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Justice Thomas
| 1,993 | 1 |
concurring
|
Graham v. Collins
|
https://www.courtlistener.com/opinion/112810/graham-v-collins/
|
have held that States must be free to channel and direct the sentencer's consideration of all evidence (whether mitigating or aggravating) that bears on sentencing, provided only that the State does not categorically preclude the sentencer from considering constitutionally relevant mitigating circumstances. See ("[T]here is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the *92 death penalty") ; Boyde v., 9 U.S. 30, ; 8 U. S.,at 181 ; see also ; 9 U.S. 299, ; 9 U.S. 8, 90-91 This understanding preserves our original rationale for upholding the Texas sentencing statutethat it "guides and focuses the jury's objective consideration of the particularized circumstances" while allowing the defendant "to bring to the jury's attention whatever [relevant] mitigating circumstances he may be able to show." 28 U. S., at 22, 2. Thus, in reaffirming the constitutionality of Texas' system of special issues, we have expressed satisfaction that the former Texas scheme successfully reconciled any tension that exists between and See at In the context of the Texas system, therefore, I am unprepared at present to sweep away our entire mitigating line of precedent. By the same token, however, if the more expansive reading of were ultimately to prevail in this Court, I would be forced to conclude that the rule, as so construed, truly is "rationally irreconcilable with " and, on that basis, deserving of rejection. See II Unfortunately, the narrow reading of is virtually impossible after Whatever contribution to rationality and consistency we made in we have taken back with In the process, we have upset the careful balance that Texas had achieved through the use of its special issues. *93 held that the Texas special issues did not allow a jury to "consider and give effect to" mitigating evidence of mental retardation and childhood 92 U.S., at 328, because, even though the defendant had a full and unfettered opportunity to present such evidence to the jury, the evidence had "relevance to ['s] moral culpability beyond the scope of the special issues," Thus, the Court was persuaded that the jury might have been "unable to express its `reasoned moral response ` to that evidence in determining whether death was the appropriate punishment." See post, at 518 519. Contrary to the dissent's view, see post, at 506-512, these notionsthat a defendant may not be sentenced to death if there are mitigating circumstances whose relevance goes "beyond the scope" of the State's sentencing criteria, and that
|
Justice Thomas
| 1,993 | 1 |
concurring
|
Graham v. Collins
|
https://www.courtlistener.com/opinion/112810/graham-v-collins/
|
"beyond the scope" of the State's sentencing criteria, and that the jury must be able to express a "reasoned moral response" to all evidence presentedhave no pedigree in our prior holdings. They originated entirely from whole cloth in two recent concurring opinions. See ; 55 Together, these notions render meaningless any rational standards by which a State may channel or focus the jury's discretion and thus negate the central tenet of and all our death penalty cases since 192. imposes as a constitutional imperative "a scheme that simply dumps before the jury all sympathetic factors bearing upon the defendant's background and character, and the circumstances of the offense, so that the jury may decide without further guidance" whether the defendant deserves death. 92 U. S., at 359 "It is an unguided, emotional `moral response' that the Court demands be allowedan outpouring of personal reaction to all the circumstances of a defendant's life and personality, an unfocused sympathy." Justice Souter's reading of bears out these fears. His dissent *9 would require that the special issues be "construed with enough scope to allow the full consideration of mitigating potential," post, at 515, and that the jury be free to give full effect to the defendant's sympathetic evidence "for all purposes, including purposes not specifically permitted by the questions," post, at 511 (internal quotation marks and emphasis omitted). Any determination that death is or is not the fitting punishment for a particular crime will necessarily be a moral one, whether made by a jury, a judge, or a legislature. But beware the word "moral" when used in an opinion of this Court. This word is a vessel of nearly infinite capacity just as it may allow the sentencer to express benevolence, it may allow him to cloak latent animus. A judgment that some will consider a "moral response" may secretly be based on caprice or even outright prejudice. When our review of death penalty procedures turns on whether jurors can give "full mitigating effect" to the defendant's background and character, post, at 510, and on whether juries are free to disregard the State's chosen sentencing criteria and return a verdict that a majority of this Court will label "moral," we have thrown open the back door to arbitrary and irrational sentencing. See ("The decision whether to impose the death penalty is a unitary one; unguided discretion not to impose is unguided discretion to impose as well. In holding that the jury had to be free to deem 's mental retardation and sad childhood relevant for whatever purpose it wished, the Court has come
|
Justice Thomas
| 1,993 | 1 |
concurring
|
Graham v. Collins
|
https://www.courtlistener.com/opinion/112810/graham-v-collins/
|
relevant for whatever purpose it wished, the Court has come full circle, not only permitting but requiring what once condemned"). The Court in denied that its holding signaled a return to unbridled jury discretion because, it reasoned, "so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant." 92 U. S., *95 at 32 (citing 28 U. S., -199, 203 and 222 ). Cf. 81 U. S., 1 Thus, the dissent suggests that once the State has sufficiently narrowed the class of death-eligible murderers, the jury's discretion to select those individuals favored to live must remain effectively unbounded. See post, at 513-515, 518-519. It turns reason on its head, however, to argue that just because we have approved sentencing systems that continue to permit juries to exercise a degree of discretionary leniency, the Eighth Amendment necessarily requires that that discretion be unguided and unlimited with respect to "the class of murderers subject to capital punishment." To withhold the death penalty out of sympathy for a defendant who is a member of a favored group is no different from a decision to impose the penalty on the basis of negative bias, and it matters not how narrow the class of death-eligible defendants or crimes. Surely that is exactly what the petitioners and the Legal Defense Fund argued in and See n. It is manifest that "`the power to be lenient [also] is the power to discriminate.' " 2 (quoting K. Davis, Discretionary Justice 10 (193)). See also 28 U. S., ("It is undeniable that the unfettered discretion of the jury to save the defendant from death was a major contributing factor in the developments which led us to invalidate the death penalty in ").[9] *96 We have consistently recognized that the discretion to accord mercyeven if "largely motivated by the desire to mitigate"is indistinguishable from the discretion to impose the death penalty. 08 U. S., 3, 31 (condemning unguided discretion because it allows the jury to "refuse to impose the death penalty no matter what the circumstances of the crime") See also 28 U. S., at 29 (Texas' scheme is constitutional because it "does not extend to juries discretionary power to dispense mercy"); at (Louisiana's statute "plainly invites" jurors to "choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate"). For that reason, we have twice refused to disapprove instructions directing jurors "`not [to] be swayed by mere sympathy,' "
|
Justice Thomas
| 1,993 | 1 |
concurring
|
Graham v. Collins
|
https://www.courtlistener.com/opinion/112810/graham-v-collins/
|
directing jurors "`not [to] be swayed by mere sympathy,' " because, we have emphasized, such instructions "foste[r] the Eighth Amendment's `need for reliability in the determination that death is the appropriate punishment in a specific case.' " 9 U. S., at 539, 53 (quoting 28 U. S., at 305 ). Accord, 9 U. S., at 93 ("Whether a juror feels sympathy for a capital defendant is more likely to depend on that juror's own emotions than on the actual evidence regarding the crime and the defendant. It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary"). reintroduces the very risks that we had sought to eliminate through the simple directive that States in all events provide rational standards for capital sentencing. For 20 years, we have acknowledged the relationship between *9 undirected jury discretion and the danger of discriminatory sentencinga danger we have held to be inconsistent with the Eighth Amendment. When a single holding does so much violence to so many of this Court's settled precedents in an area of fundamental constitutional law, it cannot command the force of stare decisis. In my view, should be overruled.[10] III The major emphasis throughout our Eighth Amendment jurisprudence has been on "reasoned" rather than "moral" sentencing. We have continually sought to verify that States' capital procedures provide a "rational basis" for predictably determining which defendants shall be sentenced to death. See also 68 U.S. 60 (198); at 51; 63 U.S. 939, ("A constant theme of our cases has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner"); 81 U. S., at 323 *98 ("[C]oncern for arbitrariness focuses on the rationality of the system as a whole, and a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational"). And in the absence of mandatory sentencing, States have only one means of satisfying `s demandsproviding objective standards to ensure that the sentencer's discretion is "guided and channeled by examination of specific factors." 28 U.S. 22, The rule of may be an important procedural safeguard that complements but cannot promote consistency, much less rationality. Quite the opposite, as demonstrates. It is imperative, therefore, that we give full effect to the standards designed by state legislatures for focusing the sentencer's deliberations. This Court has long since settled the question of the constitutionality
|
Justice Thomas
| 1,993 | 1 |
concurring
|
Graham v. Collins
|
https://www.courtlistener.com/opinion/112810/graham-v-collins/
|
Court has long since settled the question of the constitutionality of the death penalty. We have recognized that "capital punishment is an expression of society's moral outrage at particularly offensive conduct" and that a process for "`channeling th[e] instinct [for retribution] in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.' " 28 U. S., at 183 (quoting ). If the death penalty is constitutional, States must surely be able to administer it pursuant to rational procedures that comport with the Eighth Amendment's most basic requirements. In my view, we should enforce a permanent truce between and We need only conclude that it is consistent with the Eighth Amendment for States to channel the sentencer's consideration of a defendant's arguably mitigating evidence so as to limit the relevance of that evidence in any reasonable manner, so long as the State does not deny *99 the defendant a full and fair opportunity to apprise the sentencer of all constitutionally relevant circumstances. The three Texas special issues easily satisfy this standard. "In providing for juries to consider all mitigating circumstances insofar as they bear upon (1) deliberateness, (2) future dangerousness, and (3) provocation, Texas had adopted a rational scheme that meets the two concerns of our Eighth Amendment jurisprudence." 92 U. S., -359 As a predicate, moreover, I believe this Court should leave it to elected state legislators, "representing organized society," to decide which factors are "particularly relevant to the sentencing decision." Although and indicate that as a general matter, "a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant's `character,' `record,' or the `circumstances of the offense,' " they do "not hold that the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors." 8 U. S., at 19 Ultimately, we must come back to a recognition that "the States, and not this Court, retain `the traditional authority' to determine what particular evidence within the broad categories described in and is relevant in the first instance," 6 U. S., at 11 (quoting 38 U. S., n. 12), since "[t]his Court has no special expertise in deciding whether particular categories of evidence are too speculative or insubstantial to merit consideration by the sentencer," 6 U.S., at 15.[11] Accordingly, I also propose *500 that the Court's appropriate role is to review only for reasonableness a State's determinations as to which specific circumstanceswithin the broad bounds of the general categories mandated under are relevant to capital sentencing. Every month, defendants
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
In this case we are asked to decide the constitutionality of a recent amendment to New York State's longstanding tax on securities transactions. Since 1905, New York has imposed a tax (transfer tax) on securities transactions, if part of the transaction occurs within the State. In 1968, the state legislature amended the transfer tax statute so that transactions involving an out-of-state sale are now taxed more heavily than most transactions involving a sale within the State. In 1972, appellants, six "regional" stock exchanges located outside New York,[1] filed an action in state court *320 against the State Tax Commission of New York and its members. The Exchanges' complaint alleged that the 1968 amendment unconstitutionally discriminates against inter-state commerce by imposing a greater tax burden on securities transactions involving out-of-state sales than on transactions of the same magnitude involving in-state sales.[2] The State Supreme Court denied the Commission's motion to dismiss the action and the Commission appealed. The Appellate Division reversed and ordered that the Commission's motion be granted to the extent of entering a judgment declaring the 1968 amendment to be constitutional.[3] 45 App. Div. *321 2d 365, 357 N. Y. S. 2d 116 (1974). The New York Court of Appeals affirmed the order, and we noted probable jurisdiction of the Exchanges' appeal, I New York Tax Law 270.1 (McKinney 1966) provides that "all sales, or agreements to sell, or memoranda of sales and all deliveries or transfers of shares or certificates of stock" in any foreign or domestic corporation are subject to the transfer tax.[4] Administrative regulations promulgated with respect to *322 the transfer tax provide that the tax applies if any one of the five taxable events occurs within New York, regardless of where the rest of the transaction takes place, and that if more than one taxable event occurs in the State, only one tax is payable on the entire transaction. 20 N.Y. C. R. R. 440.2 For transactions involving sales, the rate of tax depends on the selling price per share and the total tax liability is determined by the number of shares sold.[5] N. Y. Tax Law 270.2 (McKinney 1966). Thus, under the unamended version of 270, a transaction involving a sale and a transfer of shares in New York was taxed the same as a transaction involving an in-state transfer but an out-of-state sale. In both instances, the occasion for the tax was the occurrence of at least one taxable event in the State, the rate of tax was *323 based solely on the price of the securities, and the total tax was determined
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
price of the securities, and the total tax was determined by the number of shares sold. The Exchanges do not challenge the constitutionality of 270.[6] None of the States in which the appellant Exchanges are located taxes the sale or transfer of securities. During the 1960's the New York Stock Exchange became concerned that the New York transfer tax created a competitive disadvantage for New York trading and was thus responsible for the growth of out-of-state exchanges.[7] In response to *324 this concern and fearful that the New York Stock Exchange would relocate outside New York, the legislature in 1968 enacted 270-a to amend the transfer tax by providing for two deviations from the uniform application of 270 when one of the taxable events, a sale, takes place in New York. First, transactions by nonresidents of New York are afforded a 50% reduction ("nonresident reduction") in the rate of tax when the transaction involves an in-state sale. Taxable transactions by residents (regardless of where the sale is made)[8] and by nonresidents selling outside the State do not benefit from the rate decrease. Second, 270-a limits the total tax liability of any taxpayer (resident or nonresident) to $350 (maximum tax) for a single transaction when it involves a New York sale. If a sale is made out-of-State, *325 the 270 tax rate applies to an in-state transfer (or other taxable event) without limitation.[9] The reason for the enactment of 270-a and the intended *326 effect of the amendment are clear from the legislative history. With respect to the amendment, the legislature found: "The securities industry, and particularly the stock exchanges located within the state have contributed importantly to the economy of the state and its recognition as the financial center of the world. The growth of exchanges in other regions of the country and the diversion of business to those exchanges of individuals who are nonresidents of the state of New York, requires recognition that the tax on transfers of stock imposed by article twelve of the tax law, is an important contributing element to the diversion of sales to other areas to the detriment of the economy of the state. Furthermore, in the case of transactions involving large blocks of stock, recognition must be given to the ease of completion *327 of such sales outside the state of New York without the payment of any tax. In order to encourage the effecting by nonresidents of the state of New York of their sales within the state of New York and the retention within the state of New York of sales
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
the retention within the state of New York of sales involving large blocks of stock, a separate classification of the tax on sales by nonresidents of the state of New York and a maximum tax for certain large block sales are desirable." 1968 N. Y. Laws, c. 827, 1. In granting executive approval to 270-a, then Governor Nelson Rockefeller confirmed that the purpose of the new law was to "provide long-term relief from some of the competitive pressures from outside the State."[10] The Governor *328 announced that as a result of the transfer tax amendment the New York Stock Exchange intended to remain in New York. Appellant Exchanges contend that the legislative history states explicitly what is implicit in the operation of 270-a: The amendment imposes an unequal tax burden on out-of-state sales in order to protect an in-state business. They argue that this discrimination is impermissible under the Commerce Clause. Appellees do not dispute the statements of the legislature and the Governor that 270-a is a measure to reduce out-of-state competition with an in-state business. They agree, however, with the holding of the Court of Appeals that the legislature has chosen a nondiscriminatory, and therefore constitutionally permissible, means of "encouraging" sales on the New York Stock Exchange. We hold that 270-a discriminates against interstate commerce in violation of the Commerce Clause. II As in Great A&P Tea we begin with the principle that "[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States." It is now established beyond dispute that "the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. [T]he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States." The Commerce Clause does not, however, eclipse the reserved "power of the States to tax for the support of their own governments," Gibbons or for other purposes, cf. United ; rather, the Clause is a limit on state power. Defining that limit has been the continuing task of this Court. On various occasions when called upon to make the delicate adjustment between the national interest in free and open trade and the legitimate interest of the individual States in exercising their taxing powers, the Court has counseled that the result turns on the unique characteristics of the statute at issue and the particular circumstances in each case. E. g., at This case-by-case approach
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
circumstances in each case. E. g., at This case-by-case approach has left "much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation." Northwestern States Portland Cement Nevertheless, as observed by Mr. Justice Clark in the case just cited: "[F]rom the quagmire there emerge some firm peaks of decision which remain unquestioned." Among these is the fundamental principle that we find dispositive of the case now before us: No State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce by providing a direct commercial advantage to local business." See also Halliburton Oil Well ; ; I. M. Darnell & ; ; The prohibition against discriminatory treatment of interstate commerce follows inexorably from the basic purpose of the Clause. Permitting the individual States to enact laws that favor local enterprises at the expense of out-of-state businesses "would invite a multiplication of preferential trade areas destructive" of the free trade which the Clause protects. Dean Milk Although apparently accepting the teaching of the prior * cases, the Court of Appeals seemed to view 270-a as "compensatory legislation" enacted to "neutralize" the competitive advantage 270 conferred on stock exchanges outside New York. Thus, it analogized the New York statute to state use taxes which have survived Commerce Clause The statute will not support this characterization. Prior to the 1968 amendment, the New York transfer tax was neutral as to in-state and out-of-state sales. An in-state transfer or delivery of securities triggered the tax and the burden fell equally on all transactions regardless of the situs of sale. Thus, the choice of an exchange for the sale of securities that would be transferred or delivered in New York was not influenced by the transfer tax; wherever the sale was made, tax liability would arise. The flow of inter-state commerce in securities was channeled neither into nor out of New York by the state tax.[11] Section 270-a upset this equilibrium. After the amendment took effect, a nonresident contemplating the sale of securities that would be delivered or transferred in New York faced two possible tax burdens. If he elected to sell on an out-of-state exchange, the higher rates of 270 applied without limitation on the total tax liability; if he sold the securities on a New York exchange, the one-half rate of 270-a *331 applied and then only up to a $350 tax liability. Similarly, residents engaging in large block transactions on the New York exchanges were subject to a maximum tax levy of $350;
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
exchanges were subject to a maximum tax levy of $350; but if they sold out-of-State, their tax bill would be limited only by the number of shares sold. Thus, under 270-a the choice of exchange by all nonresidents and by residents engaging in large transactions is not made solely on the basis of nontax criteria. Because of the delivery or transfer in New York, the seller cannot escape tax liability by selling out of State, but he can substantially reduce his liability by selling in State. The obvious effect of the tax is to extend a financial advantage to sales on the New York exchanges at the expense of the regional exchanges. Rather than "compensating" New York for a supposed competitive disadvantage resulting from 270, the amendment forecloses tax-neutral decisions and creates both an advantage for the exchanges in New York and a discriminatory burden on commerce to its sister States. Equal treatment of interstate commerce, lacking in 270-a, has been the common theme running through the cases in which this Court has sustained "compensating," state use taxes. In Washington imposed a 2% sales tax on all goods sold at retail in the State. Since the sales tax would have the effect of encouraging residents to purchase at out-of-state stores, Washington also imposed a 2% "compensating tax" on the use of goods within the State. The use tax did not apply, however, when the article had already been subjected to a tax equal to or greater than 2%. The effect of this constitutional tax system was nondiscriminatory treatment of in-state and out-of-state purchases: "Equality exists when the chattel subjected to the use tax is bought in another state and then carried into Washington. It exists when the imported chattel is shipped from the state of origin under an order received *332 directly from the state of destination. In each situation the burden borne by the owner is balanced by an equal burden where the sale is strictly local." A similar use-sales-tax structure was sustained in General Trading because the "tax [was] what it professes to bea nondiscriminatory excise laid on all personal property" regardless of where the sale was made. See also International Harvester ; 366 U.S. In all the use tax cases, an individual faced with the choice of an in-state or out-of-state purchase could make that choice without regard to the tax consequences. If he purchased in State, he paid a sales tax; if he purchased out of State but carried the article back for use in State, he paid a use tax of the same amount. The
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
he paid a use tax of the same amount. The taxes treated both transactions in the same manner. Because it imposes a greater tax liability on out-of-state sales than on in-state sales, the New York transfer tax, as amended by 270-a, falls short of the substantially even-handed treatment demanded by the Commerce Clause. The extra tax burden on out-of-state sales created by 270-a is not what the New York Court of Appeals holds it out to be; it neither compensates for a like burden on in-state sales, nor neutralizes an economic advantage previously enjoyed by the appellant Exchanges because of 270.[12] *333 III The court below further attempted to save 270-a from invalidation under the Commerce Clause by finding that the effect the amendment might have on sales by residents and nonresidents did not amount to unconstitutional discrimination. As to New York residents, the court found that the higher tax on large out-of-state sales would have no "practical" effect since "it is more than likely that the sale would be made on a New York exchange in any event." As to the discriminatory tax burden on all out-of-state sales by nonresidents, the court observed that because New York sales by nonresidents also involve interstate commerce, 270-a does not discriminate against interstate commerce in favor of intrastate commerce; rather, it discriminates between two kinds of interstate transactions. Although it did not so state, the Court of Appeals apparently believed that such discrimination was permissible under the Commerce Clause. We disagree with the Court of Appeals with respect to both residents and nonresidents. The maximum tax discrimination against out-of-state sales by residents is not triggered until the taxed transaction involves a substantial number of shares. Investors, institutional and individual, engaging in such large-block transactions can be expected to choose an exchange on the basis of services, prices, and other market conditions rather than geographical proximity. Even a small difference in price (of either the securities or the sales services) can, in a large sale, provide a substantial enough additional profit to outweigh whatever additional transaction costs might be incurred from trading on an out-of-state exchange. The New York Legislature, *334 in its legislative findings in connection with 270-a, recognized that securities transactions by residents were not being conducted only on the New York exchanges; it therefore considered the amendment necessary to "[retain] within the state of New York sales involving large blocks of stock." If, as the Court of Appeals assumed, it were "more than likely" that residents would sell in New York, there would have been no reason for the legislature
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
York, there would have been no reason for the legislature to reduce the tax burden on in-state sales by residents in order to retain their sales in New York. Nor is the discriminatory burden of the maximum tax insubstantial. On a transaction of 30,000 shares selling at $20 or more, for example, the tax on an in-state sale is the maximum $350, while an out-of-state sale is taxed $1,500. The disparity between the two taxes increases with the number of shares sold. Such a large tax penalty for trading on out-of-state markets cannot be deemed to have no practical effect on interstate commerce.[13] Both the maximum tax and the rate reduction provisions of 270-a discriminate against out-of-state sales by nonresidents. The fact that this discrimination is in favor of nonresident, in-state sales which may also be considered as interstate commerce, see -259, does not save 270-a from the restrictions of the Commerce Clause. A State may no more use discriminatory taxes to assure that nonresidents direct their commerce to businesses *335 within the State than to assure that residents trade only in intrastate commerce. As we stated at the outset, the fundamental purpose of the Clause is to assure that there be free trade among the several States. This free trade purpose is not confined to the freedom to trade with only one State; it is a freedom to trade with any State, to engage in commerce across all state boundaries. There has been no prior occasion expressly to address the question whether a State may tax in a manner that discriminates between two types of interstate transactions in order to favor local commercial interests over out-of-state businesses, but the clear import of our Commerce Clause cases is that such discrimination is constitutionally impermissible. 100 U. S., at held that no State, consistent with the Commerce Clause, may "build up its domestic commerce by means of unequal and oppressive burdens upon the industry and business of other States"; and in New York was prohibited from regulating the price of out-of-state milk purchases because the effect of that regulation would be "to suppress or mitigate the consequences of competition between the states."[14] More recently, we noted that *336 this "Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal." Cf. Halliburton Oil Well -73. Although the statutes at issue in those
|
Justice White
| 1,977 | 6 |
majority
|
Boston Stock Exchange v. State Tax Comm'n
|
https://www.courtlistener.com/opinion/109578/boston-stock-exchange-v-state-tax-commn/
|
Oil Well -73. Although the statutes at issue in those cases had the primary effect of prohibiting or discriminatorily burdening a resident's purchase of out-of-state goods and services, the constitutional policy of free trade and competition that led to their demise is equally fatal to the New York transfer tax. New York's discriminatory treatment of out-of-state sales is made possible only because some other taxable event (transfer, delivery, or agreement to sell) takes place in the State. Thus, the State is using its power to tax an in-state operation as a means of "requiring [other] business operations to be performed in the home State." As a consequence, the flow of securities sales is diverted from the most economically efficient channels and directed to New York. This diversion of interstate commerce and diminution of free competition in securities sales are wholly inconsistent with the free trade purpose of the Commerce Clause. IV Our decision today does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share *337 of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State. The judgment of the New York Court of Appeals is reversed, and the case remanded for further proceedings not inconsistent with this opinion.[15] It is so ordered.
|
Justice Ginsburg
| 2,000 | 5 |
dissenting
|
Norfolk Southern R. Co. v. Shanklin
|
https://www.courtlistener.com/opinion/118355/norfolk-southern-r-co-v-shanklin/
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A fatal accident occurred on October 3, 1993, at a railroad crossing in Gibson County, Tennessee. The crossing was equipped not with automatic gates or flashing lights, but only with basic warning signs installed with federal funds provided under the Federal Railway-Highway Crossings Program. See 23 U.S. C. 130. This federal program aimed to ensure that States would, "[a]t a minimum, provide signs for all railway-highway crossings." 130(d). No authority, federal or state, has found that the signs in place at the scene of the Gibson County accident were adequate to protect safety, as distinguished from being a bare minimum. Nevertheless, the Court today holds that wholesale federal funding of improvements at 196 crossings throughout 11 west Tennessee counties preempts all state regulation of safety devices at each individual crossing. As a result, respondent Dedra Shanklin cannot recover under state tort law for the railroad's failure to install adequate devices. And the State of Tennessee, because it used federal money to provide at least minimum protection, is stopped from requiring the installation of adequate devices at any of the funded crossings. The upshot of the Court's decision is that state negligence law is displaced with no substantive federal standard of conduct to fill the void. That outcome defies common sense and sound policy. Federal regulations already provide that railroads shall not be required to pay any share of the cost of federally financed grade crossing improvements. 23 CFR 646.210(b)(1) Today the railroads have achieved a double windfall: the Federal Government foots the bill for installing safety devices; and that same federal expenditure *361 spares the railroads from tort liability, even for the inadequacy of devices designed only to secure the "minimum" protection Congress envisioned for all crossings. See 23 U.S. C. 130(d). Counsel for petitioner Norfolk Southern Railway correctly conceded at oral argument that the relevant statutes do not compel releasing the railroads when the devices installed, though meeting federal standards for "minimum" protection, see ante, at 350, fail to provide adequate protection. The road is open for the Secretary of Transportation to enact regulations clarifying that point. See ante, at 359-360 (Breyer, J., concurring). As persuasively explained by the Court of Appeals for the Seventh Circuit in and reiterated by the Court of Appeals for the Sixth Circuit in the instant case, our prior decision in CSX Transp., does not necessitate the ouster of state law the Court now commands. Easterwood, in which the tort claimant prevailed, dispositively held only that federal funding was necessary to trigger preemption, not that it was sufficient by itself to do so. Because
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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[*] This is the third case in which the Government has asked us to decide that a shareholder's receipt of a cash payment in exchange for a portion of his stock was taxable as a dividend. In the two earlier cases, and United we agreed with the Government largely because the transactions involved redemptions of stock by single corporations that did not "result in a meaningful reduction of the shareholder's proportionate interest in the corporation." *729 In the case we decide today, however, the taxpayer[1] in an arm's-length transaction exchanged his interest in the acquired corporation for less than 1% of the stock of the acquiring corporation and a substantial cash payment. The taxpayer held no interest in the acquiring corporation prior to the reorganization. Viewing the exchange as a whole, we conclude that the cash payment is not appropriately characterized as a dividend. We accordingly agree with the Tax Court and with the Court of Appeals that the taxpayer is entitled to capital gains treatment of the cash payment. I In determining tax liability under the Internal Revenue Code of 1954, gain resulting from the sale or exchange of property is generally treated as capital gain, whereas the receipt of cash dividends is treated as ordinary income.[2] The Code, however, imposes no current tax on certain stock-for-stock exchanges. In particular, 354(a)(1) provides, subject to various limitations, for nonrecognition of gain resulting from the exchange of stock or securities solely for other stock or securities, provided that the exchange is pursuant to a plan of corporate reorganization and that the stock or securities *730 are those of a party to the reorganization.[3] 2 U.S. C. 354(a)(1). Under 35(a)(1) of the Code, if such a stock-for-stock exchange is accompanied by additional consideration in the form of a cash payment or other property something that tax practitioners refer to as "boot" "then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property." 2 U.S. C. 35(a)(1). That is, if the shareholder receives boot, he or she must recognize the gain on the exchange up to the value of the boot. Boot is accordingly generally treated as a gain from the sale or exchange of property and is recognized in the current tax year. Section 35(a)(2), which controls the decision in this case, creates an exception to that general rule. It provided in 1979: "If an exchange is described in paragraph (1) but has the effect of the distribution
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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in paragraph (1) but has the effect of the distribution of a dividend, then there shall be treated as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after *731 February 2, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be treated as gain from the exchange of property." 2 U.S. C. 35 (a)(2) (197 ed.). Thus, if the "exchange has the effect of the distribution of a dividend," the boot must be treated as a dividend and is therefore appropriately taxed as ordinary income to the extent that gain is realized. In contrast, if the exchange does not have "the effect of the distribution of a dividend," the boot must be treated as a payment in exchange for property and, insofar as gain is realized, accorded capital gains treatment. The question in this case is thus whether the exchange between the taxpayer and the acquiring corporation had "the effect of the distribution of a dividend" within the meaning of 35(a)(2). The relevant facts are easily summarized. For approximately 15 years prior to April 1979, the taxpayer was the president of Basin Surveys, Inc. (Basin). In January he became sole shareholder in Basin, a company in which he had invested approximately $5,000. The corporation operated a successful business providing various technical services to the petroleum industry. In N. L. Industries, Inc. (NL), a publicly owned corporation engaged in the manufacture and supply of petroleum equipment and services, initiated negotiations with the taxpayer regarding the possible acquisition of Basin. On April 3, 1979, after months of negotiations, the taxpayer and NL entered into a contract. The agreement provided for a "triangular merger," whereby Basin was merged into a wholly owned subsidiary of NL. In exchange for transferring all of the outstanding shares in Basin to NL's subsidiary, the taxpayer elected to receive 300,000 shares of NL common stock and cash boot of $3,250,000, passing up an alternative offer of 425,000 shares of NL common stock. The 300,000 shares of NL issued to the taxpayer amounted to approximately 0.92% of the outstanding *732 common shares of NL. If the taxpayer had instead accepted the pure stock-for-stock offer, he would have held approximately 1.3% of the outstanding common shares. The Commissioner and the taxpayer agree that the merger at issue qualifies as a reorganization under 3(a)(1)(A) and (a)(2)(D).[4] Respondents filed a joint federal income tax return for 1979. As required by 35(a)(1), they
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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income tax return for 1979. As required by 35(a)(1), they reported the cash boot as taxable gain. In calculating the tax owed, respondents characterized the payment as long-term capital gain. The Commissioner on audit disagreed with this characterization. In his view, the payment had "the effect of the distribution of a dividend" and was thus taxable as ordinary income up to $2,319,11, the amount of Basin's accumulated earnings and profits at the time of the merger. The Commissioner assessed a deficiency of $972,504.74. Respondents petitioned for review in the Tax Court, which, in a reviewed decision, held in their favor. The court started from the premise that the question whether the boot payment had "the effect of the distribution of a dividend" turns on the choice between "two judicially articulated tests." Under the test advocated by the Commissioner and given voice in cert. denied, the boot payment is treated as though it were made in a hypothetical redemption by the acquired corporation (Basin) immediately prior to the reorganization. *733 Under this test, the cash payment received by the taxpayer indisputably would have been treated as a dividend.[5] The second test, urged by the taxpayer and finding support in proposes an alternative hypothetical redemption. Rather than concentrating on the taxpayer's prereorganization interest in the acquired corporation, this test requires that one imagine a pure stock-for-stock exchange, followed immediately by a postreorganization redemption of a portion of the taxpayer's shares in the acquiring corporation (NL) in return for a payment in an amount equal to the boot. Under 302 of the Code, which defines when a redemption of stock should be treated as a distribution of dividend, NL's redemption of 125,000 shares of its stock from the taxpayer in exchange for the $3,250,000 boot payment would have been treated as capital gain.[] *734 The Tax Court rejected the prereorganization test favored by the Commissioner because it considered it improper "to view the cash payment as an isolated event totally separate from the reorganization." Indeed, it suggested *735 that this test requires that courts make the "determination of dividend equivalency fantasizing that the reorganization does not exist." The court then acknowledged that a similar criticism could be made of the taxpayer's contention that the cash payment should be viewed as a postreorganization redemption. It concluded, however, that since it was perfectly clear that the cash payment would not have taken place without the reorganization, it was better to treat the boot "as the equivalent of a redemption in the course of implementing the reorganization," than "as having occurred prior to and separate from
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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reorganization," than "as having occurred prior to and separate from the reorganization."[7] *73 The Court of Appeals for the Fourth Circuit affirmed. Like the Tax Court, it concluded that although "[s]ection 302 does not explicitly apply in the reorganization context," and although 302 differs from 35 in important respects, it nonetheless provides "the appropriate test for determining whether boot is ordinary income or a capital gain," Thus, as explicated in 302(b)(2), if the taxpayer relinquished more than 20% of his corporate control and retained less than 50% of the voting shares after the distribution, the boot would be treated as capital gain. However, as the Court of Appeals recognized, "[b]ecause 302 was designed to deal with a stock redemption by a single corporation, rather than a reorganization involving two companies, the section does not indicate which corporation [the taxpayer] lost interest in." Thus, like the Tax Court, the Court of Appeals was left to consider whether the hypothetical redemption should be treated as a prereorganization distribution coming from the acquired corporation or as a postreorganization distribution coming from the acquiring corporation. It concluded: "Based on the language and legislative history of 35, the change-in-ownership principle of 302, and the need to review the reorganization as an integrated transaction, we conclude that the boot should be characterized as a post-reorganization stock redemption by N. L. that affected [the taxpayer's] interest in the new corporation. Because this redemption reduced [the taxpayer's] N. L. holdings by more than 20%, the boot should be taxed as a capital gain." -225. This decision by the Court of Appeals for the Fourth Circuit is in conflict with the decision of the Fifth Circuit in in two important respects. In Shimberg, the court concluded that it was inappropriate to apply stock redemption principles in reorganization cases "on a wholesale basis." ; see also ib n. 13. In addition, the court adopted the pre-reorganization *737 test, holding that " 35(a)(2) requires a determination of whether the distribution would have been taxed as a dividend if made prior to the reorganization or if no reorganization had occurred." To resolve this conflict on a question of importance to the administration of the federal tax laws, we granted certiorari. II We agree with the Tax Court and the Court of Appeals for the Fourth Circuit that the question under 35(a)(2) whether an "exchange has the effect of the distribution of a dividend" should be answered by examining the effect of the exchange as a whole. We think the language and history of the statute, as well as a commonsense understanding of
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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of the statute, as well as a commonsense understanding of the economic substance of the transaction at issue, support this approach. The language of 35(a) strongly supports our understanding that the transaction should be treated as an integrated whole. Section 35(a)(2) asks whether "an exchange is described in paragraph (1)" that "has the effect of the distribution of a dividend." (Emphasis supplied.) The statute does not provide that boot shall be treated as a dividend if its payment has the effect of the distribution of a dividend. Rather, the inquiry turns on whether the "exchange" has that effect. Moreover, paragraph (1), in turn, looks to whether "the property received in the exchange consists not only of property permitted by section 354 or 355 to be received without the recognition of gain but also of other property or money." (Emphasis supplied.) Again, the statute plainly refers to one integrated transaction and, again, makes clear that we are to look to the character of the exchange as a whole and not simply its component parts. Finally, it is significant that 35 expressly limits the extent to which boot may be taxed to the amount of gain realized in the reorganization. This limitation suggests that Congress intended that boot not be treated in isolation from *73 the overall reorganization. See Levin, Adess, & McGaffey, Boot Distributions in Corporate Reorganizations Determination of Dividend Equivalency, 30 Tax Lawyer 27, 303 (1977). Our reading of the statute as requiring that the transaction be treated as a unified whole is reinforced by the well-established "step-transaction" doctrine, a doctrine that the Government has applied in related contexts, see, e. g., Rev. Rul. 75-447, 1975-2 Cum. Bull. 113, and that we have expressly sanctioned, see Minnesota Tea ; Under this doctrine, interrelated yet formally distinct steps in an integrated transaction may not be considered independently of the overall transaction. By thus "linking together all interdependent steps with legal or business significance, rather than taking them in isolation," federal tax liability may be based "on a realistic view of the entire transaction." 1 B. Bittker, Federal Taxation of Income, Estates and Gifts ¶ 4.3.5, p. 4-52 (191). Viewing the exchange in this case as an integrated whole, we are unable to accept the Commissioner's prereorganization analogy. The analogy severs the payment of boot from the context of the reorganization. Indeed, only by straining to abstract the payment of boot from the context of the overall exchange, and thus imagining that Basin made a distribution to the taxpayer independently of NL's planned acquisition, can we reach the rather counterintuitive conclusion
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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NL's planned acquisition, can we reach the rather counterintuitive conclusion urged by the Commissioner that the taxpayer suffered no meaningful reduction in his ownership interest as a result of the cash payment. We conclude that such a limited view of the transaction is plainly inconsistent with the statute's direction that we look to the effect of the entire exchange. The prereorganization analogy is further flawed in that it adopts an overly expansive reading of 35(a)(2). As the Court of Appeals recognized, adoption of the prereorganization approach would "result in ordinary income treatment in *739 most reorganizations because corporate boot is usually distributed pro rata to the shareholders of the target corporation." ; see also "Boot" in Reorganizations The Dividend Equivalency Test of Section 35(a) (2), ; Note, 20 Boston College L. Rev. 01, 12 Such a reading of the statute would not simply constitute a return to the widely criticized "automatic dividend rule" (at least as to cases involving a pro rata payment to the shareholders of the acquired corporation), see n. but also would be contrary to our standard approach to construing such provisions. The requirement of 35(a)(2) that boot be treated as dividend in some circumstances is an exception from the general rule authorizing capital gains treatment for boot. In construing provisions such as 35, in which a general statement of policy is qualified by an exception, we usually read the exception narrowly in order to preserve the primary operation of the provision. See Phillips, Given that Congress has enacted a general rule that treats boot as capital gain, we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception. The postreorganization approach adopted by the Tax Court and the Court of Appeals is, in our view, preferable to the Commissioner's approach. Most significantly, this approach does a far better job of treating the payment of boot as a component of the overall exchange. Unlike the prereorganization view, this approach acknowledges that there would have been no cash payment absent the exchange and also that, by accepting the cash payment, the taxpayer experienced a meaningful reduction in his potential ownership interest. Once the postreorganization approach is adopted, the result in this case is pellucidly clear. Section 302(a) of the *740 Code provides that if a redemption fits within any one of the four categories set out in 302(b), the redemption "shall be treated as a distribution in part or full payment in exchange for the stock," and thus not regarded as a dividend. As the Tax Court and the Court of
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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a dividend. As the Tax Court and the Court of Appeals correctly determined, the hypothetical postreorganization redemption by NL of a portion of the taxpayer's shares satisfies at least one of the subsections of 302(b).[] In particular, the safe harbor provisions of subsection (b)(2) provide that redemptions in which the taxpayer relinquishes more than 20% of his or her share of the corporation's voting stock and retains less than 50% of the voting stock after the redemption shall not be treated as distributions of a dividend. See n. Here, we treat the transaction as though NL redeemed 125,000 shares of its common stock (i. e., the number of shares of NL common stock forgone in favor of the boot) in return for a cash payment to the taxpayer of $3,250,000 (i. e., the amount of the boot). As a result of this redemption, the taxpayer's interest in NL was reduced from 1.3% of the outstanding common stock to 0.9%. See T.C., at 153. Thus, the taxpayer relinquished approximately 29% of his interest in NL and retained less than a 1% voting interest in the corporation after the transaction, easily satisfying the "substantially disproportionate" standards of 302(b)(2). We accordingly conclude that the boot payment did not have the effect of a dividend and that the payment was properly treated as capital gain. III The Commissioner objects to this "recasting [of] the merger transaction into a form different from that entered *741 into by the parties," Brief for Petitioner 11, and argues that the Court of Appeals' formal adherence to the principles embodied in 302 forced the court to stretch to "find a redemption to which to apply them, since the merger transaction entered into by the parties did not involve a redemption," at 2. There are a number of sufficient responses to this argument. We think it first worth emphasizing that the Commissioner overstates the extent to which the redemption is imagined. As the Court of Appeals for the Fifth Circuit noted in Shimberg, "[t]he theory behind tax-free corporate reorganizations is that the transaction is merely `a continuance of the proprietary interests in the continuing enterprise under modified corporate form.' 17 F.2d 4, 4 ; Treas. Reg. 1.3-1(b). See generally Cohen, Conglomerate Mergers and Taxation, 55 A. B. A. J. 40 (199)." 577 F.2d, As a result, the boot-for-stock transaction can be viewed as a partial repurchase of stock by the continuing corporate enterprise i. e., as a redemption. It is, of course, true that both the prereorganization and postreorganization analogies are somewhat artificial in that they imagine that the
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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analogies are somewhat artificial in that they imagine that the redemption occurred outside the confines of the actual reorganization. However, if forced to choose between the two analogies, the postreorganization view is the less artificial. Although both analogies "recast the merger transaction," the postreorganization view recognizes that a reorganization has taken place, while the prereorganization approach recasts the transaction to the exclusion of the overall exchange. Moreover, we doubt that abandoning the prereorganization and postreorganization analogies and the principles of 302 in favor of a less artificial understanding of the transaction would lead to a result different from that reached by the Court of Appeals. Although the statute is admittedly ambiguous and the legislative history sparse, we are persuaded even without relying on 302 that Congress did not intend to except reorganizations such as that at issue *742 here from the general rule allowing capital gains treatment for cash boot. 2 U.S. C. 35(a)(1). The legislative history of 35(a)(2), although perhaps generally "not illuminating," Estate of suggests that Congress was primarily concerned with preventing corporations from "siphon[ing] off" accumulated earnings and profits at a capital gains rate through the ruse of a reorganization. See 5 Taxes, at 905. This purpose is not served by denying capital gains treatment in a case such as this in which the taxpayer entered into an arm's-length transaction with a corporation in which he had no prior interest, exchanging his stock in the acquired corporation for less than a 1% interest in the acquiring corporation and a substantial cash boot. Section 35(a)(2) finds its genesis in 203(d)(2) of the Revenue Act of 1924. See Although modified slightly over the years, the provisions are in relevant substance identical. The accompanying House Report asserts that 203(d)(2) was designed to "preven[t] evasion." H. R. Rep. No. 179, th Cong., 1st Sess., 15 (1924). Without further explication, both the House and Senate Reports simply rely on an example to explain, in the words of both Reports, "[t]he necessity for this provision." Ibid.; S. Rep. No. 39, th Cong., 1st Sess., 1 (1924). Significantly, the example describes a situation in which there was no change in the stockholders' relative ownership interests, but merely the creation of a wholly owned subsidiary as a mechanism for making a cash distribution to the shareholders: "Corporation A has capital stock of $100,000, and earnings and profits accumulated since March 1, 1913, of $50,000. If it distributes the $50,000 as a dividend to its stockholders, the amount distributed will be taxed at the full surtax rates. "On the other hand, Corporation A may
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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full surtax rates. "On the other hand, Corporation A may organize Corporation B, to which it transfers all its assets, the consideration for the transfer being the issuance by B of all its stock and $50,000 in cash to the stockholders of Corporation *743 A in exchange for their stock in Corporation A. Under the existing law, the $50,000 distributed with the stock of Corporation B would be taxed, not as a dividend, but as a capital gain, subject only to the 12 1/2 per cent rate. The effect of such a distribution is obviously the same as if the corporation had declared out as a dividend its $50,000 earnings and profits. If dividends are to be subject to the full surtax rates, then such an amount so distributed should also be subject to the surtax rates and not to the 12 1/2 per cent rate on capital gain." Ibid.; H. R. Rep. No. 179, at 15. The "effect" of the transaction in this example is to transfer accumulated earnings and profits to the shareholders without altering their respective ownership interests in the continuing enterprise. Of course, this example should not be understood as exhaustive of the proper applications of 35(a)(2). It is nonetheless noteworthy that neither the example, nor any other legislative source, evinces a congressional intent to tax boot accompanying a transaction that involves a bona fide exchange between unrelated parties in the context of a reorganization as though the payment was in fact a dividend. To the contrary, the purpose of avoiding tax evasion suggests that Congress did not intend to impose an ordinary income tax in such cases. Moreover, the legislative history of 302 supports this reading of 35(a)(2) as well. In explaining the "essentially equivalent to a dividend" language of 302 (b)(1) language that is certainly similar to the "has the effect. of a dividend" language of 35(a)(2) the Senate Finance Committee made clear that the relevant inquiry is "whether or not the transaction by its nature may properly be characterized as a sale of stock" S. Rep. No. 122, 3d Cong., 2d Sess., 234 (1954); cf. United Examining the instant transaction in light of the purpose of 35(a)(2), the boot-for-stock exchange in this case "may *744 properly be characterized as a sale of stock." Significantly, unlike traditional single corporation redemptions and unlike reorganizations involving commonly owned corporations, there is little risk that the reorganization at issue was used as a ruse to distribute a dividend. Rather, the transaction appears in all respects relevant to the narrow issue before us to have been
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Justice Stevens
| 1,989 | 16 |
majority
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Commissioner v. Clark
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https://www.courtlistener.com/opinion/112223/commissioner-v-clark/
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relevant to the narrow issue before us to have been comparable to an arm's-length sale by the taxpayer to NL. This conclusion, moreover, is supported by the findings of the Tax Court. The court found that "[t]here is not the slightest evidence that the cash payment was a concealed distribution from BASIN." T.C., at 155. As the Tax Court further noted, Basin lacked the funds to make such a distribution: "Indeed, it is hard to conceive that such a possibility could even have been considered, for a distribution of that amount was not only far in excess of the accumulated earnings and profits ($2,319,11), but also of the total assets of BASIN ($2,75,09). In fact, only if one takes into account unrealized appreciation in the value of BASIN's assets, including good will and/or going-concern value, can one possibly arrive at $3,250,000. Such a distribution could only be considered as the equivalent of a complete liquidation of BASIN" Ibid.[9] In this context, even without relying on 302 and the postreorganization analogy, we conclude that the boot is better characterized as a part of the proceeds of a sale of stock than *745 as a proxy for a dividend. As such, the payment qualifies for capital gains treatment. The judgment of the Court of Appeals is accordingly Affirmed.
|
Justice Stevens
| 1,983 | 16 |
concurring
|
General Motors Corp. v. Devex Corp.
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https://www.courtlistener.com/opinion/110940/general-motors-corp-v-devex-corp/
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The 1946 amendments to the patent laws replaced the Duplate standard with a presumption favoring the award of prejudgment interest in the ordinary case. As the Court correctly holds, however, 284 does not automatically require an "award of prejudgment interest whenever infringement is found." Ante, at 656. In exercising its discretion to deny such interest in appropriate cases, the trial court may properly take into account the nature of the patent and the strength of the defendant's challenge. In other contexts we have noted the public function served by patent litigation. In Lear, Justice Harlan, writing for the Court, explained: "A patent, in the last analysis, simply represents a legal conclusion reached by the Patent Office. Moreover, the legal conclusion is predicated on factors as to which reasonable men can differ widely. Yet the Patent Office is often obliged to reach its decision in an ex parte proceeding, without the aid of the arguments which could be advanced by parties interested in proving patent invalidity." Hence, a patent challenge in the courts permits a more informed decision regarding the merits of a particular patent. And, as we have long recognized, "[i]t is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly" Pope Manufacturing Of course, the general public interest in patent litigation does not justify denial of prejudgment interest in the typical *659 case in which infringement is found. Wisely today the Court does not attempt to define precisely the category of cases in which an infringer, although ultimately unsuccessful in litigation, may have been sufficiently justified in its challenge to a particular patent to make it appropriate for the district court to exercise its discretion to deny prejudgment interest. But the existence of that category of cases should not be overlooked.
|
Justice Stevens
| 1,978 | 16 |
second_dissenting
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Zurcher v. Stanford Daily
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https://www.courtlistener.com/opinion/109876/zurcher-v-stanford-daily/
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The novel problem presented by this case is an outgrowth of the profound change in Fourth Amendment law that occurred in 1967, when was decided. The question is what kind of "probable cause" must be established in order to obtain a warrant to conduct an unannounced search for documentary evidence in the private files of a person not suspected of involvement in any criminal activity. The Court holds that a reasonable belief that the files contain relevant evidence is a sufficient justification. This holding rests on a misconstruction of history and of the Fourth Amendment's purposely broad language. The Amendment contains two Clauses, one protecting "persons, houses, papers, and effects, against unreasonable searches and seizures," the other regulating the issuance of warrants: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When these words were written, the procedures of the Warrant Clause were not the primary protection against oppressive searches. It is unlikely that the authors expected private papers ever to be among the "things" that could be seized with a warrant, for only a few years earlier, in 1765, Lord Camden had delivered his famous opinion denying that any magistrate had power to authorize the seizure of private papers.[1] Because all such *578 seizures were considered unreasonable, the Warrant Clause was not framed to protect against them. Nonetheless, the authors of the Clause used words that were adequate for situations not expressly contemplated at the time. As Mr. Justice Black noted, the Amendment does not "attempt to describe with precision what was meant by its words `probable cause'"; the words of the Amendment are deliberately "imprecise and flexible."[2] And MR. JUSTICE STEWART, when confronted with the problem of applying the probable-cause standard in an unprecedented situation, observed that "[t]he standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion."[3] Today, for the first time, the Court has an opportunity to consider the kind of showing that is necessary to justify the vastly expanded "degree of intrusion" upon privacy that is authorized by the opinion in In the pre- era warrants were used to search for contraband,[4] weapons, and plunder, but not for "mere evidence." *579 [5] The practical effect of the rule prohibiting the issuance of warrants to search for mere evidence was to narrowly limit not only the category of objects, but also the category of persons and the character of the privacy interests that might be affected by
|
Justice Stevens
| 1,978 | 16 |
second_dissenting
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Zurcher v. Stanford Daily
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https://www.courtlistener.com/opinion/109876/zurcher-v-stanford-daily/
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character of the privacy interests that might be affected by an unannounced police search. Just as the witnesses who participate in an investigation or a trial far outnumber the defendants, the persons who possess evidence that may help to identify an offender, or explain an aspect of a criminal transaction, far outnumber those who have custody of weapons or plunder. Countless law-abiding citizens doctors, lawyers, merchants, customers, bystanders may have documents in their possession that relate to an ongoing criminal investigation. The consequences of subjecting this large category of persons to unannounced police searches are extremely serious. The ex parte warrant procedure enables the prosecutor to obtain access to privileged documents that could not be examined if advance notice gave the custodian an opportunity to object.[6] The search for the documents described in a warrant may involve the inspection *580 of files containing other private matter.[7] The dramatic character of a; sudden search may cause an entirely unjustified injury to the reputation of the persons searched.[8] *581 Of greatest importance, however, is the question whether the offensive intrusion on the privacy of the ordinary citizen is justified by the law enforcement interest it is intended to vindicate. Possession of contraband or the proceeds or tools of crime gives rise to two inferences: that the custodian is involved in the criminal activity, and that, if given notice of an intended search, he will conceal or destroy what is being sought. The probability of criminal culpability justifies the invasion of his privacy; the need to accomplish the law enforcement purpose of the search justifies acting without advance notice and by force, if necessary. By satisfying the probable-cause standard appropriate for weapons or plunder, the police effectively demonstrate that no less intrusive method of investigation will succeed. Mere possession of documentary evidence, however, is much less likely to demonstrate that the custodian is guilty of any wrongdoing or that he will not honor a subpoena or informal request to produce it. In the pre- era, evidence of that kind was routinely obtained by procedures that presumed that the custodian would respect his obligation to obey subpoenas and to cooperate in the investigation of crime. These procedures had a constitutional dimension. For the innocent citizen's interest in the privacy of his papers and possessions is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. Notice and an opportunity to object to the deprivation of the citizen's liberty are, therefore, the constitutionally mandated general rule.[9] An *582 exception to that rule can only be justified by strict compliance with the
|
Justice Stevens
| 1,978 | 16 |
second_dissenting
|
Zurcher v. Stanford Daily
|
https://www.courtlistener.com/opinion/109876/zurcher-v-stanford-daily/
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rule can only be justified by strict compliance with the Fourth Amendment. That Amendment flatly prohibits the issuance of any warrant unless justified by probable cause. A showing of probable cause that was adequate to justify the issuance of a warrant to search for stolen goods in the 18th century does not automatically satisfy the new dimensions of the Fourth Amendment in the post- era.[10] In itself, the Court recognized that the meaning of probable cause should be reconsidered in the light of the new authority it conferred on the police.[11] The only conceivable justification for an unannounced search of an innocent citizen is the fear that, if notice were given, he would conceal or destroy the object of the search. Probable cause to believe that the *583 custodian is a criminal, or that he holds a criminal's weapons, spoils, or the like, justifies that fear,[12] and therefore such a showing complies with the Clause. But if nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable-cause requirement is not satisfied. In the absence of some other showing of reasonableness,[13] the ensuing search violates the Fourth Amendment. In this case, the warrant application set forth no facts suggesting that respondents were involved in any wrongdoing or would destroy the desired evidence if given notice of what the police desired. I would therefore hold that the warrant did not comply with the Warrant Clause and that the search was unreasonable within the meaning of the first Clause of the Fourth Amendment. I respectfully dissent.
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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https://www.courtlistener.com/opinion/112639/pauley-v-bethenergy-mines-inc/
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The black lung benefits program, created by Congress, was to be administered first by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing the adjudication of claims for black lung benefits, but constrained the Secretary of by providing that the DOL regulations "shall not be more restrictive than" HEW's. This litigation calls upon us to determine whether the Secretary of has complied with that constraint. I A The black lung benefits program was enacted originally as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 30 U.S. C. et seq., to provide benefits for miners totally disabled due at least in *684 part to pneumoconiosis arising out of coal mine employment, and to the dependents and survivors of such miners. See Pittston Coal ; Coal Through FCMHSA, Congress established a bifurcated system of compensating miners disabled by pneumoconiosis.[1] Part B thereof created a temporary program administered by the SSA under the auspices of the Secretary of HEW. This program was intended for the processing of claims filed on or before December 31, 1972. Benefits awarded under part B were paid by the Federal Government. For claims filed after 1972, part C originally authorized a permanent program, administered by the Secretary of to be coordinated with federally approved state workers' compensation programs. Benefits awarded under part C were to be paid by the claimants' coal mining employers. Under FCMHSA, the Secretary of HEW was authorized to promulgate permanent regulations regarding the determination and adjudication of part B claims. 30 U.S. C. 921(b). The Secretary's discretion was limited, however, by three statutory presumptions defining eligibility under the part B program. 921(c). For a claimant suffering from pneumoconiosis who could establish 10 years of coal mine employment, there "shall be a rebuttable presumption that his pneumoconiosis arose out of such " 921(c)(1). Similarly, for a miner with at least 10 years of *685 coal mine employment who "died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis." 921(c)(2). Finally, there was an irrebuttable presumption that a miner presenting medical evidence demonstrating complicated pneumoconiosis was totally disabled as a result of that condition. 921(c)(3). Consistent with these presumptions, HEW promulgated permanent regulations prescribing the methods and standards for establishing entitlement to black lung benefits under part B. See 20 CFR 410.401 to 410.476 B Dissatisfied with the increasing backlog of unadjudicated claims
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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410.476 B Dissatisfied with the increasing backlog of unadjudicated claims and the relatively high rate of claim denials resulting from the application of the HEW permanent regulations, Congress in 1972 amended FCMHSA and redesignated Title IV of that Act as the Black Lung Benefits Act of 1972 (Benefits Act). See S. Rep. No. 92-743 (1972). See also Comptroller General of the United States, General Accounting Office, Report to the Congress: Achievements, Administrative Problems, and Costs in Paying Black Lung Benefits to Coal Miners and Their Widows 16-18 (September 5, 1972) (nationally, as of December 31, 1971, claims filed were 347,716, claims processed were 322,582, and rate of claim denial was 50.5 percent). In addition to extending the coverage of part B to those claims filed by living miners prior to July 1, 1973, and those filed by survivors before January 1, 1974, the 1972 amendments liberalized in several ways the criteria and procedures applicable to part B claims. First, the amendments added a fourth statutory presumption of total disability due to pneumoconiosis for claimants unable to produce X-ray evidence of the disease. This presumption applied to a claimant with 15 years of coal mine employment who presented evidence of a totally disabling respiratory or pulmonary impairment. Congress expressly limited rebuttal of the presumption to a showing that the miner did not * have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of employment in a coal mine. 30 U.S. C. 921(c)(4). Second, the 1972 amendments redefined "total disability" to permit an award of benefits on a showing that a miner was unable to perform his coal mining duties or other comparable work as opposed to the prior requirement that the miner demonstrate that he was unable to perform any job, see 902(f) and prohibited HEW from denying a claim for benefits solely on the basis of a negative X ray. 923(b). Third, the 1972 amendments made it easier for survivors of a deceased miner who had been disabled due to pneumoconiosis but had died from a cause unrelated to the disease to demonstrate eligibility for benefits. See 901. Finally, the amendments made clear that "[i]n determining the validity of claims under [part B], all relevant evidence shall be considered." 923(b). In response to these amendments, the Secretary of HEW adopted interim regulations "designed to `permit prompt and vigorous processing of the large backlog of claims' that had developed during the early phases of administering part B." quoting 20 CFR 410.490(a) (1973).[2] These interim regulations established adjudicatory rules for processing part B claims that permit the
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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adjudicatory rules for processing part B claims that permit the invocation of a presumption of eligibility upon demonstration by the claimant of specified factors, and a subsequent opportunity for the SSA, in administering the program, to rebut the presumption. Specifically, the HEW interim regulations permit claimants to invoke a rebuttable presumption that a miner is "totally *687 disabled due to pneumoconiosis" in one of two ways. First, the claimant can introduce an X ray, a biopsy, or an autopsy indicating pneumoconiosis. 20 CFR 410.490(b)(1) Second, for a miner with at least 15 years of coal mine employment, a claimant may introduce ventilatory studies establishing the presence of a chronic respiratory or pulmonary disease. 410.490(b)(1)(ii). In either case, in order to invoke the presumption, the claimant also must demonstrate that the "impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see 410.416 and 410.456)." 410.490(b)(2). Once a claimant invokes the presumption of eligibility under 410.490(b), the HEW interim regulations permit rebuttal by the SSA upon a showing that the miner is doing his usual coal mine work or comparable and gainful work, or is capable of doing such work. See 410.490(c). The statutory changes adopted by the 1972 amendments and the application of HEW's interim regulations resulted in a surge of claims approvals under part B. See The Federal Black Lung Program: A 1983 Primer, Because the HEW interim regulations expired with the part B program, however, the Secretary of was constrained to adjudicate all part C claims, i. e., those filed after June 30, 1973, by living miners, and after December 31, 1973, by survivors, under the more stringent permanent HEW regulations. See Neither the Congress nor the Secretary of was content with the application to part C claims of the unwieldy and restrictive permanent regulations. See Letter, dated Sept. 13, 1974, of William J. Kilberg, Solicitor of to John B. Rhinelander, General Counsel, Department of HEW, appearing in H. R. Rep. No. 94-770, p. 14 (1975). Not only did the application of the permanent regulations cause the DOL to process claims slowly, but the DOL's *688 claims approval rate was significantly below that of the SSA. See Accordingly, Congress turned its attention once again to the black lung benefits program. C The Black Lung Benefits Reform Act of 1977 (BLBRA), approved and effective March 1, 1978, further liberalized the criteria for eligibility for black lung benefits in several ways. First, the Act expanded the definition of pneumoconiosis to include "sequelae" of the disease, including respiratory and pulmonary impairments arising out of coal
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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disease, including respiratory and pulmonary impairments arising out of coal mine See 30 U.S. C. 902(b). Second, BLBRA required the DOL to accept a board-certified or board-eligible radiologist's interpretation of submitted X rays if the films met minimal quality standards, thereby prohibiting the DOL from denying a claim based on a secondary assessment of the X rays provided by a Government-funded radiologist. See 923(b). Finally, the BLBRA added a fifth presumption of eligibility and otherwise altered the entitlement structure to make it easier for survivors of a deceased long-term miner to obtain benefits. See 921(c)(5) and 902(f). In addition to liberalizing the statutory prerequisites to benefit entitlement, the BLBRA authorized the DOL to adopt its own interim regulations for processing part C claims filed before March 31, 1980. In so doing, Congress required that the "[c]riteria applied by the Secretary of shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973." 902(f)(2). The Secretary of pursuant to this authorization, adopted interim regulations governing the adjudication of part C claims. These regulations differ significantly from the HEW interim regulations. See 20 CFR 727.203 The DOL regulations include two presumption provisions similar to the two presumption provisions in the HEW interim regulations. Compare 727.203(a)(1) and (2) with 410.490(b)(1) and (ii). To invoke the presumption of eligibility *689 under these two provisions, however, a claimant need not prove that the "impairment arose out of coal mine employment," as was required under the HEW interim regulations. See 410.490(b)(2). In addition, the DOL interim regulations add three methods of invoking the presumption of eligibility not included in the HEW interim regulations. Specifically, under the DOL regulations, a claimant can invoke the presumption of total disability due to pneumoconiosis by submitting blood gas studies that demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; by submitting other medical evidence establishing the presence of a totally disabling respiratory or pulmonary impairment; or, in the case of a deceased miner for whom no medical evidence is available, by submitting a survivor's affidavit demonstrating such a disability. See 727.203(a)(3), (4), and (5). Finally, the DOL interim regulations provide four methods for rebutting the presumptions established under 727.203. Two of the rebuttal provisions mimic those in the HEW regulations, permitting rebuttal upon a showing that the miner is performing, or is able to perform, his coal mining or comparable work. See 727.203(b)(1) and (2). The other two rebuttal provisions are at issue in these cases. Under these provisions, a presumption of total disability due
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cases. Under these provisions, a presumption of total disability due to pneumoconiosis can be rebutted if "[t]he evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment," or if "[t]he evidence establishes that the miner does not, or did not, have pneumoconiosis." See 727.203(b)(3) and (4). II The three cases before us present the question whether the DOL's interim regulations are "more restrictive than" HEW's interim regulations by virtue of the third and fourth rebuttal provisions, and therefore are inconsistent with the agency's *690 statutory authority. In No. 89-1714, Pauley v. BethEnergy Mines, Inc., the Court of Appeals for the Third Circuit concluded that the DOL interim regulations were not more restrictive. BethEnergy Mines, John Pauley, the now-deceased husband of petitioner Harriet Pauley, filed a claim for black lung benefits on April 21, 1978, after he had worked 30 years in the underground mines of Pennsylvania. Pauley stopped working soon after he filed his claim for benefits. At a formal hearing on November 5, 1987, the Administrative Law Judge (ALJ) found that Pauley had begun to experience shortness of breath, coughing, and fatigue in 1974, and that those symptoms had gradually worsened, causing him to leave his job in the mines. The ALJ also found that Pauley had arthritis requiring several medications daily, had suffered a stroke in January 1987, and had smoked cigarettes for 34 years until he stopped in 1974. Because respondent BethEnergy did not contest the presence of coal workers' pneumoconiosis, the ALJ found that the presumption had been invoked under 727.203(a)(1). Turning to the rebuttal evidence, the ALJ concluded that Pauley was not engaged in his usual coal mine work or comparable and gainful work, and that Pauley was totally disabled from returning to coal mining or comparable See 727.203(b)(1) and (2). The ALJ then weighed the evidence submitted under 727.203(b)(3), and determined that respondent BethEnergy had sustained its burden of establishing that pneumoconiosis was not a contributing factor in Pauley's total disability and, accordingly, that his disability did not "arise in whole or in part out of coal mine " 727.203(b)(3). See Having determined that Pauley was not entitled to receive black lung benefits under the DOL interim regulations, the ALJ felt constrained by Third Circuit precedent to apply the *691 HEW interim regulations to Pauley's claim. He first concluded that respondent BethEnergy's concession that Pauley had pneumoconiosis arising out of coal mining employment was sufficient to invoke the presumption of total disability due to pneumoconiosis under 410.490(b). Because the evidence
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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total disability due to pneumoconiosis under 410.490(b). Because the evidence demonstrated Pauley's inability to work, and the ALJ interpreted 410.490(c) as precluding rebuttal of the presumption by "showing that the claimant's total disability is unrelated to his coal mine employment," the ALJ found that BethEnergy could not carry its burden on rebuttal, and that Pauley was entitled to benefits. After the ALJ denied its motion for reconsideration, BethEnergy appealed unsuccessfully to the Benefits Review Board. It then sought review in the Court of Appeals for the Third Circuit. That court reversed. It pointed out that the decisions of the ALJ and the Benefits Review Board created "two disturbing circumstances." First, the court found it "surely extraordinary," ib that a determination that Pauley was totally disabled from causes unrelated to pneumoconiosis, which was sufficient to rebut the presumption under 727.203(b)(3), would preclude respondent BethEnergy from rebutting the presumption under 410.490(c). Second, the court considered it to be "outcome determinative" that the purpose of the Benefits Act is to provide benefits to miners totally disabled at least in part due to pneumoconiosis if the disability arises out of coal mine employment, and that the ALJ had made unchallenged findings that Pauley's disability did not arise even in part out of such -1300. The court found it to be "perfectly evident that no set of regulations under [the Benefits Act] may provide that a claimant who is statutorily barred from recovery may nevertheless recover." Asserting that this Court's decision in Pittston Coal was not controlling because that decision concerned only the invocation of the presumption *692 and not its rebuttal, the court then concluded that Congress' mandate that the criteria used by the Secretary of be not more restrictive than the criteria applicable to a claim filed on June 30, 1973, applied only to the criteria for determining whether a claimant is "totally disabled," not to the criteria used in rebuttal. Finally, the court pointed out that its result would not differ if it applied the rebuttal provisions of 410.490(c) to Pauley's claim, because subsections (c)(1) and (2) make reference to 410.412(a), which refers to a miner's being "totally disabled due to pneumoconiosis." According to the Third Circuit, there would be no reason for the regulations to include such a reference "unless it was the intention of the Secretary to permit rebuttal by a showing that the claimant's disability did not arise at least in part from coal mine " In the two other cases now before us, No. 90-113, Clinchfield Coal and No. 90-114, Consolidation Coal the Court of Appeals for the
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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No. 90-114, Consolidation Coal the Court of Appeals for the Fourth Circuit struck down the DOL interim regulations. John Taylor, a respondent in No. 90-113, applied for black lung benefits in 1976, after having worked for almost 12 years as a coal loader and roof bolter in underground coal mines. The ALJ found that Taylor properly had invoked the presumption of eligibility for benefits under 727.203(a)(3), based on qualifying arterial blood gas studies demonstrating an impairment in the transfer of oxygen from his lungs to his blood. The ALJ then proceeded to weigh the rebuttal evidence, consisting of negative X-ray evidence, nonqualifying ventilatory study scores, and several medical reports respectively submitted by Taylor and by his employer, petitioner Clinchfield Coal Company. In light of this evidence, the ALJ concluded that Taylor neither suffered from pneumoconiosis nor was totally disabled. Rather, the evidence demonstrated that Taylor suffered from chronic bronchitis caused *693 by 30 years of cigarette smoking and obesity. The Benefits Review Board affirmed, concluding that the ALJ's decision was supported by substantial evidence. The Court of Appeals reversed. The court first dismissed the argument that the DOL interim regulations cannot be considered more restrictive than HEW's as applied to Taylor because Taylor invoked the presumption of eligibility based on arterial blood gas studies, a method of invocation available under the DOL regulations but not under HEW's, and was therefore unable to use the rebuttal provisions of the HEW interim regulations as a benchmark. The court reasoned that it was a "matter of indifference" how the claimant invoked the presumption of eligibility and rejected the argument that the rebuttal provisions must be evaluated in light of corresponding invocation provisions. "It is the fact of establishment of the presumption and the substance thereof which is of consequence in this case, not the number of the regulation which provides for such establishment." Focusing on the DOL's rebuttal provisions in isolation, the Fourth Circuit determined that the third and fourth rebuttal methods "permit rebuttal of more elements of entitlement to benefits than do the interim HEW regulations," because the HEW regulations permit rebuttal "solely through attacks on the element of total disability," while the DOL regulations "allow the consideration of evidence disputing both the presence of pneumoconiosis and the connection between total disability and coal mine " Accordingly, the court concluded that the DOL interim regulations were more restrictive than those found in 410.490, and that the application of these regulations violated 30 U.S. C. 902(f).[3] *694 One judge dissented. Noting that the panel's decision was in conflict with the Sixth Circuit in
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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panel's decision was in conflict with the Sixth Circuit in Youghiogheny & Ohio Coal and with the Third Circuit in Pauley, he concluded that those decisions "do less violence to congressional intent, and avoid upsetting the statutory scheme." Albert Dayton, a respondent in No. 90-114, applied for black lung benefits in 1979, after having worked as a coal miner for 17 years. The ALJ found that Dayton had invoked the presumption of eligibility based on ventilatory test scores showing a chronic pulmonary condition. The ALJ then determined that petitioner Consolidation Coal Company had successfully rebutted the presumption under 727.203(b)(2) and (4) by demonstrating that Dayton did not have pneumoconiosis and, in any event, that Dayton's pulmonary impairment was not totally disabling. The Benefits Review Board affirmed, concluding that the medical evidence demonstrated that Dayton's pulmonary condition was unrelated to coal dust exposure, but was instead secondary to his smoking and "other ailments," and that the ALJ had correctly concluded that Consolidation had rebutted the presumption under 727.203(b)(4).[4] The Fourth Circuit reversed. Relying on its decision in Taylor, the court held that 30 U.S. C. 902(f) required Dayton's claim to be adjudicated "under the less restrictive rebuttal standards of 410.490." Concluding that the HEW regulations did not permit rebuttal upon a *695 showing that the claimant does not have pneumoconiosis, the court stated that the ALJ's finding that Dayton does not have pneumoconiosis "is superfluous and has no bearing on the case." n. In view of the conflict among the Courts of Appeals, we granted certiorari in the three cases and consolidated them for hearing in order to resolve the issue of statutory construction.[5] III We turn to the statutory text that provides that "[c]riteria applied by the Secretary of shall not be more restrictive than the criteria applicable" under the interim HEW regulations. 30 U.S. C. 902(f)(2). See Specifically, we must determine whether the third and fourth rebuttal provisions in the DOL regulations render the DOL regulations more restrictive than were the HEW regulations. These provisions permit rebuttal of the presumption of eligibility upon a showing that the miner's disability did not arise in whole or in part out of coal mine employment or that the miner does not have pneumoconiosis.[6] *696 A In the BLBRA, Congress specifically constrained the Secretary of 's discretion through the directive that the criteria applied to part C claims could "not be more restrictive than" that applied to part B claims. 30 U.S. C. 902(f)(2). The claimants and the dissent urge that this restriction is unambiguous, and that no deference is due the Secretary's
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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is unambiguous, and that no deference is due the Secretary's determination that her interim regulations are not more restrictive than HEW's. In the alternative, both the claimants and the dissent argue that regardless of whether the statutory mandate is clear, the only interpretation of the HEW interim regulations that warrants deference is the interpretation given those regulations by the Secretary of HEW. In our view, this position misunderstands the principles underlying judicial deference to agency interpretations, as well as the scope of authority delegated to the Secretary of in the BLBRA. Judicial deference to an agency's interpretation of ambiguous provisions of the statutes it is authorized to implement reflects a sensitivity to the proper roles of the political and judicial branches. See U. S. A. ; see also Silberman, The Intersection of Law & Policy, As itself illustrates, the resolution of ambiguity in a statutory text is often more a question of policy than of law. See Law and Administration After When Congress, through express delegation or the introduction of an interpretive gap in the statutory structure, has delegated policymaking authority to an administrative agency, the extent of judicial review of the agency's policy determinations is limited. Cf. Adams Fruit ; -. It is precisely this recognition that informs our determination that deference to the Secretary is appropriate here. The Benefits Act has produced a complex and highly technical regulatory program. The identification and classification of medical eligibility criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns. In those circumstances, courts appropriately defer to the agency entrusted by Congress to make such policy determinations. See ; Aluminum of In we declined to defer to the Secretary's interpretation of the term "criteria" as used in 902(f)(2), as including only medical but not evidentiary criteria, because we found Congress' intent to include all criteria in that provision to be manifest. See -114, 116. With respect to the phrase "not more restrictive than," Congress' intent is similarly clear: The phrase cannot be read except as a delegation of interpretive authority to the Secretary of That Congress intended in the BLBRA to delegate to the Secretary of broad policymaking discretion in the promulgation of her interim regulations is clear from the text of the statute and the history of this provision. Congress declined to require that the DOL adopt the HEW interim regulations verbatim. Rather, the delegation of authority requires only that the DOL's regulations be "not more restrictive than" HEW's. Further, the delegation was made with the intention that the program evolve as technological expertise matured. The
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| 1,991 | 11 |
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Pauley v. BethEnergy Mines, Inc.
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intention that the program evolve as technological expertise matured. The Senate Committee on Human Resources stated: "It is the Committee's belief that the Secretary of should have sufficient statutory authority to *698 establish eligibility criteria. It is intended that pursuant to this authority the Secretary of will make every effort to incorporate within his regulations. to the extent feasible the advances made by medical science in the diagnosis and treatment of pneumoconiosis. since the promulgation in 1972 of the Secretary of HEW's medical eligibility criteria." S. Rep. No. 95-209, p. 13 (1977). In addition, the Conference Report indicated that the DOL's task was more than simply ministerial when it informed the Secretary that "such [new] regulations shall not provide more restrictive criteria than [the HEW interim regulations], except that in determining claims under such criteria all relevant medical evidence shall be considered." H. R. Conf. Rep. No. 95-864, p. 16 (1978) (emphasis added). As delegated by Congress, then, the Secretary's authority to promulgate interim regulations "not more restrictive than" the HEW interim regulations necessarily entails the authority to interpret HEW's regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. From this congressional delegation derives the Secretary's entitlement to judicial deference. The claimants also argue that even if the Secretary of 's interpretation of the HEW interim regulations is generally entitled to deference, such deference would not be appropriate in this instance because that interpretation has changed without explanation throughout the litigation of these cases. We are not persuaded. As a general matter, of course, the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views. See However, the Secretary has held unswervingly to the view that the DOL interim regulations are consistent with the statutory mandate and not more restrictive than the HEW interim regulations. This view obviously informed the structure of the *699 DOL's regulations. In response to comments suggesting that the DOL's proposed interim regulations might violate 902(f)(2) because they required that all relevant evidence be considered in determining eligibility, the Secretary replied that "the Social Security regulations, while less explicit, similarly do not limit the evidence which can be considered in rebutting the interim presumption." See (1978). Moreover, this position has been faithfully advanced by each Secretary since the regulations were promulgated. See, e. g., Accordingly, the Secretary's defense of her interim regulations warrants deference from this Court. B Having determined that the Secretary's position is entitled to deference, we must decide whether this position is reasonable. See The claimants and the dissent
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this position is reasonable. See The claimants and the dissent argue that this issue can be resolved simply by comparing the two interim regulations. This argument is straightforward; it reasons that the mere existence of regulatory provisions permitting rebuttal of statutory elements not rebuttable under the HEW interim regulations renders the DOL interim regulations more restrictive than HEW's and, as a consequence, renders the Secretary's interpretation unreasonable. See Tr. of Oral Arg. 22-24. Specifically, the claimants and the dissent assert that the HEW interim regulations plainly contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual inquiry into the issue of disability causation or the existence of pneumoconiosis. Accordingly, under the claimants' reading of the regulations, there is no manner in which the DOL interim regulations can be seen to be "not more restrictive than" the HEW regulations. The regulatory scheme, however, is not so straightforward as the claimants would make it out to be. We have noted before the Byzantine character of these regulations. See ; (assuming that the drafters "promulgated a scrivener's error"). In our view, the Secretary presents the more reasoned interpretation of this complex regulatory structure, an interpretation that has the additional benefit of providing coherence among the statute and the two interim regulations. The premise underlying the Secretary's interpretation of the HEW interim regulations is that the regulations were adopted to ensure that miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits from the black lung program. Under the Secretary's view, it disserves congressional intent to interpret HEW's interim regulations to allow recovery by miners who do not have pneumoconiosis or whose total disability did not arise, at least in part, from their coal mine We agree. See ; Coal The Secretary and the nonfederal petitioners contend that SSA adjudications under the HEW interim regulations permitted the factual inquiry specified in the third and fourth rebuttal provisions of the DOL regulations. According to the Secretary, subsection (b)(2) of HEW's invocation provisions, and the provisions incorporated by reference into that subsection, do the work of DOL's third and fourth rebuttal methods. Subsection (b)(2) of the HEW interim regulations provides that in order to invoke a presumption of eligibility the claimant must demonstrate that the "impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see 410.416 and 410.456)." 20 CFR 410.490(b)(2) Section 410.416(a) provides: *701 "If a miner was employed for 10 years or more in the Nation's coal mines, and is suffering or suffered from pneumoconiosis,
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Nation's coal mines, and is suffering or suffered from pneumoconiosis, it will be presumed, in the absence of persuasive evidence to the contrary, that the pneumoconiosis arose out of such " See also 410.456. The Secretary interprets the requirement in 410.490(b)(2) that the claimant demonstrate that the miner's impairment "arose out of coal mine employment" as comparable to the DOL's third rebuttal provision, which permits the mine operator to show that the miner's disability "did not arise in whole or in part out of coal mine " 727.203(b)(3). With respect to the DOL's fourth rebuttal provision, the Secretary emphasizes that the statute defines pneumoconiosis as "a chronic dust disease arising out of coal mine " See 30 U.S. C. 902(b). Accordingly, she views the reference to 410.416 and 410.456 in HEW's invocation provision, and the acknowledgment within these sections that causation is to be presumed "in the absence of persuasive evidence to the contrary," as demonstrating that a miner who is shown not to suffer from pneumoconiosis could not invoke HEW's presumption.[7] Petitioners Clinchfield and Consolidation adopt the Third Circuit's reasoning in Pauley. The court in Pauley relied on the reference in the HEW rebuttal provisions to 410.412(a) (1), which in turn refers to a miner's being "totally disabled due to pneumoconiosis." The Third Circuit reasoned that this reference must indicate "the intention of the Secretary *702 [of HEW] to permit rebuttal by a showing that the claimant's disability did not arise at least in part from coal mine " The claimants respond that the Secretary has not adopted the most natural reading of subsection (b)(2). Specifically, the claimants argue that miners who have 10 years of coal mine experience and satisfy the requirements of subsection (b)(1) automatically obtain the presumption of causation that 410.416 or 410.456 confers, and thereby satisfy the causation requirement inherent in the Act. In addition, the claimants point out that the reference in the HEW rebuttal provisions to 410.412(a)(1) may best be read as a reference only to the definition of the term "comparable and gainful work," not to the disability causation provision of 410.412(a). While it is possible that the claimants' parsing of these impenetrable regulations would be consistent with accepted canons of construction, it is axiomatic that the Secretary's interpretation need not be the best or most natural one by grammatical or other standards. Rather, the Secretary's view need be only reasonable to warrant deference. ; The claimants' assertion that the Secretary's interpretation is contrary to the plain language of the statute ultimately rests on their contention that subsections (b)(1) and (ii) of
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Pauley v. BethEnergy Mines, Inc.
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https://www.courtlistener.com/opinion/112639/pauley-v-bethenergy-mines-inc/
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rests on their contention that subsections (b)(1) and (ii) of the HEW interim regulations create a "conclusive" presumption of entitlement without regard to the existence of competent evidence demonstrating that the miner does not or did not have pneumoconiosis or that the miner's disability was not caused by coal mine This argument is deficient in two respects. First, the claimants' premise is inconsistent with the text of the authorizing statute, which expressly provides that the presumptions in question will be rebuttable, see 30 U.S. C. 921(c)(1), (2), and (4), and requires *703 the Secretary of HEW to consider all relevant evidence in adjudicating claims under part B. See 923(b).[8] Second, the presumptions do not by their terms conclusively establish any statutory element of entitlement. In setting forth the two rebuttal methods in subsection (c), the Secretary of HEW did not provide that they would be the exclusive methods of rebuttal. In fact, the claimants admit that "conclusively presume" is a term they "coined" for purposes of argument. Tr. of Oral Arg. 34. Although the delineation of two methods of rebuttal may support an inference that the drafter intended to exclude rebuttal methods not so specified, such an inference provides no guidance where its application would render a regulation inconsistent with the purpose and language of the authorizing statute. See n. 182 ; cf. Commercial Office Products (rejecting the more natural reading of statutory language because such an interpretation *704 would lead to "absurd or futile results plainly at variance with the policy of the legislation as a whole") (internal quotation marks omitted). In asserting that the Secretary's interpretation is untenable, the claimants essentially argue that the Secretary is not justified in interpreting the HEW interim regulations in conformance with their authorizing statute. According to the claimants, the HEW officials charged with administering the black lung benefits program and with drafting the HEW interim regulations believed that it was virtually impossible to determine medically whether a miner's respiratory impairment was actually caused by pneumoconiosis or whether his total disability arose out of his coal mine Faced with such medical uncertainty, and instructed to ensure the "prompt and vigorous processing of the large backlog of claims," see 20 CFR 410.490(a) the claimants assert that HEW omitted from its criteria factual inquiries into disability causation and the existence of pneumoconiosis based on a "cost/benefit" conclusion that such inquiries would engender inordinate delay yet generate little probative evidence.[9] The dissent presents a similar view. Post, at 716-719. *705 We recognize that the SSA, under the HEW interim regulations, appeared to award benefits to miners
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Justice Blackmun
| 1,991 | 11 |
majority
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Pauley v. BethEnergy Mines, Inc.
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https://www.courtlistener.com/opinion/112639/pauley-v-bethenergy-mines-inc/
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the HEW interim regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility. See The Comptroller General of the United States, General Accounting Office, Report to Congress: Examination of Allegations Concerning Administration of the Black Lung Benefits Program 6-10 included in Hearings on H. R. 10760 and S. 3183 before the Subcommittee on of the Senate Committee on and Public Welfare, 94th Cong., 2d Sess., 440-444 We are not, however, persuaded that this circumstance requires the Secretary to award black lung benefits to claimants who do not have pneumoconiosis or whose disability did not arise in whole or in part out of coal mine As an initial matter, contemporaneous analyses of claims approved by the HEW provide little support for the argument that the HEW made a "cost/benefit" decision to forgo inquiry into disease existence or disability causation. Rather, many of the claims allegedly awarded on the basis of insufficient evidence involved miners who were unable to present sufficient evidence of medical disability, not those who did not suffer from pneumoconiosis or were disabled by other causes. See ibid.; see also The Comptroller General of the United States, General Accounting Office, Program to Pay Black Lung Benefits to Miners and Their SurvivorsImprovements Are Needed 45-47 (1977); H. R. Rep. No. 95-151, pp. 73-74 (1977) (Minority Views and Separate Views). Moreover, this argument iguores entirely the advances in medical technology that have occurred since the promulgation of the HEW interim regulations, advances that Congress could not have intended either HEW or the DOL to ignore in administering the program. See S. Rep. No. 95-209, p. 13 (1977). Finally, we do not accept the implicit premise of this argument: that the Secretary cannot prevail unless she is able to *706 demonstrate that her interpretation of the HEW interim regulations comports with HEW's contemporaneous interpretation of those regulations. As is stated above, the Secretary's interpretation of HEW's interim regulations is entitled to deference so long as it is reasonable. An interpretation that harmonizes an agency's regulations with their authorizing statute is presumptively reasonable, and claimants have not persuaded us that the presumption is unfounded in this case. IV We conclude that the Secretary of has not acted unreasonably or inconsistently with 30 U.S. C. 902(f)(2) in promulgating interim regulations that permit the presumption of entitlement to black lung benefits to be rebutted with evidence demonstrating that the miner does not, or did not, have pneumoconiosis or that the miner's disability does not, or did not, arise out of coal mine Accordingly, we affirm the judgment of the Third
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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In Browning-Ferris Industries of Vt., we rejected the argument that the Eighth Amendment limits punitive damages awards, but left for "another day" the question whether "undue jury discretion to award punitive damages" violates the Due Process Clause of the Fourteenth Amendment, That day has come, the due process point has been thoroughly briefed and argued, but the Court chooses to decide only that the jury discretion in the present case was not undue. It says that Alabama's particular procedures (at least as applied here) are not so "unreasonable" as to "cross the line into the area of constitutional impropriety," ante this page. This jury-like verdict provides no guidance as to whether any other procedures are sufficiently "reasonable," and thus perpetuates the uncertainty that our grant of certiorari in this case was intended to resolve. Since it has been the traditional practice of American courts to leave punitive damages (where the evidence satisfies the legal requirements *25 for imposing them) to the discretion of the jury; and since in my view a process that accords with such a tradition and does not violate the Bill of Rights necessarily constitutes "due" process; I would approve the procedure challenged here without further inquiry into its "fairness" or "reasonableness." I therefore concur only in the judgment of the Court. I As the Court notes, punitive or "exemplary" damages have long been a part of Anglo-American law. They have always been controversial. As recently as the mid-19th century, treatise writers sparred over whether they even existed. One respected commentator, Professor Simon Greenleaf, argued that no doctrine of authentically "punitive" damages could be found in the cases; he attempted to explain judgments that ostensibly included punitive damages as in reality no more than full compensation. 2 Law of Evidence 235, n. 2 This view was not widely shared. In his influential treatise on the law of damages, Theodore Sedgwick stated that "the rule" with respect to the "salutary doctrine" of exemplary damages is that "where gross fraud, malice, or oppression appears, the jury are not bound to adhere to the strict line of compensation, but may, by a severer verdict, at once impose a punishment on the defendant and hold up an example to the community." Measure of Damages 522 (4th ed. 1868). The doctrine, Sedgwick noted, "seems settled in England, and in the general jurisprudence of this country," See also G. Law of Damages 66 ("[The] doctrine [of punitive damages] seems to be sustained by at least a great preponderance of authorities, both in England and this country"); J. Law of Damages 721-722, 726-727, n.
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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and this country"); J. Law of Damages 721-722, 726-727, n. 1 (1882) ("The doctrine that [punitive] damages may be allowed for the purpose of example and punishment, in addition to compensation, in certain cases, is held in nearly all the states of the Union and in England." "Since the time of the controversy between Professor *26 Greenleaf and Mr. Sedgwick (1847) on this subject, a large majority of the appellate courts in this country have followed the doctrine advocated by Mr. Sedgwick"). In this Court observed: "It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument." Even fierce opponents of the doctrine acknowledged that it was a firmly established feature of American law. Justice Foster of the New Hampshire Supreme Court, in a lengthy decision disallowing punitive damages, called them "a perversion of language and ideas so ancient and so common as seldom to attract attention," Fay v. Parker, 53 N. H. 342, 343 (1873). The opinion concluded, with more passion than even petitioner in the present case could muster: "Undoubtedly this pernicious doctrine has become so fixed in the law that it may be difficult to get rid of it. But it is the business of courts to deal with difficulties; and this heresy should be taken in hand without favor, firmly and fearlessly. ". [N]ot reluctantly should we apply the knife to this deformity, concerning which every true member of the sound and healthy body of the law may well exclaim`I have no need of thee.'" In 1868, therefore, when the Fourteenth Amendment was adopted, punitive damages were undoubtedly an established part of the American common law of torts. It is just as clear *27 that no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount. As this Court noted in "nothing is better settled than that, in cases such as the present, and other actions for torts where no precise rule of law fixes the recoverable damages, it is the peculiar function of the jury to determine the
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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is the peculiar function of the jury to determine the amount by their verdict." See also Missouri Pacific R. Commentators confirmed that the imposition of punitive damages was not thought to require special procedural safeguards, other thanat mostsome review by the trial court. "[I]n cases proper for exemplary damages, it would seem impracticable to set any bounds to the discretion of the jury, though in cases where the wrong done, though with malicious intent, is greatly disproportioned to the amount of the verdict, the court may exercise the power it always possesses to grant a new trial for excessive damages." Sedgwick, See also ("[T]he amount of damages by way of punishment or example, are necessarily largely within the discretion of the jury; the only check being the power of the court to set aside the verdict where it is manifest that the jury were unduly influenced by passion, prejudice, partiality, or corruption, or where it clearly evinces a mistake of the law or the facts of the case"); ("Whether [punitive damages] shall be allowed, and their amount, are left to the discretion of the jury, but subject to the power of the court to set aside the verdict if it is so excessive that the court may infer that the jury have been influenced by passion or prejudice" (footnote omitted)). Although both the majority and the dissenting opinions today concede that the common-law system for awarding punitive damages is firmly rooted in our history, both reject the proposition that this is dispositive for due process purposes. *28 Ante, at 17-18; post, at 60. I disagree. In my view, it is not for the Members of this Court to decide from time to time whether a process approved by the legal traditions of our people is "due" process, nor do I believe such a rootless analysis to be dictated by our precedents. II Determining whether common-law procedures for awarding punitive damages can deny "due process of law" requires some inquiry into the meaning of that majestic phrase. Its first prominent use appears to have been in an English statute of 1354: "[N]o man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law." 28 Edw. Ch. III, ch. 3. Although historical evidence suggests that the word "process" in this provision referred to specific writs employed in the English courts (a usage retained in the phrase "service of process"), see Jurow, Untimely Thoughts: A Reconsideration
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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phrase "service of process"), see Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law, Sir Edward Coke had a different view. In the second part of his Institutes, see 2 Institutes 50 (5th ed. 1797), Coke equated the phrase "due process of the law" in the 1354 statute with the phrase "Law of the Land" in Chapter 29 of Magna Charta (Chapter 39 of the original Magna Charta signed by King John at Runnymede in 1215), which provides: "No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land." 9 Hen. III, ch. 29 (1225). In Coke's view, the phrase "due process of law" referred to the customary procedures to which freemen were entitled by "the old law of England," 2 Institutes 50. *29 The American colonists were intimately familiar with Coke, see R. Mott, Due Process of Law 87-90, 107 (1926); A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America 117-125 (1968), and when, in their Constitutions, they widely adopted Magna Charta's "law of the land" guarantee, see, e. g., N. C. Const., Art. XII (1776) ("[N]o freeman ought to be taken, imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land"); Mass. Const., Art. XII (1780) ("[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land"), they almost certainly understood it as Coke did. It was thus as a supposed affirmation of Magna Charta according to Coke that the First Congress (without recorded debate on the issue) included in the proposed Fifth Amendment to the Federal Constitution the provision that "[n]o person shall be deprived of life, liberty, or property, without due process of law." Early commentaries confirm this. See, e. g., 2 W. Blackstone, Commentaries 133, nn. 11, 12 (S. Tucker ed. 1803); 2 J. Kent, Commentaries on American Law 10 (1827); 3 J. Story, Commentaries on the Constitution of the United States 661 (1833). This Court did not engage in any detailed analysis of the Due Process Clause until Murray's That
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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detailed analysis of the Due Process Clause until Murray's That case involved the validity of a federal statute authorizing the issuance of distress warrants, a mechanism by which the Government collected debts without providing the debtor notice or an opportunity for hearing. The Court noted that the words "due process of law" conveyed "the same meaning as the words `by the law of the land,' in Magna Charta" (referring to Coke's commentary and early State Constitutions), and that *30 they were "a restraint on the legislature as well as on the executive and judicial powers of the government," This brought the Court to the critical question: "To what principles, then, are we to resort to ascertain whether this process enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." -277. Reviewing the history of the distress warrant, the Court concluded that the procedure could not deny due process of law because "there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues," and these summary procedures had been replicated, with minor modifications, in the laws of the various American colonies and, after independence, the States, Subsequent to the decision in Murray's Lessee, of course, the Fourteenth Amendment was adopted, adding another Due Process Clause to the Constitution. The Court soon reaffirmed the teaching of Murray's Lessee under the new provision: "A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is *31 process due according to the law of the land." Not until however, did the Court significantly elaborate upon the historical test for due process advanced in Murray's Lessee. In that case, a man
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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process advanced in Murray's Lessee. In that case, a man convicted of murder in contended that the State had denied him due process of law by omitting grand-jury indictment. Relying upon Murray's Lessee, he argued that because that procedure was firmly rooted in the Anglo-American common-law tradition, it was an indispensable element of due process. The Court disagreed. "The real syllabus of [the relevant portion of Murray's Lessee] is, that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians." Hurtado, then, clarified the proper role of history in a due process analysis: If the government chooses to follow a historically approved procedure, it necessarily provides due process, but if it chooses to depart from historical practice, it *32 does not necessarily deny due process. The remaining business, of course, was to develop a test for determining when a departure from historical practice denies due process. Hurtado provided scant guidance. It merely suggested that due process could be assessed in such cases by reference to "those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," The concept of "fundamental justice" thus entered the due process lexicon not as a description of what due process entails in general, but as a description of what it entails when traditional procedures are dispensed with. As the Court reiterated in "consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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his private right, and guard him against the arbitrary action of government." See also[1] provides a classic expression of the Court's "settled usage" doctrine. The Delaware statute challenged in that case provided that a creditor could attach the in-state property of an out-of-state debtor and recover against it without the debtor's being given an opportunity to be heard unless he posted a bond. This procedure could be traced back to 18th-century London, and had been followed in Delaware and other States since colonial days. The Court acknowledged that in general the due process *33 guarantee "includ[es] the right to be heard where liberty or property is at stake in judicial proceedings." But, it said, "[a] procedure customarily employed, long before the Revolution, in the commercial metropolis of England, and generally adopted by the States as suited to their circumstances and needs, cannot be deemed inconsistent with due process of law." "The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall. "However desirable it is that the old forms of procedure be improved with the progress of time, it cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy. Its function is negative, not affirmative, and it carries no mandate for particular measures of reform." See also Corn Exchange By the time the Court decided its understanding of due process had shifted in a subtle but significant way. That case rejected a criminal defendant's claim that he had been denied due process by being prevented from accompanying his jury on a visit to the scene of the crime. Writing for the Court, Justice Cardozo assumed that due process required "fundamental justice," or "fairness," see in all cases, and not merely when evaluating nontraditional procedures. The opinion's analysis began from the premise that "Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental." Even so, *34 however, only the mode of analysis and not the content of the Due Process Clause had changed, since in assessing whether some principle of "fundamental justice" had been violated, the Court was willing to accord historical practice dispositive weight. Justice Cardozo noted that the practice of showing evidence to the jury outside the presence of the defendant could be traced back to
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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the presence of the defendant could be traced back to 18th-century England, and had been widely adopted in the States. "The Fourteenth Amendment," he wrote, "has not displaced the procedure of the ages." In the ensuing decades, however, the concept of "fundamental fairness" under the Fourteenth Amendment became increasingly decoupled from the traditional historical approach. The principal mechanism for that development was the incorporation within the Fourteenth Amendment of the Bill of Rights guarantees. Although the Court resisted for some time the idea that "fundamental fairness" necessarily included the protections of the Bill of Rights, see, e. g., Adamson v. ; ; it ultimately incorporated virtually all of them, see, e. g., ; Of course, most of the procedural protections of the Federal Bill of Rights simply codified traditional common-law privileges and had been widely adopted by the States. See ("The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors"); T. Cooley, Constitutional Limitations, ch. X (4th ed. 1878). However, in the days when they were deemed to apply only to the Federal Government and not to impose uniformity upon the States, the Court had interpreted several provisions *35 of the Bill of Rights in a way that departed from their strict common-law meaning. Thus, by the mid-20th century there had come to be some considerable divergence between historical practice followed by the States and the guarantees of the Bill of Rights. established that no matter how strong its historical pedigree, a procedure prohibited by the Sixth Amendment (failure to appoint counsel in certain criminal cases) violates "fundamental fairness" and must be abandoned by the States. To say that unbroken historical usage cannot save a procedure that violates one of the explicit procedural guarantees of the Bill of Rights (applicable through the Fourteenth Amendment) is not necessarily to say that such usage cannot demonstrate the procedure's compliance with the more general guarantee of "due process." In principle, what is important enough to have been included within the Bill of Rights has good claim to being an element of "fundamental fairness," whatever history might say; and as a practical matter, the invalidation of traditional state practices achievable through the Bill of Rights is at least limited to enumerated subjects. But disregard of "the procedure of the ages" for incorporation purposes has led to its disregard more generally. There is irony in this, since
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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its disregard more generally. There is irony in this, since some of those who most ardently supported the incorporation doctrine did so in the belief that it was a means of avoiding, rather than producing, a subjective due-process jurisprudence. See, for example, the dissent of Justice Black, author of from the Court's refusal to replace "fundamental fairness" with the Bill of Rights as the sole test of due process: "[T]he `natural law' formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits *36 legislative power." Adamson, In any case, our due process opinions in recent decades have indiscriminately applied balancing analysis to determine "fundamental fairness," without regard to whether the procedure under challenge was (1) a traditional one and, if so, (2) prohibited by the Bill of Rights. See, e. g., ; ; Even so, however, very few cases have used the Due Process Clause, without the benefit of an accompanying Bill of Rights guarantee, to strike down a procedure concededly approved by traditional and continuing American practice. Most notably, in over the strenuous dissent of Justice Black, the Court declared unconstitutional the garnishment of wages, saying that "[t]he fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms." And in the Court invalidated general quasi in rem jurisdiction, saying that "`traditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage," Such cases, at least in their broad pronouncements if not with respect to the particular provisions at issue,[2] were in my view wrongly decided. *37 I might, for reasons of stare decisis, adhere to the principle that these cases announce, except for the fact that our later cases give it nothing but lipservice, and by their holdings reaffirm the view that traditional practice (unless contrary to the Bill of Rights) is conclusive of "fundamental fairness." As I wrote last Term in nothing but the conclusiveness of history can explain why jurisdiction based upon mere service of process within a Stateeither generally or on the precise facts of that caseis "fundamentally fair."
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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or on the precise facts of that caseis "fundamentally fair." Nor to my mind can anything else explain today's decision that a punishment whose assessment and extent are committed entirely to the discretion of the jury is "fundamentally fair." The Court relies upon two inconsequential factors. First, the "guidance" to the jury provided by the admonition that it "take into consideration the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong." That is not guidance but platitude. Second, review of the amount of the verdict by the trial and appellate courts, which are also governed by no discernible standard except what they have done in other cases (unless, presumably, they announce a change). But it would surely not be considered "fair" (or in accordance with due process) to follow a similar procedure outside of this historically approved contextfor example, to dispense with meaningful guidance concerning compensatory damages, so long as whatever number the jury picks out of the air can be reduced by the trial judge or on appeal. I can conceive of no test relating to "fairness" in the abstract that would approve this procedure, unless it is whether something even more unfair could be imagined. If the imposition of millions of dollars of liability in this hodge-podge fashion fails to "jar [the Court's] constitutional sensibilities," ante, at 18, it is hard to say what would. When the rationale of earlier cases (Sniadach and Shaffer) is contradicted by later holdingsand particularly when that *38 rationale has no basis in constitutional text and itself contradicts opinions never explicitly overruledI think it has no valid stare decisis claim upon me. Our holdings remain in conflict, no matter which course I take. I choose, then, to take the course that accords with the language of the Constitution and with our interpretation of it through the first half of this century. I reject the principle, aptly described and faithfully followed in JUSTICE O'CONNOR's dissent, that a traditional procedure of our society becomes unconstitutional whenever the Members of this Court "lose confidence" in it, post, at 63. And like Justice Cardozo in Snyder, I affirm that no procedure firmly rooted in the practices of our people can be so "fundamentally unfair" as to deny due process of law. Let me be clear about the scope of the principle I am applying. It does not say that every practice sanctioned by history is constitutional. It does not call into question, for example, the case of relied upon by both the majority and the dissent, where we
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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upon by both the majority and the dissent, where we held unconstitutional the centuries-old practice of permitting convicted criminals to reduce their prison sentences by paying fines. The basis of that invalidation was not denial of due process but denial to indigent prisoners of equal protection of the laws. The Equal Protection Clause and other provisions of the Constitution, unlike the Due Process Clause, are not an explicit invocation of the "law of the land," and might be thought to have some counterhistorical content. Moreover, the principle I apply today does not reject our cases holding that procedures demanded by the Bill of Rightswhich extends against the States only through the Due Process Clausemust be provided despite historical practice to the contrary. Thus, it does not call into question the proposition that punitive damages, despite their historical sanction, can violate the First Amendment. See, e. g., * * * A harsh or unwise procedure is not necessarily unconstitutional, Corn Exchange just as the most sensible of procedures may well violate the Constitution, see State legislatures and courts have the power to restrict or abolish the common-law practice of punitive damages, and in recent years have increasingly done so. See, e. g., ; (1)(a) ; It is through those meansState by State, and, at the federal level, by Congressthat the legal procedures affecting our citizens are improved. Perhaps, when the operation of that process has purged a historically approved practice from our national life, the Due Process Clause would permit this Court to announce that it is no longer in accord with the law of the land. But punitive damages assessed under common-law procedures are far from a fossil, or even an endangered species. They are (regrettably to many) vigorously alive. To effect their elimination may well be wise, but is not the role of the Due Process Clause. "Its function is negative, not affirmative, and it carries no mandate for particular measures of reform." Ownbey, We have expended much ink upon the due-process implications of punitive damages, and the fact-specific nature of the Court's opinion guarantees that we and other courts will expend much more in the years to come. Since jury-assessed punitive damages are a part of our living tradition that dates *40 back prior to 1868, I would end the suspense and categorically affirm their validity. JUSTICE KENNEDY, concurring in the judgment. Historical acceptance of legal institutions serves to validate them not because history provides the most convenient rule of decision but because we have confidence that a longaccepted legal institution would not have survived if it rested
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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longaccepted legal institution would not have survived if it rested upon procedures found to be either irrational or unfair. For this reason, JUSTICE SCALIA's historical approach to questions of procedural due process has much to commend it. I cannot say with the confidence maintained by JUSTICE SCALIA, however, that widespread adherence to a historical practice always forecloses further inquiry when a party challenges an ancient institution or procedure as violative of due process. But I agree that the judgment of history should govern the outcome in the case before us. Jury determination of punitive damages has such long and principled recognition as a central part of our system that no further evidence of its essential fairness or rationality ought to be deemed necessary. Our legal tradition is one of progress from fiat to rationality. The evolution of the jury illustrates this principle. From the 13th or 14th century onward, the verdict of the jury found gradual acceptance not as a matter of ipse dixit, the basis for verdicts in trials by ordeal which the jury came to displace, but instead because the verdict was based upon rational procedures. See T. Plucknett, A Concise History of the Common Law 120-131 (5th ed. 1956). Elements of whim and caprice do not predominate when the jury reaches a consensus based upon arguments of counsel, the presentation of evidence, and instructions from the trial judge, subject to review by the trial and appellate courts. There is a principled justification too in the composition of the jury, for its representative character permits its verdicts to express the sense of the community. *41 Some inconsistency of jury results can be expected for at least two reasons. First, the jury is empaneled to act as a decisionmaker in a single case, not as a more permanent body. As a necessary consequence of their case-by-case existence, juries may tend to reach disparate outcomes based on the same instructions. Second, the generality of the instructions may contribute to a certain lack of predictability. The law encompasses standards phrased at varying levels of generality. As with other adjudicators, the jury may be instructed to follow a rule of certain and specific content in order to yield uniformity at the expense of considerations of fairness in the particular case; or, as in this case, the standard can be more abstract and general to give the adjudicator flexibility in resolving the dispute at hand. These features of the jury system for assessing punitive damages discourage uniform results, but nonuniformity cannot be equated with constitutional infirmity. As we have said in the capital
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Justice Scalia
| 1,991 | 9 |
concurring
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Pacific Mut. Life Ins. Co. v. Haslip
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https://www.courtlistener.com/opinion/112557/pacific-mut-life-ins-co-v-haslip/
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with constitutional infirmity. As we have said in the capital sentencing context: "It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that `buil[d] discretion, equity, and flexibility into a legal system.'" This is not to say that every award of punitive damages by a jury will satisfy constitutional norms. A verdict returned by a biased or prejudiced jury no doubt violates due process, and the extreme amount of an award compared to the actual damage inflicted can be some evidence of bias or prejudice in an appropriate case. One must recognize the difficulty of making the showing required to prevail on this theory. In my view, however, it provides firmer guidance and rests on sounder jurisprudential foundations than does the approach *42 espoused by the majority. While seeming to approve the common-law method for assessing punitive damages, ante, at 17-18, the majority nevertheless undertakes a detailed examination of that method as applied in the case before us, ante, at 18-24. It is difficult to comprehend on what basis the majority believes the common-law method might violate due process in a particular case after it has approved that method as a general matter, and this tension in its analysis now must be resolved in some later case. In my view, the principles mentioned above and the usual protections given by the laws of the particular State must suffice until judges or legislators authorized to do so initiate system-wide change. We do not have the authority, as do judges in some of the States, to alter the rules of the common law respecting the proper standard for awarding punitive damages and the respective roles of the jury and the court in making that determination. Were we sitting as state-court judges, the size and recurring unpredictability of punitive damages awards might be a convincing argument to reconsider those rules or to urge a reexamination by the legislative authority. We are confined in this case, however, to interpreting the Constitution, and from this perspective I agree that we must reject the arguments advanced by petitioner. For these reasons I concur in the judgment of the Court.
|
Justice Blackmun
| 1,989 | 11 |
majority
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United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
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In this case, we consider whether and under what circumstances a civil penalty may constitute "punishment" for the purposes of double jeopardy analysis.[1] *437 I Respondent Irwin Halper worked as manager of New City Medical Laboratories, Inc., a company which provided medical service in New York City for patients eligible for benefits under the federal Medicare program. In that capacity, Halper submitted to Blue Cross and Blue Shield of Greater New York, a fiscal intermediary for Medicare, 65 separate false claims for reimbursement for service rendered. Specifically, on 65 occasions during 1982 and 1983, Halper mischaracterized the medical service performed by New City, demanding reimbursement at the rate of $12 per claim when the actual service rendered entitled New City to only $3 per claim. Duped by these misrepresentations, Blue Cross overpaid New City a total of $585; Blue Cross passed these overcharges along to the Federal Government.[2] The Government became aware of Halper's actions and in April 1985 it indicted him on 65 counts of violating the criminal false-claims statute, 18 U.S. C. 287, which prohibits "mak[ing] or present[ing] any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent." Halper was convicted on all 65 counts, as well as on 16 counts of mail fraud. He was sentenced in July 1985 to imprisonment for two years and fined $5, *438 The Government then brought the present action in the United States District Court for the Southern District of New York against Halper and another, who later was dismissed from the case, see App. 21, 36, under the civil False Claims Act, 31 U.S. C. 3729-3731. That Act was violated when "[a] person not a member of an armed force of the United States (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved." 3729. Based on facts established by Halper's criminal conviction and incorporated in the civil suit, the District Court granted summary judgment for the Government on the issue of liability. The court then turned its attention to the remedy for Halper's multiple violations. The remedial provision of the Act stated that a person in violation is "liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action." 31 U.S. C. 3729 (1982 ed., Supp. II).[3] Having violated the Act 65 separate
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Justice Blackmun
| 1,989 | 11 |
majority
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United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
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(1982 ed., Supp. II).[3] Having violated the Act 65 separate times, Halper thus appeared to be subject to a statutory penalty of more than $130, The District Court, however, concluded that in light of Halper's previous criminal punishment, an additional penalty this large would violate the Double Jeopardy Clause. Although the court recognized that the statutory provisions for a civil sanction of $2,000 plus double damages for a claims violation was not in itself criminal punishment, it concluded that this civil remedy, designed to make the Government whole, would constitute a second punishment for double jeopardy *439 analysis if, in application, the amount of the penalty was "entirely unrelated" to the actual damages suffered and the expenses incurred by the Government. In the District Court's view, the authorized recovery of more than $130,000 bore no "rational relation" to the sum of the Government's $585 actual loss plus its costs in investigating and prosecuting Halper's false claims. The court therefore ruled that imposition of the full amount would violate the Double Jeopardy Clause by punishing Halper a second time for the same conduct. To avoid this constitutional proscription, the District Court read the $2,000-per-count statutory penalty as discretionary and, approximating the amount required to make the Government whole, imposed the full sanction for only 8 of the 65 counts. The court entered summary judgment for the Government in the amount of $16, The United States, pursuant to Federal Rule of Civil Procedure 59(e), moved for reconsideration. The motion was granted. On reconsideration, the court confessed error in ruling that the $2,000 penalty was not mandatory for each count. It remained firm, however, in its conclusion that the $130,000 penalty could not be imposed because, in the circumstances before it, that amount would violate the Double Jeopardy Clause's prohibition of multiple punishments. Looking to United States ex rel. for guidance, the court concluded that, although a penalty that is more than the precise amount of actual damages is not necessarily punishment, a penalty becomes punishment when, quoting Justice Frankfurter's concurrence in it exceeds what " `could reasonably be regarded as the equivalent of compensation for the Government's loss.' " Applying this principle, the District Court concluded that the statutorily authorized penalty of $130,000, an amount more than 220 times greater than the Government's measurable loss, qualified as punishment which, in *440 view of Halper's previous criminal conviction and sentence, was barred by the Double Jeopardy Clause. Because it considered the Act unconstitutional as applied to Halper, the District Court amended its judgment to limit the Government's recovery to double damages of $1,170
|
Justice Blackmun
| 1,989 | 11 |
majority
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United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
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to limit the Government's recovery to double damages of $1,170 and the costs of the civil action. The United States, pursuant to 28 U.S. C. 1252, took a direct appeal to this Court. We noted probable jurisdiction, in order to determine the constitutionality of the remedial provisions of the civil False Claims Act as applied in Halper's case. II This Court many times has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See, e. g., North The third of these protections the one at issue here has deep roots in our history and jurisprudence. As early as 1641, the Colony of Massachusetts in its "Body of Liberties" stated: "No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse." American Historical Documents 1000-1904, 43 Harvard Classics 66, 72 (C. Eliot ed. 1910). In drafting his initial version of what came to be our Double Jeopardy Clause, James Madison focused explicitly on the issue of multiple punishment: "No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence." 1 Annals of Cong. 434 (1789-1791) (J. Gales ed. 1834). In our case law, too, this Court, over a century ago, observed: "If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence." Ex parte Lange, *441 The multiple-punishment issue before us is narrowly framed by the common understandings of the parties to this case. They do not dispute that respondent Halper already has been punished as a result of his prior criminal proceeding when he was sentenced to a jail term and fined $5, Nor do they dispute that the instant proceeding and the prior criminal proceeding concern the same conduct, the submission of 65 false claims.[4] The sole question here is whether the statutory penalty authorized by the civil False Claims Act, under which Halper is subject to liability of $130,000 for false claims amounting to $585, constitutes a second "punishment" for the purpose of double jeopardy analysis. The Government argues that in three previous cases, United States ex rel. and Rex this Court foreclosed any argument that a penalty assessed in a civil proceeding, and specifically in a civil False Claims Act proceeding, may give rise to double jeopardy. Specifically, the Government asserts that these cases establish
|
Justice Blackmun
| 1,989 | 11 |
majority
|
United States v. Halper
|
https://www.courtlistener.com/opinion/112259/united-states-v-halper/
|
double jeopardy. Specifically, the Government asserts that these cases establish three principles: first, that the Double Jeopardy Clause's prohibition against multiple punishment protects against only a second criminal penalty; second, that criminal penalties are imposed only in criminal proceedings; and, third, that proceedings under, and penalties authorized by, the civil False Claims Act are civil in nature. In addition, the Government argues on the basis of these three cases and others, see, e. g., United that whether a proceeding or penalty is civil or criminal is a matter of statutory construction, and that Congress clearly intended the proceedings and penalty at issue here to be civil in nature. The Government, in our view, has misconstrued somewhat the nature of the multiple-punishment inquiry, and, in so doing, has overread the holdings of our precedents. Although, *442 taken together, these cases establish that proceedings and penalties under the civil False Claims Act are indeed civil in nature, and that a civil remedy does not rise to the level of "punishment" merely because Congress provided for civil recovery in excess of the Government's actual damages, they do not foreclose the possibility that in a particular case a civil penalty authorized by the Act may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment. In Mitchell, the Commissioner of Internal Revenue determined that the taxpayer fraudulently had asserted large sums as deductions on his 1929 income tax return. Mitchell was indicted and prosecuted for willful evasion of taxes. At trial, however, he was acquitted. The Government then brought an action to collect a deficiency of $728,709.84 in Mitchell's tax and, as well, a 50% additional amount specified by statute on account of the fraud. Mitchell argued that this second action subjected him to double jeopardy because the 50% addition was intended as punishment, and that the supposedly civil assessment proceeding therefore was actually a second criminal proceeding based on a single course of conduct. This Court did not agree. The Double Jeopardy Clause, it noted, "prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." Because Mitchell was acquitted (and therefore not punished) in his criminal prosecution, the Court was called upon to determine only whether the statute imposed a criminal sanction in which case the deficiency proceeding would be an unconstitutional second attempt to punish criminally. Whether the statutory sanction was criminal in nature, the Court held, was a question of statutory interpretation; and, applying traditional canons of construction, the Court had little difficulty concluding that Congress intended that
|
Justice Blackmun
| 1,989 | 11 |
majority
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United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
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the Court had little difficulty concluding that Congress intended that the statute impose a civil penalty and that the deficiency sanction was in fact remedial, providing reimbursement to *443 the Government for investigatory and other costs of the tax-payer's fraud. Since "in the civil enforcement of a remedial sanction there can be no double jeopardy," the Court rejected Mitchell's claim. Mitchell at most is of tangential significance for our current inquiry. While the opinion makes clear that the Government may impose both a criminal and a civil sanction with respect to the same act or omission, and that whether a given sanction is criminal is a matter of statutory construction, it simply does not address the question we face today: whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes "punishment" for the purpose of double jeopardy analysis. If anything, Justice Brandeis' carefully crafted opinion for the Court intimates that a civil sanction may constitute punishment under some circumstances. As noted above, the Court distinguished between the Double Jeopardy Clause's prohibition against "attempting a second time to punish criminally" and its prohibition against "merely punishing twice." The omission of the qualifying adverb "criminally" from the formulation of the prohibition against double punishment suggests, albeit indirectly, that "punishment" indeed may arise from either criminal or civil proceedings. See also United United States ex rel. is closer to the point, but it, too, does not preclude the District Court's judgment. In electrical contractors were indicted for defrauding the Government by bidding collusively on public-works projects. They pleaded nolo contendere and were fined $54, Subsequently, a group of private plaintiffs brought a qui tam action in the name of the United States against the defendants pursuant to a statute providing that a person guilty of defrauding the Government *444 was subject to a civil penalty of $2,000 for each violation, double the amount of actual damages, and the costs of the suit.[5] The plaintiffs obtained a judgment for $315,000, of which $112,000 reflected the $2,000 per-count figure for the 56 counts and $203,000 was for double damages. The defendants challenged the judgment on double jeopardy grounds, arguing, as did the defendant in Mitchell, that the proceeding was barred as a second attempt to punish the defendants criminally. This Court dispensed with this claim of criminal punishment, precisely as it had in Mitchell, by reference to the statute. The Court held that the chief purpose of the statute "was to provide for restitution to the government of money taken from it by fraud, and that the device
|
Justice Blackmun
| 1,989 | 11 |
majority
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United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
|
money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole." -552. Since proceedings under the statute were remedial and designed to "protect the government from financial loss" rather than to "vindicate public justice" they were civil in nature. Because the defendants in had been punished in a prior criminal proceeding (as Mitchell had not), the Court faced a further double jeopardy problem: whether (as in the instant case) the second sanction was barred because it constituted a second punishment. Under the qui tam provision of the statute, the Government's share of the recovery was $150,000, for actual damages of $101,500. Although the recovery was greater than the precise amount of the actual damages, the Court recognized, at least with respect to "the remedy now before [it]," that the lump sum and double damages provided by statute did not "do more than *445 afford the government complete indemnity for the injuries done it." Those injuries, of course, included not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government's efforts to root out deceptive practices directed at the public purse. Since the actual costs to the Government roughly equaled the damages recovered, in rejecting the defendants' double jeopardy claim, the Court simply did not face the stark situation presently before us where the recovery is exponentially greater than the amount of the fraud, and, at least in the District Court's informed view, is also many times the amount of the Government's total loss. Nor did the Court face such a situation in Rex In that case, the defendants fraudulently purchased five trucks under the Surplus Property Act of 1944, by claiming veteran priority rights to which they were not entitled. They pleaded nolo contendere to criminal charges and paid fines aggregating $25, The Government then brought a civil action under the Surplus Property Act of 1944, 780, which provided three alternative civil remedies: (1) $2,000 for each act plus double damages and costs; (2) recovery "as liquidated damages" of twice the consideration agreed to be given; and (3) recovery of the property plus, "as liquidated damages," retention of the consideration given. See n. 1. The Government sought the first of these remedies which the Court considered "comparable to the recovery under liquidated-damage provisions which fix compensation for anticipated loss." The Court rejected the defendants' claim that the $2,000-per-count penalty constituted a second punishment. Although the
|
Justice Blackmun
| 1,989 | 11 |
majority
|
United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
|
that the $2,000-per-count penalty constituted a second punishment. Although the Court recognized that the Government's actual loss due to the defendants' fraud was difficult if not impossible to ascertain, it recognized that the Government did sustain injury due to the resultant decrease of motor vehicles available to Government agencies, an increase in undesirable speculation, and damage *446 to its program of promoting bona fide sales to veterans.[6] Since the function of a liquidated damages provision was to provide a measure of recovery where damages are difficult to quantify, the Court found "on the record before it where the defendants were liable for only $10,000 that they had not been subjected to a "measure of recovery so unreasonable or excessive" as to constitute a second criminal punishment in violation of double jeopardy. See also One Lot Emerald Cut The relevant teaching of these cases is that the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis. These cases do not tell us, because the problem was not presented in them, what the Constitution commands when one of those imprecise formulas authorizes a supposedly remedial sanction that does not remotely approximate the Government's damages and actual costs, and rough justice becomes clear injustice. That such a circumstance might arise appears to be anticipated not only in Mitchell, as noted above, but also in the explicitly case-specific holdings of and Rex III We turn, finally, to the unresolved question implicit in our cases: whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause. As noted above, the Government takes *447 the position that punishment in the relevant sense is meted out only in criminal proceedings, and that whether proceedings are criminal or civil is a matter of statutory construction. The Government correctly observes that this Court has followed this abstract approach when determining whether the procedural protections of the Sixth Amendment apply to proceedings under a given statute, in affixing the appropriate standard of proof for such proceedings, and in determining whether double jeopardy protections should be applied. See United -251. But while recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of
|
Justice Blackmun
| 1,989 | 11 |
majority
|
United States v. Halper
|
https://www.courtlistener.com/opinion/112259/united-states-v-halper/
|
the approach is not well suited to the context of the "humane interests" safeguarded by the Double Jeopardy Clause's proscription of multiple punishments. See 317 U. S., This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.[7] In making this assessment, the labels "criminal" and "civil" are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. [8] The *448 notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads. Cf. To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment. These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e. g., Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives." From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. We therefore hold that under the Double Jeopardy Clause a defendant who already has been *449 punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. We acknowledge that this inquiry will not be an exact pursuit. In our decided cases we have noted that the precise amount of the Government's damages and costs may prove to be difficult, if not impossible, to ascertain. See, e. g., Rex 350 U. S., Similarly, it would be difficult if not impossible in many cases for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality
|
Justice Blackmun
| 1,989 | 11 |
majority
|
United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
|
whole, but beyond which the sanction takes on the quality of punishment. In other words, as we have observed above, the process of affixing a sanction that compensates the Government for all its costs inevitably involves an element of rough justice. Our upholding reasonable liquidated damages clauses reflects this unavoidable imprecision. Similarly, we have recognized that in the ordinary case fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole. We cast no shadow on these time-honored judgments. What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment.[9]*450 We must leave to the trial court the discretion to determine on the basis of such an accounting the size of the civil sanction the Government may receive without crossing the line between remedy and punishment. Cf. 475 U.S. ; see also aff'd sub nom. (CA5), cert. denied sub nom. While the trial court's judgment in these matters often may amount to no more than an approximation, even an approximation will go far towards ensuring both that the Government is fully compensated for the costs of corruption and that, as required by the Double Jeopardy Clause, the defendant is protected from a sanction so disproportionate to the damages caused that it constitutes a second punishment. We do not consider our ruling far reaching or disruptive of the Government's need to combat fraud. Nothing in today's ruling precludes the Government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive. In such a case, the Double Jeopardy Clause simply is not implicated. Nor does the decision prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding. In a single proceeding the multiple-punishment issue would be limited to ensuring that the total punishment did not exceed that authorized by the
|
Justice Blackmun
| 1,989 | 11 |
majority
|
United States v. Halper
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https://www.courtlistener.com/opinion/112259/united-states-v-halper/
|
the total punishment did not exceed that authorized by the legislature. See, e. g.,[10] Finally, nothing in today's opinion precludes a private party from filing a civil suit seeking damages for conduct that previously was the subject of criminal prosecution and punishment. The protections of the Double Jeopardy Clause are not triggered by litigation between private parties.[11] In other words, the only proscription established by our ruling is that the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole.[12] *452 IV Returning to the case at hand, the District Court found a "tremendous disparity" between the Government's actual damages and the civil penalty authorized by the 664 F. Supp., The court approximated the Government's expenses at no more than $16,000, as compared to the asserted liability of Halper in excess of $130, 660 F. Supp., Although the Government apparently did not challenge the District Court's figure choosing instead to litigate the legal issue we now decide we think it unfair to deprive the Government of an opportunity to present to the District Court an accounting of its actual costs arising from Halper's fraud, to seek an adjustment of the District Court's approximation, and to recover its demonstrated costs. While we agree with the District Court that the disparity between its approximation of the Government's costs and Halper's $130,000 liability is sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy, we remand the case to permit the Government to demonstrate that the District Court's assessment of its injuries was erroneous. The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
|
Justice Breyer
| 2,011 | 2 |
dissenting
|
Milner v. Department of Navy
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https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/
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Justice Stevens has explained that, once “a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies,” it can acquire a clear meaning that this Court should hesi tate to change. See Shearson/American Express Inc. v. McMahon, (opinion concurring in part and dissenting in part) (emphasis added). See also (Stevens, J., dissenting); B. Cardozo, The Nature of the Judicial Process 149 (1921). I would apply that principal to this case and accept the 30-year-old decision by the D. C. Cir cuit in as properly stating the law. For one thing, the decision, joined by 9 of the 10 sitting Circuit Judges, has been consistently followed, or favorably cited, by every Court of Appeals to have consid ered the matter during the past 30 years. See (writ ten by Judge Edwards, and joined by Chief Judge Robin son and Judges Wright, MacKinnon, Robb, Wald, Mikva, and then-Judge Ginsburg, with Judge Tamm concurring in the result and Judge Wilkey dissenting); ; Kaganove v. EPA, 856 F.2d 884, 889 cert. denied, ; 2 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting Three Circuits adopted a different approach in the 1970’s before was decided, see ante, at 3–4, n. 2, but I read subsequent decisions in two of those Circuits as not adher ing to their early positions. See Abraham & Rose, PLC v. United States, (finding ’s textual analysis “sound and persuasive,” and noting that FBI symbols “used internally to identify confidential sources” may be withheld); Sladek v. Bensinger, (expressly re serving judgment on the issue). As for the re maining Circuit, its district courts understand now to apply. See, e.g., Gavin v. SEC, No. 04–4522, WL 2454156, *5–*6 ; see also (SD Tex. 2003), aff’d, (per curiam); WL 14436, *2– *3 I recognize that there is reasonable ground for disagreement over the precise status of certain pre- precedents, but the interpretation of Exemption 2 has guided nearly every Freedom of Information Act (FOIA) case decided over the last 30 years. See generally Dept. of Justice, Guide to Freedom of Information Act, pp. 184–206 (2009) (FOIA Guide) (identifying over 100 district court decisions apply ing the approach, and one appearing to reject it). Congress, moreover, well aware of left Exemp tion 2, 5 U.S. C. untouched when it amended the FOIA five years later. See S. Rep. No. 98–221, p. 25 (1983) (discussing ); Freedom of Information Re form Act of –48 (amending Exemption 7, 5 U.S. C. This Court has found that circumstances of this kind offer significant support for retaining
|
Justice Breyer
| 2,011 | 2 |
dissenting
|
Milner v. Department of Navy
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https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/
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that circumstances of this kind offer significant support for retaining an interpretation of a statute that has been settled by the lower courts. See General Dynamics Land Systems, Inc. v. Cline, 540 U. S. Cite as: 562 U. S. (2011) 3 BREYER, J., dissenting 581, 593–594 ; Evans v. United States, 504 U.S. 255, –269 (1992); Newman-Green, ; Monessen Southwest ern R. ; Lin 781–783 (1985); Herman & MacLean v. Huddleston, 459 U.S. 375, 385–386 (1983); ; Blue Chip Stamps v. Manor Drug Stores, ; Gulf Oil 200– 201 (1974); 412–413 (1962). See generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation 8 (“[T]he acquiescence rule can also support implicit con gressional ratification of a uniform line of federal appel late interpretations”). For another thing, even if the majority’s analysis would have persuaded me if written on a blank slate, ’s analysis was careful and its holding reasonable. The Circuit Court examined the statute’s language, the legisla tive history, and the precedent. It recognized that the exemption’s words (“related solely to the internal person nel rules and practices of an agency”) could easily be read, as the Court reads them today, to refer only to human resources rules and practices. See – 1057. But it also thought that those words could be read more broadly as referring to internal rules or practices that set forth criteria or guidelines for agency personnel to follow in respect to purely internal matters (as long as the information at issue was “not of legitimate public inter est”). The D. C. Circuit agreed with today’s Court that the Senate Report described the exemption as referring to “ ‘internal personnel’ ” matters, giving as examples “ ‘per sonnel’s use of parking facilities, sick leave, and the like.’ ” at 1058–1059 (quoting S. Rep. No. 813, 89th 4 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting Cong., 1st Sess., p. 8 (1965)). But it also noted that the House Report described the exemption as protecting from disclosure “ ‘[o]perating rules, guidelines, and manuals of procedure for Government investigators or examiners.’ ” (quoting H. R. Rep. No. 1497, 89th Cong., 2d Sess., p. 10 (1966)). “[U]pon reflection,” it thought the views of the two Houses “reconcilable” if one understood both sets of examples as referring to internal staff information (both minor personnel matters and staff instruction matters) that the public had no legitimate interest in learning And it accepted this view in light of its hesitation to “apply indi vidual provisions of the statute woodenly, oblivious to Congress’ intention that FOIA not frustrate law
|
Justice Breyer
| 2,011 | 2 |
dissenting
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Milner v. Department of Navy
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https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/
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woodenly, oblivious to Congress’ intention that FOIA not frustrate law enforce ment efforts.” At the same time it found no other exemption that would protect internal documents in which there is no legitimate public interest in disclosure— a category that includes, say, building plans, safe combi nations, computer passwords, evacuation plans, and the like. After examining in depth the legislative history and relevant precedent, the court adopted an approach based on a prior opinion by Circuit Judge Leventhal, as well as language used by this Court in Department of Air Force v. Rose, The D. C. Circuit held that a document fits within the literal language of Exemp tion 2 and is exempt from disclosure if (1) it “meets the test of ‘predominant internality,’ ” i.e., the document is “not of legitimate public interest,” and (2) “disclosure significantly risks circumvention of agency regulations or statutes.” ; see also Rose, at (suggesting that Exemption 2 might apply where “disclosure may risk circumvention of agency regu lation”). This test, based upon Congress’ broader FOIA objectives and a “common sense” view of what information Congress did and did not want to make available, Cite as: 562 U. S. (2011) 5 BREYER, J., dissenting takes the “practical approach” that this Court has “consistently taken” when interpreting the FOIA, John Doe 157 I would not underestimate the importance of this “prac tical approach.” It reflects this Court’s longstanding rec ognition that it cannot interpret the FOIA (and the Ad ministrative Procedure Act (APA) of which it is a part) with the linguistic literalism fit for interpretations of the tax code. See generally 1 R. Pierce, Administrative Law Treatise p. 413 (4th ed. 2002) (“Judicial interpreta tion of the malleable language of the APA has produced changes in the rulemaking procedure that could be charac terized as revolutionary if they had been affected in a day or a year rather than gradually over a period of decades”); cf. Sunstein & Vermeule, Interpretation and Institutions, 917–918, and n. 111 (2003) (observ ing that Congress “appears to rely on courts for long peri ods of time” to give meaning to the APA, which justifies interpreting it less formalistically than statutes like “the Internal Revenue Code”). That in large part is because the FOIA (like the APA but unlike the tax code) must govern the affairs of a vast Executive Branch with numer ous different agencies, bureaus, and departments, per forming numerous tasks of many different kinds. Too narrow an interpretation, while working well in the case of one agency, may seriously interfere with congressional objectives when applied to
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Justice Breyer
| 2,011 | 2 |
dissenting
|
Milner v. Department of Navy
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https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/
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agency, may seriously interfere with congressional objectives when applied to another. The D. C. Circuit’s answer to this legal problem here was to interpret Exemp tion 2 in light of Congress’ basic effort to achieve a “workable balance between the interests of the public in greater access to information and the needs of the Gov ernment to protect certain kinds of information from disclosure.” John Doe See also S. Rep. No. 1219, 88th Cong., 2d Sess., 8, 11 (1964) (em phasizing this “workable” balance); S. Rep. No. 813, at 3, 5 6 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting (same); H. R. Rep. No. 1497, at 2, 6 (same). Further, 30 years of experience with ’s holding suggests that it has not seriously interfered with the FOIA’s informational objectives, while at the same time it has permitted agencies to withhold much information which, in my view, Congress would not have wanted to force into the public realm. To focus only on the case law, courts have held that that information protected by Ex emption 2 includes blueprints for Department of Agricul ture buildings that store biological agents, ; documents that would help hackers access National Aero nautics and Space Administration computers, Knight v. NASA, No. 2:04–cv–2054–MCE–GGH, *6 (ED Cal., Dec. 21, 2006); agency credit card numbers, Judicial Watch, Inc. v. Department of Commerce, 83 F. Supp. 2d 105, 110 (DC 1999); Commodity Futures Trading Commission guidelines for settling cases, Shu maker, Loop & Kendrick, LLP v. Commodity Futures Trading Comm’n, No. 3:97 CV 7139, U. S. Dist. LEXIS 23993, *10–*15 ; “trigger figures” that alert the Department of Education to possible mismanagement of federal funds, ; security plans for the Supreme Court Building and Supreme Court Justices, ; vulnerability assessments of Commerce Department com puter security plans, ; Bureau of Prisons guidelines for controlling riots and for storing hazardous chemicals, Miller v. DOJ, No. 87–0533, 1989 WL 10598 ; guidelines for assessing the sensitivity of military programs, Institute for Policy Stud 4–5 ; and guidelines for processing Medicare reimburse ment claims, 803 F.2d, at –1459. Cite as: 562 U. S. (2011) 7 BREYER, J., dissenting In other Exemption 2 cases, where withholding may seem less reasonable, the courts have ordered disclosure. Cf. ante, at 16, n. 9 and Maricopa Audubon ). See generally FOIA Guide 201, and n. 106 (citing nine deci sions applying the approach but nonetheless requiring disclosure). The majority acknowledges that “our decision today upsets three decades of agency practice relying on and therefore may force considerable adjustments.” Ante, at 18. But how are these adjustments
|
Justice Breyer
| 2,011 | 2 |
dissenting
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Milner v. Department of Navy
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https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/
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considerable adjustments.” Ante, at 18. But how are these adjustments to be made? Should the Government rely upon other exemptions to provide the protection it believes necessary? As JUSTICE ALITO notes, Exemption 7 applies where the documents consist of “re cords or information compiled for law enforcement pur poses” and release would, e.g., “disclose techniques and procedures for law enforcement investigations,” or “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S. C. But what about information that is not compiled for law enforce ment purposes, such as building plans, computer pass words, credit card numbers, or safe deposit combinations? The Government, which has much experience litigating FOIA cases, warns us that Exemption 7 “targets only a subset of the important agency functions that may be circumvented.” Brief for Respondent 52–53. Today’s decision only confirms this point, as the Court’s insistence on narrow construction might persuade judges to avoid reading Exemption 7 broadly enough to provide type protection. The majority suggests that the Government can classify documents that should remain private. Ante, at 18. See 5 U.S. C. (permitting withholding of material “properly classified” as authorized to be “kept secret in the interest of national defense or foreign policy”). But classi 8 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting fication is at best a partial solution. It takes time. It is subject to its own rules. As the Government points out, it would hinder the sharing of information about Govern ment buildings with “first responders,” such as local fire and police departments. Brief for Respondent 53–54. And both Congress and the President believe the Nation cur rently faces a problem of too much, not too little, classified material. See Reducing Over-Classification Act, 124 Stat. 2648; Exec. Order No. 13526, 2.1(d), 5.4(d)(10), 3 CFR 298, 299–300, 304, 321 (2009 Comp.). Indeed, Con gress recently found: “The 9/11 Commission and others have observed that the over-classification of information interferes with accurate, actionable, and timely information sharing, increases the cost of information security, and need lessly limits stakeholder and public access to informa tion. “Over-classification of information causes consider able confusion regarding what information may be shared with whom, and negatively affects the dis semination of information within the Federal Gov ernment and with State, local, and tribal entities, and with the private sector.” Reducing Over-Classification Act, (3), These legislative findings suggest that it is “over classification,” not that poses the more serious threat to the FOIA’s public information objectives. That leaves congressional action. As the Court points out, Congress remains free to correct whatever problems
|
Justice Breyer
| 2,011 | 2 |
dissenting
|
Milner v. Department of Navy
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https://www.courtlistener.com/opinion/206090/milner-v-department-of-navy/
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Court points out, Congress remains free to correct whatever problems it finds in today’s narrowing of Exemption 2. But legislative action takes time; Congress has much to do; and other matters, when compared with a FOIA revision, may war rant higher legislative priority. In my view, it is for the courts, through appropriate interpretation, to turn Con gress’ public information objectives into workable agency Cite as: 562 U. S. (2011) 9 BREYER, J., dissenting practice, and to adhere to such interpretations once they are settled. That is why: Where the courts have already interpreted Exemption 2, where that interpretation has been consis tently relied upon and followed for 30 years, where Con gress has taken note of that interpretation in amending other parts of the statute, where that interpretation is reasonable, where it has proved practically helpful and achieved commonsense results, where it is consistent with the FOIA’s overall statutory goals, where a new and dif ferent interpretation raises serious problems of its own, and where that new interpretation would require Con gress to act just to preserve a decades-long status quo, I would let sleeping legal dogs lie. For these reasons, with respect, I dissent
|
Justice Rehnquist
| 1,996 | 19 |
concurring
|
Fulton Corp. v. Faulkner
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https://www.courtlistener.com/opinion/117997/fulton-corp-v-faulkner/
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, required that taxation of interstate transactions be "consistent with substantial equality notwithstanding the technical differences." Whether or not North Carolina's intangibles tax would satisfy Darnell `s "substantial equality" requirement, I agree that the tax is not consistent with this Court's more recent requirement that there be "substantial equivalence" between an in-state taxable event and the interstate event on which a State levies a compensatory tax. Ante, at 345 346. I have expressed in dissent my belief that the "substantial equivalence" test deviates from the principle articulated in earlier cases that "`equality for the purposes of competition and the flow of commerce' " should be "`measured in dollars and cents, not legal abstractions,' " Armco and it might be argued accordingly that Darnell is more "realistic," However, my view has not prevailed, and Darnell simply cannot be reconciled with the compensatory-tax decisions cited in the Court's opinion, ante, at 345-346. I therefore join the opinion of the Court.
|
Justice Roberts
| 2,014 | 0 |
concurring
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Schuette v. BAMN
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https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
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The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding that it “do[es] not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court.” Post, at 57 (opinion of SOTOMAYOR, J.). The dissent concedes that the governing boards of the State’s various universities could have im- plemented a policy making it illegal to “discriminate against, or grant preferential treatment to,” any individ- ual on the basis of race. See post, at 3, 34–35. On the dissent’s view, if the governing boards conclude that draw- ing racial distinctions in university admissions is undesir- able or counterproductive, they are permissibly exercising their policymaking authority. But others who might reach the same conclusion are failing to take race seriously. The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” Post, at 46. And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 2 SCHUETTE v. BAMN ROBERTS, C. J., concurring ‘I do not belong here.’ ” But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. Post, at 45. To disagree with the dissent’s views on the costs and benefits of racial prefer- ences is not to “wish away, rather than confront” racial inequality. Post, at 46. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.* —————— * JUSTICE SCALIA and JUSTICE SOTOMAYOR question the relationship between and Parents in Community See post, at 6, n. 2 (SCALIA, J., concurring in judgment); post, at 23, n. 9 (SOTOMAYOR, J., dissenting). The plurality today addresses that issue, explaining that the race-conscious action in Parents was unconstitutional given the absence of a showing of prior de jure segregation. Parents at –721 (majority opinion), 736 ; see ante, at 9. Today’s plurality notes that the Court in “assumed” the constitutionality of the busing remedy at issue there, “ ‘even absent a finding of prior de jure segregation.’ ” Ante, at 10 (quoting ). The assumption on which proceeded did not constitute a finding sufficient to justify the race-conscious action in Parents though it is doubtless pertinent in analyzing “As this
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
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https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
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Parents though it is doubtless pertinent in analyzing “As this Court held in Parents the [] school board’s purported remedial action would not be permissible today absent a showing of de jure segregation,” but “we must understand as understood itself.” Ante, at 9–10 Cite as: 572 U. S. (2014) 1 SCALIA, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 12–682 BILL SCHUETTE, ATTORNEY GENERAL OF MICHI- GAN, PETITIONER v. COALITION TO DEFEND AF- FIRMATIVE ACTION, INTEGRATION AND IMMI- GRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [April 22, 2014] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment. It has come to this. Called upon to explore the jurispru- dential twilight zone between two errant lines of prece- dent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amend- ment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” 539 U.S. 306, 349 (SCALIA, J., concurring in part and dis- senting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it. Even taking this Court’s sorry line of race-based- admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits? React- 2 SCHUETTE v. BAMN SCALIA, J., concurring in judgment ing to those race-based-admissions decisions, some States—whether deterred by the prospect of costly litiga- tion; aware that ’s bell may soon toll, see 539 U.S., at 343; or simply opposed in principle to the notion of “benign” racial discrimination—have gotten out of the racial-preferences business altogether. And with our express encouragement: “Universities in California, Flor- ida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaging in experimenting with a wide variety of alterna- tive approaches. Universities in other States can and should draw on the most promising aspects of these race- neutral alternatives as they develop.” (empha- sis added). Respondents seem to think this admonition was merely in jest.1 The experiment, they maintain, is not only over; it never rightly began. Neither the people of
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
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https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
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only over; it never rightly began. Neither the people of the States nor their legislatures ever had the option of direct- ing subordinate public-university officials to cease consid- ering the race of applicants, since that would deny mem- bers of those minority groups the option of enacting a policy designed to further their interest, thus denying them the equal protection of the laws. Never mind that it is hotly disputed whether the practice of race-based ad- missions is ever in a racial minority’s interest. Cf. at 3–373 (THOMAS, J., concurring in part and dissenting in part). And never mind that, were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhanc- ing diversity), we would hold the policy unconstitutional. See at 322–325. But the battleground for this case is not the constitu- —————— 1 For simplicity’s sake, I use “respondent” or “respondents” through- out the opinion to describe only those parties who are adverse to petitioner, not Eric Russell, a respondent who supports petitioner. Cite as: 572 U. S. (2014) 3 SCALIA, J., concurring in judgment tionality of race-based admissions—at least, not quite. Rather, it is the so-called political-process doctrine, de- rived from this Court’s opinions in Washington v. School Dist. No. 1, and v. Erickson, I agree with those parts of the plurality opinion that repudiate this But I do not agree with its reinterpretation of and which makes them stand in part for the cloudy and doctri- nally anomalous proposition that whenever state action poses “the serious risk of causing specific injuries on account of race,” it denies equal protection. Ante, at 9. I would instead reaffirm that the “ordinary principles of our law [and] of our democratic heritage” require “plaintiffs alleging equal protection violations” stemming from fa- cially neutral acts to “prove intent and causation and not merely the existence of racial disparity.” ). I would fur- ther hold that a law directing state actors to provide equal protection is (to say the least) facially neutral, and cannot violate the Constitution. Section 26 of the Michigan Con- stitution (formerly Proposal 2) rightly stands. I A The political-process doctrine has its roots in two of our cases. The first is In 1964, the Akron City Coun- cil passed a fair-housing ordinance “ ‘assur[ing] equal opportunity to all persons to live in decent housing facili- ties regardless of race, color, religion, ancestry or national origin.’ ” Soon after, the city’s voters passed an amendment to the Akron
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
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https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
|
after, the city’s voters passed an amendment to the Akron City Charter stating that any ordinance enacted by the council that “ ‘regu- lates’ ” commercial transactions in real property “ ‘on the basis of race, color, religion, national origin or ancestry’ ”— including the already enacted 1964 ordinance—“must first 4 SCHUETTE v. BAMN SCALIA, J., concurring in judgment be approved by a majority of the electors voting on the question” at a later referendum. The question was whether the charter amendment denied equal protec- tion. Answering yes, the Court explained that “although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination.” By placing a “special burden on racial minorities within the governmental processes,” the amendment “disadvantage[d]” a racial minority “by making it more difficult to enact legislation in its behalf.” 393. The reasoning in is of a piece. Resolving to “eliminate all [racial] imbalance from the public schools,” the city school board passed a mandatory busing and pupil-reassignment plan of the sort typically imposed on districts guilty of de jure segregation. 458 U.S., at 460–461. A year later, the citizens of the State of Wash- ington passed Initiative 350, which directed (with excep- tions) that “ ‘no school shall directly or indirectly re- quire any student to attend a school other than the school which is geographically nearest or next nearest the stu- dent’s place of residence and which offers the course of study pursued by such student,’ ” permitting only court- ordered race-based busing. The lower courts held Initiative 350 unconstitutional, and we affirmed, announcing in the prelude of our analysis—as though it were beyond debate—that the Equal Protection Clause forbade laws that “subtly distor[t] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” at 467. The first question in was whether the subject matter of Initiative 350 was a “ ‘racial’ issue,” triggering and its process –472. It was “undoubtedly. true” that whites and blacks were Cite as: 572 U. S. (2014) 5 SCALIA, J., concurring in judgment “counted among both the supporters and the opponents of Initiative 350.” It was “equally clear” that both white and black children benefited from desegre- gated schools. Nonetheless, we concluded that desegre- gation “inures primarily to the benefit of the minority, and is designed for that purpose.” In any event, it was “enough that minorities may consider busing for integration to be ‘legislation
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
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https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
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that minorities may consider busing for integration to be ‘legislation that is in their interest.’ ” (quoting (Harlan, J., concurring)). So we proceeded to the heart of the political-process analysis. We held Initiative 350 unconstitutional, since it removed “the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests.” 458 U.S., Although school boards in Washington retained authority over other student- assignment issues and over most matters of educational policy generally, under Initiative 350, minorities favoring race-based busing would have to “surmount a considerably higher hurdle” than the mere petitioning of a local assem- bly: They “now must seek relief from the state legislature, or from the statewide electorate,” a “different level of government.” The relentless logic of and would point to a similar conclusion in this case. In those cases, one level of government exercised borrowed authority over an ap- parently “racial issue,” until a higher level of government called the loan. So too here. In those cases, we deemed the revocation an equal-protection violation regardless of whether it facially classified according to race or reflected an invidious purpose to discriminate. Here, the Court of Appeals did the same. The plurality sees it differently. Though it, too, dis- avows the political-process-doctrine basis on which and were decided, ante, at 10–14, it does not take 6 SCHUETTE v. BAMN SCALIA, J., concurring in judgment the next step of overruling those cases. Rather, it reinter- prets them beyond recognition. the plurality suggests, was a case in which the challenged act had “target[ed] racial minorities.” Ante, at 8. Maybe, but the Court neither found that to be so nor considered it relevant, bypassing the question of intent entirely, satis- fied that its newly minted political-process theory sufficed to invalidate the charter amendment. As for what was really going on, according to the plurality, was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. Thus, “the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” Ante, at 17. That conclusion is derived not from the opinion but from recently discovered evidence that the city of had been a cause of its schools’ racial imbalance all along: “Although there had been no judicial finding of de jure segregation with respect to ’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
|
https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
|
1940’s and 1950’s may have been the partial result of school board policies.” Ante, at 9.2 That the district’s effort to end racial imbalance had been stymied by Initia- tive 350 meant that the people, by passing it, somehow had become complicit in ’s equal-protection-denying status quo, whether they knew it or not. Hence, there was in a government-furthered “infliction of a —————— 2 The plurality cites evidence from JUSTICE BREYER’s dissent in Par ents in Community Schools v. School Dist. No. 1, 551 U.S. 701 to suggest that the city had been a “partial” cause of its segregation problem. Ante, at 9. The plurality in Parents criticized that dissent for relying on irrelevant evidence, for “elid[ing the] distinction between de jure and de facto segregation,” and for “casually intimat[ing] that ’s school attendance patterns re- flect[ed] illegal segregation.” –737, and n. 15. Today’s plurality sides with the dissent and repeats its errors. Cite as: 572 U. S. (2014) 7 SCALIA, J., concurring in judgment specific”—and, presumably, constitutional—“injury.” Ante, at 14. Once again this describes what our opinion in might have been, but assuredly not what it was. The opinion assumes throughout that ’s schools suffered at most from de facto segregation, see, e.g., 458 U.S., at 474, 475—that is, segregation not the “product of state action but of private choices,” having no “constitutional implications,” –496. Nor did it anywhere state that the current racial imbalance was the (judicially remediable) effect of prior de jure segregation. Absence of de jure segregation or the effects of de jure segregation was a necessary premise of the opin- ion. That is what made the issue of busing and pupil reassignment a matter of political choice rather than judicial mandate.3 And precisely because it was a question for the political branches to decide, the manner—which is to say, the process—of its resolution implicated the Court’s new process theory. The opinion itself says this: “[I]n the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process. For present purposes, it is enough [to hold reallocation of that political decision to a higher level unconstitutional] that minorities may consider busing for integration to be legislation that is in their interest.” 458 U.S., (internal quotation marks omitted). B Patently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence, and —————— 3 Or so the Court assumed. See 458 U.S., (“Appellants and the United States do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
|
https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
|
of achieving integration, even absent a finding of prior de jure segregation. We therefore do not specifically pass on that issue”). 8 SCHUETTE v. BAMN SCALIA, J., concurring in judgment should be overruled. The problems with the political-process doctrine begin with its triggering prong, which assigns to a court the task of determining whether a law that reallocates policy- making authority concerns a “racial issue.” 458 U.S., at 473. takes a couple of dissatisfying cracks at defining this crucial term. It suggests that an issue is racial if adopting one position on the question would “at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose.” It is irrelevant that, as in and 458 U.S., both the racial minority and the racial majority benefit from the policy in question, and members of both groups favor it. Judges should instead focus their guesswork on their own juridical sense of what is primarily for the benefit of mi- norities. Cf. (regarding as dispositive what “our cases” suggest is beneficial to minorities). On second thought, maybe judges need only ask this question: Is it possible “that minorities may consider” the policy in ques- tion to be “in their interest”? If so, you can be sure that you are dealing with a “racial issue.”4 —————— 4 The dissent’s version of this test is just as scattershot. Since, ac- cording to the dissent, the doctrine forbids “reconfigur[ing] the political process in a manner that burdens only a racial minority,” post, at 5 (opinion of SOTOMAYOR, J.) it must be that the reason the underlying issue (that is, the issue concerning which the process has been reconfigured) is “racial” is that the policy in question benefits only a racial minority (if it also benefited persons not belonging to a racial majority, then the political-process reconfiguration would burden them as well). On second thought: The issue is “racial” if the policy benefits primarily a racial minority and “ ‘[is] designed for that pur- pose,’ ” post, at 44. This is the standard purported to apply. But under that standard, does not affect a “racial issue,” because under race-based admissions policies may not constitutionally be “designed for [the] purpose,” of benefiting primarily racial minorities, but must be designed for the purpose of achieving educational benefits for students of all races, at 322–325. So the dissent must Cite as: 572 U. S. (2014) 9 SCALIA, J., concurring in judgment No good can come of such random judicial musing. The plurality gives two convincing reasons why. For one thing, it involves judges in the dirty
|
Justice Roberts
| 2,014 | 0 |
concurring
|
Schuette v. BAMN
|
https://www.courtlistener.com/opinion/2672208/schuette-v-bamn/
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why. For one thing, it involves judges in the dirty business of dividing the Nation “into racial blocs,” Metro Inc. v. FCC, (O’Connor, J., dissent- ing); ante, at 11–13. That task is as difficult as it is unap- pealing. (Does a half-Latino, half–American Indian have Latino interests, American-Indian interests, both, half of both?5) What is worse, the exercise promotes the noxious fiction that, knowing only a person’s color or ethnicity, we can be sure that he has a predetermined set of policy “interests,” thus “reinforc[ing] the perception that mem- bers of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, [and] share the same political interests.”6 Whether done by a judge or a school board, such “racial stereotyping [is] at odds with equal protection mandates.” But that is not the “racial issue” prong’s only defect. More fundamentally, it misreads the Equal Protection Clause to protect “particular group[s],” a construction that we have tirelessly repudiated in a “long line of cases understanding equal protection as a personal right.” —————— mean that an issue is “racial” so long as the policy in question has the incidental effect (an effect not flowing from its design) of benefiting primarily racial minorities. 5 And how many members of a particular racial group must take the same position on an issue before we suppose that the position is in the entire group’s interest? Not every member, the dissent suggests, post, at 44. Beyond that, who knows? Five percent? Eighty-five percent? 6 The dissent proves my point. After asserting—without citation, though I and many others of all races deny it—that it is “common-sense reality” that affirmative action benefits racial minorities, post, at 16, the dissent suggests throughout, e.g., post, at 30, that that view of “reality” is so necessarily shared by members of racial minorities that they must favor affirmative action. 10 SCHUETTE v. BAMN SCALIA, J., concurring in judgment Constructors, 230 It is a “basic principle that the Fifth and Fourteenth Amendments to the Constitution protect per sons, not groups.” ; Metro at 636 (KENNEDY, J., dissenting).7 Yet insists that only those political-process alterations that burden racial minorities deny equal protection. “The majority,” after all, “needs no protection against discrimination.” 458 U.S., at 468 (quoting 393 U.S., ). In the years since we have repeatedly rejected “a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process.” Meant to obliterate rather than endorse the practice of racial classifications,
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to obliterate rather than endorse the practice of racial classifications, the Fourteenth Amendment’s guar- antees “obtai[n] with equal force regardless of ‘the race of those burdened or benefited.’ ” (quoting ); The Equal Protection Clause “cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection it is not equal.” Regents of Univ. of 289–290 (opinion of Powell, J.). The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by “ ‘prejudice —————— 7 The dissent contends, post, at 39, that this point “ignores the obvi- ous: Discrimination against an individual occurs because of that indi- vidual’s membership in a particular group.” No, I do not ignore the obvious; it is the dissent that misses the point. Of course discrimina- tion against a group constitutes discrimination against each member of that group. But since it is persons and not groups that are protected, one cannot say, as the dissent would, that the Constitution prohibits discrimination against minority groups, but not against majority groups. Cite as: 572 U. S. (2014) 11 SCALIA, J., concurring in judgment against discrete and insular minorities’ ” merits “ ‘more exacting judicial scrutiny.’ ” Post, at 31 (quoting United 152–153, n. 4). I say derived from that dictum (expressed by the four- Justice majority of a seven-Justice Court) because the dictum itself merely said “[n]or need we enquire whether prejudice against discrete and insular minorities may be a special condition,” (emphasis added). The dissent does not argue, of course, that such “prejudice” produced Nor does it explain why certain racial minorities in Michigan qualify as “ ‘insular,’ ” mean- ing that “other groups will not form coalitions with them— and, critically, not because of lack of common interests but because of ‘prejudice.’ ” Strauss, Is Carolene Products Obsolete? Nor does it even make the case that a group’s “discreteness” and “insu- larity” are political liabilities rather than political strengths8—a serious question that alone demonstrates the prudence of the Carolene Products dictumizers in leaving the “enquir[y]” for another day. As for the ques- tion whether “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny,” the Carolene Products Court found it “unnecessary to consider [that] now.” 304 U.S., at 152, n. 4. If the dissent thinks that worth consid- ering today, it should explain why the election of a univer- sity’s governing board is a “political process
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of a univer- sity’s governing board is a “political process which can —————— 8 Cf., e.g., Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 3, 723–724 (1985) (“Other things being equal, ‘discreteness and insularity’ will normally be a source of enormous bargaining advantage, not disadvantage, for a group engaged in pluralist American politics. Except for special cases, the concerns that underlie Carolene should lead judges to protect groups that possess the opposite characteristic from the ones Carolene emphasizes—groups that are ‘anonymous and diffuse’ rather than ‘discrete and insular’ ”). 12 SCHUETTE v. BAMN SCALIA, J., concurring in judgment ordinarily be expected to bring about repeal of undesirable legislation,” but Michigan voters’ ability to amend their Constitution is not. It seems to me quite the opposite. Amending the Constitution requires the approval of only “a majority of the electors voting on the question.” Mich. Const., Art. XII, By contrast, voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles. See (CA6 2012) (Sutton, J., dissenting). So if Michigan voters, instead of amending their Constitution, had pursued the dissent’s preferred path of electing board members promis- ing to “abolish race-sensitive admissions policies,” post, at 3, it would have been harder, not easier, for racial minori- ties favoring affirmative action to overturn that decision. But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion. C Moving from the appalling to the absurd, I turn now to the second part of the - analysis—which is apparently no more administrable than the first, compare post, at 4–6 (BREYER, J., concurring in judgment) (“This case does not involve a reordering of the political process”), with post, at 25–29 (SOTOMAYOR, J., dissenting) (yes, it does). This part of the inquiry directs a court to determine whether the challenged act “place[s] effective decisionmaking authority over [the] racial issue at a dif- ferent level of government.” 458 U.S., The laws in both and were thought to fail this test. In both cases, “the effect of the challenged action was to redraw decisionmaking authority over racial matters—and only over racial matters—in such a way as Cite as: 572 U. S. (2014) 13 SCALIA, J., concurring in judgment to place comparative burdens on minorities.” 458 U.S., at 475, n. 17. This, we said, a State may not do. By contrast, in another line of cases, we have empha- sized the
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in another line of cases, we have empha- sized the near-limitless sovereignty of each State to design its governing structure as it sees fit. Generally, “a State is afforded wide leeway when experimenting with the appro- priate allocation of state legislative power” and may create “political subdivisions such as cities and counties ‘as convenient agencies for exercising such of the governmen- tal powers of the state as may be entrusted to them.’ ” Holt Civic ). Accordingly, States have “absolute discretion” to deter- mine the “number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised.” Holt Civic Club, at So it would seem to go without saying that a State may give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself. Taken to the limits of its logic, - is the gaping exception that nearly swallows the rule of struc- tural state sovereignty. If indeed the Fourteenth Amend- ment forbids States to “place effective decisionmaking authority over” racial issues at “different level[s] of gov- ernment,” then it must be true that the Amendment’s ratification in 1868 worked a partial ossification of each State’s governing structure, rendering basically irrevoca- ble the power of any subordinate state official who, the day before the Fourteenth Amendment’s passage, hap- pened to enjoy legislatively conferred authority over a “racial issue.” Under the Fourteenth Amendment, that subordinate entity (suppose it is a city council) could itself take action on the issue, action either favorable or unfa- vorable to minorities. It could even reverse itself later. What it could not do, however, is redelegate its power to an even lower level of state government (such as a city- 14 SCHUETTE v. BAMN SCALIA, J., concurring in judgment council committee) without forfeiting it, since the neces- sary effect of wresting it back would be to put an additional obstacle in the path of minorities. Likewise, no entity or official higher up the state chain (e.g., a county board) could exercise authority over the issue. Nor, even, could the state legislature, or the people by constitutional amendment, revoke the legislative conferral of power to the subordinate, whether the city council, its subcommit- tee, or the county board. ’s logic would create affirmative-action safe havens wherever subordinate offi- cials in public universities (1) traditionally have enjoyed “effective decisionmaking authority” over admissions policy but (2) have not yet used that authority to prohibit race-conscious admissions decisions. The mere existence of a subordinate’s discretion over the matter would work a kind of reverse pre-emption.
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over the matter would work a kind of reverse pre-emption. It is “a strange notion—alien to our system—that local governmental bodies can forever pre-empt the ability of a State—the sovereign power—to address a matter of compelling concern to the State.” 458 U.S., at (Powell, J., dissenting). But that is precisely what the political-process doctrine contemplates. Perhaps the spirit of is especially disquieted by enactments of constitutional amendments. That appears to be the dissent’s position. The problem with it suggests, is that amending Michigan’s Constitution is simply not a part of that State’s “existing” political pro- cess. E.g., post, at 4, 41. What a peculiar notion: that a revision of a State’s fundamental law, made in precisely the manner that law prescribes, by the very people who are the source of that law’s authority, is not part of the “political process” which, but for those people and that law, would not exist. This will surely come as news to the people of Michigan, who, since 1914, have amended their Constitution 20 times. Brief for Gary Segura et al. as Amici Curiae 12. Even so, the dissent concludes that the amendment attacked here worked an illicit “chang[ing] Cite as: 572 U. S. (2014) 15 SCALIA, J., concurring in judgment [of ] the basic rules of the political process in that State” in “the middle of the game.” Post, at 2, 4. Why, one might ask, is not the amendment provision of the Michigan Constitution one (perhaps the most basic one) of the rules of the State’s political process? And why does democratic invocation of that provision not qualify as working through the “existing political process,” post, at 41?9 II I part ways with and (I think) the plu- rality for an additional reason: Each endorses a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. Few equal-protection theories have been so squarely and soundly rejected. “An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–265 (1977). Indeed, we affirmed this prin- ciple the same day we decided : “[E]ven when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown.” v. Board of Ed. of Los Angeles,
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can be shown.” v. Board of Ed. of Los Angeles, 537–538 —————— 9 The dissent thinks I do not understand its argument. Only when amending Michigan’s Constitution violates -, it says, is that constitutionally prescribed activity necessarily not part of the State’s existing political process. Post, at 21, n. 7. I understand the argument quite well; and see quite well that it begs the question. Why is Michigan’s action here unconstitutional? Because it violates - And why does it violate -? Because it is not part of the State’s existing political process. And why is it not part of the State’s existing political process? Because it violates -. 16 SCHUETTE v. BAMN SCALIA, J., concurring in judgment Notwithstanding our dozens of cases confirming the exception-less nature of the rule, the plurality opinion leaves ajar an effects-test escape hatch modeled after and suggesting that state action denies equal protection when it “ha[s] the serious risk, if not purpose, of causing specific injuries on account of race,” or is either “designed to be used, or likely to be used, to encourage infliction of injury by reason of race.” Ante, at 9, 17 Since these formulations enable a determination of an equal-protection violation where there is no discriminatory intent, they are incon- sistent with the long line of cases.10 Respondents argue that we need not bother with the discriminatory-purpose test, since may be struck more straightforwardly as a racial “clas” Admitting (as they must) that does not on its face “distribut[e] burdens or benefits on the basis of individual racial classi- fications,” Parents in Community Schools v. School Dist. No. 1, re- spondents rely on ’s statement that “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvanta- geous treatment,” then that “singling out” is a racial clas- 486, n. 30. But this is just the political-process theory bedecked in different doctrinal —————— 10 According to the dissent, - fills an important doctrinal gap left open by since -’s rule— unique among equal-protection principles—makes clear that “the majority” may not alter a political process with the goal of “prevent[ing] minority groups from partaking in that process on equal footing.” Post, at 33. Nonsense. There is no gap. To “manipulate the ground rules,” post, at 34, or to “ri[g] the contest,” post, at 35, in order to harm persons because of their race is to deny equal protection under Washington v. Davis. Cite as: 572 U. S. (2014) 17 SCALIA, J., concurring in judgment dress. A law that “neither says nor
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concurring in judgment dress. A law that “neither says nor implies that persons are to be treated differently on account of their race” is not a racial clas That is particularly true of statutes mandating equal treatment. “[A] law that prohibits the State from classifying individu- als by race a fortiori does not classify individuals by race.” Coalition for Economic Equity v. Wilson, 122 F.3d 692, 702 (CA9 1997) (O’Scannlain, J.). Thus, the question in this case, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the action reflects a racially discriminatory purpose. stresses that “singling out the political processes affecting racial issues for uniquely disadvantageous treatment inevitably raises dangers of impermissible motivation.” n. 30. True enough, but that motivation must be proved. And re- spondents do not have a prayer of proving it here. The District Court noted that, under “conventional equal protection” doctrine, the suit was “doom[ed].” 539 F. Supp. 2d 924, 951 (ED Mich. 2008). Though the Court of Ap- peals did not opine on this question, I would not leave it for them on remand. In my view, any law expressly re- quiring state actors to afford all persons equal protection of the laws (such as Initiative 350 in though not the charter amendment in ) does not—cannot— deny “to any person equal protection of the laws,” U. S. Const., Amdt. 14, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court. * * * As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor toler- ates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). The people of Michi- gan wish the same for their governing charter. It would 18 SCHUETTE v. BAMN SCALIA, J., concurring in judgment be shameful for us to stand in their way.11 —————— 11 And doubly shameful to equate “the majority” behind with “the majority” responsible for Jim Crow. Post, at 1–2 (SOTOMAYOR, J., dissenting). Cite as: 572 U. S. (2014) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 12–682 BILL SCHUETTE, ATTORNEY GENERAL OF MICHI- GAN, PETITIONER v. COALITION TO DEFEND AF- FIRMATIVE ACTION, INTEGRATION AND IMMI- GRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [April 22, 2014] JUSTICE BREYER, concurring in the judgment. Michigan has amended its Constitution to forbid state universities and colleges to
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amended its Constitution to forbid state universities and colleges to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Mich. Const., Art. I, We here focus on the prohibition of “grant[ing] preferential treatment on the basis of race in public educa- tion.” I agree with the plurality that the amendment is consistent with the Federal Equal Protection Clause. U. S. Const., Amdt. 14. But I believe this for different reasons. First, we do not address the amendment insofar as it forbids the use of race-conscious admissions programs designed to remedy past exclusionary racial discrimina- tion or the direct effects of that discrimination. Applica- tion of the amendment in that context would present different questions which may demand different answers. Rather, we here address the amendment only as it applies to, and forbids, programs that, as in rest upon “one justification”: using 2 SCHUETTE v. BAMN BREYER, J., concurring in judgment “race in the admissions process” solely in order to “obtai[n] the educational benefits that flow from a diverse student body,” Second, dissenting in Parents in Community Schools v. School Dist. No. 1, I explained why I believe race-conscious programs of this kind are constitutional, whether implemented by law schools, universities, high schools, or elementary schools. I concluded that the Constitution does not “authorize judges” either to forbid or to require the adoption of diver- sity-seeking race-conscious “solutions” (of the kind at issue here) to such serious problems as “how best to administer America’s schools” to help “create a society that includes all Americans.” I continue to believe that the Constitution permits, though it does not require, the use of the kind of race- conscious programs that are now barred by the Michigan Constitution. The serious educational problems that faced Americans at the time this Court decided endure. See, e.g., I. Mullis, M. Martin, P. Foy, & K. Drucker, Progress in International Reading Literacy Study, 2011 International Results in Reading 38, Exh. 1.1 (2012) (elementary-school students in numerous other countries outperform their counterparts in the United States in reading); I. Mullis, M. Martin, P. Foy, & A. Arora, Trends in International Mathematics and Science Study (TIMSS), 2011 International Results in Mathematics 40, Exh. 1.1 (2012) (same in mathematics); M. Martin, I. Mullis, P. Foy, & G. Stanco, TIMSS, 2011 International Results in Science, 38, Exh. 1.1 (2012) (same in science); Organisa- tion of Economic Co-operation Development (OECD), Education at a Glance 2013: OECD Indicators 50 (Table A2.1a)
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Education at a Glance 2013: OECD Indicators 50 (Table A2.1a) (secondary-school graduation rate lower in the United States than in numerous other countries); McKin- sey & Co., The Economic Impact of the Achievement Gap in America’s Schools 8 (Apr. 2009) (same; United States Cite as: 572 U. S. (2014) 3 BREYER, J., concurring in judgment ranks 18th of 24 industrialized nations). And low educa- tional achievement continues to be correlated with income and race. See, e.g., National Center for Education Statis- tics, Digest of Education Statistics, Advance Release of Selected 2013 Digest Tables (Table 104.20) (White Ameri- cans more likely to have completed high school than African-Americans or Hispanic-Americans), online at http://nces.ed.gov/programs/digest (as visited Apr. 15, 2014, and available in Clerk of Court’s case file); Table 219.75 (Americans in bottom quartile of income most likely to drop out of high school); Table 302.60 (White Americans more likely to enroll in college than African- Americans or Hispanic-Americans); Table 302.30 (middle- and high-income Americans more likely to enroll in college than low-income Americans). The Constitution allows local, state, and national com- munities to adopt narrowly tailored race-conscious pro- grams designed to bring about greater inclusion and di- versity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differ- ences and debates about the merits of these programs. Compare Parents (BREYER, J., dissenting) (identifying studies showing the benefits of racially integrated education), with at 761–763 (THOMAS, J., concurring) (identifying studies suggesting racially integrated schools may not confer educational benefits). In short, the “Constitution creates a democratic political system through which the people themselves must together find answers” to disagreements of this kind. Third, cases such as v. Erickson, and 458 U.S. 457 reflect an important principle, namely, that an individual’s ability to participate meaningfully in the political process should be independent of his race. Although racial minorities, like other political minorities, 4 SCHUETTE v. BAMN BREYER, J., concurring in judgment will not always succeed at the polls, they must have the same opportunity as others to secure through the ballot box policies that reflect their preferences. In my view, however, neither nor applies here. And the parties do not here suggest that the amendment violates the Equal Protection Clause if not under the - and involved efforts to manipulate the political process in a way not here at issue. Both cases involved a restructuring of the political process that changed the political level at which policies were enacted. In decisionmaking was moved from the elected city council to the local electorate at 393 U.S., at 389–390.
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council to the local electorate at 393 U.S., at 389–390. And in decisionmaking by an elected school board was replaced with decisionmaking by the state legislature and electorate at This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the move- ment of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, but those boards delegated admissions- related decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance Wayne State Univ. Stat. 2–34–12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 25–29 (SOTOMAYOR, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies— including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at Cite as: 572 U. S. (2014) 5 BREYER, J., concurring in judgment limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F.3d 466, 481–482 (CA6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, un- elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking au- thority away from these unelected actors and placed it in the hands of the voters. Why does this matter? For one thing, considered con- ceptually, the doctrine set forth in and does not easily fit this case. In those cases minorities had participated in the political process and they had won. The majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future. The majority thereby diminished the minority’s ability to participate meaningfully in the electoral process. But one cannot as easily characterize the movement of the deci- sionmaking mechanism at issue here—from an adminis- trative process to an electoral process—as diminishing the minority’s ability to participate meaningfully in the politi- cal process. There is no prior electoral process in which the minority participated. For another thing, to extend the holding of and to reach situations in which decisionmaking au- thority is moved from an administrative body to a political one would pose significant
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an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise (BREYER, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the adminis- trative process frequently moves around—due to amend- 6 SCHUETTE v. BAMN BREYER, J., concurring in judgment ments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative struc- tural burden on a racial minority. And to apply and to the administrative process would, by tend- ing to hinder change, risk discouraging experimentation, interfering with efforts to see when and how race- conscious policies work. Finally, the principle that underlies and runs up against a competing principle, discussed above. This competing principle favors decisionmaking through the democratic process. Just as this principle strongly supports the right of the people, or their elected repre- sentatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so. As I have said, my discussion here is limited to circum- stances in which decisionmaking is moved from an un- elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educa- tional benefits of a diverse student body. We need now decide no more than whether the Federal Constitution permits Michigan to apply its constitutional amendment in those circumstances. I would hold that it does. There- fore, I concur in the judgment of the Court. Cite as: 572 U. S. (2014) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–682 BILL SCHUETTE, ATTORNEY GENERAL OF MICHI- GAN, PETITIONER v. COALITION TO DEFEND AF- FIRMATIVE ACTION, INTEGRATION AND IMMI- GRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL.
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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Twelve-year-old Natalie Calhoun was killed in a jet ski accident on July 6, 1989. At the time of her death, she was vacationing with family friends at a beach-front resort in Puerto Rico. Alleging that the jet ski was defectively designed *202 or made, Natalie's parents sought to recover from the manufacturer pursuant to state survival and wrongful-death statutes. The manufacturer contended that state remedies could not be applied because Natalie died on navigable waters; federal, judge-declared maritime law, the manufacturer urged, controlled to the exclusion of state law. Traditionally, state remedies have been applied in accident cases of this ordermaritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade. We hold, in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful-death action recognized in I Natalie Calhoun, the 12-year-old daughter of respondents Lucien and Robin Calhoun, died in a tragic accident on July 6, 1989. On vacation with family friends at a resort hotel in Puerto Rico, Natalie had rented a "WaveJammer" jet ski manufactured by Yamaha Motor Company, Ltd., and distributed by Yamaha Motor Corporation, U. S. A. (collectively, Yamaha), the petitioners in this case. While riding the WaveJammer, Natalie slammed into a vessel anchored in the waters off the hotel frontage, and was killed. The Calhouns, individually and in their capacities as administrators of their daughter's estate, sued Yamaha in the United States District Court for the Eastern District of Pennsylvania. Invoking Pennsylvania's wrongful-death and survival statutes, the Calhouns asserted several bases for recovery (including negligence, strict liability, and breach of implied warranties), and sought damages for lost future earnings, loss of society, loss of support and services, and funeral expenses, as well as punitive damages. They grounded federal *203 jurisdiction on both diversity of citizenship, 28 U.S. C. 1332,[1] and admiralty, 28 U.S. C. 1333. Yamaha moved for partial summary judgment, arguing that the federal maritime wrongful-death action this Court recognized in provided the exclusive basis for recovery, displacing all remedies afforded by state law. Under Yamaha contended, the Calhouns could recover as damages only Natalie's funeral expenses. The District Court agreed with Yamaha that `s maritime death action displaced state remedies; the court held, however, that loss of society and loss of support and services were compensable under Both sides asked the District Court to present questions for immediate interlocutory appeal pursuant to 28 U.S.
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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present questions for immediate interlocutory appeal pursuant to 28 U.S. C. 1292(b). The District Court granted the parties' requests, and in its 1292(b) certifying order stated: "Natalie Calhoun, the minor child of plaintiffs Lucien B. Calhoun and Robin L. Calhoun, who are Pennsylvania residents, was killed in an accident not far off shore in Puerto Rico, in the territorial waters of the United States. Plaintiffs have brought a diversity suit against, inter alia, defendants Yamaha Motor Corporation, U. S. A. and Yamaha Motor Co., Ltd. The counts of the complaint directed against the Yamaha defendants allege that the accident was caused by a defect or defects in a Yamaha jet ski which Natalie Calhoun had rented and was using at the time of the fatal accident. Those counts sound in negligence, in strict liability, and in implied warranties of merchantability and fitness. The district court has concluded that admiralty jurisdiction attaches to these several counts and that they *204 constitute a federal maritime cause of action. The questions of law certified to the Court of Appeals are whether, pursuant to such a maritime cause of action, plaintiffs may seek to recover (1) damages for the loss of the society of their deceased minor child, (2) damages for the loss of their child's future earnings, and (3) punitive damages." App. to Pet. for Cert. A-78. Although the Court of Appeals granted the interlocutory review petition, the panel to which the appeal was assigned did not reach the questions presented in the certified order, for it determined that an anterior issue was pivotal. The District Court, as just recounted, had concluded that any damages the Calhouns might recover from Yamaha would be governed exclusively by federal maritime law. But the Third Circuit panel questioned that conclusion and inquired whether state wrongful-death and survival statutes supplied the remedial prescriptions for the Calhouns' complaint. The appellate panel asked whether the state remedies endured or were "displaced by a federal maritime rule of decision." Ultimately, the Court of Appeals ruled that state-law remedies apply in this case. II In our order granting certiorari, we asked the parties to brief a preliminary question: "Under 28 U.S. C. 1292(b), can the courts of appeals exercise jurisdiction over any question that is included within the order that contains the controlling question of law identified by the district court?" The answer to that question, we are satisfied, is yes. Section 1292(b) provides, in pertinent part: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that
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Justice Ginsburg
| 1,996 | 5 |
majority
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground *205 for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order." (Emphasis added.) As the text of 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court. The court of appeals may not reach beyond the certified order to address other orders made in the case. United But the appellate court may address any issue fairly included within the certified order because "it is the order that is appealable, and not the controlling question identified by the district court." 9 J. Moore & B. Ward, Moore's Federal Practice ¶ 110.[1], p. 300 See also 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure 3929, pp. 144-145 (1977) ("[T]he court of appeals may review the entire order, either to consider a question different than the one certified as controlling or to decide the case despite the lack of any identified controlling question."); Note, Interlocutory Appeals in the Federal Courts Under 28 U.S. C. 1292(b), We therefore proceed to the issue on which certiorari was granted: Does the federal maritime claim for wrongful death recognized in supply the exclusive remedy in cases involving the deaths of nonseafarers[2] in territorial waters? *206 III Because this case involves a watercraft collision on navigable waters, it falls within admiralty's domain. See ; Foremost Ins. "With admiralty jurisdiction," we have often said, "comes the application of substantive admiralty law." East River S. S. The exercise of admiralty jurisdiction, however, "does not result in automatic displacement of state law." Jerome B. Grubart, Indeed, prior to federal admiralty courts routinely applied state wrongful-death and survival statutes inmaritime accident cases.[3] The question before us is whether should be read to stop that practice. Our review of maritime wrongful-death law begins with The Harrisburg, where we held that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. The Harrisburg Court said that wrongful-death actions are statutory and may not be created by judicial decree. The Court did not
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Justice Ginsburg
| 1,996 | 5 |
majority
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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not be created by judicial decree. The Court did not question the soundness of this view, or examine the historical justifications that account for it. Instead, the Court merely noted that common law in the United States, like the common law of England, did not allow recovery "for an injury which results in death," and that no country had "adopted a different rule on this subject for the sea from that which it maintains on the land," The Court did not consider itself free to chart a different course by crafting a judge-made wrongful-death action under our maritime law. Federal admiralty courts tempered the harshness of The Harrisburg `s rule by allowing recovery under state *207 wrongful-death statutes. See, e. g., The Hamilton, ; The City of Norwalk,[4] We reaffirmed this practice in Western by holding that California's wrongfuldeath statute governed a suit brought by the widow of a maritime worker killed in that State's territorial waters. Though we had generally refused to give effect to state laws regarded as inconsonant with the substance of federal maritime law, we concluded that extending state wrongful-death statutes to fatal accidents in territorial waters was compatible with substantive maritime policies: "The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations."[5] On similar reasoning, we also held that state survival statutes may be applied in cases arising out of accidents in territorial waters. See State wrongful-death statutes proved an adequate supplement to federal maritime law, until a series of this Court's *208 decisions transformed the maritime doctrine of unseaworthiness into a strict-liability rule. Prior to 14, unseaworthiness "was an obscure and relatively little used" liability standard, largely because "a shipowner's duty at that time was only to use due diligence to provide a seaworthy ship." See also -399. however, notably expanded a shipowner's liability to injured seamen by imposing a nondelegable duty "to furnish a vessel and appurtenances reasonably fit for their intended use." The duty imposed was absolute; failure to supply a safe ship resulted in liability "irrespective of fault and irrespective of the intervening negligence of crew members." 498 U. S., at The unseaworthiness doctrine thus became a "species of liability without fault," Seas ping and soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed. 498 U. S., at -26.[6] The
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Justice Ginsburg
| 1,996 | 5 |
majority
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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was injured or killed. 498 U. S., at -26.[6] The disparity between the unseaworthiness doctrine's strict-liability standard and negligence-based state wrongful-death statutes figured prominently in our landmark decision. Petsonella the widow of a longshore worker killed in Florida's territorial waters, brought suit under Florida's wrongful-death and survival statutes, alleging both negligence and unseaworthiness. *209 The District Court dismissed the claim for wrongful death based on unseaworthiness, citing this Court's decision in The There, a sharply divided Court held that "when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached." Thus, in wrongful-death actions involving fatalities in territorial waters, state statutes provided the standard of liability as well as the remedial regime. Because the Florida Supreme Court had previously held that Florida's wrongfuldeath statute did not encompass unseaworthiness as a basis of liability, the Court of Appeals affirmed the dismissal of 's unseaworthiness claim. See The Court acknowledged in that The had led to considerable uncertainty over the role state law should play in remedying deaths in territorial waters, but concluded that "the primary source of the confusion is not to be found in The but in The Harrisburg. " Upon reexamining the soundness of The Harrisburg, we decided that its holding, "somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed." Accordingly, the Court overruled The Harrisburg and held that an action "lie[s] under general maritime law for death caused by violation of maritime duties." IV Yamaha argues that despite its focus on "maritime duties" owed to maritime workerscovers the waters, creating a uniform federal maritime remedy for all deaths occurring in state territorial waters, and ousting all previously available state remedies. In Yamaha's view, state remedies can no longer supplement general maritime law *210 (as they routinely did before ), because launched a solitary federal scheme.[7] Yamaha's reading of is not without force; in several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision, with no leeway for variation or supplementation by state law. See, e. g., ; Pope & ; (12)[8] In addition, Yamaha *211 correctly points out that uniformity concerns informed our decision in The uniformity concerns that prompted us to overrule The Harrisburg, however, were of a different order than those invoked by Yamaha. did not reexamine the soundness of The Harrisburg out of concern that state monetary awards in maritime wrongful-death cases were excessive,
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Justice Ginsburg
| 1,996 | 5 |
majority
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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that state monetary awards in maritime wrongful-death cases were excessive, or that variations in the remedies afforded by the States threatened to interfere with the harmonious operation of maritime law. Variations of this sort had long been deemed compatible with federal maritime interests. See Western 7 U. S., The uniformity concern that drove our decision in related, instead, to the availability of unseaworthiness as a basis of liability. By 1970, when was decided, claims premised on unseaworthiness had become "the principal vehicle for recovery" by seamen and other maritime workers injured or killed in the course of their employment. But with The Harrisburg in place, troubling anomalies had developed that many times precluded the survivors of maritime workers from recovering for deaths caused by an unseaworthy vessel. The Court identified three anomalies and concluded they could no longer be tolerated. First, the Court noted that "within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed." This occurred because in nonfatal injury cases, state substantive liability standards were superseded by federal maritime law, see 358 U.S. 6, ; Pope & 346 U. S., at which provided for maritime worker recovery based on unseaworthiness. But if the same worker met death in the territorial waters of a State whose wrongfuldeath statute did not encompass unseaworthiness (as was the *212 case in itself), the survivors could not proceed under that generous standard of liability. See The 358 U. S., -593. Second, we explained in that "identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit but not within the territorial waters of a State whose local statute excludes unseaworthiness claims." This occurred because survivors of a maritime worker killed on the high seas could sue for wrongful death under the Death on the High Seas Act (DOHSA), 46 U.S. C. App. 761 et seq. (1988 ed.), which encompasses unseaworthiness as a basis of liability. ). Finally, we pointed out that "a true seaman [a member of a ship's company] is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute." -396. This anomaly stemmed from the Court's rulings in and that the Jones Act, 46 U.S. C. App. 688 (1988 ed.), which provides only a negligence-based claim for the wrongful death of
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Justice Ginsburg
| 1,996 | 5 |
majority
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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provides only a negligence-based claim for the wrongful death of seamen, precludes any state remedy, even one accommodating unseaworthiness. As a result, at the time was decided, the survivors of a longshore worker killed in the territorial waters of a State whose wrongful-death statute incorporated unseaworthiness could sue under that theory, but the survivors of a similarly situated seaman could not.[9] *213 The anomalies described in relate to ships and the workers who serve them, and to a distinctly maritime substantive conceptthe unseaworthiness doctrine. The Court surely meant to "assure uniform vindication of federal policies," with respect to the matters it examined. The law as it developed under The Harrisburg had forced on the States more than they could bearthe task of "provid[ing] the sole remedy" in cases that did not involve "traditional common-law concepts," but "concepts peculiar to maritime law." n. 15 Discarding The Harrisburg and declaring a wrongful-death right of action under general maritime law, the Court concluded, would "remov[e] the tensions and discrepancies" occasioned by the need "to accommodate state remedial statutes to exclusively maritime substantive concepts."[10] in sum, centered on the extension of relief, not on the contraction of remedies. The decision recalled that "`it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.' " at 387 (quoting The Sea Gull, (No. 12,578) (CC Md. 1865) (Chase, C. J.)). The Court tied Petsonella 's plea based on the unseaworthiness *214 of the vessel to a federal right-of-action anchor,[11] but notably left in place the negligence claim she had stated under Florida's law. See -377.[12] Our understanding of accords with that of the Third Circuit, which Judge Becker set out as follows: " showed no hostility to concurrent application of state wrongful-death statutes. Indeed, to read into the idea that it was placing a ceiling on recovery for wrongful death, rather than a floor, is somewhat a historical. The cause of action was in many respects a gap-filling measure to ensure that seamen (and their survivors) would all be treated alike. The `humane and liberal' purpose underlying the general maritime remedy of was driven by the idea that survivors of seamen killed in state territorial waters should not have been barred from recovery simply because the tort system of the particular state in which a seaman died did not incorporate special maritime doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply
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Justice Ginsburg
| 1,996 | 5 |
majority
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Yamaha Motor Corp., USA v. Calhoun
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https://www.courtlistener.com/opinion/117989/yamaha-motor-corp-usa-v-calhoun/
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to preclude the operation of state laws that do supply a remedy." -642 We have reasoned similarly in Sun where we held that a State may apply its workers' compensation scheme to land-based injuries that fall within the compass of the Longshore and Harbor *215 Workers' Compensation Act, 33 U.S. C. 901 et seq. See Sun (emphasis in original).[13] When Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is, we have generally recognized, no cause for enlargement of the damages statutorily provided. See -36 ; Offshore Logistics, ; Mobil Oil -6 But Congress has not prescribed remedies for the wrongful deaths of nonseafarers in territorial waters. See There is, however, a relevant congressional disposition. Section 7 of DOHSA states: "The provisions of any State statute giving or regulating rights of action or remedies for death *216 shall not be affected by this chapter." 46 U.S. C. App. 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See 498 U. S., at ; -2; -398. Taking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters. * * * For the reasons stated, we hold that the damages available for the jet ski death of Natalie Calhoun are properly governed by state law.[14] The judgment of the Court of Appeals for the Third Circuit is accordingly Affirmed.
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Justice Burger
| 1,983 | 12 |
majority
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Missouri v. Hunter
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https://www.courtlistener.com/opinion/110824/missouri-v-hunter/
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We granted certiorari to consider whether the prosecution and conviction of a criminal defendant in a single trial on both a charge of "armed criminal action" and a charge of first-degree robbery the underlying felony violates the Double Jeopardy Clause of the Fifth Amendment. On the evening of November 24, 1978, respondent and two accomplices entered an A & P supermarket in Kansas City, *361 Missouri. Respondent entered the store manager's office and ordered the manager, at gunpoint, to open two safes. While the manager was complying with the demands of the robbers, respondent struck him twice with the butt of his revolver. While the robbery was in progress, an employee who drove in front of the store observed the robbery and went to a nearby bank to alert an off-duty police officer. That officer arrived at the front of the store and ordered the three men to stop. Respondent fired a shot at the officer and the officer returned the fire but the trio escaped. Respondent and his accomplices were apprehended. n addition to being positively identified by the store manager and the police officer at trial and in a lineup, respondent made an oral and written confession which was admitted in evidence. At his trial, respondent offered no direct evidence and was convicted of robbery in the first degree, armed criminal action, and assault with malice. Missouri's statute proscribing robbery in the first degree, provides: "Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, and against the will of such wife, servant, clerk or agent by violence to the person of such wife, servant, clerk or agent, or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree." Missouri Rev. Stat. 560.135 (Supp. 1975) prescribes the punishment for robbery in the first degree and provides in pertinent part: *362 "Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment by the division of corrections for not less than five years" Missouri Rev. Stat. 559.225 (Supp. 1976)
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Justice Burger
| 1,983 | 12 |
majority
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Missouri v. Hunter
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https://www.courtlistener.com/opinion/110824/missouri-v-hunter/
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less than five years" Missouri Rev. Stat. 559.225 (Supp. 1976) proscribes armed criminal action and provides in pertinent part: "[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years." Pursuant to these statutes respondent was sentenced to concurrent terms of (a) 10 years' imprisonment for the robbery; (b) 15 years for armed criminal action; and (c) to a consecutive term of 5 years' imprisonment for assault, for a total of 20 years. On appeal to the Missouri Court of Appeals, respondent claimed that his sentence for both robbery in the first degree and armed criminal action violated the Double Jeopardy Clause of the Fifth Amendment of the United Constitution made applicable to the states by the Fourteenth Amendment. The Missouri Court of Appeals agreed and reversed respondent's conviction and 15-year sentence for *363 armed criminal action. The Court of Appeals relied entirely upon the holding of the Missouri Supreme Court opinions in ; (Sours ), vacated and remanded, ; and cert. denied, The State's timely alternative motion for rehearing or transfer to the Missouri Supreme Court was denied by the Court of Appeals on September 15, The Missouri Supreme Court denied review on November 10, We granted certiorari, and we vacate and remand. The Missouri Supreme Court first adopted its challenged approach to the Double Jeopardy issue now before us in Sours supra.[1] n that case, as here, the defendant was convicted and sentenced separately for robbery in the first degree and armed criminal action based on the robbery. The Missouri Supreme Court concluded that under the test announced in armed criminal action and any underlying offense are the "same offense" under the Fifth Amendment's Double Jeopardy Clause. That court acknowledged that the Missouri Legislature had expressed its clear intent that a defendant *364 should be subject to conviction and sentence under the armed criminal action statute in addition to any conviction and sentence for the underlying
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