibreboard the right to settle tort cases as it had been doing. See App. to Pet. for Cert. 267a. The Pacific policy was said (no one could find a copy) to carry a $500,000 per-claim limit, and had been in effect only for one year, from 1956 to 1957. See To win significantly in respect to either of the two policies, Fibreboard had to show that the policies fully covered a person exposed to asbestos long before the policy year (say, in 1948) even if the disease did not appear until much later (say, in 2002). It also had to explain away the $1 million per occurrence limit in the Continental policy, despite policy language defining "one occurrence" as "`[a]ll exposure to substantially the same general conditions existing at or emanating from each premises location.' " Brief for Respondents Continental Casualty et al. 5. And Fibreboard had to show that its tort-suit settlement practice was consistent with the policy. *875 The settlement value of previous cases also indicated that the insurance policies were of limited value. Fibreboard's "no-cash" settlements (which required a settling plaintiff to obtain recovery from the insurance companies) were twice as high on average as were its comparable 40% cash settlements. App. to Pet. for Cert. 231a. That difference, suggesting a 50% discount for 40% cash, in turn suggests that settling parties estimated the odds of recovering on the insurance policies as worse than 2 to 1 against. The District Court arrived at the present value of the policies ($1.535 billion) by looking to a different settlement, the settlement arrived at in the insurance coverage case itself as a result of bargaining between Fibreboard and the insurance companies. See at 492a. That settlement, embodied in the Trilateral Agreement, created a backup fund by taking from the insurance companies $1.535 billion (plus other money used to satisfy claims not here at issue) and simply setting it aside to use for
|
Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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at issue) and simply setting it aside to use for the payment of claims brought against Fibreboard in the ordinary course by members of this class (in the event that the federal courts ultimately failed to approve the Global Settlement Agreement). The Fifth Circuit approved this method of determining the value of the insurance policies. See And the majority itself sees nothing wrong with that method in principle. The majority concedes that one "may take a settlement amount as good evidence of the maximum available if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiation." Ante, 52. The majority rejects the District Court's valuation for a different reason. It says that the settlement negotiation *876 that led to the valuation was not necessarily a fair one. The majority says it cannot make the necessary "arms-length bargaining" assumption because "[c]lass counsel " had a "great incentive to reach any agreement" in light of the fact that "some of the same lawyers had also negotiated the separate settlement of 45,000" pending cases, which was partially contingent upon a global settlement or other favorable resolution of the insurance dispute. The District Court and Court of Appeals, however, did accept the relevant "arms-length" assumption, with good reason. The relevant bargaining (i. e., the bargaining that led to the Trilateral Agreement that set the policies' value) was not between the plaintiffs' class counsel and the insurance companies; it was between Fibreboard and the insurance companies. And there is no reason to believe that that bargaining, engaged in to settle the California coverage dispute, was not "arms length." That bargaining did not lead to a settlement that would release Fibreboard from potential tort liability. Rather, it led to a potential backup settlement that did not release Fibreboard from anything. It created a fund of insurance money, which, once exhausted, would have left Fibreboard totally exposed to tort claims. Consequently, Fibreboard had every incentive to squeeze as much money as possible out of the insurance companies, thereby creating as large a fund as possible in order to diminish the likelihood that it would eventually have to rely upon its own net worth to satisfy future asbestos plaintiffs. Nor are petitioners correct when they argue that the insurance companies' participation in setting the value of the insurance policies created a fund that is limited "only in the sense that every settlement is limited." Brief for Petitioners 28. As the District Court found, the
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Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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Brief for Petitioners 28. As the District Court found, the fund was limited by the value of the insurance policies (along with Fibreboard's own limited net worth), and that limitation arose out of the independent likelihood that the California courts *877 would find the policies valueless. App. to Pet. for Cert. 492a. That is why the District Court said that certification in this case does not determine whether "mandatory class certification is appropriate in the typical case where a class action is settled with a defendant's own funds, or with insurance funds that are not the subject of genuine and vigorous dispute." 162 F. R. D., at 527. The court added that, in the ordinary case: "If the settlement failed[,] the defendant would retain the settlement funds (or the insurance coverage), and there might not be the `impair[ment]' to class members' `ability to protect their interests' required for mandatory class certification." In this case, however, if settlement failed, coverage "[might] well disappear with the result that Class members could not then secure their due through litigation." I recognize that one could reasonably argue about whether the total value of the insurance policies (plus the value of Fibreboard) is $1.535 billion, $1.77 billion, $2.2 billion, or some other roughly similar number. But that kind of argument, in this case, is like arguing about whether a trust fund, facing $30,000 in claims, is worth $15,000 or $20,000 (e. g., do we count Aunt Agatha's share as part of the fund?), or whether a ship, subject to claims that, by any count, exceed its value, is worth a little more or a little less (e. g., does the coal in the hold count as fuel, which is part of the ship's value, or as cargo, which is not?). A perfect valuation, requiring lengthy study by independent experts, is not feasible in the context of such an unusual limited fund, one that comes accompanied with its own witching hour. Within weeks after the parties' settlement agreement, the insurance policies might well have disappeared, leaving most potential plaintiffs with little more than empty claims. The ship was about to sink, the trust fund to evaporate; time was important. Under these circumstances, I would accept the valuation *878 findings made by the District Court and affirmed by the Court of Appeals as legally sufficient. See 68. B I similarly believe that the second condition is satisfied. The "claimants were treated equitably among themselves." Ante, 39. The District Court found equitable treatment, and the Court of Appeals affirmed. But a majority of this Court now finds significant
|
Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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affirmed. But a majority of this Court now finds significant inequities arising out of class counsel's "egregious" conflict of interest, the settlement's substantive terms, and the District Court's failure to create subclasses. See ante, 54-859. But nothing I can find in the Court's opinion, nor in the objectors' briefs, convinces me that the District Court's findings on these matters were clearly erroneous, or that the Court of Appeals went seriously astray in affirming them. The District Court made 76 separate findings of fact, for example, in respect to potential conflicts of interest. App. to Pet. for Cert. 392a-430a. Of course, class counsel consisted of individual attorneys who represented other asbestos claimants, including many other Fibreboard claimants outside the certified class. Since Fibreboard had been settling cases contingent upon resolution of the insurance dispute for several years, any attorney who had been involved in previous litigation against Fibreboard was likely to suffer from a similar "conflict." So whom should the District Court have appointed to negotiate a settlement that had to be reached soon, if ever? Should it have appointed attorneys unfamiliar with Fibreboard and the history of its asbestos litigation? Where was the District Court to find those competent, knowledgeable, conflict-free attorneys? The District Court said they did not exist. Finding of Fact  372 says there is "no credible evidence of the existence of other `conflict-free' counsel who were qualified to negotiate" a settlement within the necessary time. at 428a. Finding of Fact  317 adds that the District Court viewed it as *879 "crucial to appoint asbestos attorneys who were experienced, knowledgeable, skilled and credible in view of the extremely short window of opportunity to negotiate a global settlement, and the very high risk to future claimants presented by the Coverage Case appeal." at 401a. Where is the clear error? The majority emphasizes the fact that, by settling the claims of a class that consisted, for the most part, of persons who had not yet asserted claims against Fibreboard, counsel assured the availability of funds to pay other clients who had already asserted those claims. Ante, 52-853. The decision to split the latter "inventory" claims from the former "class" claims, however, reflected the suggestion, not of class counsel, but of a judge, Circuit Judge Patrick Higginbotham, who had become involved in efforts to produce a timely settlement. Judge Higginbotham thought that negotiations had broken down because the combined class was "too complex." App. to Pet. for Cert. 316a-317a; see also at 397a. He thought "inventory" claim settlements could be used as benchmarks to determine future class claim values,
|
Justice Breyer
| 1,999 | 2 |
dissenting
|
Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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be used as benchmarks to determine future class claim values, at 316a-317a, and that is just what happened. Although the majority is concerned that "inventory" plaintiffs "appeared to have obtained better terms than the class members," ante, 55, Finding of Fact  329 says that class counsel "used the higher-than-average [inventory plaintiff settlement values] to achieve a global settlement for future claimants at similarly high values, effectively arguing they could not possibly accept less for a class of future claimants than they had just negotiated for their present clients." App. to Pet. for Cert. 407a. In addition, more than 150 findings of fact, made after an 8-day hearing, support the District Court's finding that overall the settlement is "fair, adequate, and reasonable." See at 500a-501a. And, of course, Finding of Fact  318 says that appointing other attorneysÔÇöi. e., those who had no inventory *880 clientsÔÇöwould have "`jeopardiz[ed] any effort at serious negotiations'" and "resulted in a less favorable settlement" for the class, or perhaps no settlement followed by no insurance policy either. at 402a. The Fifth Circuit found that "[t]he record amply supports" these District Court Does the majority mean to set them aside? If not, does it mean to set forth a rigid principle of law, such as the principle that asbestos lawyers with clients outside a class, who will potentially benefit from a class settlement, can never represent a class in settlement negotiations? And does that principle apply no matter how unusual the circumstances, or no matter how necessary that representation might be? Why should there be such a rule of law? If there is not an absolute rule, however, I do not see how this Court can hold that the case before us is not that unusual situation. Consider next the claim that "equity" required more subclasses. Ante, 55-857. To determine the "right" number of subclasses, a district court must weigh the advantages and disadvantages of bringing more lawyers into the case. The majority concedes as much when it says "at some point there must be an end to reclassification with separate counsel." Ante, 57. The District Court said that if there had "been as many separate attorneys" as the objectors wanted, "there is a significant possibility that a global settlement would not have been reached before the Coverage Case was resolved by the California Court of Appeal." App. to Pet. for Cert. 428a. Finding of Fact  346 lists the shared common interests among subclasses that argue for single representation, including "avoiding the potentially disastrous results of a loss in the Coverage Case," "maximizing the
|
Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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results of a loss in the Coverage Case," "maximizing the total settlement contribution," "reducing transaction costs and delays," "minimizing attorney's fees," and "adopting" equitable claims payment "procedures." at 415a. Surely the District Court was within its discretion to conclude that "the point" to which the majority alludes was reached in this case. *881 I need not go into further detail here. Findings of Fact ÂÂ 347-354 explain why the alleged conflict between pre- and post-1959 claimants is not significant. at 415a-418a (noting that "the decision as to how to divide the settlement among class members" did not take place until after the Trilateral Agreement was agreed to, at which point money was available equally to both pre- and post-1959 claimants). Findings of Fact ÂÂ 355-363 explain why the alleged conflict between claimants with, and those without, current illnesses is not significant. at 419a-422a (explaining why "the interest of the two subgroups at issue here coincide to a far greater extent than they diverge"). The Fifth Circuit found that the District Court "did not abuse its discretion in finding that the class was adequately represented and that subclasses were not required." This Court should not overturn these highly circumstance-specific judgments. C The majority's third condition raises a more difficult question. It says that the "whole of the inadequate fund" must be "devoted to the overwhelming claims." Ante, 39 Fibreboard's own assets, in theory, were available to pay tort claims, yet they were not included in the global settlement fund. Is that fact fatal? I find the answer to this question in the majority's own explanation. It says that the third condition helps to guarantee that those who held the "inadequate assets had no opportunity to benefit [themselves] or claimants of lower priority by holding back on the amount distributed to the class. The limited fund cases thus ensured that the class as a whole was given the best deal; they did not give a defendant a better deal than seriatim litigation would have produced." *882 That explanation suggests to me that Rule 23(b)(1)(B) permits a slight relaxation of this absolute requirement, where its basic purpose is met, i. e., where there is no doubt that "the class as a whole was given the best deal," and where there is good reason for allowing the third condition's substantial, rather than its literal, satisfaction. Rule 23 itself does not require modern courts to trace every contour of ancient case law with literal exactness. Benjamin Kaplan, Reporter to the Advisory Committee on Civil Rules that drafted the 1966 revisions, upon whom the majority properly
|
Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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that drafted the 1966 revisions, upon whom the majority properly relies for explanation, see, e. g., ante, 33, 834, 842-843, wrote of Rule 23: "The reform of Rule 23 was intended to shake the law of class actions free of abstract categories and to rebuild the law on functional lines responsive to those recurrent life patterns which call for mass litigation through representative parties. And whereas the old Rule had paid virtually no attention to the practical administration of class actions, the revised Rule dwelt long on this matterÔÇönot, to be sure, by prescribing detailed procedures, but by confirming the courts' broad powers and inviting judicial initiative." A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497 (1969). The majority itself recognizes the possibility of providing incentives to enter into settlements that reduce costs by granting a "credit" for cost savings by relaxing the whole-of-theassets requirement, at least where most of the savings would go to the claimants. Ante, 61. There is no doubt in this case that the settlement made far more money available to satisfy asbestos claims than was likely to occur in its absence. And the District Court found that administering the fund would involve transaction costs of only 15%. App. to Pet. for Cert. 362a. A comparison of that 15% figure with the 61% transaction costs figure applicable to asbestos cases in general suggests hundreds of millions *883 of dollars in savingsÔÇöan amount greater than Fibreboard's net worth. And, of course, not only is it better for the injured plaintiffs, it is far better for Fibreboard, its employees, its creditors, and the communities where it is located for Fibreboard to remain a working enterprise, rather than slowly forcing it into bankruptcy while most of its money is spent on asbestos lawyers and expert witnesses. I would consequently find substantial compliance with the majority's third condition. Because I believe that all three of the majority's conditions are satisfied, and because I see no fatal conceptual difficulty, I would uphold the determination, made by the District Court and affirmed by the Court of Appeals, that the insurance policies (along with Fibreboard's net value) amount to a classic limited fund within the scope of Rule 23(b)(1)(B). III Petitioners raise additional issues, which the majority does not reach. I believe that respondents would likely prevail were the Court to reach those issues. That is why I dissent. But, as the Court does not reach those issues, I need not decide the questions definitively. In some instances, my belief that respondents would likely prevail reflects my reluctance to second-guess
|
Justice Breyer
| 1,999 | 2 |
dissenting
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Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
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that respondents would likely prevail reflects my reluctance to second-guess a court of appeals that has affirmed a district court's fact- and circumstance-specific See 68; cf. Products, That reluctance applies to those of petitioners' further claims that, in effect, attack the District Court's conclusions related to: (1) the finding under Rule 23(a)(2) that there are "questions of law and fact common to the class," see App. to Pet. for Cert. 480a; see generally ; (2) the finding under Rule 23(a)(3) that claims of the representative parties are "typical" of the claims of the class, see App. *884 to Pet. for Cert. 480a-481a; (3) the adequacy of "notice" to class members pursuant to Rule 23(e) and the Due Process Clause, see at 511a; see generally ; and (4) the standing-related requirement that each class member have a good-faith basis under state law for claiming damages for some form of injury-in-fact (even if only for fear of cancer or medical monitoring), see App. to Pet. for Cert. 252a; cf., e. g., In other instances, my belief reflects my conclusion that class certification here rests upon the presence of what is close to a traditional limited fund. And I doubt that petitioners' additional arguments that certification violates, for example, the Rules Enabling Act, the Bankruptcy Act, the Seventh Amendment, and the Due Process Clause are aimed at, or would prevail against, a traditional limited fund (e. g., "trust assets, a bank account, insurance proceeds, company assets in a liquidation sale, proceeds of a ship sale in a maritime accident suit," ante, 34 (internal quotation marks and citations omitted)). Cf. In re Asbestos involved a class certified under the equivalent of Rule 23(b)(3), not a limited fund case under Rule 23(b)(1)(B)). Regardless, I need not decide these latter issues definitively now, and I leave them for another day. With that caveat, I respectfully dissent.
|
Justice Rehnquist
| 1,974 | 19 |
dissenting
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Jimenez v. Weinberger
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https://www.courtlistener.com/opinion/109072/jimenez-v-weinberger/
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I frankly find the Court's opinion in this case a perplexing three-legged stool. The holding is clearly founded in notions of equal protection, see ante, at 637, and the Court speaks specifically of improper "discrimination." Yet the opinion has strong due process overtones as well, at times appearing to pay homage to the still novel, and I think unsupportable, theory that "irrebuttable presumptions" violate due process. At other times the opinion seems to suggest that the real problem in this case is the Government's failure to build an adequate evidentiary record in support of the challenged legislation. The result is a rather impressionistic determination that Congress' efforts to cope with spurious claims of entitlement, while preserving maximum benefits for those persons most likely to be deserving, are simply not satisfactory to the members of this Court. I agree with neither the Court's approach nor its decision. The Court's equal protection analysis is perhaps most difficult to understand. The Court apparently finds no need to resolve the question of whether illegitimacy constitutes a "suspect classification," noting instead that "`the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where the classification is justified by no legitimate state interest, compelling or otherwise.']" Ante, at 632. (Emphasis added.) This statement might be thought to set the stage for a decision striking down the legislation on the basis of discrimination between legitimates and illegitimates. But the Court then leaves that *639 issue, finding instead that the statute is unconstitutional because it "discriminate[s] between the two subclasses of afterborn illegitimates without any basis for the distinction." Ante, at 636. (Emphasis added.) Whatever may be the rationale for giving some form of stricter scrutiny to classifications between legitimates and illegitimates, that rationale simply vanishes when the alleged discrimination is between classes of illegitimates. Such classifications should instead be evaluated according to the traditional principle set forth in : "If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.'" (Citation omitted.) The Court's rejection of this principle strongly smacks of due process rather than equal protection concepts. The Court states that "[a]ssuming appellants are in fact dependent on the claimant, it would not serve the purpose of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits," ante, at 636 (emphasis added), and indicates that the real problem with the legislation is that it is both "overinclusive" and "underinclusive." According
|
Justice Rehnquist
| 1,974 | 19 |
dissenting
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Jimenez v. Weinberger
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https://www.courtlistener.com/opinion/109072/jimenez-v-weinberger/
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legislation is that it is both "overinclusive" and "underinclusive." According to the Court, the legislation cannot stand because "some children" entitled to benefits "are not dependent on their disabled parent" and because "some illegitimates" who do not get benefits "are, in fact, dependent upon their disabled parent." Ante, at 637. In my view this is simply an attack on "irrebuttable presumptions" in another guise. See Cleveland Board of The very process of making legislative decisions to govern society as a whole means that some individuals will be treated less favorably than other individuals who fall within a different legislative classification. *640 AS THE CHIEF JUSTICE stated only last Term in : "[L]iterally thousands of state statutes create classifications permanent in duration, which are less than perfect, as all legislative classifications are, and might be improved on by individualized determinations" This Court should not invalidate such classifications simply out of a preference for different classifications or because an unworkable system of individualized consideration would theoretically be more perfect. There are also hints in the opinion that the Government failed to build an adequate evidentiary record in support of the challenged classifications. Thus the Court distinguishes a case in which the Court respected the State's allocation of limited resources, by saying: "Here, by contrast, there is no evidence supporting the contention that to allow illegitimates in the classification of appellants to receive benefits would significantly impair the federal Social Security trust fund and necessitate a reduction in the scope of persons benefited by the Act." Ante, at 633. (Emphasis added.) I should think it obvious that any increase in the number of eligible recipients would serve to additionally deplete a fixed fund, but I find even stranger the notion that the Government must present evidence to justify each and every classification that a legislature chooses to make. If I read the Court's opinion correctly, it would seem to require, for example, that the Government compile evidence to support Congress' determination that Social Security benefits begin at a specified age, perhaps even requiring statistics to show that need is greater (in all cases?) at that age than at lesser ages. This proposition is certainly far removed from traditional principles of deference to legislative judgment. As we stated in : "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." There is nothing in that language that suggests to me that courtrooms should become forums for a second round of legislative hearings whenever a legislative determination is later challenged. Since I believe that the
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Justice Kennedy
| 1,992 | 4 |
concurring
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Riggins v. Nevada
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https://www.courtlistener.com/opinion/112732/riggins-v-nevada/
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The medical and pharmacological data in the amicus briefs and other sources indicate that involuntary medication with antipsychotic drugs poses a serious threat to a defendant's right to a fair trial. In the case before us, there was no hearing or well-developed record on the point, and the whole subject of treating incompetence to stand trial by drug medication is somewhat new to the law, if not to medicine. On the sparse record before us, we cannot give full consideration to the issue. I file this separate opinion, however, to express *139 my view that absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial, and to express doubt that the showing can be made in most cases, given our present understanding of the properties of these drugs. At the outset, I express full agreement with the Court's conclusion that one who was medicated against his will in order to stand trial may challenge his conviction. When the State commands medication during the pretrial and trial phases of the case for the avowed purpose of changing the defendant's behavior, the concerns are much the same as if it were alleged that the prosecution had manipulated material evidence. See ; I cannot accept the premise of Justice Thomas' dissent that the involuntary medication order comprises some separate procedure, unrelated to the trial and foreclosed from inquiry or review in the criminal proceeding itself. To the contrary, the allegations pertain to the State's interference with the trial. Thus, review in the criminal proceeding is appropriate. I also agree with the majority that the State has a legitimate interest in attempting to restore the competence of otherwise incompetent defendants. Its interest derives from the State's right to bring an accused to trial and from our holding in that conviction of an incompetent defendant violates due process. Unless a defendant is competent, the State cannot put him on trial. Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, *140 the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so. Although the majority is correct that this case does not require us to address the question whether a defendant may waive his right to be tried while competent, in my view a general rule permitting waiver
|
Justice Kennedy
| 1,992 | 4 |
concurring
|
Riggins v. Nevada
|
https://www.courtlistener.com/opinion/112732/riggins-v-nevada/
|
while competent, in my view a general rule permitting waiver would not withstand scrutiny under the Due Process Clause, given our holdings in Pate and Drope. A defendant's waiver of the right to be tried while competent would cast doubt on his exercise or waiver of all subsequent rights and privileges through the whole course of the trial. The question is whether the State's interest in conducting the trial allows it to ensure the defendant's competence by involuntary medication, assuming of course there is a sound medical basis for the treatment. The Court's opinion will require further proceedings on remand, but there seems to be little discussion about what is to be considered. The Court's failure to address these issues is understandable in some respects, for it was not the subject of briefing or argument; but to underscore my reservations about the propriety of involuntary medication for the purpose of rendering the defendant competent, and to explain what I think ought to be express qualifications of the Court's opinion, some discussion of the point is required. This is not a case like in which the purpose of the involuntary medication was to ensure that the incarcerated person ceased to be a physical danger to himself or others. The inquiry in that context is both objective and manageable. Here the purpose of the medication is not merely to treat a person with grave psychiatric disorders and enable that person to function and behave in a way not dangerous to himself or others, but rather to render the person competent to stand trial. It is the last part of the State's objective, medicating the person for the purpose of bringing him to trial, that causes most *141 serious concern. If the only question were whether some bare level of functional competence can be induced, that would be a grave matter in itself, but here there are even more far reaching concerns. The avowed purpose of the medication is not functional competence, but competence to stand trial. In my view elementary protections against state intrusion require the State in every case to make a showing that there is no significant risk that the medication will impair or alter in any material way the defendant's capacity or willingness to react to the testimony at trial or to assist his counsel. Based on my understanding of the medical literature, I have substantial reservations that the State can make that showing. Indeed, the inquiry itself is elusive, for it assumes some baseline of normality that experts may have some difficulty in establishing for a particular defendant,
|
Justice Kennedy
| 1,992 | 4 |
concurring
|
Riggins v. Nevada
|
https://www.courtlistener.com/opinion/112732/riggins-v-nevada/
|
may have some difficulty in establishing for a particular defendant, if they can establish it at all. These uncertainties serve to underscore the difficult terrain the State must traverse when it enters this domain. To make these concerns concrete, the effects of antipsychotic drugs must be addressed. First introduced in the 50's, antipsychotic drugs such as Mellaril have wide acceptance in the psychiatric community as an effective treatment for psychotic thought disorders. See American Psychiatric Press Textbook of Psychiatry 770-774 (Textbook of Psychiatry); Brief for American Psychiatric Association as Amicus Curiae 6-7. The medications restore normal thought processes by clearing hallucinations and delusions. Textbook of Psychiatry 774. See also Brief for American Psychiatric Association as Amicus Curiae 9 ("The mental health produced by antipsychotic medication is no different from, no more inauthentic or alien to the patient than, the physical health produced by other medications, such as penicillin for pneumonia"). For many patients, no effective alternative exists for treatment of their illnesses. and n. 3. *142 Although these drugs have changed the lives of psychiatric patients, they can have unwanted side effects. We documented some of the more serious side effects in and they are mentioned again in the majority opinion. More relevant to this case are side effects that, it appears, can compromise the right of a medicated criminal defendant to receive a fair trial. The drugs can prejudice the accused in two principal ways: (1) by altering his demeanor in a manner that will prejudice his reactions and presentation in the courtroom, and (2) by rendering him unable or unwilling to assist counsel. It is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial. If the defendant takes the stand, as Riggins did, his demeanor can have a great bearing on his credibility and persuasiveness, and on the degree to which he evokes sympathy. The defendant's demeanor may also be relevant to his confrontation rights. See 4 U.S. 1012, The side effects of antipsychotic drugs may alter demeanor in a way that will prejudice all facets
|
Justice Kennedy
| 1,992 | 4 |
concurring
|
Riggins v. Nevada
|
https://www.courtlistener.com/opinion/112732/riggins-v-nevada/
|
alter demeanor in a way that will prejudice all facets of the defense. Serious due process concerns are implicated when the State manipulates the evidence in this way. The defendant may be restless and unable to sit still. Brief for American Psychiatric Association as Amicus Curiae 10. The drugs can induce *143 a condition called parkinsonism, which, like Parkinson's disease, is characterized by tremor of the limbs, diminished range of facial expression, or slowed functions, such as speech. Some of the side effects are more subtle. Antipsychotic drugs such as Mellaril can have a "sedationlike effect" that in severe cases may affect thought processes. At trial, Dr. Jurasky testified that Mellaril has "a tranquilizer effect." Record 752. See also Dr. Jurasky listed the following side effects of large doses of Mellaril: "Drowsiness, constipation, perhaps lack of alertness, changes in blood pressure. Depression of the psychomotor functions. If you take a lot of it you become stoned for all practical purposes and can barely function." 53. These potential side effects would be disturbing for any patient; but when the patient is a criminal defendant who is going to stand trial, the documented probability of side effects seems to me to render involuntary administration of the drugs by prosecuting officials unacceptable absent a showing by the State that the side effects will not alter the defendant's reactions or diminish his capacity to assist counsel. As the American Psychiatric Association points out: "By administering medication, the State may be creating a prejudicial negative demeanor in the defendant making him look nervous and restless, for example, or so calm or sedated as to appear bored, cold, unfeeling, and unresponsive. That such effects may be subtle does not make them any less real or potentially influential." Brief for American Psychiatric Association as Amicus Curiae 13. As any trial attorney will attest, serious prejudice could result if medication inhibits the defendant's capacity to react *144 and respond to the proceedings and to demonstrate remorse or compassion. The prejudice can be acute during the sentencing phase of the proceedings, when the sentencer must attempt to know the heart and mind of the offender and judge his character, his contrition or its absence, and his future dangerousness. In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies. See Geimer & Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, Concerns about medication extend also to the issue of cooperation with counsel. We have held that a defendant's
|
Justice Kennedy
| 1,992 | 4 |
concurring
|
Riggins v. Nevada
|
https://www.courtlistener.com/opinion/112732/riggins-v-nevada/
|
of cooperation with counsel. We have held that a defendant's right to the effective assistance of counsel is impaired when he cannot cooperate in an active manner with his lawyer. (64); (76) The defendant must be able to provide needed information to his lawyer and to participate in the making of decisions on his own behalf. The side effects of antipsychotic drugs can hamper the attorney-client relation, preventing effective communication and rendering the defendant less able or willing to take part in his defense. The State interferes with this relation when it administers a drug to dull cognition. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 42 ("[T]he chemical flattening of a person's will can also lead to the defendant's loss of self-determination undermining the desire for selfpreservation which is necessary to engage the defendant in his own defense in preparation for his trial"). It is well established that the defendant has the right to testify on his own behalf, a right we have found essential to our adversary system. In re Oliver, (48). We have found the right implicit as well in the Compulsory *145 Process Clause of the Sixth Amendment. (). In we held that a state rule excluding all testimony aided or refreshed by hypnosis violated the defendant's constitutional right to take the stand in her own defense. We observed that barring the testimony would contradict not only the right of the accused to conduct her own defense, but also her right to make this defense in person: "`It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him," and who must be accorded "compulsory process for obtaining witnesses in his favor."` " quoting 8 We gave further recognition to the right of the accused to testify in his or her own words, and noted that this in turn was related to the Fifth Amendment choice to speak "in the unfettered exercise of his own will." In my view medication of the type here prescribed may be for the very purpose of imposing constraints on the defendant's own will, and for that reason its legitimacy is put in grave doubt. If the State cannot render the defendant competent without involuntary medication, then it must resort to civil commitment, if appropriate, unless the defendant becomes competent through other means. If the defendant cannot be tried without his behavior and demeanor being affected in this substantial way by involuntary treatment, in my view the Constitution requires that society bear
|
Justice Kennedy
| 2,004 | 4 |
second_dissenting
|
Dretke v. Haley
|
https://www.courtlistener.com/opinion/134737/dretke-v-haley/
|
For the reasons JUSTICE STEVENS sets forth, the respondent should be entitled to immediate relief, and I join his dissenting opinion. The case also merits this further comment concerning the larger obligation of state or federal officials when they know an individual has been sentenced for a crime he did not commit. In 1997, Michael Haley was sentenced to serve 16 years and 6 months in prison for violating the Texas habitual offender law. Texas officials concede Haley did not violate this law. They agree that Haley is guilty only of theft, a crime with a 2-year maximum sentence. Yet, despite the fact that Haley served more than two years in prison for his crime, Texas officials come before our Court opposing Haley's petition for relief. They wish to send Haley back to prison for a crime they agree he did not commit. The rigors of the penal system are thought to be mitigated to some degree by the discretion of those who enforce the law. See, e. g., Jackson, The Federal Prosecutor, 31 J. Am. Inst. Crim. L. & C. 3, 6 (1940-1941). The clemency power is designed to serve the same function. Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider. These mechanisms hold out the promise that mercy is not foreign to our system. The law must serve the cause of justice. These mitigating elements seem to have played no role in Michael Haley's case. Executive discretion and clemency can inspire little confidence if officials sworn to fight injustice choose to ignore it. Perhaps some would say that Haley's innocence is a mere technicality, but that would miss the *400 point. In a society devoted to the rule of law, the difference between violating or not violating a criminal statute cannot be shrugged aside as a minor detail. It may be that Haley's case provides a convenient mechanism to vindicate an important legal principle. Beyond that, however, Michael Haley has a greater interest in knowing that he will not be reincarcerated for a crime he did not commit. It is not clear to me why the State did not exercise its power and perform its duty to vindicate that interest in the first place.
|
Justice Marshall
| 1,989 | 15 |
majority
|
Mead Corp. v. Tilley
|
https://www.courtlistener.com/opinion/112272/mead-corp-v-tilley/
|
Today we decide whether, upon termination of a defined benefit plan, 4044(a) of the Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S. C. 1344(a) (1982 ed. and Supp. V), requires a plan administrator to pay plan participants unreduced early retirement benefits provided under the plan before residual assets may revert to an employer. *717 I A Congress enacted ERISA in 1974 in part to prevent plan terminations from depriving employees and their beneficiaries of anticipated benefits. 29 U.S. C. 1001(a). Titles I and II provide requirements for plan participation, benefit accrual and vesting, and plan funding. Title III contains general administrative provisions. Title IV covers the termination of private pension plans, establishes a system of insurance for benefits provided by such plans, and creates a "body corporate" within the Department of Labor, the Pension Benefit Guaranty Corporation (PBGC), to administer that system. 1302. The PBGC guarantees certain nonforfeitable benefits provided by qualified defined benefit pension plans. 1322.[1] A defined benefit plan is one which sets forth a fixed level of benefits. See 1002(35). Contributions to a defined benefit plan are calculated on the basis of a number of actuarial assumptions about such things as employee turnover, mortality rates, compensation increases, and the rate of return on invested plan assets. See Stein, Raiders of the Corporate Pension Plan: The Reversion of Excess Plan Assets to the Employer, 5 Am. J. Tax Policy 117, 121-122, and n. 19 When an employer voluntarily terminates a single-employer defined benefit plan, all accrued benefits automatically vest, notwithstanding the plan's particular vesting provisions. 26 U.S. C. 411(d)(3). Title IV of ERISA requires that plan assets be distributed to participants in accordance with the six-tier allocation scheme set forth in 4044(a), 29 U.S. C. 1344(a). Section 4044(a) provides that plan administrators first distribute nonforfeitable benefits guaranteed by the *718 PBGC, 29 U.S. C. 1344(a)(1)-(4) (1982 ed. and Supp. V);[2] then "all other nonforfeitable benefits under the plan," 1344(a)(5); and finally "all other benefits under the plan," 1344(a)(6).[3] If the plan assets are not sufficient to cover the benefits in categories 1-4, the PBGC will make up the difference. 13. The employer must then reimburse the PBGC for the unfunded benefit liabilities. 1362. If funds remain after "all liabilities of the plan to participants and their beneficiaries have been satisfied," they may be recouped by the employer. 1344(d)(1)(A). Similarly, the Internal Revenue Code (Code) conditions favorable tax treatment of the plan on satisfaction of "all liabilities with respect to employees and their beneficiaries under the [plan]" before plan assets may be diverted to others.
|
Justice Marshall
| 1,989 | 15 |
majority
|
Mead Corp. v. Tilley
|
https://www.courtlistener.com/opinion/112272/mead-corp-v-tilley/
|
the [plan]" before plan assets may be diverted to others. 26 U.S. C. 401(a)(2). B Respondents B. E. Tilley, William L. Crotts, Chrisley H. Reed, J. C. Weddle, and William D. Goode were employees *719 of the Lynchburg Foundry Company (Foundry), formerly a wholly owned subsidiary of petitioner Mead Corporation (Mead).[4] The five were covered by the Mead Industrial Products Salaried Retirement Plan (Plan). The Plan was funded entirely by Mead's contributions. As a single-employer defined benefit plan, the Plan set forth a fixed level of benefits for employees. Plan participants who completed 10 years of service attained a vested right to accrued benefits, that is, those benefits earned under the Plan. App. 30 (Plan, Art. I, 13). These benefits included normal retirement benefits, payable at age 65 and calculated with reference to a participant's earnings and years of service. (Plan, Arts. IV, 1(b), V). At age 55, participants were eligible for early retirement benefits, calculated in the same manner as normal retirement benefits, but reduced by five percent for each year by which a participant's retirement preceded the normal retirement age. (Plan, Arts. IV, 2, V, 2(a)). A subsidized or unreduced early retirement benefit, i. e., a benefit equal to that payable at age 65, was available to participants who had 30 or more years of service and elected to retire after age 62. (Plan, Art. V, 2(b)). The Plan did not provide for any benefits payable solely upon plan termination. In 1983, Mead sold Foundry and terminated the Plan.[5] Mead paid unreduced early retirement benefits only to those *720 employees who had met both the age and years of service requirements. At the time Mead terminated the Plan, four respondents had over 30 years of credited service and a fifth had 28. None had reached age 62. Thus, each respondent received payment equal to the present value, determined as of the date of distribution, of the normal retirement benefit to which he would have been entitled had he retired at age 65.[6] Had Mead paid the present value of the unreduced early retirement benefits, each respondent would have received on average $9,000 more. App. to Brief for Respondents 1. After Mead finished distributing plan assets to plan participants, nearly $11 million remained in the Plan's fund. Mead recouped this money pursuant to Article XIII, 4(f), of the Plan. App. 63.[7] In respondents filed suit in the Circuit Court of the city of Radford, Virginia, alleging, inter alia, that the failure to pay the present value of the unreduced early retirement benefits violated ERISA, 29 U.S. C. 1103(c), 1104(a)(1)(A),
|
Justice Marshall
| 1,989 | 15 |
majority
|
Mead Corp. v. Tilley
|
https://www.courtlistener.com/opinion/112272/mead-corp-v-tilley/
|
early retirement benefits violated ERISA, 29 U.S. C. 1103(c), 1104(a)(1)(A), 1106(b), and 1344. Mead removed the case to the United States District Court for the Western District of Virginia. The District Court granted summary judgment in favor of Mead, concluding that "[t]he Plan's language, the legislative history, and the case law in the fourth circuit clearly demonstrate that early retirement benefits are not `accrued *721 benefits' under ERISA." Civ. Action No. 84-0751 It therefore held that respondents were not entitled to additional sums under the Plan and that the assets remaining in the fund could revert to Mead pursuant to 29 U.S. C. 1344(d)(1) and Article XIII, 4(f), of the Plan. The Court of Appeals for the Fourth Circuit reversed. Adopting the reasoning of the Court of Appeals for the Second Circuit in cert. dism'd, the court concluded that before plan assets may revert to an employer, 4044(a)(6) requires payment of early retirement benefits to plan participants "even if those benefits were not accrued at the time of termination." That conclusion, the court stated, was dictated by the language of the statute, its legislative history, and agency interpretation. Finally, the court provided a formula for determining respondents' damages and specified that the money should be paid in a lump sum. Because the question decided by the Court of Appeals for the Fourth Circuit is an important one over which the Courts of Appeals have differed,[8] we granted certiorari. We now reverse. II Respondents concede that, at the time the Plan was terminated, they had not satisfied both the age and service requirements for unreduced early retirement benefits. Nevertheless, they claim that they are entitled to such benefits because, in their view, contingent early retirement benefits, even if unaccrued, are "benefits under the plan" under category 6, 4044(a)(6), and therefore must be distributed before *722 the employer can recoup any residual plan assets. Brief for Respondents 4. We note preliminarily that the PBGC has flatly rejected respondents' argument. In the PBGC's view, 4044(a) "does not create additional benefit entitlements. It merely provides for the orderly distribution of benefits already earned under the terms of a defined benefit plan or otherwise required at termination by other provisions of ERISA." Brief for PBGC as Amicus Curiae 9. The PBGC consistently has expressed this view in Opinion Letters addressing proposed plan terminations. See, e. g., PBGC Opinion Letters Nos. 87-11 ; 86-5 ; 86-1 The Department of Labor and the IRS, the other agencies responsible for administering ERISA, agree that category 6 is limited to benefits created elsewhere. See PBGC, IRS, and Labor Department
|
Justice Marshall
| 1,989 | 15 |
majority
|
Mead Corp. v. Tilley
|
https://www.courtlistener.com/opinion/112272/mead-corp-v-tilley/
|
to benefits created elsewhere. See PBGC, IRS, and Labor Department Guidelines on Asset Reversions, 11 BPR 724 When we interpret a statute construed by the administering agency, we ask first "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; [but] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U. S. A. ; see also Thus, we turn first to the language of the statute. See, e. g., ; Consumer Product Safety ; Nachman Section 4044(a) in no way indicates an intent to confer a right upon plan participants to recover unaccrued benefits. On the contrary, the language of 4044(a)(6) "benefits under the plan" can refer only to the allocation of benefits provided by the terms of the terminated *723 plan. The limited function of 4044(a) as an allocation mechanism is made clear by its introductory language, which reads: "In the case of the termination of a single-employer plan, the plan administrator shall allocate the assets of the plan (available to provide benefits) among the participants and beneficiaries of the plan in the following order." Finally, any possible ambiguity is resolved against respondents by the title of 4044(a) "[a]llocation of assets." That 4044(a) is a distribution mechanism and not a source for new entitlements also is illustrated by the structure of the statute. Title I of ERISA sets forth elaborate provisions to determine an employee's right to benefits. Those provisions describe in detail the accrual of benefits and the vesting of accrued benefits after service of a fixed number of years. Title IV, which contains 4044(a), simply provides for insurance for benefits created elsewhere. It is inconceivable that this section was designed to modify the carefully crafted provisions of Title I. To counter the plain language and clear structure of the statute, respondents rely heavily on legislative history. They contend that Congress' failure to include in category 6 the word "accrued," which appeared in a House version of the statute but did not survive the Conference Committee amendments, evinces an intent to require the provision of unaccrued as well as accrued benefits. We disagree. We do not attach decisive significance to the unexplained disappearance of one word from an unenacted bill because "mute intermediate legislative maneuvers" are not reliable indicators of congressional intent. Trailmobile ; see also Drummond Coal There is simply nothing in the legislative history
|
Justice Marshall
| 1,989 | 15 |
majority
|
Mead Corp. v. Tilley
|
https://www.courtlistener.com/opinion/112272/mead-corp-v-tilley/
|
Drummond Coal There is simply nothing in the legislative history suggesting that Congress intended 4044(a) to be a source of benefit entitlements rather than an allocation scheme. Neither the House nor the Senate bill provided for allocation of assets on plan termination to benefits *724 that were not created elsewhere.[9] Because the Conference Committee discussed fully the areas where ERISA altered prior law or where the final version of the statute differed from the predecessor bills,[10] it is reasonable to assume that had the Conference Committee intended to make 4044(a) a source of benefit entitlements, it would have discussed the change in the Conference Report. Respondents offer an alternative statutory argument. They suggest that because all accrued benefits vest upon plan *725 termination pursuant to 26 U.S. C. 411(d)(3), they are nonforfeitable benefits which fall within category 5 of the allocation scheme. Thus, they argue, if category 6 did not cover forfeitable benefits such as the contingent early retirement benefits at issue here, it would serve no purpose. Respondents are mistaken. The PBGC has consistently maintained that, for purposes of its guarantee and of asset allocation under 4044(a), the characterization of benefits as forfeitable or nonforfeitable depends upon their status before plan termination. See 29 CFR 23.6(b) and 28.2 ("[B]enefits that become nonforfeitable solely as a result of the termination of a plan [are] considered forfeitable"). Soon after the enactment of ERISA, the PBGC stated that "priority category 6 will contain the value of accrued forfeitable benefits of a participant." (1975). Thus, according to the PBGC, category 6 provides for the allocation of benefits that are forfeitable before plan termination as well as benefits provided under the plan for payment solely upon plan termination. See 29 CFR 28.16 Respondents have failed to persuade us that the PBGC's views are unreasonable. On the contrary, it is respondents' interpretation which cannot be squared with the statute. For if category 5 included benefits that were forfeitable before plan termination as well as those that were nonforfeitable, there would be no guarantee that nonforfeitable benefits would be paid before forfeitable benefits in cases where plan assets are insufficient to cover both. This result would contravene the clear directive of the allocation scheme to give priority to nonforfeitable benefits. III We hold that 4044(a)(6) does not create benefit entitlements but simply provides for the orderly distribution of plan assets required by the terms of a defined benefit plan or other provisions of ERISA. Because the Court of Appeals relied exclusively on 4044(a)(6) as the grounds for respondents' entitlement *726 to unreduced retirement benefits upon plan
|
Justice Marshall
| 1,989 | 15 |
majority
|
Mead Corp. v. Tilley
|
https://www.courtlistener.com/opinion/112272/mead-corp-v-tilley/
|
for respondents' entitlement *726 to unreduced retirement benefits upon plan termination, we reverse that judgment. Respondents, however, offer two alternative grounds for concluding that ERISA requires payment of unreduced early retirement benefits before surplus assets revert to the employer: first, unreduced early retirement benefits may qualify as "accrued benefits" under ERISA; and, second, unreduced early retirement benefits may be "liabilities" within the meaning of 4044(d)(1)(A), 29 U.S. C. 1344(d)(1)(A). Because the Court of Appeals concluded that 4044(a)(6) was a source of entitlement for unaccrued benefits, it did not reach these questions. We therefore remand for a determination whether respondents are entitled to damages on the basis of either of these alternative theories. In deciding these issues, the Court of Appeals should consider the views of the PBGC and the IRS. For a court to attempt to answer these questions without the views of the agencies responsible for enforcing ERISA, would be to "embar[k] upon a voyage without a compass." Ford Motor Credit[11] *727 Because 4044(a)(6) is solely an allocation provision, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
|
Justice White
| 1,970 | 6 |
concurring
|
Longshoremen v. Ariadne Shipping Co.
|
https://www.courtlistener.com/opinion/108091/longshoremen-v-ariadne-shipping-co/
|
I agree with the majority that the Florida courts were in error in concluding that the National Labor Relations Act does not govern relations between the operators of foreign-flag vessels and the American longshoremen who work on such vessels while they are in American ports. However, I would not rest reversal on the conclusion that the union's conduct in this case was " `arguably subject' to regulation under 7 or 8 of the Act." The union's picketing was clearly not proscribed by any part of 8 of the Act. The only possible dispute could be over whether the picketing was activity protected by 7 of the Act or whether the picketing was neither protected nor prohibited by the Act and therefore was subject to state regulation or prohibition. If the National Labor Relations Act provided an effective mechanism whereby an employer could obtain a determination from the National Labor Relations Board as to whether picketing is protected or unprotected, I would agree that the fact that picketing is "arguably" protected should require state courts to refrain from interfering in deference to the expertise and national uniformity of treatment offered by the NLRB. But an employer faced with "arguably protected" picketing is given by the present federal law no adequate means of obtaining an evaluation of the picketing by the NLRB. The employer may not himself seek a determination from the Board and is *202 left with the unsatisfactory remedy of using "self help" against the pickets to try to provoke the union to charge the employer with an unfair labor practice. So long as employers are effectively denied determinations by the NLRB as to whether "arguably protected" picketing is actually protected except when an employer is willing to threaten or use force to deal with picketing, I would hold that only labor activity determined to be actually, rather than arguably, protected under federal law should be immune from state judicial control. To this extent San Diego Building Trades should be reconsidered. I concur in the Court's judgment in this case because in my view the record clearly indicates that the peaceful, nonobstructive picketing on the public docks near the ships was union activity protected under the National Labor Relations Act. See
|
Justice Souter
| 1,993 | 20 |
second_dissenting
|
Heller v. Doe
|
https://www.courtlistener.com/opinion/112896/heller-v-doe/
|
Because I conclude that Kentucky's provision of different procedures for the institutionalization of the mentally retarded and the mentally ill is not supported by any rational justification, I respectfully dissent. I To begin with, the Court declines to address Doe's argument that we should employ strict or heightened scrutiny in assessing the disparity of treatment challenged here.[1]*336 While I may disagree with the Court's basis for its conclusion that this argument is not "properly presented," ante, at 319, I too would decline to address the contention that strict or heightened scrutiny applies. I conclude that the distinctions wrought by the Kentucky scheme cannot survive even that rational-basis scrutiny, requiring a rational relationship *337 between the disparity of treatment and some legitimate governmental purpose, which we have previously applied to a classification on the basis of mental disability, see and therefore I need not reach the question of whether scrutiny more searching than `s should be applied.[2] was the most recent instance in which we addressed a classification on the basis of mental disability, as we did by enquiring into record support for the State's proffered justifications, and examining the distinction in treatment in light of the purposes put forward to support it. See While the Court cites once, and does not purport to overrule it, neither does the Court apply it, and at the end of the day `s status is left uncertain. I would follow here. II Obviously there are differences between mental retardation and mental illness. They are distinct conditions, they have different manifestations, they require different forms of care or treatment, and the course of each differs. It is without doubt permissible for the State to treat those who are mentally retarded differently in some respects from those who are mentally ill. The question here, however, is whether some difference between the two conditions rationally * can justify the particular disparate treatment accorded under this Kentucky statute. The first distinction wrought by the statute is the imposition of a lesser standard of proof for involuntary institutionalization where the alleged basis of a need for confinement is mental retardation rather than mental illness. As the Court observes, four specific propositions must be proven before a person may be involuntarily institutionalized on the basis of mental retardation: "that: (1) [t]he person is a mentally retarded person; (2) [t]he person presents a danger or a threat of danger to self, family, or others; (3) [t]he least restrictive alternative mode of treatment presently available requires placement in [a state-run institution]; and (4) [t]reatment that can reasonably benefit the person is available
|
Justice Souter
| 1,993 | 20 |
second_dissenting
|
Heller v. Doe
|
https://www.courtlistener.com/opinion/112896/heller-v-doe/
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(4) [t]reatment that can reasonably benefit the person is available in [a state-run institution]." Ky. Rev. Stat. Ann. 202B.040 (Michie 1991). At issue in this case is only the application of this provision to adults who have not been shown to be mentally retarded, but who are simply alleged to be. The subject of such a proceeding retains as full an interest in liberty as anyone else. The State of Kentucky has deemed this liberty interest so precious that, before one may be institutionalized on the basis of mental illness, the statutory prerequisites must be shown "beyond a reasonable doubt." 202A.076(2).[3] However, when the allegation against the individual is one of mental retardation, he is deprived of the protection of that high burden of proof. The first question here, then, is whether, in light of the State's decision to provide that high burden of proof in involuntary commitment *339 proceedings where illness is alleged, there is something about mental retardation that can rationally justify provision of less protection. In upholding this disparate treatment, the Court relies first on the State's assertion that mental retardation is easier to diagnose than mental illness. It concludes that the discrimination in burdens of proof is rational because the lessened "`risk of error' " resulting from the higher burden of proof, see ante, at 322 ), can be understood to offset a greater "ris[k] of an erroneous determination that the subject of a commitment proceeding has the condition in question" when the allegation is one of mental illness rather than mental retardation, ante, at 322. The Court reaches essentially the same conclusion with respect to the second prerequisite, that the individual present a danger or threat of danger to himself or others. See ante, at 324 (a determination of dangerousness may be made with "more accura[cy]" with respect to the mentally retarded than the mentally ill). In concluding, however, that the demands of minimal rationality are satisfied if burdens of proof rise simply with difficulties of proof, the Court misunderstands the principal object in setting burdens. It is no coincidence that difficult issues in civil cases are not subject to proof beyond a reasonable doubt and that even the most garden variety elements in criminal cases are not to be satisfied by a preponderance of evidence. The reason for this is that burdens of proof are assigned and risks of error are allocated not to reflect the mere difficulty of avoiding error, but the importance of avoiding it as judged after a thorough consideration of those respective interests of the parties that will be affected
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Justice Souter
| 1,993 | 20 |
second_dissenting
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Heller v. Doe
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https://www.courtlistener.com/opinion/112896/heller-v-doe/
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those respective interests of the parties that will be affected by the allocation. See In a civil commitment proceeding, on the State's side of the balance, are the interests of protecting society from those posing dangers and protecting the ill or helpless individual from his own incapacities. On the other *340 side, it is clear that "[i]n cases involving individual rights, whether criminal or civil, `[t]he standard of proof [at a minimum] reflects the value society places on individual liberty,' " which encompasses both freedom from restraint and freedom from the stigma that restraint and its justifications impose on an institutionalized person, -426. The question whether a lower burden of proof is rationally justified, then, turns not only on whether ease of diagnosis and proof of dangerousness differ as between cases of illness and retardation, but also on whether there are differences in the respective interests of the public and the subjects of the commitment proceedings, such that the two groups subject to commitment can rationally be treated differently by imposing a lower standard of proof for commitment of the retarded.[4] The answer is clearly that they cannot. While difficulty of proof, and of interpretation of evidence, could legitimately counsel against setting the standard so high that the State may be unable to satisfy it (thereby effectively thwarting efforts to satisfy legitimate interests in protection, care, and treatment), see that would at most justify a lower standard in the allegedly more difficult cases of illness, not in the easier cases of retardation. We do not lower burdens of proof merely because it is easy to prove the proposition at issue, nor do we raise them merely because it is difficult.[5] Nor do any other reasonably conceivable facts *341 cut in favor of the distinction in treatment drawn by the Kentucky statute. Both the ill and the retarded may be dangerous, each may require care, and the State's interest is seemingly of equal strength in each category of cases. No one has or would argue that the value of liberty varies somehow depending on whether one is alleged to be ill or retarded, and a mentally retarded person has as much to lose by civil commitment to an institution as a mentally ill counterpart, including loss of liberty to "choos[e] his own friends and companions, selec[t] daily activities, decid[e] what to eat, and retai[n] a level of personal privacy," among other things. Brief for American Association on Mental Retardation (AAMR) et al. as Amici Curiae 12 (AAMR Br.). We do not presume that a curtailment of the liberty of those who
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Justice Souter
| 1,993 | 20 |
second_dissenting
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Heller v. Doe
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presume that a curtailment of the liberty of those who are disabled is, because of their disability, less severe than the same loss to those who are ill. Even if the individuals subject to involuntary commitment proceedings previously had been shown to be mentally retarded, they would thus still retain their "strong," legally cognizable interest in their liberty. Cf. Foucha, Even assuming, then, that the assertion of different degrees of difficulty of proof both of mental illness and mental retardation and of the dangerousness inherent in each condition is true (an assertion for which there is no support in the record), it lends not a shred of rational support to the decision to discriminate against the retarded in allocating the risk of erroneous curtailment of liberty. The Court also rests its conclusion on the view that "it would have been plausible for the Kentucky Legislature to believe that most mentally retarded individuals who are *342 committed receive treatment that is less invasive tha[n] that to which the mentally ill are subjected." Ante, at 326. Nothing cited by the Court, however, demonstrates that such a belief would have been plausible for the Kentucky Legislature, nor does the Court's discussion render it plausible now. Cf. United States Railroad Retirement One example of the invasiveness to which the Court refers is the use of (and the results of the administration of) psychotropic drugs. I take no exception to the proposition that they are extensively used in treating mental illness. See ante, at 325 (citing authorities for the proposition that drugs are used in treating mental illness). Nor do I except to the proposition that the appropriate and perhaps characteristic response to mental retardation, but not to mental illness, is that kind of training in the necessities of self-sufficiency known as "habilitation." See (citing authorities describing such training). Neither of these propositions tells us, however, that the same invasive mind-altering medication prescribed for mental illness is not also used in responding to mental retardation. And in fact, any apparent plausibility in the Court's suggestion that "the mentally retarded in general are not subjected to th[is] medical treatmen[t]," ib dissipates the moment we examine readily available material on the subject, including studies of institutional practices affecting the retarded comparable to those studies concerning the treatment of mental illness cited by the Court. One recent examination of institutions for the mentally retarded in Kentucky's neighboring State of Missouri, for example, found that 76% of the institutionalized retarded receive some type of psychoactive drug and that fully 54% receive psychotropic drugs. See Intagliata & Rinck, Psychoactive Drug
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Justice Souter
| 1,993 | 20 |
second_dissenting
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Heller v. Doe
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54% receive psychotropic drugs. See Intagliata & Rinck, Psychoactive Drug Use in Public and Community Residential Facilities for Mentally Retarded Persons, 21 Psychopharmacology Bull. 268, 272- *343 273 Another study, this one national in scope, found that 38% of the residents of institutions for the mentally retarded receive psychotropic drugs. See Hill, Balow, & Bruininks, A National Study of Prescribed Drugs in Institutions and Community Residential Facilities for Mentally Retarded People, 21 Psychopharmacology Bull. 279, 283 "Surveys conducted within institutions [for the mentally retarded] have generally shown prevalences in the range of 30% to 50% of residents receiving psychotropic drugs at any given time." Aman & Singh, Pharmacological Intervention, in Handbook of Mental Retardation 347, 348 (J. Matson & J. Mulick eds., 2d ed. 1991) (hereinafter Handbook of Mental Retardation). Psychotropic drugs, according to the available material, are not only used to treat the institutionalized retarded, but are often misused. Indeed, the findings of fact by a United States District Court in North Carolina, another State nearby Kentucky, show that in three hospitals, 73% of persons committed as mentally retarded were receiving antipsychotic drugs. Less than half of these individuals had been diagnosed as mentally ill as well as mentally retarded following their commitment on the latter ground. See Thomas aff'd, (CA4), cert. denied, The District Court found that the institutionalized retarded plaintiffs "have been seriously endangered and injured by the inappropriate use of antipsychotic drugs." See also aff'd, rev'd on other grounds, ; Bates, Smeltzer, & Arnoczky, Appropriate and Inappropriate Use of Psychotherapeutic *344 Medications for Institutionalized Mentally Retarded Persons, 90 Am. J. Mental Deficiency 363 (1986) (finding that between 39% and 54% of medications prescribed to mentally retarded persons are inappropriate for the conditions diagnosed). These facts are consistent with a law review study of drugs employed in treating retardation, which observed that the reduction in the need for institutional staff resulting from the use of sedating drugs has promoted drug use in responding to retardation despite "frightening adverse effects [including the suppression of] learning and intellectual development." Plotkin & Gill, Invisible Manacles: Drugging Mentally Retarded People, There being nothing in the record to suggest that Kentucky's institutions are free from these practices, and no reason whatever to assume so, there simply is no plausible basis for the Court's assumption that the institutional response to mental retardation is in the main less intrusive in this way than treatment of mental illness. The Court also suggests that medical treatment for the mentally retarded is less invasive than in the case of the mentally ill because the mentally ill are
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Justice Souter
| 1,993 | 20 |
second_dissenting
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Heller v. Doe
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https://www.courtlistener.com/opinion/112896/heller-v-doe/
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case of the mentally ill because the mentally ill are subjected to psychiatric treatment that may involve intrusive enquiries into the patient's innermost thoughts. See ante, at 324-325. Again, I do not disagree that the mentally ill are often subject to intrusive psychiatric therapy. But the mentally retarded too are subject to intrusive therapy, as the available material on the medical treatment of the mentally retarded demonstrates. The mentally retarded are often subjected to behavior modification therapy to correct, among other things, anxiety disorders, phobias, hyperactivity, and antisocial behavior, therapy that may include aversive conditioning as well as forced exposure to objects that trigger severe anxiety reactions. See Anxiety and Phobias, in Handbook of Mental Retardation 413-; Mulick, Hammer, & Assessment and Management of Antisocial and Hyperactive Behavior, in *345 Handbook of Mental Retardation 397-412; Gardner, Use of Behavior Therapy with the Mentally Retarded, in Psychiatric Approaches to Mental Retardation 250-275 (F. Menolascino ed. 1970). Like drug therapy, psychiatric therapy for the mentally retarded can be, and has been, misused. In one recent case, a Federal District Court found that "aversive procedures [including seclusion and physical restraints were] being inappropriately used with no evidence for their effectiveness and no relationship between the choice of the procedure and the analysis of the cause of the problem[,] plac[ing] clients at extreme risk for maltreatment." (ND Tex.) (internal quotation marks and citation omitted), rev'd on unrelated grounds, Invasive behavior therapy for the mentally retarded, finally, is often employed together with drug therapy. See at 413-; Mulick, Hammer, & The same sorts of published authorities on which the Court relies, in sum, refute the contention that "[t]he prevailing methods of treatment for the mentally retarded, as a general rule, are much less invasive than are those given the mentally ill." Ante, at 324.[6] The available literature indicates that psychotropic drugs and invasive therapy are routinely administered to the retarded as well as the mentally *346 ill, and there are no apparent differences of therapeutic regimes that would plausibly explain less rigorous commitment standards for those alleged to be mentally retarded than for those alleged to be mentally ill.[7] III With respect to the involvement of family members and guardians in the commitment proceeding, the Court holds it to be justified by the fact that mental retardation "has its onset during a person's developmental period," while mental illness "may arise or manifest itself with suddenness only after minority." Ante, at 329. The Court suggests that a mentally ill person's parents may have "ceased to provide care and support" for him well before the onset of
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Justice Souter
| 1,993 | 20 |
second_dissenting
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Heller v. Doe
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https://www.courtlistener.com/opinion/112896/heller-v-doe/
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care and support" for him well before the onset of illness, whereas parents are more likely to have retained connection with a retarded son or daughter, whose "proper course of treatment" may depend on matters related to "observations made in a household setting." These suggested distinctions, if true, would apparently not apply to guardians, whose legal obligations to protect the persons and estates of their wards would seem to require as much connection to the one class of people as to the other. *347 In any event, although these differences might justify a scheme in which immediate relatives and guardians were automatically called as witnesses in cases seeking institutionalization on the basis of mental retardation,[8] they are completely unrelated to those aspects of the statute to which Doe objects: permitting these immediate relatives and guardians to be involved "as parties" so as to give them, among other things, the right to appeal as "adverse" a decision not to institutionalize the individual who is subject to the proceedings. Where the third party supports commitment, someone who is alleged to be retarded is faced not only with a second advocate for institutionalization, but with a second prosecutor with the capacity to call and crossexamine witnesses, to obtain expert testimony and to raise an appeal that might not otherwise be taken, whereas a person said to require commitment on the basis of mental illness is not. This is no mere theoretical difference, and my suggestion that relatives or guardians may support curtailment of liberty finds support in the record in this case. It indicates that of the 431 commitments to Kentucky's state-run institutions for the mentally retarded during a period between 1982 and the middle of 1985, all but one were achieved through the application or consent of family members or guardians. See Record, State's Answers to Plaintiff's First Set of Interrogatories 2, 17. The Court simply points to no characteristic of mental retardation that could rationally justify imposing this burden of a second prosecutor on those alleged to be mentally retarded where the State has decided not to impose it upon those alleged to be mentally ill. Even if we assumed a generally more regular connection between the relatives and guardians of those alleged to be retarded than those said to *348 be mentally ill, it would not explain why the former should be subject to a second prosecutor when the latter are not. The same may be said about the Court's second suggested justification, that the mentally ill may have a need for privacy not shown by the retarded. Even assuming
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Justice Souter
| 1,993 | 20 |
second_dissenting
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Heller v. Doe
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need for privacy not shown by the retarded. Even assuming the ill need some additional privacy, and that participation of others in the commitment proceeding should therefore be limited "to the smallest group compatible with due process," ante, at 329, why should the retarded be subject to a second prosecutor? The Court provides no answer.[9] Without plausible justification, Kentucky is being allowed to draw a distinction that is difficult to see as resting on anything other than the stereotypical assumption that the retarded are "perpetual children," an assumption that has historically been taken to justify the disrespect and "grotesque mistreatment" to which the retarded have been subjected. See (internal quotation marks and citation omitted). As we said in the mentally retarded are not "all cut from the same pattern: they range from those whose disability is not immediately evident to those who must be constantly cared for." In recent times, at least when imposing the responsibilities of citizenship, our jurisprudence has seemed to reject the analogy between mentally retarded adults and nondisabled children. See, e. g., (not "all mentally retarded people by virtue of their mental retardation alone, and apart from any individualized consideration of their personal responsibilityinevitably lack the cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty"); see also But cf. ante, at 331 a case about parents' rights over their minor children). When the State of Kentucky sets up its respective schemes for institutionalization on the basis of mental illness and mental retardation, it too is obliged to reject that analogy, and to rest any difference in standards for involuntary commitment as between the ill and the retarded on some plausible reason. IV In the absence of any rational justification for the disparate treatment here either with respect to the burdens of proof or the participation of third parties in institutionalization proceedings, I would affirm the judgment of the Court of Appeals. Because of my conclusion, that the statute violates equal protection, I do not reach the question of its validity under the Due Process Clause.
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Justice O'Connor
| 1,986 | 14 |
majority
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Philadelphia Newspapers, Inc. v. Hepps
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https://www.courtlistener.com/opinion/111628/philadelphia-newspapers-inc-v-hepps/
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This case requires us once more to "struggl[e] to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment." In the Court held that a private figure who brings a suit for defamation cannot recover without some showing that the media defendant was at fault in publishing the statements at issue. Here, we hold that, at least where a newspaper publishes speech of public *769 concern, a private-figure plaintiff cannot recover damages without showing that the statements at issue are false. I Maurice S. Hepps is the principal stockholder of General Programming, Inc. (GPI), a corporation that franchises a chain of stores known at the relevant time as "Thrifty" stores selling beer, soft drinks, and snacks. Mr. Hepps, GPI, and a number of its franchisees are the appellees here.[1] Appellant Philadelphia Newspapers, Inc., owns the Philadelphia Inquirer (Inquirer). The Inquirer published a series of articles, authored by appellants William Ecenbarger and William Lambert, containing the statements at issue here. The general theme of the five articles, which appeared in the Inquirer between May 1975 and May 1976, was that appellees had links to organized crime and used some of those links to influence the State's governmental processes, both legislative and administrative. The articles discussed a state legislator, described as "a Pittsburgh Democrat and convicted felon," App. A60, whose actions displayed "a clear pattern of interference in state government by [the legislator] on behalf of Hepps and Thrifty," at A62-A63. The stories reported that federal "investigators have found connections between Thrifty and underworld figures," at A65; that "the Thrifty Beverage beer chain had connections with organized crime," at A80; and that Thrifty had "won a series of competitive advantages through rulings by the State Liquor Control Board," at A65. A grand jury was said to be investigating the "alleged relationship between the Thrifty chain and known Mafia figures," and "[w]hether the chain received special treatment from the [state Governor's] administration and the Liquor Control Board." at A68. *770 Appellees brought suit for defamation against appellants in a Pennsylvania state court. Consistent with Pennsylvania requires a private figure who brings a suit for defamation to bear the burden of proving negligence or malice by the defendant in publishing the statements at issue. (1982). As to falsity, Pennsylvania follows the common law's presumption that an individual's reputation is a good one. Statements defaming that person are therefore presumptively false, although a publisher who bears the burden of proving the truth of the statements has an absolute defense. See See (b)(1)
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Justice O'Connor
| 1,986 | 14 |
majority
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Philadelphia Newspapers, Inc. v. Hepps
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of the statements has an absolute defense. See See (b)(1) (1982) Cf. See generally Eaton, The American Law of Defamation Through and Beyond: An Analytical Primer, The parties first raised the issue of burden of proof as to falsity before trial, but the trial court reserved its ruling on the matter. Appellee Hepps testified at length that the statements at issue were false, Tr. 2221-2290, and he extensively cross-examined the author of the stories as to the veracity of the statements at issue. After all the evidence had been presented by both sides, the trial court concluded that Pennsylvania's statute giving the defendant the burden of proving the truth of the statements violated the Federal Constitution. The trial court therefore instructed the jury that the plaintiffs bore the burden of proving falsity. During the trial, appellants took advantage of Pennsylvania's "shield law" on a number of occasions. That law allows employees of the media to refuse to divulge their sources. See (a) (1982) ("No person employed by any newspaper of general circulation or any *771 radio or television station, or any magazine of general circulation,. shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit"). See Appellees requested an instruction stating that the jury could draw a negative inference from appellants' assertions of the shield law; appellants requested an instruction that the jury could not draw any inferences from those exercises of the shield law's privilege. The trial judge declined to give either instruction. Tr. 3806-3808. The jury ruled for appellants and therefore awarded no damages to appellees. Pursuant to Pennsylvania statute, (7) (1982), the appellees here brought an appeal directly to the Pennsylvania Supreme Court. That court viewed as simply requiring the plaintiff to show fault in actions for defamation. It concluded that a showing of fault did not require a showing of falsity, held that to place the burden of showing truth on the defendant did not unconstitutionally inhibit free debate, and remanded the case for a new trial.[2] -387. We noted probable jurisdiction, and now reverse. II In New York the Court "determin[ed] for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a *772 public official against critics of his official conduct." The State's trial court in that case believed the statements tended to injure the plaintiff's reputation or bring him into public contempt, and were therefore libelous per se, The
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| 1,986 | 14 |
majority
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Philadelphia Newspapers, Inc. v. Hepps
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into public contempt, and were therefore libelous per se, The trial court therefore instructed the jury that it could presume falsity, malice, and some damage to reputation, as long as it found that the defendant had published the statements and that the statements concerned the plaintiff. The trial court instructed the jury that an award of punitive damages required "malice" or "actual malice." 267. The jury found for the plaintiff and made an award of damages that did not distinguish between compensatory and punitive damages. The Alabama Supreme Court upheld the judgment of the trial court in all respects. This Court reversed, holding that "libel can claim no talis-manic immunity from constitutional limitations." Against the "background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks," the Court noted that "[a]uthoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth whether administered by judges, juries, or administrative officials and especially one that puts the burden of proving truth on the speaker." Freedoms of expression require " `breathing space,' " ): "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions and to do so on pain of libel judgments virtually unlimited in amount leads to `self-censorship.' Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt *773 whether it can be proved in court or fear of the expense of having to do so." The Court therefore held that the Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." That showing must be made with "convincing clarity," or, in a later formulation, by "clear and convincing proof," The standards of New York apply not only when a public official sues a newspaper, but when a "public figure" sues a magazine or news service. See Curtis Publishing ; ; See A decade after New York the Court examined the constitutional limits on defamation suits by private-figure plaintiffs against media defendants. The Court concluded that the danger of self-censorship was a valid, but not the exclusive,
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| 1,986 | 14 |
majority
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danger of self-censorship was a valid, but not the exclusive, concern in suits for defamation: "The need to avoid self-censorship by the news media is not the only societal value at issue [or] this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation." See Any analysis must take into account the "legitimate state interest underlying the law of libel [in] the compensation of individuals for the harm inflicted on them by defamatory falsehood." See Time, In light of that interest, and in light of the fact that private figures have lesser access to media channels useful for counteracting false statements and have not voluntarily placed themselves in the public eye, the Court held that the Constitution "allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York" : "[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Nonetheless, even when private figures are involved, the constitutional requirement of fault supersedes the common law's presumptions as to fault and damages. In addition, the Court in expressly held that, although a showing of simple fault sufficed to allow recovery for actual damages, even a private-figure plaintiff was required to show actual malice in order to recover presumed or punitive damages. The Court most recently considered the constitutional limits on suits for defamation in Dun & In sharp contrast to New York Dun & involved not only a private-figure plaintiff, but speech of purely private -752. A plurality of the Court in Dun & was convinced that, in a case with such a configuration of speech and plaintiff, the showing of actual malice needed to recover punitive damages under either New York or was unnecessary: "In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest [in preserving private reputation] adequately supports awards of presumed and punitive *775 damages even absent a showing of `actual malice.' " (footnote omitted). See ; One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public When the speech is of public concern and the plaintiff
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Justice O'Connor
| 1,986 | 14 |
majority
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Philadelphia Newspapers, Inc. v. Hepps
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https://www.courtlistener.com/opinion/111628/philadelphia-newspapers-inc-v-hepps/
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When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape. Our opinions to date have chiefly treated the necessary showings of fault rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York see a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation. See U.S. 64, See *776 Here, as in the plaintiff is a private figure and the newspaper articles are of public In as in New York the common-law rule was superseded by a constitutional rule. We believe that the common law's rule on falsity that the defendant must bear the burden of proving truth must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages. There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive. Under a rule forcing the plaintiff to bear the burden of showing falsity, there will be some cases in which plaintiffs cannot meet their burden despite the fact that the speech is in fact false. The plaintiff's suit will fail despite the fact that, in some abstract sense, the suit is meritorious. Similarly, under an alternative rule placing the burden of showing truth on defendants, there would be some cases in which defendants could not bear their burden despite the fact that the speech is in fact true. Those suits would succeed despite the fact that, in some abstract sense, those suits are unmeritorious. Under either rule, then, the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech
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Justice O'Connor
| 1,986 | 14 |
majority
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Philadelphia Newspapers, Inc. v. Hepps
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with the outcome that we would desire if all speech were either demonstrably true or demonstrably false. This dilemma stems from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but all of such speech is unknowably true or false. Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech. To ensure that true speech on matters of public concern is not deterred, *777 we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public In the context of governmental restriction of speech, it has long been established that the government cannot limit speech protected by the First Amendment without bearing the burden of showing that its restriction is justified. See Consolidated Edison ; First National Bank of ; Renton v. Playtime Theatres, Inc., ante, at 47-54 (secondary-effects restriction). See It is not immediately apparent from the text of the First Amendment, which by its terms applies only to governmental action, that a similar result should obtain here: a suit by a private party is obviously quite different from the government's direct enforcement of its own laws. Nonetheless, the need to encourage debate on public issues that concerned the Court in the governmental-restriction cases is of concern in a similar manner in this case involving a private suit for damages: placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result. See New York ; at Because such a "chilling" effect would be antithetical to the First Amendment's protection of true speech on matters of public concern, we believe that a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant. To do otherwise could "only result in a deterrence of speech which the Constitution makes free." *778 We recognize that requiring the plaintiff to show falsity will insulate from liability some speech that is
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Justice O'Connor
| 1,986 | 14 |
majority
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Philadelphia Newspapers, Inc. v. Hepps
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https://www.courtlistener.com/opinion/111628/philadelphia-newspapers-inc-v-hepps/
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show falsity will insulate from liability some speech that is false, but unprovably so. Nonetheless, the Court's previous decisions on the restrictions that the First Amendment places upon the common law of defamation firmly support our conclusion here with respect to the allocation of the burden of proof. In attempting to resolve related issues in the defamation context, the Court has affirmed that "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters." 418 U. S., Here the speech concerns the legitimacy of the political process, and therefore clearly "matters." See Dun & -759 To provide " `breathing space,' " New York (quoting 371 U. S., at ), for true speech on matters of public concern, the Court has been willing to insulate even demonstrably false speech from liability, and has imposed additional requirements of fault upon the plaintiff in a suit for defamation. See, e. g., U. S., at 75; We therefore do not break new ground here in insulating speech that is not even demonstrably false. We note that our decision adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff's contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher's fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted. See Keeton, Defamation and Freedom of the Press, 54 Texas L. Rev. 1221, 1236 See Franklin & Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, *779 We recognize that the plaintiff's burden in this case is weightier because of Pennsylvania's "shield" law, which allows employees of the media to refuse to divulge their sources. See[3] But we do not have before us the question of the permissible reach of such laws. Indeed, we do not even know the precise reach of Pennsylvania's statute. The trial judge refused to give any instructions to the jury as to whether it could, or should, draw an inference adverse to the defendant from the defendant's decision to use the shield law rather than to present affirmative evidence of the truthfulness of some of the sources. See That decision of the trial judge was not addressed by Pennsylvania's highest court, nor was it appealed to this Court.[4] In the situation before us,
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| 1,987 | 11 |
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New York v. Burger
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https://www.courtlistener.com/opinion/111927/new-york-v-burger/
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This case presents the question whether the warrantless search of an automobile junkyard, conducted pursuant to a statute authorizing such a search, falls within the exception to the warrant requirement for administrative inspections of pervasively regulated industries. The case also presents the question whether an otherwise proper administrative inspection is unconstitutional because the ultimate purpose of the regulatory statute pursuant to which the search is done the deterrence of criminal behavior is the same as that of penal laws, with the result that the inspection may disclose violations not only of the regulatory statute but also of the penal statutes. I Respondent Joseph Burger is the owner of a junkyard in Brooklyn, N. Y. His business consists, in part, of the dismantling of automobiles and the selling of their parts. His junkyard is an open lot with no buildings. A high metal fence surrounds it, wherein are located, among other things, vehicles and parts of vehicles. At approximately noon on November 17, 1982, Officer Joseph Vega and four other plainclothes officers, all members of the Auto Crimes Division of the New York City Police Department, entered respondent's *694 junkyard to conduct an inspection pursuant to N. Y. Veh. & Traf. Law 415-a5[1] Tr. 6. On any given day, the Division conducts from 5 to 10 inspections of vehicle dismantlers, automobile junkyards, and related businesses.[2] at 26. Upon entering the junkyard, the officers asked to see Burger's license[3] and his "police book" the record of the automobiles *695 and vehicle parts in his possession. Burger replied that he had neither a license nor a police book.[4] The officers then announced their intention to conduct a 415-a5 inspection. Burger did not object. Tr. 6, 47. In accordance with their practice, the officers copied down the Vehicle Identification Numbers (VINs) of several vehicles and parts of vehicles that were in the junkyard. After checking these numbers against a police computer, the officers determined that respondent was in possession of stolen vehicles and parts.[5] Accordingly, Burger was arrested and charged with five counts of possession of stolen property[6]*696 and one count of unregistered operation as a vehicle dismantler, in violation of 415-a1. In the Kings County Supreme Court, Burger moved to suppress the evidence obtained as a result of the inspection, primarily on the ground that 415-a5 was unconstitutional. After a hearing, the court denied the motion. It reasoned that the junkyard business was a "pervasively regulated" industry in which warrantless administrative inspections were appropriate, that the statute was properly limited in "time, place and scope," and that, once the officers
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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in "time, place and scope," and that, once the officers had reasonable cause to believe that certain vehicles and parts were stolen, they could arrest Burger and seize the property without a warrant. App. to Pet. for Cert. 18a-19a. When respondent moved for reconsideration in light of a recent decision of the Appellate Division, aff'd,[7] the court granted reargument. Upon reconsideration, *697 the court distinguished the situation in Pace from that in the instant case. It observed that the Appellate Division in Pace did not apply 415-a5 to the search in question, and that, in any event, the police officers in that case were not conducting an administrative inspection, but were acting on the basis of recently discovered evidence that criminal activity was taking place at the automobile salvage yard. 479 N. Y. S. 2d, at 939-940. The court therefore reaffirmed its earlier determination in the instant case that 415-a5 was constitutional.[8] For the same reasons, the Appellate Division affirmed. The New York Court of Appeals, however, reversed. In its view, 415-a5 violated the Fourth Amendment's prohibition of unreasonable searches and seizures.[9] According to the Court of Appeals, *698 "[t]he fundamental defect [of 415-a5] is that [it] authorize[s] searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme. The asserted `administrative schem[e]' here [is], in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property." In contrast to the statutes authorizing warrantless inspections whose constitutionality this Court has upheld, 415-a5, it was said, "do[es] little more than authorize general searches, including those conducted by the police, of certain commercial premises." To be sure, with its license and recordkeeping requirements, and with its authorization for inspections of records, 415-a appears to be administrative in character. "It fails to satisfy the constitutional requirements for a valid, comprehensive regulatory scheme, however, inasmuch as it permits searches, such as conducted here, of vehicles and vehicle parts notwithstanding the absence of any records against which the findings of such a search could be compared." -, -930. Accordingly, the only purpose of such searches is to determine whether a junkyard owner is storing stolen property on business premises.[10] Because of the important state interest in administrative schemes designed to regulate the vehicle-dismantling or automobile-junkyard industry,[] we granted certiorari. *699 II A The Court long has recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. See v. City of Seattle, An owner or operator of a business thus has
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| 1,987 | 11 |
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New York v. Burger
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Seattle, An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable, see This expectation *700 exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes. See An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home. See This expectation is particularly attenuated in commercial property employed in "closely regulated" industries. The Court observed in : "Certain industries have such a history of government oversight that no reasonable expectation of privacy, see could exist for a proprietor over the stock of such an enterprise." The Court first examined the "unique" problem of inspections of "closely regulated" businesses in two enterprises that had "a long tradition of close government supervision." In Colonnade it considered a warrantless search of a catering business pursuant to several federal revenue statutes authorizing the inspection of the premises of liquor dealers. Although the Court disapproved the search because the statute provided that a sanction be imposed when entry was refused, and because it did not authorize entry without a warrant as an alternative in this situation, it recognized that "the liquor industry [was] long subject to close supervision and inspection." We returned to this issue in United which involved a warrantless inspection of the premises of a pawnshop operator, who was federally licensed to sell sporting weapons pursuant to the Gun Control Act of 1968, 18 U.S. C. 921 et seq. While noting that "[f]ederal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry," we nonetheless concluded that the warrantless inspections *701 authorized by the Gun Control Act would "pose only limited threats to the dealer's justifiable expectations of privacy." We observed: "When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." The "Colonnade-" doctrine, stating the reduced expectation of privacy by an owner of commercial premises in a "closely regulated" industry, has received renewed emphasis in more recent decisions. In we noted its continued vitality but declined to find that warrantless inspections, made pursuant to the Occupational Safety and Health Act of 1970, 29 U.S. C. 657(a), of all business engaged in interstate commerce fell within the narrow focus of this -314.
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| 1,987 | 11 |
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New York v. Burger
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interstate commerce fell within the narrow focus of this -314. However, we found warrantless inspections made pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S. C. 801 et seq., proper because they were of a "closely regulated" industry. Indeed, in we declined to limit our consideration to the length of time during which the business in question stone quarries had been subject to federal -606. We pointed out that the doctrine is essentially defined by "the pervasiveness and regularity of the federal regulation" and the effect of such regulation upon an owner's expectation of privacy. See We observed, however, that "the duration of a particular regulatory scheme" would remain an "important factor" in deciding whether a warrantless inspection pursuant to the scheme is permissible.[12] *702 B Because the owner or operator of commercial premises in a "closely regulated" industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, see have lessened application in this context. Rather, we conclude that, as in other situations of "special need," see New where the privacy interests of the owner are weakened and the government interests in regulating particular business are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made. See ; United ; Colonnade Second, the warrantless inspections must be "necessary to further [the] regulatory scheme." For example, in we recognized that forcing mine inspectors to obtain a warrant before every inspection *703 might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act to detect and thus to deter safety and health violations. Finally, "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant." In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. See ; see also To perform this first function, the statute must be "sufficiently comprehensive and defined
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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https://www.courtlistener.com/opinion/111927/new-york-v-burger/
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first function, the statute must be "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited in time, place, and scope." United III A Searches made pursuant to 415-a5, in our view, clearly fall within this established exception to the warrant requirement for administrative inspections in "closely regulated" businesses.[13] First, the nature of the regulatory statute reveals that the operation of a junkyard, part of which is devoted to *704 vehicle dismantling, is a "closely regulated" business in the State of New York.[14] The provisions regulating the activity of vehicle dismantling are extensive. An operator cannot engage in this industry without first obtaining a license, which means that he must meet the registration requirements and must pay a fee.[15] Under 415-a5(a), the operator must maintain a police book recording the acquisition and disposition of motor vehicles and vehicle parts, and make such records and inventory available for inspection by the police or any agent of the Department of Motor Vehicles. The operator also must display his registration number prominently at his place of business, on business documentation, and on vehicles and parts that pass through his business. 415-a5(b). Moreover, the person engaged in this activity is subject to criminal penalties, as well as to loss of license or civil fines, *705 for failure to comply with these provisions. See 415-a1, 5, and 6.[16] That other besides New York have imposed similarly extensive regulations on automobile junkyards further supports the "closely regulated" status of this industry. See n. In determining whether vehicle dismantlers constitute a "closely regulated" industry, the "duration of [this] particular regulatory scheme," 452 U. S., has some relevancy. Section 415-a could be said to be of fairly recent vintage, see 1973 N. Y. Laws, ch. 225, 1 (McKinney), and the inspection provision of 415-a5 was added only in 1979, see 1979 N. Y. Laws, ch. 691, 2 (McKinney). But because the automobile is a relatively new phenomenon in our society and because its widespread use is even newer, automobile junkyards and vehicle dismantlers have not been in existence very long and thus do not have an ancient history of government oversight. Indeed, the industry *706 did not attract government attention until the 1950's, when all used automobiles were no longer easily reabsorbed into the steel industry and attention then focused on the environmental and aesthetic problems associated with
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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then focused on the environmental and aesthetic problems associated with abandoned vehicles. See Landscape 1970: National Conference on the Abandoned Automobile ; see also Report to the President from the Panel on Automobile Junkyards, White House Conference on Natural Beauty 1 (1965) (statement of Charles M. Haar, Chairman: "There are junkyards and abandoned cars in the streets and along the countryside that are making America ugly, not beautiful"). The automobile-junkyard business, however, is simply a new branch of an industry that has existed, and has been closely regulated, for many years. The automobile junkyard is closely akin to the secondhand shop or the general junkyard. Both share the purpose of recycling salvageable articles and components of items no longer usable in their original form. As such, vehicle dismantlers represent a modern, specialized version of a traditional activity.[17] In New York, general junkyards and secondhand shops long have been subject to One New York court has explained: *707 "Vehicle dismantlers are part of the junk industry as well as part of the auto industry. Prior to the enactment of section 415-a of the Vehicle and Traffic Law, auto dismantlers were subject to regulatory provisions governing the licensing and operation of junkyards. These regulations included provisions mandating the keeping of detailed records of purchases and sales, and the making of such records available at reasonable times to designated officials including police officers, by junk dealers and by dealers in secondhand articles "These regulatory, record keeping and warrantless inspection provisions for junk shops have been a part of the law of the City of New York and of Brooklyn for at least 140 years." See also N. Y. C. Charter and Admin. Code B32-3.01 (1977) (" `Junk dealer'. Any person engaged in the business of purchasing or selling junk"); B32-126.0a (" `dealer in second-hand articles' shall mean any person who, in any way or as a principal broker or agent: 1. [d]eals in the purchase or sale of second-hand articles of whatever nature").[18] The history of government regulation of junk-related activities argues strongly in favor of the "closely regulated" status of the automobile junkyard. Accordingly, in light of the regulatory framework governing his business and the history of regulation of related industries, an operator of a junkyard engaging in vehicle dismantling has a reduced expectation of privacy in this "closely regulated" business. *708 B The New York regulatory scheme satisfies the three criteria necessary to make reasonable warrantless inspections pursuant to 415-a5. First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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https://www.courtlistener.com/opinion/111927/new-york-v-burger/
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and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry. In this day, automobile theft has become a significant social problem, placing enormous economic and personal burdens upon the citizens of different For example, when approving the 1979 amendment to 415-a5, which added the provision for inspections of records and inventory of junkyards, the Governor of the State explained: "Motor vehicle theft in New York State has been rapidly increasing. It has become a multimillion dollar industry which has resulted in an intolerable economic burden on the citizens of New York. In over 130,000 automobiles were reported stolen in New York, resulting in losses in excess of $225 million. Because of the high rate of motor vehicle theft, the premiums for comprehensive motor vehicle insurance in New York are significantly above the national average. In addition, stolen automobiles are often used in the commission of other crimes and there is a high incidence of accidents resulting in property damage and bodily injury involving stolen automobiles." Governor's Message approving L. 1979, chs. 691 and 692, 1979 N. Y. Laws 1826, 1826-1827 (McKinney). See also 25 Legislative Newsletter, New York State Automobile Assn., p. 1 reprinted in Governor's Bill Jacket, L. 1979, ch. 691 (1979 Bill Jacket) ("Auto theft in New York State has become a low-risk, high-profit, multi-million *709 dollar growth industry that is imposing intolerable economic burdens on motorists").[19] Because contemporary automobiles are made from standardized parts, the nation-wide extent of vehicle theft and concern about it are understandable. Second, regulation of the vehicle-dismantling industry reasonably serves the State's substantial interest in eradicating automobile theft. It is well established that the theft problem can be addressed effectively by controlling the receiver of, or market in, stolen property. 2 W. LaFave & A. Scott, Substantive Criminal Law 8.10(a), p. 422 ("Without [professional receivers of stolen property], theft ceases to be profitable"); 2 Encyclopedia of Crime and Justice 789 ("[The criminal receiver] inspires 95 per cent or more of the theft in America"). Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts. See Memorandum from Paul Goldman, Counsel, State Consumer Protection Board, to Richard A. Brown, Counsel to the Governor 1979 Bill Jacket ("It is believed that a major source of stolen vehicles, parts and registration documentation may involve vehicles which pass through the hands of [junk vehicle] dealers"). Thus, the State rationally may believe that it will reduce car theft by regulations that prevent automobile junkyards from becoming markets for stolen vehicles
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| 1,987 | 11 |
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New York v. Burger
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that prevent automobile junkyards from becoming markets for stolen vehicles and that help trace the origin and destination of vehicle parts.[20] *710 Moreover, the warrantless administrative inspections pursuant to 415-a5 "are necessary to further [the] regulatory scheme." In this respect, we see no difference between these inspections and those approved by the Court in United and We explained in : "[I]f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible." 406 U.S., See also 452 U. S., Similarly, in the present case, a warrant requirement would interfere with the statute's purpose of deterring automobile theft accomplished by identifying vehicles and parts as stolen and shutting down the market in such items. Because stolen cars and parts often pass quickly through an automobile junkyard, "frequent" and "unannounced" inspections are necessary in order to detect them. In sum, surprise is crucial if the regulatory scheme aimed at remedying this major social problem is to function at all. * Third, 415-a5 provides a "constitutionally adequate substitute for a warrant." 452 U. S., The statute informs the operator of a vehicle dismantling business that inspections will be made on a regular basis. Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute. See 436 U. S., Section 415-a5 also sets forth the scope of the inspection and, accordingly, places the operator on notice as to how to comply with the statute. In addition, it notifies the operator as to who is authorized to conduct an inspection. Finally, the "time, place, and scope" of the inspection is limited, United to place appropriate restraints upon the discretion of the inspecting officers. See 452 U. S., The officers are allowed to conduct an inspection only "during [the] regular and usual business hours." 415-a5.[21] The inspections can be made only of vehicle-dismantling and related industries. And the permissible scope of these searches is narrowly defined: the inspectors may examine the records, as well as "any vehicles or parts of vehicles which are subject to *712 the record keeping requirements of this section and which are on the premises." [22] IV A search conducted pursuant to 415-a5, therefore, clearly falls within the well-established exception to the warrant requirement for administrative inspections of "closely regulated" businesses. The Court
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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requirement for administrative inspections of "closely regulated" businesses. The Court of Appeals, nevertheless, struck down the statute as violative of the Fourth Amendment because, in its view, the statute had no truly administrative purpose but was "designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property." 67 N.Y. 2d, The court rested its conclusion that the administrative goal of the statute was pretextual and that 415-a5 really "authorize[d] searches undertaken solely to uncover evidence of criminality" particularly on the fact that, even if an operator failed to produce his police book, the inspecting officers could continue their inspection for stolen vehicles and parts. 930. The court also suggested that the identity of the inspectors police officers was significant in revealing the true nature of the statutory scheme. In arriving at this conclusion, the Court of Appeals failed to recognize that a State can address a major social problem both by way of an administrative scheme and through penal sanctions. Administrative statutes and penal laws may have the same ultimate purpose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem. An administrative statute establishes how a particular business in a *713 "closely regulated" industry should be operated, setting forth rules to guide an operator's conduct of the business and allowing government officials to ensure that those rules are followed. Such a regulatory approach contrasts with that of the penal laws, a major emphasis of which is the punishment of individuals for specific acts of behavior. In United we recognized this fact that both administrative and penal schemes can serve the same purposes by observing that the ultimate purposes of the Gun Control Act were "to prevent violent crime and to assist the in regulating the firearms traffic within their borders." It is beyond dispute that certain state penal laws had these same purposes. Yet the regulatory goals of the Gun Control Act were narrower: the Act ensured that "weapons [were] distributed through regular channels and in a traceable manner and [made] possible the prevention of sales to undesirable customers and the detection of the origin of particular firearms." The provisions of the Act, including those authorizing the warrantless inspections, served these immediate goals and also contributed to achieving the same ultimate purposes that the penal laws were intended to achieve. This case, too, reveals that an administrative scheme may have the same ultimate purpose as penal laws, even if its regulatory goals are narrower. As we have explained above, New York,
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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goals are narrower. As we have explained above, New York, like many faces a serious social problem in automobile theft and has a substantial interest in regulating the vehicle-dismantling industry because of this problem. The New York penal laws address automobile theft by punishing it or the possession of stolen property, including possession by individuals in the business of buying and selling property. See n. 6, [23] In accordance with its interest *714 in regulating the automobile-junkyard industry, the State also has devised a regulatory manner of dealing with this problem. Section 415-a, as a whole, serves the regulatory goals of seeking to ensure that vehicle dismantlers are legitimate business persons and that stolen vehicles and vehicle parts passing through automobile junkyards can be identified.[24] In particular, 415-a5 was designed to contribute to these goals, as explained at the time of its passage: "This bill attempts to provide enforcement not only through means of law enforcement but by making it unprofitable for persons to operate in the stolen car field. *715 "The various businesses which are engaged in this operation have been studied and the control and requirements on the businesses have been written in a manner which would permit the persons engaged in the business to legally operate in a manner conducive to good business practices while making it extremely difficult for a person to profitably transfer a stolen vehicle or stolen part. The general scheme is to identify every person who may legitimately be involved in the operation and to provide a record keeping system which will enable junk vehicles and parts to be traced back to the last legitimately registered or titled owner. Legitimate businessmen engaged in this field have complained with good cause that the lack of comprehensive coverage of the field has put them at a disadvantage with persons who currently are able to operate outside of statute and regulations. They have also legitimately complained that delays inherent in the present statutory regulation and onerous record keeping requirements have made profitable operation difficult. "The provisions of this bill have been drafted after consultation with respected members of the various industries and provides [sic] a more feasible system of controlling traffic in stolen vehicles and parts." Letter of Stalely M. Gruss, Deputy Commissioner and Counsel, to Richard A. Brown, Counsel to the Governor 1979 Bill Jacket. Accordingly, to state that 415-a5 is "really" designed to gather evidence to enable convictions under the penal laws is to ignore the plain administrative purposes of 415-a, in general, and 415-a5, in particular. If the administrative goals of 415-a5 are
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Justice Blackmun
| 1,987 | 11 |
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New York v. Burger
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https://www.courtlistener.com/opinion/111927/new-york-v-burger/
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415-a5, in particular. If the administrative goals of 415-a5 are recognized, the difficulty the Court of Appeals perceives in allowing inspecting officers to examine vehicles and vehicle parts even in the absence of records evaporates. The regulatory purposes of 415-a5 certainly are served by having the inspecting officers *716 compare the records of a particular vehicle dismantler with vehicles and vehicle parts in the junkyard. The purposes of maintaining junkyards in the hands of legitimate businesspersons and of tracing vehicles that pass through these businesses, however, also are served by having the officers examine the operator's inventory even when the operator, for whatever reason, fails to produce the police book.[25] Forbidding inspecting officers to examine the inventory in this situation would permit an illegitimate vehicle dismantler to thwart the purposes of the administrative scheme and would have the absurd result of subjecting his counterpart who maintained records to a more extensive search.[26] Nor do we think that this administrative scheme is unconstitutional simply because, in the course of enforcing it, an inspecting officer may discover evidence of crimes, besides violations of the scheme itself. In United the pawnshop operator was charged not only with a violation of the recordkeeping provision, pursuant to which the inspection was made, but also with other violations detected during the inspection, see n. 2, and convicted of a failure to pay an occupational tax for dealing in specific firearms, at The discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect. Cf. United v. Villamonte-Marquez,[27] *717 Finally, we fail to see any constitutional significance in the fact that police officers, rather than "administrative" agents, are permitted to conduct the 415-a5 inspection. The significance respondent alleges lies in the role of police officers as enforcers of the penal laws and in the officers' power to arrest for offenses other than violations of the administrative scheme. It is, however, important to note that state police officers, like those in New York, have numerous duties in addition to those associated with traditional police work. See ; see also ABA Standards for Criminal Justice 1-1.1(b) and commentary (2d ed. 1980, Supp. 1982). As a practical matter, many do not have the resources to assign the enforcement of a particular administrative scheme to a specialized agency. So long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself.[28] In *718
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Justice Rehnquist
| 1,987 | 19 |
majority
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Bourjaily v. United States
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https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
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Federal Rule of Evidence 801(d)(2)(E) provides: "A statement is not hearsay if [t]he statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." We granted certiorari to answer three questions regarding the admission of statements under Rule 801(d)(2)(E): (1) whether the court must determine by independent evidence that the conspiracy existed and that the defendant and the declarant were members of this conspiracy; (2) the quantum of proof on which such determinations must be based; and (3) whether a court must in each case examine the circumstances of such a statement to determine its reliability. In May 1984, Clarence Greathouse, an informant working for the Federal Bureau of Investigation (FBI), arranged to sell a kilogram of cocaine to Angelo Lonardo. Lonardo agreed that he would find individuals to distribute the drug. When the sale became imminent, Lonardo stated in a tape-recorded telephone conversation that he had a "gentleman friend" who had some questions to ask about the cocaine. In a subsequent *174 telephone call, Greathouse spoke to the "friend" about the quality of the drug and the price. Greathouse then spoke again with Lonardo, and the two arranged the details of the purchase. They agreed that the sale would take place in a designated hotel parking lot, and Lonardo would transfer the drug from Greathouse's car to the "friend," who would be waiting in the parking lot in his own car. Greathouse proceeded with the transaction as planned, and FBI agents arrested Lonardo and petitioner immediately after Lonardo placed a kilogram of cocaine into petitioner's car in the hotel parking lot. In petitioner's car, the agents found over $20,000 in cash. Petitioner was charged with conspiring to distribute cocaine, in violation of 21 U.S. C. 846, and possession of cocaine with intent to distribute, a violation of 21 U.S. C. 841(a)(1). The Government introduced, over petitioner's objection, Angelo Lonardo's telephone statements regarding the participation of the "friend" in the transaction. The District Court found that, considering the events in the parking lot and Lonardo's statements over the telephone, the Government had established by a preponderance of the evidence that a conspiracy involving Lonardo and petitioner existed, and that Lonardo's statements over the telephone had been made in the course of and in furtherance of the conspiracy. App. 66-75. Accordingly, the trial court held that Lonardo's out-of-court statements satisfied Rule 801(d)(2)(E) and were not hearsay. Petitioner was convicted on both counts and sentenced to 15 years. The United States Court of Appeals for the Sixth Circuit
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Justice Rehnquist
| 1,987 | 19 |
majority
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Bourjaily v. United States
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The United States Court of Appeals for the Sixth Circuit affirmed. The Court of Appeals agreed with the District Court's analysis and conclusion that Lonardo's out-of-court statements were admissible under the Federal Rules of Evidence. The court also rejected petitioner's contention that because he could not cross-examine Lonardo, the admission of these statements violated his constitutional right to confront the witnesses against him. We affirm. *175 Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy." Federal Rule of Evidence 104(a) provides: "Preliminary questions concerning the admissibility of evidence shall be determined by the court." Petitioner and the Government agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions. We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case, see In re Winship, or a civil case. See generally The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. As in we find "nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based *176 on some higher standard." We think that our previous decisions in this area resolve the matter. See, e. g., ; ; United ; Therefore, we hold that when the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.[1] Even though petitioner agrees that the courts
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of the evidence.[1] Even though petitioner agrees that the courts below applied the proper standard of proof with regard to the preliminary facts relevant to Rule 801(d)(2)(E), he nevertheless challenges the admission of Lonardo's statements. Petitioner argues that in determining whether a conspiracy exists and whether the defendant was a member of it, the court must look only to independent evidence that is, evidence other than the statements sought to be admitted. Petitioner relies on in which this Court first mentioned the so-called "bootstrapping rule." The relevant issue in Glasser was whether Glasser's counsel, who also represented another defendant, faced such a conflict of interest that Glasser received ineffective assistance. Glasser contended that conflicting loyalties led his lawyer not to object to statements made by one of Glasser's *177 co-conspirators. The Government argued that any objection would have been fruitless because the statements were admissible. The Court rejected this proposition: "[S]uch declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy. Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence." The Court revisited the bootstrapping rule in United where again, in passing, the Court stated: "Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy." and n. 14 (emphasis added) (footnote omitted). Read in the light most favorable to petitioner, Glasser could mean that a court should not consider hearsay statements at all in determining preliminary facts under Rule 801(d)(2)(E). Petitioner, of course, adopts this view of the bootstrapping rule. Glasser, however, could also mean that a court must have some proof aliunde, but may look at the hearsay statements themselves in light of this independent evidence to determine whether a conspiracy has been shown by a preponderance of the evidence. The Courts of Appeals have widely adopted the former view and held that in determining the preliminary facts relevant to co-conspirators' out-of-court statements, a court may not look at the hearsay statements themselves for their evidentiary value. Both Glasser and Nixon, however, were decided before Congress enacted the Federal Rules of Evidence in 1975. These Rules now govern the treatment of evidentiary questions in federal courts. Rule 104(a) provides: "Preliminary questions concerning the admissibility of evidence shall be determined by the court In making its determination *178 it is
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by the court In making its determination *178 it is not bound by the rules of evidence except those with respect to privileges." Similarly, Rule 1101(d)(1) states that the Rules of Evidence (other than with respect to privileges) shall not apply to "[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104." The question thus presented is whether any aspect of Glasser's bootstrapping rule remains viable after the enactment of the Federal Rules of Evidence. Petitioner concedes that Rule 104, on its face, appears to allow the court to make the preliminary factual determination relevant to Rule 801(d)(2)(E) by considering any evidence it wishes, unhindered by considerations of admissibility. Brief for Petitioner 27. That would seem to many to be the end of the matter. Congress has decided that courts may consider hearsay in making these factual determinations. Out-of-court statements made by anyone, including putative co-conspirators, are often hearsay. Even if they are, they may be considered, Glasser and the bootstrapping rule notwithstanding. But petitioner nevertheless argues that the bootstrapping rule, as most Courts of Appeals have construed it, survived this apparently unequivocal change in the law unscathed and that Rule 104, as applied to the admission of co-conspirator's statements, does not mean what it says. We disagree. Petitioner claims that Congress evidenced no intent to disturb the bootstrapping rule, which was embedded in the previous approach, and we should not find that Congress altered the rule without affirmative evidence so indicating. It would be extraordinary to require legislative history to confirm the plain meaning of Rule 104. The Rule on its face allows the trial judge to consider any evidence whatsoever, bound only by the rules of privilege. We think that the Rule is sufficiently clear that to the extent that it is inconsistent with *179 petitioner's interpretation of Glasser and Nixon, the Rule prevails.[2] Nor do we agree with petitioner that this construction of Rule 104(a) will allow courts to admit hearsay statements without any credible proof of the conspiracy, thus fundamentally changing the nature of the co-conspirator exception. Petitioner starts with the proposition that co-conspirators' out-of-court statements are deemed unreliable and are inadmissible, at least until a conspiracy is shown. Since these statements are unreliable, petitioner contends that they should not form any part of the basis for establishing a conspiracy, the very antecedent that renders them admissible. Petitioner's theory ignores two simple facts of evidentiary life. First, out-of-court statements are only presumed unreliable. The presumption may be rebutted by appropriate proof. See
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unreliable. The presumption may be rebutted by appropriate proof. See Fed. Rule Evid. 803(24) (otherwise inadmissible hearsay may be admitted if circumstantial guarantees of trustworthiness demonstrated). Second, individual pieces of *180 evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts. Taken together, these two propositions demonstrate that a piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence. A per se rule barring consideration of these hearsay statements during preliminary factfinding is not therefore required. Even if out-of-court declarations by co-conspirators are presumptively unreliable, trial courts must be permitted to evaluate these statements for their evidentiary worth as revealed by the particular circumstances of the case. Courts often act as factfinders, and there is no reason to believe that courts are any less able to properly recognize the probative value of evidence in this particular area. The party opposing admission has an adequate incentive to point out the shortcomings in such evidence before the trial court finds the preliminary facts. If the opposing party is unsuccessful in keeping the evidence from the factfinder, he still has the opportunity to attack the probative value of the evidence as it relates to the substantive issue in the case. See, e. g., Fed. Rule Evid. 806 (allowing attack on credibility of out-of-court declarant). We think that there is little doubt that a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy. Petitioner's case presents a paradigm. The out-of-court statements of Lonardo indicated that Lonardo was involved in a conspiracy with a "friend." The statements indicated that the friend had agreed with Lonardo to buy a kilogram of cocaine and to distribute it. The statements also revealed that the friend would be at the hotel parking lot, in his car, and would accept the cocaine from Greathouse's car after Greathouse gave Lonardo the keys. Each one of Lonardo's statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and Greathouse was corroborated by *181 independent evidence. The friend, who turned out to be petitioner, showed up at the prearranged spot at the prearranged time. He picked up the cocaine, and a significant sum of money was found in his car. On these facts, the trial court concluded, in our view correctly, that the Government had established the existence of a conspiracy and petitioner's participation in it. We need not decide
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conspiracy and petitioner's participation in it. We need not decide in this case whether the courts below could have relied solely upon Lonardo's hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence. To the extent that Glasser meant that courts could not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a). It is sufficient for today to hold that a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted. As we have held in other cases concerning admissibility determinations, "the judge should receive the evidence and give it such weight as his judgment and experience counsel." United The courts below properly considered the statements of Lonardo and the subsequent events in finding that the Government had established by a preponderance of the evidence that Lonardo was involved in a conspiracy with petitioner. We have no reason to believe that the District Court's factfinding of this point was clearly erroneous. We hold that Lonardo's out-of-court statements were properly admitted against petitioner.[3] We also reject any suggestion that admission of these statements against petitioner violated his rights under the Confrontation Clause of the Sixth Amendment. That Clause provides: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses *182 against him." At petitioner's trial, Lonardo exercised his right not to testify. Petitioner argued that Lonardo's unavailability rendered the admission of his out-of-court statements unconstitutional since petitioner had no opportunity to confront Lonardo as to these statements. The Court of Appeals held that the requirements for admission under Rule 801(d)(2)(E) are identical to the requirements of the Confrontation Clause, and since the statements were admissible under the Rule, there was no constitutional problem. We agree. While a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as "unintended and too extreme." Rather, we have attempted to harmonize the goal of the Clause placing limits on the kind of evidence that may be received against a defendant with a societal interest in accurate factfinding, which may require consideration of out-of-court statements. To accommodate these competing interests, the Court has, as a general matter only, required the prosecution to demonstrate both the unavailability of the declarant and the "indicia of reliability" surrounding the out-of-court declaration. Last Term in United we held that the first of these two generalized inquiries, unavailability, was not required when the hearsay
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two generalized inquiries, unavailability, was not required when the hearsay statement is the out-of-court declaration of a co-conspirator. Today, we conclude that the second inquiry, independent indicia of reliability, is also not mandated by the Constitution. The Court's decision in laid down only "a general approach to the problem" of reconciling hearsay exceptions with the Confrontation Clause. See In fact, Roberts itself limits the requirement that a court make a separate inquiry into the reliability of an out-of-court statement. Because " `hearsay rules and the Confrontation Clause are generally designed to protect similar values,' *183 California v. Green, 399 U. S. [149, 155 ], and `stem from the same roots,'" we concluded in Roberts that no independent inquiry into reliability is required when the evidence "falls within a firmly rooted hearsay exception." We think that the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court's holding in Roberts, a court need not independently inquire into the reliability of such statements. Cf. The admissibility of co-conspirators' statements was first established in this Court over a century and a half ago in United and the Court has repeatedly reaffirmed the exception as accepted practice. In fact, two of the most prominent approvals of the rule came in cases that petitioner maintains are still vital today, and United To the extent that these cases have not been superseded by the Federal Rules of Evidence, they demonstrate that the co-conspirator exception to the hearsay rule is steeped in our jurisprudence. In 2 U.S. 5, the Court rejected the very challenge petitioner brings today, holding that there can be no separate Confrontation Clause challenge to the admission of a co-conspirator's out-of-court statement. In so ruling, the Court relied on established precedent holding such statements competent evidence. We think that these cases demonstrate that co-conspirators' statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to embark on an *184 independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).[4] The judgment of the Court of Appeals is Affirmed.
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Stone v. INS
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We consider whether the filing of a timely motion for reconsideration of a decision by the Board of Immigration Appeals tolls the running of the 90-day period for seeking judicial review of the decision. I Petitioner, Marvin Stone, is a citizen of Canada and a businessman and lawyer by profession. He entered the United States in 1977 as a nonimmigrant visitor for business and has since remained in the United States. On January 3, 1983, Stone was convicted of conspiracy and mail fraud, in violation of 18 U.S. C. 371 and 1341. He served 18 months of a 3-year prison term. In March 1987, after his release, the Immigration and Naturalization Service (INS) served him with an order to show cause why he should not be deported as a nonimmigrant who had remained in the United States beyond the period authorized by law. In January 1988, after a series of hearings, an Immigration Judge ordered Stone deported. The IJ concluded that under the regulations in effect when Stone entered the United States, an alien on a nonimmigrant for business visa *389 could remain in the country for an initial period not to exceed six months with the privilege of seeking extensions, which could be granted in 6-month increments. (1977). The IJ ordered deportation under 8 U.S. C. 1251(a)(2) (now 1251(a)(1)(B) (1988 ed., Supp. V)) based on petitioner's testimony that he had remained in the United States since 1977 without seeking any extension. The IJ denied Stone's application for suspension of deportation under 8 U.S. C. 1254(a)(1), concluding that Stone's conviction of mail fraud and 18-month incarceration barred him, as a matter of law, from establishing "good moral character" as required by 1254. See 1101(f)(7). Stone's administrative appeals were as follows: he appealed to the Board of Immigration Appeals, which affirmed the IJ's determinations and dismissed the appeal on July 26, ; he filed a "Motion to Reopen and/or to Reconsider" with the BIA in August ; on February 3, some 17 months later, the BIA denied the reconsideration motion as frivolous. Judicial review was sought next. The record does not give the precise date, but, sometime in February or March Stone petitioned the Court of Appeals for the Sixth Circuit for review of both the July 26, deportation order and the February 3, order denying reconsideration. The Court of Appeals dismissed the petition for want of jurisdiction to the extent the petition sought review of the July 26, order, the underlying deportation determination. The court held that the filing of the reconsideration motion did not toll the running of the
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the reconsideration motion did not toll the running of the 90-day filing period for review of final deportation orders. We granted certiorari, to resolve a conflict among the Circuits on the question, compare and with Fleary and We now affirm. II A Section 106(a)(1) of the Immigration and Nationality Act (INA) specifies that "a petition for review [of a final deportation order] may be filed not later than 90 days after the date of the issuance of the final deportation order, or, in the case of an alien convicted of an aggravated felony, not later than 30 days after the issuance of such order." 8 U.S. C. 1105a(a)(1) (1988 ed. and Supp. V). The clause pertaining to an "aggravated felony" is not a factor in the analysis, petitioner's offense not being within that defined term. See 1101(a)(43). He had the benefit of the full 90-day filing period. There is no dispute that a deportation order "become[s] final upon dismissal of an appeal by the Board of Immigration Appeals," 8 CFR 243.1 (1977), and, the parties agree, the 90-day period started on July 26, The parties disagree, however, regarding the effect that petitioner's later filing of a timely motion to reconsider had on the finality of the order. Petitioner contends that a timely motion to reconsider renders the underlying order nonfinal, and that a petition seeking review of both the order and the reconsideration denial is timely if filed (as this petition was) within 90 days of the reconsideration denial. The INS argues that the finality and reviewability of an order are unaffected by the filing of a motion to reconsider or to reopen. In its view the Court of Appeals had jurisdiction to review the denial of the motion to reconsider but not to review the original order. *391 We considered the timeliness of a review petition where there is a motion to reconsider or reopen an agency's order in The Interstate Commerce Commission's governing statute provided that, with certain exceptions, judicial review of ICC orders would be governed by the Hobbs Administrative Orders Review Act, 28 U.S. C. 2341 et seq. See Locomotive We held that "the timely petition for administrative reconsideration stayed the running of the Hobbs Act's limitation period until the petition had been acted upon by the Commission." Our conclusion, we acknowledged, was in some tension with the language of both the Hobbs Act, which permits an aggrieved party to petition for review "within 60 days after [the] entry" of a final order, 28 U.S. C. 2344, and of 49 U.S. C. 10327(i), "which provides that,
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2344, and of 49 U.S. C. 10327(i), "which provides that, `[n]otwithstanding' the provision authorizing the Commission to reopen and reconsider its orders ( 10327(g)), `an action of the Commission is final on the date on which it is served, and a civil action to enforce, enjoin, suspend, or set aside the action may be filed after that date.' " Locomotive We found the controlling language similar to the corresponding provision of the Administrative Procedure Act (APA), 5 U.S. C. 704, which provides that "agency action otherwise final is final for the purposes of this section [entitled `Actions Reviewable'] whether or not there has been presented or determined an application for any form of reconsideratio[n]" "language [that] has long been construed merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal." Locomotive -285 In support of that long-standing construction of the APA language, we cited dicta in two earlier cases, American Farm ; and the holding in a decision cited with approval in both Black Ball and Delta. justified treating orders as nonfinal for purposes of review during the pendency of a motion for reconsideration in terms of judicial economy: "[W]hen the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary." at As construed in Locomotive both the APA and the Hobbs Act embrace a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review. In consequence, pendency of reconsideration renders the underlying decision not yet final, and it is implicit in the tolling rule that a party who has sought rehearing cannot seek judicial review until the rehearing has concluded. 4 K. Davis, Administrative Law Treatise 26:12 (2d ed. 1988); United Transportation ; Bellsouth Indeed, those Circuits that apply the tolling rule have so held. See Fleary, 950 F. 2d, at 711-712 (deportation order not reviewable during pendency of motion to reopen); Hyun Joon Section 106 of the INA provides that "[t]he procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation" 8 U.S. C. 1105a(a) (1988 ed. and Supp. V). The reference to chapter 158 of Title 28 is a reference to the Hobbs Act. In light of our construction of the Hobbs Act
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Act. In light of our construction of the Hobbs Act in Locomotive had Congress used that Act to govern review of deportation orders without further qualification, it would follow that the so-called tolling rule applied. *393 The INS, however, proffers a different reading of Locomotive Relying on our statement that the provision of the APA, 5 U.S. C. 704, has been construed "not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal," the INS understands Locomotive to set forth merely a default rule from which agencies may choose to depart. It argues that it did so here. If the case turned on this theory, the question would arise whether an agency subject to either the APA or the Hobbs Act has the authority to specify whether the finality of its orders for purposes of judicial review is affected by the filing of a motion to reconsider. The question is not presented here. Both the Hobbs Act and the APA are congressional enactments, and Congress may alter or modify their application in the case of particular agencies. We conclude that in amending the INA Congress chose to depart from the ordinary judicial treatment of agency orders under reconsideration. B Congress directed that the Hobbs Act procedures would govern review of deportation orders, except for 10 specified qualifications. See 8 U.S. C. 1105a(a). Two of those exceptions are pertinent. The first, contained in 106(a)(1) of the INA, provides an alien with 90 days to petition for review of a final deportation order (30 days for aliens convicted of an aggravated felony), instead of the Hobbs Act's 60-day period. See 8 U.S. C. 1105a(a)(1) (1988 ed., Supp. V). The second and decisive exception is contained in 106(a)(6), a provision added when Congress amended the INA in 1990. The section provides: "[W]henever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be *394 consolidated with the review of the order." 8 U.S. C. 1105a(a)(6). By its terms, 106(a)(6) contemplates two petitions for review and directs the courts to consolidate the matters. The words of the statute do not permit us to say that the filing of a petition for reconsideration or reopening dislodges the earlier proceeding reviewing the underlying order. The statute, in fact, directs that the motion to reopen or reconsider is to be consolidated with the review of the order, not the other way around. This indicates to us that the action to review the underlying order remains
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Stone v. INS
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us that the action to review the underlying order remains active and pending before the court. We conclude that the statute is best understood as reflecting an intent on the part of Congress that deportation orders are to be reviewed in a timely fashion after issuance, irrespective of the later filing of a motion to reopen or reconsider. Were a motion for reconsideration to render the underlying order nonfinal, there would be, in the normal course, only one petition for review filed and hence nothing for the judiciary to consolidate. As in Locomotive itself, review would be sought after denial of reconsideration, and both the underlying order and the denial of reconsideration would be reviewed in a single proceeding, insofar, at least, as denial of reconsideration would be reviewable at all. See Locomotive Indeed, the Ninth Circuit, which before the 1990 amendment had held that pendency of a reconsideration motion did render a deportation order nonfinal, understood that the tolling rule contemplates just one petition for review: "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review" The tolling rule is hard to square with the existence of two separate judicial review proceedings. *395 Under the no-tolling rule, by contrast, two separate petitions for review will exist in the normal course. An order would be final when issued, irrespective of the later filing of a reconsideration motion, and the aggrieved party would seek judicial review of the order within the specified period. Upon denial of reconsideration, the petitioner would file a separate petition to review that second final order. Because it appears that only the no-tolling rule could give rise to two separate petitions for review simultaneously before the courts, which it is plain 106(a)(6) contemplates, it would seem that only that rule gives meaning to the section. Although the consolidation provision does not mention tolling, see post, at 408 (Breyer, J., dissenting), tolling would be the logical consequence if the statutory scheme provided for the nonfinality of orders upon the filing of a reconsideration motion. Locomotive ` conclusion as to tolling followed as a necessary consequence from its conclusion about finality. Finality is the antecedent question, and as to that matter the consolidation provision speaks volumes. All would agree that the provision envisions two petitions for review. See post, at 408 (Breyer, J., dissenting). Because only "final deportation order[s]" may be reviewed, 8 U.S. C. 1105a(a)(1), it follows by necessity that the provision requires for its
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Stone v. INS
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it follows by necessity that the provision requires for its operation the existence of two separate final orders, the petitions for review of which could be consolidated. The two orders cannot remain final and hence the subject of separate petitions for review if the filing of the reconsideration motion rendered the original order nonfinal. It follows that the filing of the reconsideration motion does not toll the time to petition for review. By speaking to finality, the consolidation provision does say quite a bit about tolling. Recognizing this problem, petitioner at oral argument sought to give meaning to 106(a)(6) by offering a different version of what often might occur. Petitioner envisioned an alien who petitioned for review of a final deportation order, *396 and, while the petition was still pending, went back to the agency to seek its reconsideration or, if new evidence had arisen, reopening. If, upon denial of reconsideration or reopening, the alien sought review, and the review of the original order were still pending, 106(a)(6) would apply and the two petitions would be consolidated. The dissent relies on the same assumed state of events. See post, at 409-410. That construct, however, is premised on a view of finality quite inconsistent with the tolling rule petitioner himself proposes. If, as petitioner advocates, the filing of a timely petition for reconsideration before seeking judicial review renders the underlying order nonfinal, so that a reviewing court would lack jurisdiction to review the order until after disposition of the reconsideration motion, one wonders how a court retains jurisdiction merely because the petitioner delays the reconsideration motions until after filing the petition for judicial review of the underlying order. The policy supporting the nonfinality rulethat "when the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary," 284 F. 2d, at applies with equal force where the party seeks agency rehearing after filing a petition for judicial review. Indeed, the Court of Appeals for the District of Columbia Circuit, whose decision in we cited in support of our construction in Locomotive has so held in the years following our decision. See ("The danger of wasted judicial effort arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review") (citations omitted). The Wade holding rested on, and is consistent with, our decision in a somewhat analogous context that the filing of a Federal Rule of Civil Procedure 59 motion to alter or amend a district court's judgment
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Stone v. INS
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59 motion to alter or amend a district court's judgment strips the appellate court of jurisdiction, whether the Rule 59 motion is filed before or after the notice of appeal. See Our decision, based on a construction of Federal Rule of Appellate Procedure 4(a)(4), noted the "theoretical inconsistency" of permitting the district court to retain jurisdiction to decide the Rule 59 motion while treating the notice of appeal as "adequate for purposes of beginning the appeals process." We need not confirm the correctness of the Wade decision, but neither should we go out of our way to say it is incorrect, as petitioner and the dissent would have us do. The inconsistency in petitioner's construction of 106(a)(6) is the same inconsistency that we noted in Petitioner assumes that a reconsideration motion renders the underlying order nonfinal if the motion is filed before a petition for review, but that finality is unaffected if the reconsideration motion is filed one day after the petition for review. It is implausible that Congress would direct different results in the two circumstances. At any rate, under petitioner's construction the consolidation provision would have effect only in the rarest of circumstances. When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect. See ; Had Congress intended review of INS orders to proceed in a manner no different from review of other agencies, as petitioner appears to argue, there would have been no reason for Congress to have included the consolidation provision. The reasonable construction is that the amendment was enacted as an exception, not just to state an already existing rule. Section 106(a)(6) is an explicit exception to the general applicability of the Hobbs Act procedures, so it must be construed as creating a procedure different from normal practice under the Act. We conclude, as did the Court of Appeals, see and the Seventh *398 Circuit, see Akrap, 966 F. 2d, at that the consolidation provision Congress inserted when it amended the Act in 1990 is best understood as reflecting its expectation that in the particular context of INS deportation orders the normal tolling rule will not apply. C Underlying considerations of administrative and judicial efficiency, as well as fairness to the alien, support our conclusion that Congress intended to depart from the conventional tolling rule in deportation cases. Deportation orders are self-executing orders, not dependent upon judicial enforcement. This accounts for the automatic stay mechanism, the statutory provision providing that service of the petition for review of the deportation order stays the deportation absent contrary direction
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Stone v. INS
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of the deportation order stays the deportation absent contrary direction from the court or the alien's aggravated felony status. See 8 U.S. C. 1105a(a)(3). The automatic stay would be all but a necessity for preserving the jurisdiction of the court, for the agency might not otherwise refrain from enforcement. Indeed, the INA provides that "nothing in this section [Judicial review of orders of deportation and exclusion] shall be construed to require the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review of the order granted by this section." 8 U.S. C. 1105a(a)(8) (1988 ed., Supp. V). And it has been the long-standing view of the INS, a view we presume Congress understood when it amended the Act in 1990, that a motion for reconsideration does not serve to stay the deportation order. 8 CFR 3.8 (1977). Cf. Delta Air -327 Were the tolling rule to apply here, aliens subject to deportation orders might well face a Hobson's choice: petition for agency reconsideration at the risk of immediate deportation, *399 or forgo reconsideration and petition for review to obtain the automatic stay. The choice is a hard one in deportation cases, in that the consequences of deportation are so final, unlike orders in some other administrative contexts. Once an alien has been deported, the courts lack jurisdiction to review the deportation order's validity. See 8 U.S. C. 1105a(c). This choice is one Congress might not have wished to impose on the alien. An alien who had filed for agency reconsideration might seek to avoid immediate deportation by seeking a judicial stay. At oral argument, petitioner suggested a habeas corpus action as one solution to the dilemma. Even on the assumption that a habeas corpus action would be available, see 1105a(a) (Exclusiveness of procedure), the solution is unsatisfactory. In evaluating those stay applications the courts would be required to assess the probability of the alien's prevailing on review, turning the stay proceedings into collateral previews of the eventual petitions for reviewindeed a preview now implicating the district court, not just the court of appeals. By inviting duplicative review in multiple courts, the normal tolling rule would frustrate, rather than promote, its stated goal of judicial economy. From an even more fundamental standpoint, the policies of the tolling rule are at odds with Congress' policy in adopting the judicial review provisions of the INA. The tolling rule reflects a preference to postpone judicial review to ensure completion of the administrative process. Reconsideration might eliminate the need for judicial intervention, and
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process. Reconsideration might eliminate the need for judicial intervention, and the resultant saving in judicial resources ought not to be diminished by premature adjudication. By contrast, Congress' "fundamental purpose" in enacting 106 of the INA was "to abbreviate the process of judicial review in order to frustrate certain practices whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Congress' concern reflected the reality that "in a deportation *400 proceeding as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." Congress' intent in adopting and then amending the INA was to expedite both the initiation and the completion of the judicial review process. The tolling rule's policy of delayed review would be at odds with the congressional purpose. The dissent does not dispute that a principal purpose of the 1990 amendments to the INA was to expedite petitions for review and to redress the related problem of successive and frivolous administrative appeals and motions. In the Immigration Act of 1990, Stat. 5048, Congress took five steps to reduce or eliminate these abuses. First, it directed the Attorney General to promulgate regulations limiting the number of reconsideration and reopening motions that an alien could file. 5. Second, it instructed the Attorney General to promulgate regulations specifying the maximum time period for the filing of those motions, hinting that a 20-day period would be appropriate. See Third, Congress cut in half the time for seeking judicial review of the final deportation order, from 180 to 90 days. See Fourth, Congress directed the Attorney General to define "frivolous behavior for which attorneys may be sanctioned" in connection with administrative appeals and motions. See 5(a). In the dissent's view, a fifth measure, the consolidation provision, was added for no apparent reason and bears no relation to the other amendments Congress enacted at the same time. It is more plausible that when Congress took the first four steps to solve a problem, the fifththe consolidation provisionwas also part of the solution, and not a step in the other direction. By envisioning that a final deportation order will remain final and reviewable for 90 days from the date of its issuance irrespective of the later filing of a reconsideration motion, Congress' amendment eliminates much if not all of the incentive *401 to file a meritless reconsideration motion, and, like the other amendments adopted at the same time, expedites the time within which the judicial review process of the deportation order begins. D A consideration of the analogous practice of
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order begins. D A consideration of the analogous practice of appellate court review of district court judgments confirms the correctness of our construction of Congress' language. The closest analogy to the INS' discretionary petition for agency reconsideration is the motion for relief from judgment under Federal Rule of Civil Procedure 60. The effect of Rule 60 motions (at least when made more than 10 days after judgment, an exception discussed below), on the finality and appealability of district court judgments is comparable to the effect of reconsideration motions on INS orders. With the exception noted, the filing of a Rule 60 motion does not toll the running of the time for taking an appeal, see Fed. Rule Civ. Proc. 60; 11 C. Wright & A. Miller, Federal Practice and Procedure 2871 (1973) (Wright & Miller), and the pendency of the motion before the district court does not affect the continuity of a prior-taken appeal. See And last but not least, the pendency of an appeal does not affect the district court's power to grant Rule 60 relief. See Standard Oil Co. of ; Wright & Miller 2873 ( Supp.). A litigant faced with an unfavorable district court judgment must appeal that judgment within the time allotted by Federal Rule of Appellate Procedure 4, whether or not the litigant first files a Rule 60 motion (where the Rule 60 motion is filed more than 10 days following judgment). Either before or after filing his appeal, the litigant may also file a Rule 60 motion for relief with the district court. The denial of the motion is appealable as a separate final order, and if the original appeal is still pending it would seem that the court of appeals can consolidate the proceedings. In each of these respects, the practice of litigants under Rule 60 is, under *402 our construction, identical to that of aliens who file motions for reconsideration before the BIA. In each case two separate postdecision appeals are filed. For reasons not relevant here, in the Rules of Appellate Procedure were amended to provide that Rule 60 motions filed within 10 days of a district court's judgment do toll the time for taking an appeal. See Fed. Rule App. Proc. 4(a)(4)(F). That amendment added Rule 60 motions filed within 10 days of judgment to a list of other post-trial motions that toll the running of the time for appeal, a list that includes Rule 59 motions to alter or amend a judgment. See Fed. Rule App. Proc. 4(a)(4)(C). A consideration of this provision of the appellate rules is quite
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consideration of this provision of the appellate rules is quite revealing. The list of post-trial motions that toll the time for appeal is followed, and hence qualified, by the language interpreted in language that provides in express terms that these motions also serve to divest the appellate court of jurisdiction where the motions are filed after appeal is taken. The language of Rule 4 undermines the dissent's reliance on a presumption that appellate court jurisdiction once asserted is not divested by further proceedings at the trial or agency level. See post, at 410. Indeed, the practice is most often to the contrary where appellate court review of district court judgments subject to post-trial motions is concerned. See Fed. Rule App. Proc. 4(a)(4) (specifying that the majority of postjudgment motions filed with the district court divest the appellate court of jurisdiction that had once existed). A district court judgment subject to one of these enumerated motions, typified by Rule 59, is reviewable only after, and in conjunction with, review of the denial of the post-trial motion, and just one appeal pends before the appellate court at any one time. In short, the Rules of Appellate Procedure evince a consistent and coherent view of the finality and appealability of district court judgments subject to post-trial motions. The majority of post-trial motions, such as Rule 59, render the *403 underlying judgment nonfinal both when filed before an appeal is taken (thus tolling the time for taking an appeal), and when filed after the notice of appeal (thus divesting the appellate court of jurisdiction). Other motions, such as Rule 60 motions filed more than 10 days after judgment, do not affect the finality of a district court's judgment, either when filed before the appeal (no tolling), or afterwards (appellate court jurisdiction not divested). Motions that do toll the time for taking appeal give rise to only one appeal in which all matters are reviewed; motions that do not toll the time for taking an appeal give rise to two separate appellate proceedings that can be consolidated. E Our colleagues in dissent agree that the consolidation provision envisions the existence of two separate petitions for review. See post, at 408. To give the provision meaning while at the same time concluding that the tolling rule applies, the dissent is compelled to conclude that a reconsideration motion before the BIA renders the original order nonfinal if made before a petition for judicial review is filed but does not affect the finality of the order if filed afterwards. See post, at 413-414. The hybrid tolling rule the
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afterwards. See post, at 413-414. The hybrid tolling rule the dissent suggests has no analogue at all in the appellate court-district court context. On the contrary, as we have just observed, the uniform principle where appellate review of district court judgments is concerned is that motions that toll produce but one appeal, motions that do not toll produce two. It is only by creating this new hybrid that the dissent can give meaning to the consolidation provision, and avoid the Hobson's choice for the alien. While litigants who practice before the district courts and the BIA will have familiarity with both types of post-trial motions discussed above, and will have no difficulty practicing under the rule we announce today, practitioners would have no familiarity with the hybrid *404 tolling rule the dissent is compelled to devise in order to give the consolidation provision meaning. It is worthwhile pausing to consider just how many steps the dissent must take to reconcile the consolidation provision with the tolling rule it prefers. The dissent's construction would require that the Court conclude, without any briefing, that our decision in does not apply to agency review. The dissent would as well disrupt administrative law in general by overturning the practice of the Court of Appeals with the most experience reviewing agency decisions when faced with agency reconsideration motions made after petition for review (the District of Columbia Circuit), thereby resolving a circuit split without any briefing or argument. See post, at 412. Our construction avoids each of these extraordinary steps. It creates a practice parallel to that of appellate courts reviewing district court judgments subject to pending Rule 60 motions filed more than 10 days after judgment and requires us to take no firm position on whether applies to agency review where tolling does occur. But the full import of our decision in and the concomitant problem addressed in Wade, are in some sense secondary to our fundamental point of dispute with the dissent. In our view the consolidation provision reflects Congress' intent to depart from the normal tolling rule in this context, whereas on the dissent's view it does not. Congress itself was explicit in stating that the consolidation provision is an exception to the applicability of the Hobbs Act procedures, see and it took the deliberate step of amending the Act in 1990 to add the provision. The challenge for the dissent is not, then, just to give the consolidation provision some work to do that is consistent with the tolling rule, but to give it some work as an exception to the
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Stone v. INS
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to give it some work as an exception to the applicability of the Hobbs Act procedures, a meaning that explains why Congress might have taken trouble to add it. The dissent's construction of the consolidation provision gives it effect, if any, only in what must be those rare instances where aliens first *405 petition for judicial review and then seek agency reconsideration. And, more important, its construction cannot account for Congress' decision to amend the Act in 1990 to provide that the Hobbs Act procedures, which in the normal course include the tolling rule, shall apply "except" for the consolidation provision. F Whatever assessment Congress might have made in enacting the judicial review provisions of the INA in the first instance, we conclude from the consolidation provision added in 1990 that it envisioned two separate petitions filed to review two separate final orders. To be sure, it would have been preferable for Congress to have spoken with greater clarity. Judicial review provisions, however, are jurisdictional in nature and must be construed with strict fidelity to their terms. As we have explained: "Section 106(a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes." Cheng Fan This is all the more true of statutory provisions specifying the timing of review, for those time limits are, as we have often stated, "mandatory and jurisdictional," and are not subject to equitable tolling. See Fed. Rule App. Proc. 26. * * * The consolidation provision in 106(a)(6) reflects Congress' understanding that a deportation order is final, and reviewable, when issued. Its finality is not affected by the subsequent filing of a motion to reconsider. The order being final when issued, an alien has 90 days from that date to seek review. The alien, if he chooses, may also seek agency reconsideration *406 of the order and seek review of the disposition upon reconsideration within 90 days of its issuance. Where the original petition is still before the court, the court shall consolidate the two petitions. See 8 U.S. C. 1105a(a)(6) (1988 ed., Supp. V). Because Stone's petition was filed more than 90 days after the issuance of the BIA's July 26, decision, the Court of Appeals lacked jurisdiction to review that order. The judgment of the Court of Appeals is affirmed. It is so ordered.
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Weiss v. United States
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We must decide in these cases whether the current method of appointing military judges violates the Appointments Clause of the Constitution, and whether the lack of a fixed term of office for military judges violates the Fifth Amendment's Due Process Clause. We conclude that neither constitutional provision is violated. Petitioner Weiss, a United States Marine, pleaded guilty at a special court-martial to one count of larceny, in violation of Article 121 of the Uniform Code of Military Justice (UCMJ or Code), 10 U.S. C. 921. He was sentenced to three months of confinement, partial forfeiture of pay, and a bad-conduct discharge. Petitioner Hernandez, also a Marine, pleaded guilty to the possession, importation, and distribution of cocaine, in violation of Article 112a, UCMJ, 10 U.S. C. 912a, and conspiracy, in violation of Article 81, UCMJ, 10 U.S. C. 881. He was sentenced to 25 years of confinement, forfeiture of all pay, a reduction in rank, and a dishonorable discharge. The convening authority reduced Hernandez' sentence to 20 years of confinement. The Navy-Marine Corps Court of Military Review, in separate appeals, affirmed petitioners' convictions. The Court of Military Appeals granted plenary review in petitioner Weiss' case to address his contention that the judges in his case had no authority to convict him because their appointments violated the Appointments Clause, and their lack of a *166 fixed term of office violated the Due Process Clause. Relying on its recent decision in United cert. pending, No. 92-1102, in which the court unanimously held that due process does not require military judges to have a fixed term of office, the court rejected Weiss' due process argument. In a splintered decision, the court also rejected petitioner's Appointments Clause challenge. Two of the five judges concluded that the initial appointment of military trial and appellate judges as commissioned officers is sufficient to satisfy the Appointments Clause. A separate appointment before taking on the duties of a military judge is unnecessary, according to the plurality, in part because the duties of a judge in the military justice system are germane to the duties that military officers already discharge. One judge concurred in the result only, concluding that the Appointments Clause does not apply to the military. The other two judges dissented separately. Both stressed the significant changes brought about by the Military Justice Act of 1968, particularly the duties added to the newly created office of military judge, and both concluded that the duties of a military judge are sufficiently distinct from the other duties performed by military officers to require a second appointment. See and The Court
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officers to require a second appointment. See and The Court of Military Appeals accordingly affirmed petitioner Weiss' conviction. Based on its decision in Weiss, the court, in an unpublished opinion, also affirmed petitioner Hernandez' conviction. Judgt. order reported at Weiss and Hernandez then jointly petitioned for our review, and we granted certiorari. It will help in understanding the issues involved to review briefly the contours of the military justice system and the role of military judges within that system. Pursuant to Article *1 I of the Constitution, Congress has established three tiers of military courts. See U. S. Const., Art. I, 8, cl. 14. At the trial level are the courts-martial, of which there are three types: summary, special, and general. The summary court-martial adjudicates only minor offenses, has jurisdiction only over servicemembers, and can be conducted only with their consent. It is presided over by a single commissioned officer who can impose up to one month of confinement and other relatively modest punishments. Arts. 16(3), 20, UCMJ, 10 U.S. C. 816(3), 820. The special court-martial usually consists of a military judge and three court-martial members,[1] although the Code allows the members to sit without a judge, or the accused to elect to be tried by the judge alone. Art. 16(2), UCMJ, 10 U.S. C. 816(2). A special court-martial has jurisdiction over most offenses under the UCMJ, but it may impose punishment no greater than six months of confinement, three months of hard labor without confinement, a bad-conduct discharge, partial and temporary forfeiture of pay, and a reduction in grade. Art. 19, UCMJ, 10 U.S. C. 819. The general court-martial consists of either a military judge and at least five members, or the judge alone if the accused so requests. Art. 16(1), UCMJ, 10 U.S. C. 816(1). A general court-martial has jurisdiction over all offenses under the UCMJ and may impose any lawful sentence, including death. Art. 18, UCMJ, 10 U.S. C. 818. The military judge, a position that has officially existed only since passage of the Military Justice Act of 1968, acts as presiding officer at a special or general court-martial. Art. 26, UCMJ, 10 U.S. C. 826. The judge rules on all legal questions, and instructs court-martial members regarding the law and procedures to be followed. Art. 51, UCMJ, *168 10 U.S. C. 851. The members decide guilt or innocence and impose sentence unless, of course, the trial is before the judge alone. No sentence imposed becomes final until it is approved by the officer who convened the court-martial. Art. 60, UCMJ, 10 U.S. C. 860. Military trial
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court-martial. Art. 60, UCMJ, 10 U.S. C. 860. Military trial judges must be commissioned officers of the Armed Forces[2] and members of the bar of a federal court or a State's highest court. Art. 26, UCMJ, 10 U.S. C. 826. The judges are selected and certified as qualified by the Judge Advocate General of their branch of the Armed Forces.[3] They do not serve for fixed terms and may perform judicial duties only when assigned to do so by the appropriate Judge Advocate General. While serving as judges, officers may also, with the approval of the Judge Advocate General, perform other tasks unrelated to their judicial duties. There are approximately 74 judges currently certified to preside at general and special courts-martial. An additional 25 are certified to preside only over special courts-martial. At the next tier are the four Courts of Military Review, one each for the Army, Air Force, Coast Guard, and Navy-Marine Corps. These courts, which usually sit in three-judge panels, review all cases in which the sentence imposed is for one or more years of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted servicemember. Art. 66, UCMJ, 10 U.S. C. 866. The courts may review de novo both factual and legal findings, and they may overturn convictions and sentences. *169 Appellate judges may be commissioned officers or civilians, but each must be a member of a bar of a federal court or of a State's highest court. The judges are selected and assigned to serve by the appropriate Judge Advocate General. Like military trial judges, appellate judges do not serve for a fixed term. There are presently 31 appellate military judges. Atop the system is the Court of Military Appeals, which consists of five civilian judges who are appointed by the President, with the advice and consent of the Senate, for fixed terms of 15 years. Arts. 142, UCMJ, 10 U.S. C. 8, 942 (1988 ed., Supp. IV). The appointment and tenure of these judges are not at issue here. I The Appointments Clause of Article II of the Constitution reads as follows: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of
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think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U. S. Const., Art. II, 2, cl. 2. We begin our analysis on common ground. The parties do not dispute that military judges, because of the authority and responsibilities they possess, act as "Officers" of the United States. See ; The parties are also in agreement, and rightly so, that the Appointments Clause applies to military officers. As we said in Buckley, "all officers of the United States are to be appointed in accordance with the Clause. No class or type of officer is excluded because of its special functions." It follows that those serving as military judges must be appointed pursuant to the Appointments Clause. All of the military judges involved in these cases, however, were already commissioned officers when they were assigned to serve as judges,[4] and thus they had already been appointed by the President with the advice and consent of the Senate.[5] The question we must answer, therefore, is whether these officers needed another appointment pursuant to the Appointments Clause before assuming their judicial duties. Petitioners contend that the position of military judge is so different from other positions to which an officer may be assigned that either Congress has, by implication, required a second appointment, or the Appointments Clause, by constitutional command, requires one. We reject both of these arguments. Petitioners' argument that Congress by implication has required a separate appointment is based in part on the fact that military judges must possess certain qualifications, including *1 membership in a state or federal bar. But such special qualifications in themselves do not, we believe, indicate a congressional intent to create aseparate office. Special qualifications are needed to perform a host of military duties; yet no one could seriously contend that the positions of military lawyer or pilot, for example, are distinct offices because officers performing those duties must possess additional qualifications. Petitioners' argument also ignores the fact that Congress has not hesitated to expressly require the separate appointment of military officers to certain positions. An additional appointment by the President and confirmation by the Senate is required for a number of top-level positions in the military hierarchy, including: the Chairman and Vice Chairman of the Joint Chiefs of Staff, 10 U.S. C. 152, 154; the Chief and Vice Chief of Naval Operations, 5033, 5035; the Commandant and Assistant Commandant of the Marine Corps, 50, 5044; the Surgeons General of the Army, Navy, and Air Force, 3036, 5137, 8036; the Chief of Naval Personnel, 5141; the Chief of Chaplains,
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the Chief of Naval Personnel, 5141; the Chief of Chaplains, 5142; and the Judge Advocates General of the Army, Navy, and Air Force, 3037, 5148, 8037. With respect to other positions, however, Congress has spoken quite differently. The Deputy and Assistant Chiefs of Staff for the Army, for example, are "general officers detailed to these positions." 3035 The Chief of Staff of the Marine Corps and his assistants are "detailed" to those positions by the Secretary of the Navy. 5045. Commissioned officers "may be detailed for duty" with the American Red Cross by the appropriate military Secretary. 711a. Secretaries of military departments "may assign or detail members of the armed forces" to be inspectors of buildings owned or occupied abroad by the United States. 713. The Secretary of the Navy "may assign" enlisted members of the Navy to serve as custodians of foreign embassies and consulates. 5983. And the President *2 may "detail" officers of the Navy to serve as superintendents or instructors at nautical schools. This contrasting treatment indicates rather clearly that Congress repeatedly and consistently distinguished between an office that would require a separate appointment and a position or duty to which one could be "assigned" or "detailed" by a superior officer. The sections of the UCMJ relating to military judges speak explicitly and exclusively in terms of "detail" or "assign"; nowhere in these sections is mention made of a separate appointment. Section 826(a) provides that a military judge shall be "detail[ed]" to each general court-martial, and may be "detail[ed]" to any special court-martial. The military judge of a general court-martial must be designated by the Judge Advocate General, or his designee, 826(c), but the appropriate Service Secretary prescribes by regulation the manner in which military judges are detailed for special courts-martial, and what persons are authorized to so detail them. Section 866, in turn, provides that military appellate judges shall be "assigned to a Court of Military Review." The appropriate Judge Advocate General designates a chief judge for each Court of Military Review, and the chief judge determines "on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel." Congress' treatment of military judges is thus quite different from its treatment of those offices, such as Chairman of the Joint Chiefs of Staff, for which it wished to require a second appointment before already-commissioned officers could occupy them. This difference negates any permissible inference that Congress intended that military judges should receive a second appointment, but
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intended that military judges should receive a second appointment, but in a fit of absentmindedness forgot to say so. Petitioners' alternative contention is that even if Congress did not intend to require a separate appointment for a military *3 judge, the Appointments Clause requires such an appointment by its own force. They urge upon us in support of this contention our decisions in and These decisions undoubtedly establish the analytical framework upon which to base the conclusion that a military judge is an "officer of the United States"a proposition to which both parties agree. But the decisions simply do not speak to the issue of whether, and when, the Appointments Clause may require a second appointment. The lead and dissenting opinions in the Court of Military Appeals devoted considerable attention to, and the parties before us have extensively briefed, the significance of our opinion in There Congress had enacted a statute establishing a commission to supervise the development of Rock Creek Park in the District of Columbia. Three of the members were appointed by the President with the advice and consent of the Senate, but the remaining two members were the Chief of Engineers of the Army and the Engineer Commissioner of the District of Columbia. Both of the latter were already commissioned as military officers, but it was contended that the Appointments Clause required that they again be appointed to their new positions. The Court rejected the argument, saying: "[T]he argument is, that while Congress may create an office, it cannot appoint the officer; that the officer can only be appointed by the President with the approval of the Senate. As, however, the two persons whose eligibility is questioned were at the time of the passage of the act officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary *4 that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed." The present cases before us differ from Shoemaker in several respects, at least one of which is significant for purposes of Appointments Clause analysis. In Shoemaker, Congress assigned new duties to two existing offices, each of which was held by a single officer. This
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each of which was held by a single officer. This no doubt prompted the Court's description of the argument as being that "while Congress may create an office, it cannot appoint the officer." By looking to whether the additional duties assigned to the offices were "germane," the Court sought to ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office. But here the statute authorized an indefinite number of military judges, who could be designated from among hundreds or perhaps thousands of qualified commissioned officers. In short, there is no ground for suspicion here that Congress was trying to both create an office and also select a particular individual to fill the office. Nor has Congress effected a "diffusion of the appointment power," about which this Court expressed concern in Even if we assume, arguendo, that the principle of "germaneness" applies to the present situation, we think that principle is satisfied here. By enacting the Uniform Code of Military Justice in 1950, and through subsequent statutory changes, Congress has gradually changed the system of military justice so that it has come to more closely resemble the civilian system. But the military in important respects remains a "specialized society separate from civilian society," Although military *5 judges obviously perform certain unique and important functions, all military officers, consistent with a long tradition, play a role in the operation of the military justice system. Commissioned officers, for example, have the power and duty to "quell quarrels, frays, and disorders among persons subject to [the UCMJ] and to apprehend persons subject to [the UCMJ] who take part therein." Art. 7(c), UCMJ, 10 U.S. C. 807(c). Commanding officers can impose nonjudicial disciplinary punishment for minor offenses, without the intervention of a court-martial, which includes correctional custody, forfeiture of pay, reduction in grade, extra duties, restriction to certain limits, and detention of pay. Art. 15, UCMJ, 10 U.S. C. 815. A commissioned officer may serve as a summary court-martial or a member of a special or general court-martial. When acting as a summary court-martial or as the president of a special court-martial without a military judge, this officer conducts the proceedings and resolves all issues that would be handled by the military judge, except for challenge for cause against the president of a special court-martial without a military judge. Art. 51, UCMJ, 10 U.S. C. 851. Convening authorities, finally, have the authority to review and modify the sentence imposed by courts-martial. Art. 60, UCMJ, 10 U.S. C. 860. Thus, by contrast to civilian society, nonjudicial
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Weiss v. United States
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https://www.courtlistener.com/opinion/112920/weiss-v-united-states/
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U.S. C. 860. Thus, by contrast to civilian society, nonjudicial military officers play a significant part in the administration of military justice. By the same token, the position of military judge is less distinct from other military positions than the office of full-time civilian judge is from other offices in civilian society. As the lead opinion in the Court of Military Appeals noted, military judges do not have any "inherent judicial authority separate from a court-martial to which they have been detailed. When they act, they do so as a court-martial, not as a military judge. Until detailed to a specific court-martial, they have no more authority than any other military officer of the same grade and rank." Military *6 appellate judges similarly exercise judicial functions only when they are "assigned" to a Court of Military Review. Neither military trial nor appellate judges, moreover, have a fixed term of office. Commissioned officers are assigned or detailed to the position of military judge by a Judge Advocate General for a period of time he deems necessary or appropriate, and then they may be reassigned to perform other duties. Even while serving as military trial judges, officers may perform, with the permission of the Judge Advocate General, duties unrelated to their judicial responsibilities. Art. 26(c), UCMJ, 10 U.S. C. 826(c). Whatever might be the case in civilian society, we think that the role of military judge is "germane" to that of military officer. In sum, we believe that the current scheme satisfies the Appointments Clause. It is quite clear that Congress has not required a separate appointment to the position of military judge, and we believe it equally clear that the Appointments Clause by its own force does not require a second appointment before military officers may discharge the duties of such a judge. II Petitioners next contend that the Due Process Clause requires that military judges must have a fixed term of office. Petitioners recognize, as they must, that the Constitution does not require life tenure for Article I judges, including military judges. See United States ex rel. Nor does the trial by an Article I judge lacking life tenure violate an accused's due process rights. See Petitioners thus confine their argument to the assertion that due process requires military judges to serve for some fixed length of timehowever short. Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. See v. Goldberg, *7 ; But in
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Justice Rehnquist
| 1,994 | 19 |
majority
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Weiss v. United States
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https://www.courtlistener.com/opinion/112920/weiss-v-united-states/
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in military proceedings. See v. Goldberg, *7 ; But in determining what process is due, courts "must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, 8." Petitioners urge that we apply the due process analysis established in The Government contends that 505 U.S. 7 supplies the appropriate analytical framework. Neither Mathews nor Medina, however, arose in the military context, and we have recognized in past cases that "the tests and limitations [of due process] may differ because of the military context." at The difference arises from the fact that the Constitution contemplates that Congress has "plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline." Judicial deference thus "is at its apogee" when reviewing congressional decisionmaking in this area. Our deference extends to rules relating to the rights of servicemembers: "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. [W]e have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated." 483 U.S. 5, We therefore believe that the appropriate standard to apply in these cases is found in where we also faced a due process challenge to a facet of the military justice system. In determining whether the Due Process Clause requires that servicemembers appearing before a summary court-martial be assisted by counsel, we asked "whether the factors militating in favor of counsel at summary courts-martial are so extraordinarily weighty as to *8 overcome the balance struck by Congress." We ask the same question here with respect to fixed terms of office for military judges. It is elementary that "a fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, A necessary component of a fair trial is an impartial judge. See ibid.; Petitioners, however, do not allege that the judges in their cases were or appeared to be biased. Instead, they ask us to assume that a military judge who does not have a fixed term of office lacks the independence necessary to ensure impartiality. Neither history nor current practice, however, supports such an assumption. A Although a fixed term of office is a traditional component of the Anglo-American civilian judicial system, it has never been a part of the military justice tradition. The early English military tribunals, which served as the model for our own military justice system, were historically
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Justice Rehnquist
| 1,994 | 19 |
majority
|
Weiss v. United States
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https://www.courtlistener.com/opinion/112920/weiss-v-united-states/
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the model for our own military justice system, were historically convened and presided over by a military general. No tenured military judge presided. See Schlueter, The Court-Martial: An Historical Survey, 135, -144 In the United States, although Congress has on numerous occasions during our history revised the procedures governing courts-martial, it has never required tenured judges to preside over courts-martial or to hear immediate appeals therefrom.[6] See W. Winthrop, Military Law and Precedents *9 21-24, 953-1000 (2d ed. 1920) (describing and reprinting the Articles of War, which governed court-martial proceedings during the th and 18th centuries); F. Gilligan & F. Lederer, 1 Court-Martial Procedure 11-24 (describing 20th-century revisions to Articles of War, and enactment of and amendments to UCMJ). Indeed, as already mentioned, Congress did not even create the position of military judge until 1968. Courts-martial thus have been conducted in this country for over 200 years without the presence of a tenured judge, and for over 150 years without the presence of any judge at all. B As the Court of Military Appeals observed in the historical maintenance of the military justice system without tenured judges "suggests the absence of a fundamental fairness problem." Petitioners in effect urge us to disregard this history, but we are unwilling to do so. We do not mean to say that any practice in military courts which might have been accepted at some time in history automatically satisfies due process of law today. But as Congress has taken affirmative steps to make the system of military justice more like the American system of civilian justice, it has nonetheless chosen not to give tenure to military judges. The question under the Due Process Clause is whether the existence of such tenure is such an extraordinarily weighty factor as to overcome the balance struck by Congress. And the historical fact that military judges have never had tenure is a factor that must be weighed in this calculation. A fixed term of office, as petitioners recognize, is not an end in itself. It is a means of promoting judicial independence, which in turn helps to ensure judicial impartiality. We believe the applicable provisions of the UCMJ, and corresponding regulations, by insulating military judges from the effects of command influence, sufficiently preserve judicial impartiality so as to satisfy the Due Process Clause. *180 Article 26 places military judges under the authority of the appropriate Judge Advocate General rather than under the authority of the convening officer. 10 U.S. C. 826. Rather than exacerbating the alleged problems relating to judicial independence, as petitioners suggest, we believe this structure
|
Justice Rehnquist
| 1,994 | 19 |
majority
|
Weiss v. United States
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https://www.courtlistener.com/opinion/112920/weiss-v-united-states/
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to judicial independence, as petitioners suggest, we believe this structure helps protect that independence. Like all military officers, Congress made military judges accountable to a superior officer for the performance of their duties. By placing judges under the control of Judge Advocates General, who have no interest in the outcome of a particular court-martial, we believe Congress has achieved an acceptable balance between independence and accountability. Article 26 also protects against unlawful command influence by precluding a convening authority or any commanding officer from preparing or reviewing any report concerning the effectiveness, fitness, or efficiency of a military judge relating to his judicial duties. Article 37 prohibits convening authorities from censuring, reprimanding, or admonishing a military judge "with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding." 10 U.S. C. 837. Any officer who "knowingly and intentionally fails to enforce or comply" with Article 37 "shall be punished as a court-martial may direct." Art. 98, UCMJ, 10 U.S. C. 898. The Code also provides that a military judge, either trial or appellate, must refrain from adjudicating a case in which he has previously participated, Arts. 26(c),66(h), UCMJ, 10 U.S. C. 826(c), 866(h), and the Code allows the accused to challenge both a court-martial member and a court-martial judge for cause, Art. 41, UCMJ, 10 U.S. C. 841. The Code also allows the accused to learn the identity of the military judge before choosing whether to be tried by the judge alone, or by the judge and court-martial members. Art. 16, UCMJ, 10 U.S. C. 816. *181 The entire system, finally, is overseen by the Court of Military Appeals, which is composed entirely of civilian judges who serve for fixed terms of 15 years. That court has demonstrated its vigilance in checking any attempts to exert improper influence over military judges. In United for example, the court considered whether the Judge Advocate General of the Navy, or his designee, could rate a military judge based on the appropriateness of the judge's sentences at courts-martial. As the court later described: "We held [in Mabe] that the existence of such a power in these military officers was inconsistent with Congress' establishment of the military `judge' in Article 26 and its exercise violated Article 37 of the Code." And in the court held that it would also Articles 26 and 37 if a Judge Advocate General decertified or transferred a military judge based on the General's opinion of the appropriateness of the judge's findings and
|
Justice Scalia
| 2,011 | 9 |
concurring
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Talk America, Inc. v. Michigan Bell Telephone Co.
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https://www.courtlistener.com/opinion/218456/talk-america-inc-v-michigan-bell-telephone-co/
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I join the opinion of the Court. I would reach the same result even without benefit of the rule that we will defer to an agency’s interpretation of its own regulations, a rule in recent years attributed to our opinion in though it first appeared in our jurisprudence more than half a century earlier, see Bowles v. Seminole Rock & Sand Co., In this suit I have no need to rely on Auer deference, because I believe the FCC’s interpretation is the fairest reading of the orders in question. Most cogently, ¶140 of the Trien nial Review Remand Order serves no purpose unless one accepts (as AT&T does not) the distinction between back hauling and interconnection that is referred to in footnotes to ¶¶138 and 141 of the order. 20 FCC Rcd. 2533, 2610– 2612 (2005). The order would have been clearer, to be sure, if the distinction had been made in a footnote to ¶140 2 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. SCALIA, J., concurring itself, but the distinction is there, and without it ¶140 has no point. It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary—indeed, an a fortiori application—of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron U. S. A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implemen tation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an im precise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s mean ing. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to per mit the person who promulgates a law to interpret it as well. “When the legislative and executive powers are united in the same person, or in the same body of magis trates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact ty rannical laws, to execute them in
|
Justice Scalia
| 2,011 | 9 |
concurring
|
Talk America, Inc. v. Michigan Bell Telephone Co.
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https://www.courtlistener.com/opinion/218456/talk-america-inc-v-michigan-bell-telephone-co/
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senate should enact ty rannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in Cite as: 564 U. S. (2011) 3 SCALIA, J., concurring future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappro priateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends. There are undoubted advantages to Auer deference. It makes the job of a reviewing court much easier, and since it usually produces affirmance of the agency’s view with out conflict in the Circuits, it imparts (once the agency has spoken to clarify the regulation) certainty and predict ability to the administrative process. The defects of Auer deference, and the alternatives to it, are fully explored in Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). We have not been asked to reconsider Auer in the present case. When we are, I will be receptive to doing so
|
Justice Alito
| 2,014 | 8 |
dissenting
|
Hall v. Florida
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https://www.courtlistener.com/opinion/2676594/hall-v-florida/
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In the Court held that the Eighth Amendment prohibits a death sen tence for defendants who are intellectually disabled but does not mandate the use of a single method for identify ing such defendants. Today, the Court overrules the latter holding based largely on the positions adopted by private professional associations. In taking this step, the Court sharply departs from the framework prescribed in prior Eighth Amendment cases and adopts a uniform national rule that is both conceptually unsound and likely to result in confusion. I therefore respectfully dissent. I The Court’s approach in this case marks a new and most unwise turn in our Eighth Amendment case In At- kins and other cases, the Court held that the prohibition of cruel and unusual punishment embodies the “evolving standards of decency that mark the progress of a maturing society,” and the Court explained that “those evolving standards should be informed by objective factors to the maximum possible extent.” (internal quotation marks omitted). In addition, the Court “pinpointed that the clearest and most reliable objective evidence of con temporary values is the legislation enacted by the coun 2 HALL v. FLORIDA ALITO, J., dissenting try’s legislatures.” In these prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA). The Court begins its analysis with the views of those associations, see ante, at 7–12, and then, after briefly discussing the enactments of state legislatures, see ante, at 12–16, re turns to the associations’ views in interpreting and in exercising the Court’s “independent judgment” on the constitutionality of Florida’s law, see ante, at 16–22. This approach cannot be reconciled with the framework pre scribed by our Eighth Amendment cases. A Under this Court’s modern Eighth Amendment prece dents, whether a punishment is “cruel and unusual” de pends on currently prevailing societal norms, and the Court has long held that laws enacted by state legislatures provide the “clearest and most reliable objective evidence of contemporary values,” 1 This is so because “in a democratic society[,] legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people,” (joint opinion of Stewart, Powell, and Stevens, JJ.) (internal quotation marks omitted). Under this approach, as origi nally conceived, the Court first asked whether a chal lenged practice contravened a clear national consensus evidenced by state legislation, and only if such a
|
Justice Alito
| 2,014 | 8 |
dissenting
|
Hall v. Florida
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https://www.courtlistener.com/opinion/2676594/hall-v-florida/
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consensus evidenced by state legislation, and only if such a consen sus was found would the Court go on and ask “whether there is reason to disagree with [the States’] judgment.” Invoking this two-step procedure, held that the Cite as: 572 U. S. (14) ALITO, J., dissenting Eighth Amendment forbids the execution of defendants who are intellectually disabled. See at 15–16. Critical to the Court’s analysis was the conclusion that “today our society views mentally retarded offenders as categorically less culpable than the average criminal.” at 16. “This consensus,” the Court continued, “unques tionably reflects widespread judgment about the rela tionship between mental retardation and the penological purposes served by the death penalty.” While identified a consensus against the execu tion of the intellectually disabled, the Court observed that there was “serious disagreement” among the States with respect to the best method for “determining which offend ers are in fact retarded.” The Court therefore “le[ft] to the States the task of developing appropriate ways” to identify these defendants. (internal quotation marks and alteration omitted). As we noted just five years ago, “did not provide definitive procedural or substan tive guides for determining when a person” is intellectually disabled. B Consistent with the role that left for the States, Florida follows the procedure now at issue. As we ex plained in in order for a defendant to qualify as intellectually disabled, three separate requirements must be met: It must be shown that a defendant has both (1) significantly subaverage intellectual functioning and (2) deficits in adaptive behavior, and that () the onset of both factors occurred before the age of 18. See 56 U.S., at 18; ante, at 8. In implementing this framework, Flor ida has determined that the first requirement cannot be satisfied if the defendant scores higher than 70 on IQ tests, the long-accepted method of measuring intellectual 4 HALL v. FLORIDA ALITO, J., dissenting functioning.1 The Court today holds that this scheme offends the Eighth Amendment. The Court objects that Florida’s approach treats IQ test scores as conclusive and ignores the fact that an IQ score might not reflect “true” IQ because of errors in measurement. The Court then concludes that a State must view a defendant’s IQ as a range of potential scores calculated using a statistical concept known as the “standard error of measurement” or SEM. See Part II–B–1, infra. The Court holds that if this range includes an IQ of 70 or below (the accepted level for intellectual disability), the defendant must be permitted to produce other evidence of intellectual disability in addition to IQ
|
Justice Alito
| 2,014 | 8 |
dissenting
|
Hall v. Florida
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https://www.courtlistener.com/opinion/2676594/hall-v-florida/
|
produce other evidence of intellectual disability in addition to IQ scores. I see no support for this holding in our traditional ap proach for identifying our society’s evolving standards of decency. Under any fair analysis of current state laws, the same absence of a consensus that this Court found in persists today. It is telling that himself does not rely on a consensus among States. He candidly argues instead that “the precise number of States that share Florida’s approach is immaterial.” Reply Brief 2. The Court’s analysis is more aggressive. According to the Court, a “significant majority of States” reject Florida’s “strict 70 cutoff ” and instead take “the SEM into account” when deciding whether a defendant meets the first re quirement of the intellectual-disability test. Ante, at 12, 16. On the Court’s count, “at most nine States mandate a strict IQ score cutoff at 70”; 22 States allow defendants to present “additional evidence” when an individual’s test —————— 1 See, e.g., American Association of Intellectual and Developmental Disabilities (AAIDD), Intellectual Disability 10–11 (11th ed. 10) (hereinafter AAIDD 11th ed.) (cataloguing history of IQ “cutoff criteria” since 19). Earlier publications of the AAIDD were published under its former name, the American Association on Mental Retardation (hereinafter AAMR). Cite as: 572 U. S. (14) 5 ALITO, J., dissenting score is between 70 and ante, ;2 and 19 States have abolished the death penalty or have long suspended its operation. Ante, at 14. From these numbers, the Court concludes that “in 41 States” a defendant “with an IQ score of 71” would “not be deemed automatically eligible for the death penalty.” This analysis is deeply flawed. To begin, in addition to the 8 other States that the Court recognizes as having rules similar to Florida’s, 1 more, Idaho, does not appear to require courts to take the SEM into account in rejecting a claim of intellectual disability.4 And of the remaining 21 States with the death penalty, 9 have either said nothing about the SEM or have not clari fied whether they require its use.5 Accordingly, of the —————— 2I assume that by “additional evidence” the Court means evidence other than further IQ testing because Florida’s rule already “allows for multiple evaluations, and [petitioner] could have sought still more testing.” Brief for Respondent 44. See also Brief for Petitioner 50; App. 107–108. As I discuss below, the Florida Supreme Court did not base its deci sion on a finding that ’s IQ was 71. The Florida courts considered several IQ scores, all above 70. See App. 107–108; Brief for Petitioner 50. 4
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