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Justice Marshall
| 1,972 | 15 |
concurring
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Johnson v. New York State Ed. Dept.
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https://www.courtlistener.com/opinion/108631/johnson-v-new-york-state-ed-dept/
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resolve the factual issues upon which proper resolution of the mootness question depends. Certainly, our mere act of remanding *78 in no way suggests any particular view as to whether this case is in fact moot. That decision is for the District Judge in the first instance. In reaching his decision, the District Judge will, of course, have to take into account the standards that we have previously articulated for resolving mootness problems. On the one hand, "[a] case [may be] moot if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United See also But on the other, "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave `[t]he defendant free to return to his old ways.' " United at In the context of constitutional questions involving electoral processes, these principles have generally found expression in the proposition that a case is not moot if "[t]he problem is `capable of repetition, yet evading review.' "[6] In applying these standards to this case, the District Judge should ascertain the nature of the textbook problem for the elementary grades in respondent school district. Respondents have not suggested that the problem has been resolved once and for all by the recent purchases. To be sure, they do contend that the new textbooks have a useful life of five years. But does this adequately account for destruction by extraordinary *79 events, for loss due to theft, and for obsolescence due to curriculum changes? And, even accepting the five-year figure, does this make the problem a non-recurring one insofar as the continuing viability of this litigation is concerned? The District Judge should also investigate the posture in which the legal issues presented by this case might again arise when the books begin to wear out. Will the respondent school district delay holding a new election until the new books are actually needed? Is it possible that litigation would again have to proceed for an entire school year, or more, while indigent children are deprived of books, before the constitutionality of that deprivation is finally determined? These seem to me essential questions for the District Court to consider on remand in disposing of the issue of mootness.[7]
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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This case requires us to determine the constitutionality of regulations promulgated by the Missouri Division of Corrections relating to inmate marriages and inmate-to-inmate correspondence. The Court of Appeals for the Eighth Circuit, applying a strict scrutiny analysis, concluded that the regulations violate respondents' constitutional rights. We hold that a lesser standard of scrutiny is appropriate in determining the constitutionality of the prison s. Applying that standard, we uphold the validity of the correspondence regulation, but we conclude that the marriage restriction cannot be sustained. I Respondents brought this class action for injunctive relief and damages in the United States District Court for the Western District of Missouri. The regulations challenged in the complaint were in effect at all prisons within the jurisdiction of the Missouri Division of Corrections. This litigation focused, however, on practices at the Renz Correctional Institution (Renz), located in Cedar City, Missouri. The Renz prison population includes both male and female prisoners of varying security levels. Most of the female prisoners at Renz are classified as medium or maximum security inmates, while most of the male prisoners are classified as minimum security offenders. Renz is used on occasion to provide protective custody for inmates from other prisons in the Missouri system. The facility originally was built as a minimum security prison farm, and it still has a minimum security perimeter without guard towers or walls. Two regulations are at issue here. The first of the challenged regulations relates to correspondence between inmates at different institutions. It permits such correspondence "with immediate family members who are inmates in other correctional institutions," and it permits correspondence between inmates "concerning legal matters." Other correspondence between inmates, however, is permitted only *82 if "the classification/treatment team of each inmate deems it in the best interest of the parties involved." App. 34. Trial testimony indicated that as a matter of practice, the determination whether to permit inmates to correspond was based on team members' familiarity with the progress reports, conduct violations, and psychological reports in the inmates' files rather than on individual review of each piece of mail. See At Renz, the District Court found that the "as practiced is that inmates may not write non-family inmates." The challenged marriage regulation, which was promulgated while this litigation was pending, permits an inmate to marry only with the permission of the superintendent of the prison, and provides that such approval should be given only "when there are compelling reasons to do so." App. 47. The term "compelling" is not defined, but prison officials testified at trial that generally only a pregnancy or the
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
testified at trial that generally only a pregnancy or the birth of an illegitimate child would be considered a compelling reason. See Prior to the promulgation of this the applicable regulation did not obligate Missouri Division of Corrections officials to assist an inmate who wanted to get married, but it also did not specifically authorize the superintendent of an institution to prohibit inmates from getting married. The District Court certified respondents as a class pursuant to Federal Rule of Civil Procedure 23. The class certified by the District Court includes "persons who either are or may be confined to the Renz Correctional Center and who desire to correspond with inmates at other Missouri correctional facilities." It also encompasses a broader group of persons "who desire to marry inmates of Missouri correctional institutions and whose rights of marriage have been or will be violated by employees of the Missouri Division of Corrections." See App. 21-22. *83 The District Court issued a memorandum opinion and order finding both the correspondence and marriage regulations unconstitutional. The court, relying on applied a strict scrutiny standard. It held the marriage regulation to be an unconstitutional infringement upon the fundamental right to marry because it was far more restrictive than was either reasonable or essential for the protection of the State's interests in security and rehabilitation. The correspondence regulation also was unnecessarily broad, the court concluded, because prison officials could effectively cope with the security problems raised by inmate-to-inmate correspondence through less restrictive means, such as scanning the mail of potentially troublesome inmate. The District Court also held that the correspondence regulation had been applied in an arbitrary and capricious manner. The Court of Appeals for the Eighth Circuit affirmed. The Court of Appeals held that the District Court properly used strict scrutiny in evaluating the constitutionality of the Missouri correspondence and marriage regulations. Under the correspondence regulation could be justified "only if it furthers an important or substantial governmental interest unrelated to the suppression of expression, and the limitation is no greater than necessary or essential to protect that interest." The correspondence regulation did not satisfy this standard because it was not the least restrictive means of achieving the security goals of the regulation. In the Court of Appeals' view, prison officials could meet the problem of inmate conspiracies by exercising their authority to open and read all prisoner mail. The Court of Appeals also concluded that the marriage was not the least restrictive means of achieving the asserted goals of rehabilitation and security. The goal of rehabilitation could be met through alternatives such *84
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
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goal of rehabilitation could be met through alternatives such *84 as counseling, and violent "love triangles" were as likely to occur without a formal marriage ceremony as with one. Absent evidence that the relationship was or would become abusive, the connection between an inmate's marriage and the subsequent commission of a crime was simply too tenuous to justify denial of this constitutional right. We granted certiorari, II We begin, as did the courts below, with our decision in which described the principles that necessarily frame our analysis of prisoners' constitutional claims. The first of these principles is that federal courts must take cognizance of the valid constitutional claims of prison inmates. Prison walls do not form a barrier separating prison inmates from the protections of the Constitution. Hence, for example, prisoners retain the constitutional right to petition the government for the redress of grievances, ; they are protected against invidious racial discrimination by the Equal Protection Clause of the Fourteenth Amendment, ; and they enjoy the protections of due process, ; Because prisoners retain these rights, "[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." 416 U. S., -406. A second principle identified in however, is the recognition that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform." As the Court acknowledged, "the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree." Running a prison *85 is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in additional reason to accord deference to the appropriate prison authorities. See Our task, then, as we stated in is to formulate a standard of review for prisoners' constitutional claims that is responsive both to the "policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights." As the Court of Appeals acknowledged, did not itself resolve the question that it framed. involved mail censorship regulations proscribing statements that "unduly complain," "magnify grievances," or express "inflammatory political, racial, religious or other views." In that case, the Court determined that the proper standard of review for prison restrictions
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
determined that the proper standard of review for prison restrictions on correspondence between prisoners and members of the general public could be decided without resolving the "broad questions of `prisoners' rights.' " The Court based its ruling striking down the content-based regulation on the First Amendment rights of those who are not prisoners, stating that "[w]hatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech." Our holding therefore turned on the fact that the challenged regulation caused a "consequential restriction on the First and Fourteenth Amendment rights of those who are not prisoners." We expressly reserved the question of the proper standard of *86 review to apply in cases "involving questions of `prisoners' rights.' " In four cases following this Court has addressed such "questions of `prisoners' rights.' " The first of these, decided the same Term as involved a constitutional challenge to a prison regulation prohibiting face-to-face media interviews with individual inmates. The Court rejected the inmates' First Amendment challenge to the ban on media interviews, noting that judgments regarding prison security "are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." The next case to consider a claim of prisoners' rights was There the Court considered prison regulations that prohibited meetings of a "prisoners' labor union," inmate solicitation of other inmates to join the union, and bulk mailings concerning the union from outside sources. Noting that the lower court in Jones had "got[ten] off on the wrong foot by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement," the Court determined that the First and Fourteenth Amendment rights of prisoners were "barely implicated" by the prohibition on bulk mailings, see and that the regulation was "reasonable" under the circumstances. The prisoners' constitutional challenge to the union meeting and solicitation restrictions was also rejected, because "[t]he ban on inmate solicitation and group meetings was rationally related to the reasonable, indeed to the central, objectives of prison administration." *87 concerned a First Amendment challenge to a Bureau of Prisons restricting inmates' receipt of hardback books unless mailed directly from publishers, book clubs, or bookstores. The was upheld as a "rational response" to a clear security problem. Because there was "no evidence" that
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
a clear security problem. Because there was "no evidence" that officials had exaggerated their response to the security problem, the Court held that "the considered judgment of these experts must control in the absence of prohibitions far more sweeping than those involved here." And in a ban on contact visits was upheld on the ground that "responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility," and the regulation was "reasonably related" to these security concerns. In none of these four "prisoners' rights" cases did the Court apply a standard of heightened scrutiny, but instead inquired whether a prison regulation that burdens fundamental rights is "reasonably related" to legitimate penological objectives, or whether it represents an "exaggerated response" to those concerns. The Court of Appeals in this case nevertheless concluded that provided the closest analogy for determining the appropriate standard of review for resolving respondents' constitutional complaints. The Court of Appeals distinguished this Court's decisions in Pell, Jones, Bell, and Block as variously involving "time, place, or manner" regulations, or regulations that restrict "presumptively dangerous" inmate activities. See -1312. The Court of Appeals acknowledged that had expressly reserved the question of the appropriate standard of review based on inmates' constitutional claims, but it nonetheless believed that the standard was the proper one to apply to respondents' constitutional claims. We disagree with the Court of Appeals that the reasoning in our cases subsequent to can be so narrowly *88 cabined. In Pell, for example, it was found "relevant" to the reasonableness of a restriction on face-to-face visits between prisoners and news reporters that prisoners had other means of communicating with members of the general public. See -824. These alternative means of communication did not, however, make the prison regulation a "time, place, or manner" restriction in any ordinary sense of the term. As Pell acknowledged, the alternative methods of personal communication still available to prisoners would have been "unimpressive" if offered to justify a restriction on personal communication among members of the general public. Nevertheless, they were relevant in determining the scope of the burden placed by the regulation on inmates' First Amendment rights. Pell thus simply teaches that it is appropriate to consider the extent of this burden when "we [are] called upon to balance First Amendment rights against [legitimate] governmental interests." Nor, in our view, can the reasonableness standard adopted in Jones and Bell be construed as applying only to "presumptively dangerous" inmate activities. To begin with, the Court of Appeals did not indicate how it would identify such "presumptively
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
Appeals did not indicate how it would identify such "presumptively dangerous" conduct, other than to conclude that the group meetings in Jones, and the receipt of hardback books in Bell, both fall into that category. See -1312. The Court of Appeals found that correspondence between inmates did not come within this grouping because the court did "not think a letter presents the same sort of `obvious security problem' as does a hardback book." It is not readily apparent, however, why hardback books, which can be scanned for contraband by electronic devices and fluoroscopes, see are qualitatively different in this respect from inmate correspondence, which can be written in codes not readily subject to detection; or why coordinated inmate activity within the same prison is categorically different *89 from inmate activity coordinated by mail among different prison institutions. The determination that an activity is "presumptively dangerous" appears simply to be a conclusion about the reasonableness of the prison restriction in light of the articulated security concerns. It therefore provides a tenuous basis for creating a hierarchy of standards of review. If Pell, Jones, and Bell have not already resolved the question posed in we resolve it now: when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if "prison administrators and not the courts, [are] to make the difficult judgments concerning institutional operations." Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby "unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration." As our opinions in Pell, Bell, and Jones show, several factors are relevant in determining the reasonableness of the regulation at issue. First, there must be a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it. Thus, a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy *90 arbitrary or irrational. Moreover, the governmental objective must be a legitimate and neutral one. We have found
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
must be a legitimate and neutral one. We have found it important to inquire whether prison regulations restricting inmates' First Amendment rights operated in a neutral fashion, without regard to the content of the expression. See ; 441 U. S., A second factor relevant in determining the reasonableness of a prison restriction, as Pell shows, is whether there are alternative means of exercising the right that remain open to prison inmates. Where "other avenues" remain available for the exercise of the asserted right, see courts should be particularly conscious of the "measure of judicial deference owed to corrections officials in gauging the validity of the regulation." A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. In the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison's limited resources for preserving institutional order. When accommodation of an asserted right will have a significant "ripple effect" on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials. Cf. Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. See By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an "exaggerated response" to prison concerns. This is not a "least restrictive alternative" test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating *91 the claimant's constitutional complaint. See But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interest, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard. III Applying our analysis to the Missouri barring inmate-to-inmate correspondence, we conclude that the record clearly demonstrates that the regulation was reasonably related to legitimate security interests. We find that the marriage restriction, however, does not satisfy the reasonable relationship standard, but rather constitutes an exaggerated response to petitioners' rehabilitation and security concerns. A According to the testimony at trial, the Missouri correspondence provision was promulgated primarily for security reasons. Prison officials testified that mail between institutions can be used to communicate escape plans and to arrange assaults and other violent acts. 2 Tr. 76; 4 Witnesses stated that the Missouri Division of Corrections had a growing problem with prison gangs, and that restricting communications among
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
growing problem with prison gangs, and that restricting communications among gang members, both by transferring gang members to different institutions and by restricting their correspondence, was an important element in combating this problem. 2 ; 3 ; 4 Officials also testified that the use of Renz as a facility to provide protective custody for certain inmates could be compromised by permitting correspondence between inmates at Renz and inmates at other correctional institutions. 3 The prohibition on correspondence between institutions is logically connected to these legitimate security concerns. Undoubtedly, communication with other felons is a potential spur to criminal behavior: this sort of contact frequently is *92 prohibited even after an inmate has been released on parole. See, e. g., (a)(10) (federal parole conditioned on nonassociation with known criminals, unless permission is granted by the parole officer). In Missouri prisons, the danger of such coordinated criminal activity is exacerbated by the presence of prison gangs. The Missouri policy of separating and isolating gang members a strategy that has been frequently used to control gang activity, see G. & C. U. S. Dept. of Justice, Prison Gangs: Their Extent, Nature and Impact on Prisons 64-65 logically is furthered by the restriction on prisoner-to-prisoner correspondence. Moreover, the correspondence regulation does not deprive prisoners of all means of expression. Rather, it bars communication only with a limited class of other people with whom prison officials have particular cause to be concerned inmates at other institutions within the Missouri prison system. We also think that the Court of Appeals' analysis overlooks the impact of respondents' asserted right on other inmates and prison personnel. Prison officials have stated that in their expert opinion, correspondence between prison institutions facilitates the development of informal organizations that threaten the core functions of prison administration, maintaining safety and internal security. As a result, the correspondence rights asserted by respondents, like the organizational activities at issue in can be exercised only at the cost of significantly less liberty and safety for everyone else, guards and other prisoners alike. Indeed, the potential "ripple effect" is even broader here than in Jones, because exercise of the right affects the inmates and staff of more than one institution. Where exercise of a right requires this kind of tradeoff, we think that the choice made by corrections officials which is, after all, a judgment "peculiarly within [their] province and professional expertise," * 417 U. S., should not be lightly set aside by the courts. Finally, there are no obvious, easy alternatives to the policy adopted by petitioners. Other well-run prison
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
alternatives to the policy adopted by petitioners. Other well-run prison systems, including the Federal Bureau of Prisons, have concluded that substantially similar restrictions on inmate correspondence were necessary to protect institutional order and security. See, e. g., As petitioners have shown, the only alternative proffered by the claimant prisoners, the monitoring of inmate correspondence, clearly would impose more than a de minimis cost on the pursuit of legitimate corrections goals. Prison officials testified that it would be impossible to read every piece of inmate-to-inmate correspondence, 3 Tr. 159, 4 and consequently there would be an appreciable risk of missing dangerous messages. In any event, prisoners could easily write in jargon or codes to prevent detection of their real messages. See & ; see also Brief for State of Texas as Amicus Curiae 7-9. The risk of missing dangerous communications, taken together with the sheer burden on staff resources required to conduct item-by-item censorship, see 3 Tr. supports the judgment of prison officials that this alternative is not an adequate alternative to restricting correspondence. The prohibition on correspondence is reasonably related to valid corrections goals. The is content neutral, it logically advances the goals of institutional security and safety identified by Missouri prison officials, and it is not an exaggerated response to those objectives. On that basis, we conclude that the regulation does not unconstitutionally abridge the First Amendment rights of prison inmates.[*] *94 B In support of the marriage regulation, petitioners first suggest that the does not deprive prisoners of a constitutionally *95 protected right. They concede that the decision to marry is a fundamental right under and but they imply that a different should obtain "in a prison forum." See Brief for Petitioners 38, n. 6. Petitioners then argue that even if the regulation burdens inmates' constitutional rights, the restriction should be tested under a reasonableness standard. They urge that the restriction is reasonably related to legitimate security and rehabilitation concerns. We disagree with petitioners that Zablocki does not apply to prison inmates. It is settled that a prison inmate "retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements *96 are an important and significant aspect of the marital relationship. In addition, many religions
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals. Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context. Our decision in summarily affirming is not to the contrary. That case involved a prohibition on marriage only for inmates sentenced to life imprisonment; and, importantly, denial of the right was part of the punishment for crime. See (asserted governmental interest of punishing crime sufficiently important to justify deprivation of right); see generally The Missouri marriage regulation prohibits inmates from marrying unless the prison superintendent has approved the marriage after finding that there are compelling reasons for doing so. As noted previously, generally only pregnancy or birth of a child is considered a "compelling reason" to approve *97 a marriage. In determining whether this regulation impermissibly burdens the right to marry, we note initially that the regulation prohibits marriages between inmates and civilians, as well as marriages between inmates. See Brief for Petitioners 40. Although not urged by respondents, this implication of the interests of nonprisoners may support application of the standard, because the regulation may entail a "consequential restriction on the [constitutional] rights of those who are not prisoners." See 416 U. S., We need not reach this question, however, because even under the reasonable relationship test, the marriage regulation does not withstand scrutiny. Petitioners have identified both security and rehabilitation concerns in support of the marriage prohibition. The security concern emphasized by petitioners is that "love triangles" might lead to violent confrontations between inmates. See Brief for Petitioners 13, 36, 39. With respect to rehabilitation, prison officials testified that female prisoners often were subject to abuse at home or were overly dependent on male figures, and that this dependence or abuse was connected to the crimes they
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Justice O'Connor
| 1,987 | 14 |
majority
|
Turner v. Safley
|
https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
this dependence or abuse was connected to the crimes they had committed. 3 Tr. 154-155. The superintendent at Renz, petitioner William Turner, testified that in his view, these women prisoners needed to concentrate on developing skills of self-reliance, 1 and that the prohibition on marriage furthered this rehabilitative goal. Petitioners emphasize that the prohibition on marriage should be understood in light of Superintendent Turner's experience with several ill-advised marriage requests from female inmates. Brief for Petitioners 32-34. We conclude that on this record, the Missouri prison regulation, as written, is not reasonably related to these penological interests. No doubt legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry, and may justify requiring approval of the superintendent. The Missouri regulation, however, represents an *98 exaggerated response to such security objectives. There are obvious, easy alternatives to the Missouri regulation that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives. See, e. g., We are aware of no place in the record where prison officials testified that such ready alternatives would not fully satisfy their security concerns. Moreover, with respect to the security concern emphasized in petitioners' brief the creation of "love triangles" petitioners have pointed to nothing in the record suggesting that the marriage regulation was viewed as preventing such entanglements. Common sense likewise suggests that there is no logical connection between the marriage restriction and the formation of love triangles: surely in prisons housing both male and female prisoners, inmate rivalries are as likely to develop without a formal marriage ceremony as with one. Finally, this is not an instance where the "ripple effect" on the security of fellow inmates and prison staff justifies a broad restriction on inmates' rights indeed, where the inmate wishes to marry a civilian, the decision to marry (apart from the logistics of the wedding ceremony) is a completely private one. Nor, on this record, is the marriage restriction reasonably related to the articulated rehabilitation goal. First, in requiring refusal of permission absent a finding of a compelling reason to allow the marriage, the sweeps much more broadly than can be explained by petitioners' penological objectives. Missouri prison officials testified that generally they had experienced no problem with the marriage of male inmates, see, e. g., 2 Tr. 21-22, and the District Court found that such marriages had routinely been allowed as a matter of practice at Missouri correctional institutions prior to adoption of the The proffered justification thus does not explain the adoption of a banning *99 marriages
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
|
does not explain the adoption of a banning *99 marriages by these inmates. Nor does it account for the prohibition on inmate marriages to civilians. Missouri prison officials testified that generally they had no objection to inmate-civilian marriages, see, e. g., 4 Tr. 240-241, and Superintendent Turner testified that he usually did not object to the marriage of either male or female prisoners to civilians, 2 The rehabilitation concern appears from the record to have been centered almost exclusively on female inmates marrying other inmates or exfelons; it does not account for the ban on inmate-civilian marriages. Moreover, although not necessary to the disposition of this case, we note that on this record the rehabilitative objective asserted to support the regulation itself is suspect. Of the several female inmates whose marriage requests were discussed by prison officials at trial, only one was refused on the basis of fostering excessive dependency. The District Court found that the Missouri prison system operated on the basis of excessive paternalism in that the proposed marriages of all female inmates were scrutinized carefully even before adoption of the current regulation only one was approved at Renz in the period from 1979-1983 whereas the marriages of male inmates during the same period were routinely approved. That kind of lopsided rehabilitation concern cannot provide a justification for the broad Missouri marriage It is undisputed that Missouri prison officials may regulate the time and circumstances under which the marriage ceremony itself takes place. See Brief for Respondents 5. On this record, however, the almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives. We conclude, therefore, that the Missouri marriage regulation is facially invalid. IV We uphold the facial validity of the correspondence regulation, but we conclude that the marriage is constitutionally *100 infirm. We read petitioners' additional challenge to the District Court's findings of fact to be a claim that the District Court erred in holding that the correspondence regulation had been applied by prison officials in an arbitrary and capricious manner. Because the Court of Appeals did not address this question, we remand the issue to the Court of Appeals for its consideration. Accordingly, the judgment of the Court of Appeals striking down the Missouri marriage regulation is affirmed; its judgment invalidating the correspondence is reversed; and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part and dissenting in part. How a
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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join, concurring in part and dissenting in part. How a court describes its standard of review when a prison regulation infringes fundamental constitutional rights often has far less consequence for the inmates than the actual showing that the court demands of the State in order to uphold the regulation. This case provides a prime example. There would not appear to be much difference between the question whether a prison regulation that burdens fundamental rights in the quest for security is "needlessly broad" the standard applied by the District Court and the Court of Appeals and this Court's requirement that the regulation must be "reasonably related to legitimate penological interests," ante, at 89, and may not represent "an `exaggerated response' to those concerns." Ante, at 87. But if the standard can be satisfied by nothing more than a "logical connection" between the regulation and any legitimate penological concern perceived by a cautious warden, see ante, at 94, n. (emphasis in original), it is virtually meaningless. Application of the standard would seem to permit disregard for inmates' constitutional rights whenever the imagination of the *101 warden produces a plausible security concern and a deferential trial court is able to discern a logical connection between that concern and the challenged regulation. Indeed, there is a logical connection between prison discipline and the use of bullwhips on prisoners; and security is logically furthered by a total ban on inmate communication, not only with other inmates but also with outsiders who conceivably might be interested in arranging an attack within the prison or an escape from it. Thus, I dissent from Part II of the Court's opinion.[1] I am able to join Part III-B because the Court's invalidation of the marriage regulation does not rely on a rejection of a standard of review more stringent than the one announced in Part II. See ante, at 97. The Court in Part III-B concludes after careful examination that, even applying a "reasonableness" standard, the marriage regulation must fail because the justifications asserted on its behalf lack record support. Part III-A, however, is not only based on an application of the Court's newly minted standard, see ante, at 89, but also represents the product of a plainly improper appellate encroachment into the factfinding domain of the District Court. See Icicle Seafoods, Indeed, a fundamental difference between the Court of Appeals and this Court in this case and the principal point of this dissent rests in the respective ways the two courts have examined and made use of the trial record. In my opinion the
|
Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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made use of the trial record. In my opinion the Court of Appeals correctly held that the trial court's findings of fact adequately supported its judgment sustaining the inmates' challenge to the mail *102 regulation as it has been administered at the Renz Correctional Center in Cedar City, Missouri. In contrast, this Court sifts the trial testimony on its own[2] in order to uphold a general prohibition against correspondence between unrelated inmates. I This is not a case in which it is particularly helpful to begin by determining the "proper" standard of review, as if the result of that preliminary activity would somehow lighten the Court's duty to decide this case. The precise issue before us is evident from respondents' complaint, which makes clear that they were not launching an exclusively facial attack against the correspondence regulation. Respondents instead leveled their primary challenge against the application of this regulation to mail addressed to or sent by inmates at Renz: "20. On information and belief, correspondence between non-family members at different institutions within the Missouri Division of Correction system is permitted at all institutions with the exception of Renz. On information and belief, defendant Turner and other employees of the Missouri Division of Corrections have a pattern and practice of refusing to permit inmates of Renz to correspond with or receive letters from inmates at other correctional institutions, a situation which appears to be unique within the Missouri Division of Corrections. "21. On information and belief, the reason given for refusing such correspondence is that Superintendent Turner feels that correspondence between inmates is not *103 in the best interest of any inmate. In this manner defendant Turner has violated the constitutional right of every inmate residing at Renz and any inmate who desires to correspond with an inmate residing at Renz." Amended Complaint, App. 11-12. On their face, the regulations generally applicable to the Missouri Correctional System permit correspondence between unrelated inmates "if the classification/treatment team of each inmate deems it in the best interests of the parties involved."[3] After a bench trial, however, the District Court found that there was a total ban on such correspondence at Renz: "6. The provisions of the divisional correspondence regulation allowing the classification/treatment team of each inmate to prohibit inmate-to-inmate correspondence have not been followed at Renz. Theoretically the classification/treatment team uses psychological reports, conduct violations, and progress reports in deciding whether to permit correspondence. At Renz, however, the as practiced is that inmates may not write non-family inmates or receive mail from non-family inmates. The more restrictive practice is set forth in the
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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inmates. The more restrictive practice is set forth in the Renz Inmate Orientation Booklet presented to each inmate upon arrival at Renz. The restrictive at Renz is commonly known throughout the Missouri Correctional System. "7. The Renz against inmate-to-inmate correspondence is enforced without a determination that the security or order of Renz or the rehabilitation of the inmate would be harmed by allowing the particular correspondence to proceed and without a determination that there is no less restrictive alternative to resolve any legitimate concerns of the Department of Corrections short of prohibiting all correspondence. *104 "8. Inmates at most institutions in the Missouri Correctional System are permitted to correspond with inmates in most other institutions. The greatest restriction on inmate correspondence is practiced at Renz." "13. Correspondence between inmates has been denied despite evidence that the correspondence was desired simply to maintain wholesome friendships." at -592. These factual findings, which bear out respondents' complaint, served as the basis for the District Court's injunction: "Even if some restriction on inmate-to-inmate correspondence can be justified, the regulations and practices at bar must fall. The prohibitions are unnecessarily sweeping. Correspondence is a sufficiently protected right that it cannot be cut off simply because the recipient is in another prison, and the inmates cannot demonstrate special cause for the correspondence. "Defendants have failed to demonstrate that the needs of Renz are sufficiently different to justify greater censorship than is applied by other well-run institutions." After reviewing the District Court's findings and conclusions, the Court of Appeals held: "[W]ithout strong evidence that the relationship in question is or will be abusive, the connection between permitting the desired correspondence or marriage and the subsequent commission of a crime caused thereby is simply too tenuous to justify denial of those constitutionally protected rights. As to the security concerns, we think the prison officials' authority to open and read all prisoner mail is sufficient to meet the problem of illegal conspiracies." *105 The Court of Appeals' affirmance of the District Court thus ultimately rests upon a conclusion with which I fully agree: absent a showing that prison officials would be unable to anticipate and avoid any security problems associated with the inmate-to-inmate mail that would result from application of the correspondence as it is written and as enforced at other Missouri prisons, the total ban at Renz found by the District Court offends the First Amendment. The ostensible breadth of the Court of Appeals' opinion[4] furnishes no license for this Court to reverse with another unnecessarily broad holding. Moreover, even under the Court's newly minted standard, the findings
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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Moreover, even under the Court's newly minted standard, the findings of the District Court that were upheld by the Court of Appeals clearly dictate affirmance of the judgment below. II Without explicitly disagreeing with any of the District Court's findings of fact, this Court rejects the trial judge's conclusion that the total ban on correspondence between inmates at Renz and unrelated inmates in other correctional facilities was "unnecessarily sweeping" or, to use the language the Court seems to prefer, was an "exaggerated response" to the security problems predicted by petitioner's expert witnesses. Instead, the Court bases its holding upon its own highly selective use of factual evidence. The reasons the Court advances in support of its conclusion include: (1) speculation about possible "gang problems," escapes, and secret codes, ante, at 91-; (2) the fact that the correspondence regulation "does not deprive prisoners of all means of expression," ante, at 92; and (3) testimony indicating *106 "that it would be impossible to read every piece of inmate-to-inmate correspondence," ante, at None of these reasons has a sufficient basis in the record to support the Court's holding on the mail regulation. Speculation about the possible adverse consequences of allowing inmates in different institutions to correspond with one another is found in the testimony of three witnesses: William Turner, the Superintendent of Renz Correctional Center; Sally Halford, the Director of the Kansas Correctional Institution at Lansing; and David Blackwell, the former Director of the Division of Adult Institutions of the Missouri Department of Corrections. Superintendent Turner was unable to offer proof that prohibiting inmate-to-inmate correspondence prevented the formation or dissemination of escape plots. He merely asserted that the mail regulation assisted him in his duties to maintain security at Renz "[f]rom the standpoint that we don't have escapes, we don't have the problems that are experienced in other institutions." 2 Tr. 75. Nor did the Superintendent's testimony establish that permitting such correspondence would create a security risk; he could only surmise that the mail policy would inhibit communications between institutions in the early stages of an uprising. The Superintendent's testimony is entirely consistent with the District Court's conclusion that the correspondence regulation was an exaggerated response to the potential gang problem at Renz.[5] *107 Neither of the outside witnesses had any special knowledge of conditions at Renz. Ms. Halford had reviewed the prison's s and regulations relevant to this case, had discussed the case with Superintendent Turner, and had visited Renz for "a couple of hours." 3 Mr. Blackwell was charged with the overall management of Missouri's adult correctional facilities and did not
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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overall management of Missouri's adult correctional facilities and did not make daily decisions concerning the inmate correspondence permitted at Renz. He was "not sure" if he was specifically familiar with the policy at Renz that an inmate is allowed to correspond with inmates of other institutions only if they are members of the inmate's immediate family. 4 Neither of them, and indeed, no other witness, even mentioned the possibility of the use of secret codes by inmates. The Kansas witness testified that Kansas followed a policy of "open correspondence. An inmate can write to whomever they please." 3 She identified two problems that might result from that policy. First, in the preceding year a male inmate had escaped from a minimum security area and helped a female inmate to escape and remain at large for over a week. The witness speculated that they must have used the mails to plan their escape. The trial judge discounted this testimony because there was no proof that this or any other escape had been discussed in correspondence. -159. Second, the Kansas witness suggested that a ban on inmate correspondence would frustrate the development of a "gang problem." In view of her acknowledgment that no gang problem had developed in Kansas despite its open correspondence at *108 158, the trial judge presumably also attached little weight to this prediction. Indeed, there is a certain irony in the fact that the Kansas expert witness was unable to persuade her superiors in Kansas to prohibit inmate-to-inmate correspondence, yet this Court apparently finds no reason to discount her speculative testimony.[6] The Missouri witness, Mr. Blackwell, also testified that one method of trying to discourage the organization of "gangs" of prisoners with ethnic or religious similarities is "by restricting correspondence." He did not testify, however, that a total ban on inmate-to-inmate correspondence was an appropriate response to the potential gang problem. Indeed, he stated that the State's policy did not include a "carte blanche" denial of such correspondence,[7] and he did not even know that Renz was enforcing such a total ban.[8] His assertion that an open correspondence *109 policy would pose security problems was backed only by speculation: "[A]: I am sure that there are some inmates at Renz who would write other inmates at other facilities in an illegitimate fashion. I also feel certain that there is more of a probability that they would be writing about things other than just sound positive letter writing, given the nature of the offenders at Renz. "Q: What percentage of the [mail] inmate-to-inmate from Renz Correctional Center have you
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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of the [mail] inmate-to-inmate from Renz Correctional Center have you personally read? "A: Very, very little. "Q: So you are basically speculating about what inmates might write about? "A: Yes." 4 Quite clearly, Mr. Blackwell's estimate of the problems justifying some restrictions on inmate-to-inmate correspondence provides no support for the Renz policy that he did not even know about and that did not conform to the more liberal policy applicable to other institutions in which more serious offenders are incarcerated.[9] As the District Court concluded, petitioners "failed to demonstrate that the needs of Renz are sufficiently different to justify greater censorship than is applied by other well-run institutions." 586 F. Supp., *110 The Court also relies on the fact that the inmates at Renz were not totally deprived of the opportunity to communicate with the outside world. This observation is simply irrelevant to the question whether the restrictions that were enforced were unnecessarily broad. Moreover, an evenhanded acceptance of this sort of argument would require upholding the Renz marriage regulation which the Court quite properly invalidates because that regulation also could have been even more restrictive. The Court's final reason for concluding that the Renz prohibition on inmate-to-inmate correspondence is reasonable is its belief that it would be "impossible" to read all such correspondence sent or received by the inmates at Renz. No such finding of impossibility was made by the District Court, nor would it be supported by any of the findings that it did make. The record tells us nothing about the total volume of inmate mail sent or received at Renz; much less does it indicate how many letters are sent to, or received from, inmates at other institutions. As the State itself observed at oral argument about the volume of correspondence: "The difficulty with our position in the case is, since we had never permitted [mail between inmates], we didn't have an idea except to say that you know, except that we had 8,000 inmates, and we figured that they would write." Tr. of Oral Arg. 14. The testimony the Court does cite to support its conclusion that reviewing inmate-to-inmate mail would be an insurmountable task was provided by Mr. Blackwell and Ms. Halford. Mr. Blackwell testified that "[t]here is no way we can read all the mail nor would we want to it is impossible." 4 Tr. 41-43.[10] Ms. Halford gave similar testimony,[11]*111 but again she was referring to "all incoming mail," not to inmate-to-inmate correspondence and, of course, her testimony related to Kansas, not to the relatively small facility at Renz.[12]
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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to Kansas, not to the relatively small facility at Renz.[12] In short, the evidence in the record is plainly *112 insufficient to support the Court's de novo finding of impossibility.[13] It does, however, adequately support this finding by the District Court that the Court ignores: "14. The staff at Renz has been able to scan and control outgoing and incoming mail, including inmate-to-inmate correspondence." Because the record contradicts the conclusion that the administrative burden of screening all inmate-to-inmate mail would be unbearable, an outright ban is intolerable. The blanket prohibition enforced at Renz is not only an "excessive response" to any legitimate security concern; it is inconsistent with a consensus of expert opinion including Kansas correctional authorities that is far more reliable than the speculation to which this Court accords deference.[14] III The contrasts between the Court's acceptance of the challenge to the marriage regulation as overbroad and its rejection of the challenge to the correspondence are striking *113 and puzzling.[15] The Court inexplicably expresses different views about the security concerns common to prison marriages and prison mail. In the marriage context expert speculation about the security problems associated with "love triangles" is summarily rejected, while in the mail context speculation about the potential "gang problem" and the possible use of codes by prisoners receives virtually total deference. Moreover, while the Court correctly dismisses as a defense to the marriage the speculation that the inmate's spouse, once released from incarceration, would attempt to aid the inmate in escaping,[16] the Court grants virtually total credence to similar speculation about escape plans concealed in letters. In addition, the Court disregards the same considerations it relies on to invalidate the marriage regulation when it turns to the mail regulation. The marriage is said to sweep too broadly because it is more restrictive than the routine practices at other Missouri correctional institutions, but the mail at Renz is not an "exaggerated response" even though it is more restrictive than practices in the remainder of the State. The Court finds the rehabilitative value of marriage apparent, but dismisses the value of corresponding with a friend who is also an inmate for the reason that communication with the outside world is not totally prohibited. The Court relies on the District Court's finding that the marriage regulation operated on the basis of "excessive paternalism" *114 toward female inmates, ante, at 99, but rejects the same court's factual findings on the correspondence regulation. Unfathomably, while rejecting the Superintendent's concerns about love triangles as an insufficient and invalid basis for the marriage regulation, the Court apparently accepts
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Justice O'Connor
| 1,987 | 14 |
majority
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Turner v. Safley
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https://www.courtlistener.com/opinion/111904/turner-v-safley/
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invalid basis for the marriage regulation, the Court apparently accepts the same concerns as a valid basis for the mail regulation.[17] *115 In pointing out these inconsistencies, I do not suggest that the Court's treatment of the marriage regulation is flawed; as I stated, I concur fully in that part of its opinion. I do suggest that consistent application of the Court's reasoning necessarily leads to a finding that the mail regulation applied at Renz is unconstitutional.[18] IV To the extent that this Court affirms the judgment of the Court of Appeals, I concur in its opinion. I respectfully dissent from the Court's partial reversal of that judgment on the basis of its own selective forays into the record. When all *116 the language about deference and security is set to one side, the Court's erratic use of the record to affirm the Court of Appeals only partially may rest on an unarticulated assumption that the marital state is fundamentally different from the exchange of mail in the satisfaction, solace, and support it affords to a confined inmate. Even if such a difference is recognized in literature, history, or anthropology, the text of the Constitution more clearly protects the right to communicate than the right to marry. In this case, both of these rights should receive constitutional recognition and protection.
|
Justice Kagan
| 2,018 | 3 |
second_dissenting
|
Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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For over 40 years, v. Detroit Bd. of Ed., 41 U.S. 209 struck a stable balance between public em- ployees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share pay- ment could go to any of the union’s political or ideological activities. That holding fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively. allowed governments to do just that. While protecting public employees’ expression about non-workplace mat- ters, the decision enabled a government to advance im- portant managerial interests—by ensuring the presence of 2 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting an exclusive employee representative to bargain with. Far from an “anomaly,” ante, at 7, the regime was a paradigmatic example of how the government can regulate speech in its capacity as an employer. Not any longer. Today, the Court succeeds in its 6-year campaign to reverse See Friedrichs v. California Teachers Assn., 578 U. S. (2016) (per curiam); Harris v. Quinn, 57 U. S. (20); Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their inter- ests will need to find new ways of managing their work- forces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis. There are no special justifications for reversing It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongo- ing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent. I I begin with the 41-year-old precedent the major- ity overrules. That case involved a union that had been certified as the exclusive
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Justice Kagan
| 2,018 | 3 |
second_dissenting
|
Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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involved a union that had been certified as the exclusive representative of Detroit’s public school teachers. The union’s collective-bargaining agree- ment with the city included an “agency shop” clause, Cite as: 585 U. S. (2018) KAGAN, J., dissenting which required teachers who had not joined the union to pay it “a service charge equal to the regular dues required of [u]nion members.” A group of non-union members sued over that clause, arguing that it violated the First Amendment. In considering their challenge, the Court canvassed the purposes of the “agency shop” clause. It was rooted, the Court understood, in the “principle of exclusive union representation”—a “central element” in “industrial rela- tions” since the New Deal. Significant bene- fits, the Court explained, could derive from the “designa- tion of a single [union] representative” for all similarly situated employees in a workplace. In particular, such arrangements: “avoid[ ] the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment”; “prevent[ ] inter-union rivalries from creating dissension within the work force”; “free[ ] the employer from the possibility of facing conflicting demands from different unions”; and “permit[ ] the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.” –221. As proof, the Court pointed to the example of exclusive- representation arrangements in the private-employment sphere: There, Congress had long thought that such schemes would promote “peaceful labor relations” and “labor stability.” A public employer like Detroit, the Court believed, could reasonably make the same calculation. But for an exclusive-bargaining arrangement to work, such an employer often thought, the union needed ade- quate funding. Because the “designation of a union as exclusive representative carries with it great responsibili- ties,” the Court reasoned, it inevitably also entails sub- stantial costs. “The tasks of negotiating and administering a collective-bargaining agreement and 4 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting representing the interests of employees in settling dis- putes and processing grievances are continuing and diffi- cult ones.” Those activities, the Court noted, require the “expenditure of much time and money”—for example, payment for the “services of lawyers, expert negotiators, economists, and a research staff.” And there is no way to confine the union’s services to union members alone (and thus to trim costs) because unions must by law fairly represent all employees in a given bargaining unit— union members and non-members alike. See With all that in mind, the Court recognized why both a government entity and its union bargaining partner would gravitate
|
Justice Kagan
| 2,018 | 3 |
second_dissenting
|
Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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a government entity and its union bargaining partner would gravitate toward an agency-fee clause. Those fees, the Court reasoned, “distribute fairly the cost” of collective bargaining “among those who benefit”—that is, all em- ployees in the work unit. And they “counter- act[ ] the incentive that employees might otherwise have to become ‘free riders.’ ” In other words, an agency- fee provision prevents employees from reaping all the “benefits of union representation”—higher pay, a better retirement plan, and so forth—while leaving it to others to bear the costs. To the Court, the upshot was clear: A government entity could reasonably conclude that such a clause was needed to maintain the kind of exclusive bar- gaining arrangement that would facilitate peaceful and stable labor relations. But the Court acknowledged as well the “First Amend- ment interests” of dissenting employees. It recog- nized that some workers might oppose positions the union takes in collective bargaining, or even “unionism itself.” And still more, it understood that unions often advance “political and ideological” views outside the collective-bargaining context—as when they “contribute to political candidates.” Employees might well object to the use of their money to support such “ideo- logical causes.” Cite as: 585 U. S. (2018) 5 KAGAN, J., dissenting So the Court struck a balance, which has governed this area ever since. On the one hand, employees could be required to pay fees to support the union in “collective bargaining, contract administration, and grievance ad- justment.” –226. There, the Court held, the “important government interests” in having a stably funded bargaining partner justify “the impingement upon” public employees’ expression. But on the other hand, employees could not be compelled to fund the union’s political and ideological activities. Outside the collective-bargaining sphere, the Court determined, an employee’s First Amendment rights defeated any conflict- ing government interest. See –25. II Unlike the majority, I see nothing “questionable” about ’s analysis. Ante, at 7 ( Harris, 57 U. S., at (slip op., at 17)). The decision’s account of why some government entities have a strong interest in agency fees (now often called fair-share fees) is fundamentally sound. And the balance struck between public employers’ interests and public employees’ expression is right at home in First Amendment doctrine. A ’s reasoning about governmental interests has three connected parts. First, exclusive representation arrangements benefit some government entities because they can facilitate stable labor relations. In particular, such arrangements eliminate the potential for inter-union conflict and streamline the process of negotiating terms of employment. See 41 U.S., –221. Second, the government may be unable to avail itself of those
|
Justice Kagan
| 2,018 | 3 |
second_dissenting
|
Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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the government may be unable to avail itself of those benefits unless the single union has a secure source of funding. The various tasks involved in representing employees cost money; if the union doesn’t have enough, it can’t be an 6 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting effective employee representative and bargaining partner. See And third, agency fees are often needed to ensure such stable funding. That is because without those fees, employees have every incentive to free ride on the union dues paid by others. See The majority does not take issue with the first point. See ante, (It is “not disputed that the State may require that a union serve as exclusive bargaining agent for its employees” in order to advance the State’s “inter- ests as an employer”). The majority claims that the sec- ond point never appears in but is willing to assume it for the sake of argument. See ante, 1–2; but see 41 U.S., (The tasks of an exclusive repre- sentative “often entail expenditure of much time and money”). So the majority stakes everything on the third point—the conclusion that maintaining an effective sys- tem of exclusive representation often entails agency fees. Ante, at 12 (It “is simply not true” that exclusive represen- tation and agency fees are “inextricably linked”); see ante, at But basic economic theory shows why a government would think that agency fees are necessary for exclusive representation to work. What ties the two together, as recognized, is the likelihood of free-riding when fees are absent. Remember that once a union achieves exclusive-representation status, the law compels it to fairly represent all workers in the bargaining unit, whether or not they join or contribute to the union. See Because of that legal duty, the union cannot give special advantages to its own members. And that in turn creates a collective action problem of nightmarish proportions. Everyone—not just those who oppose the union, but also those who back it—has an economic incentive to withhold dues; only altruism or loyalty—as against financial self- interest—can explain why an employee would pay the union for its services. And so emerged ’s rule allow- Cite as: 585 U. S. (2018) 7 KAGAN, J., dissenting ing fair-share agreements: That rule ensured that a union would receive sufficient funds, despite its legally imposed disability, to effectively carry out its duties as exclusive representative of the government’s employees. The majority’s initial response to this reasoning is simply to dismiss it. “[F]ree rider arguments,” the majority pronounces, “are generally insufficient to overcome First Amendment objections.” Ante, at
|
Justice Kagan
| 2,018 | 3 |
second_dissenting
|
Janus v. State, County, and Municipal Employees
|
https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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“are generally insufficient to overcome First Amendment objections.” Ante, at 1 ( Knox, 567 U.S., 11). “To hold otherwise,” it continues, “would have startling consequences” because “[m]any private groups speak out” in ways that will “benefit[ ] nonmem- bers.” Ante, at 1. But that disregards the defining char- acteristic of this free-rider argument—that unions, unlike those many other private groups, must serve members and non-members alike. Groups advocating for “senior citizens or veterans” (to use the majority’s examples) have no legal duty to provide benefits to all those individuals: They can spur people to pay dues by conferring all kinds of special advantages on their dues-paying members. Unions are— by law—in a different position, as this Court has long recognized. See, e.g., 762 (1961). Justice Scalia, responding to the same argu- ment as the majority’s, may have put the point best. In a way that is true of no other private group, the “law re- quires the union to carry” non-members—“indeed, requires the union to go out of its way to benefit [them], even at the expense of its other interests.” (opinion concurring in part and dissenting in part). That special feature was what justified : “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them.” 500 U.S., at The majority’s fallback argument purports to respond to the distinctive position of unions, but still misses ’s economic insight. Here, the majority delivers a four-page exegesis on why unions will seek to serve as an exclusive 8 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting bargaining representative even “if they are not given agency fees.” Ante, at ; see ante, at –17. The gist of the account is that “designation as the exclusive repre- sentative confers many benefits,” which outweigh the costs of providing services to non-members. Ante, at 15. But that response avoids the key question, which is whether unions without agency fees will be able to (not whether they will want to) carry on as an effective exclusive repre- sentative. And as to that question, the majority again fails to reckon with how economically rational actors behave—in public as well as private workplaces. Without a fair-share agreement, the class of union non-members spirals upward. Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. See
|
Justice Kagan
| 2,018 | 3 |
second_dissenting
|
Janus v. State, County, and Municipal Employees
|
https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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to feel like suckers)—so they too quit the union. See Ichniowski & Zax, Right-to-Work Laws, Free Riders, and Unionization in the Local Public Sector, 9 J. Labor Economics 255, 2571 And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsi- —————— 1 The majority relies on statistics from the federal workforce (where agency fees are unlawful) to suggest that public employees do not act in accord with economic logic. See ante, at 12. But first, many fewer federal employees pay dues than have voted for a union to represent them, indicating that free-riding in fact pervades the federal sector. See, e.g., R. Kearney & P. Mareschal, Labor Relations in the Public Sector 26 (5th ed. 20). And second, that sector is not typical of other public workforces. Bargaining in the federal sphere is limited; most notably, it does not extend to wages and benefits. See Fort Stewart That means union operat- ing expenses are lower than they are elsewhere. And the gap further widens because the federal sector uses large, often national, bargaining units that provide unions with economies of scale. See Brief for Inter- national Brotherhood of Teamsters as Amicus Curiae 7. For those reasons, the federal workforce is the wrong place to look for meaningful empirical evidence on the issues here. Cite as: 585 U. S. (2018) 9 KAGAN, J., dissenting bilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations. Of course, not all public employers will share that view. Some would rather not bargain with an exclusive repre- sentative. Others would prefer that representative to be poorly funded—to serve more as a front than an effectual bargaining partner. But as reflected in the number of fair- share statutes and contracts across the Nation, see at 2, many government entities think that effective exclu- sive representation makes for good labor relations—and recognize, just as did, that representation of that kind often depends on agency fees. See, e.g., Harris, 57 U. S., at (slip op., at 24) (KAGAN, J., dissenting) (de- scribing why Illinois thought that bargaining with an adequately funded exclusive representative of in-home caregivers would enable the State to better serve its dis- abled citizens). respected that state interest; today’s majority fails even to understand it. Little wonder that the majority’s First Amendment analysis, which involves assessing the government’s reasons for imposing agency fees, also comes up short. B
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second_dissenting
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reasons for imposing agency fees, also comes up short. B 1 In many cases over many decades, this Court has ad- dressed how the First Amendment applies when the gov- ernment, acting not as sovereign but as employer, limits its workers’ speech. Those decisions have granted sub- stantial latitude to the government, in recognition of its significant interests in managing its workforce so as to best serve the public. fit neatly with that caselaw, in both reasoning and result. Indeed, its reversal today creates a significant anomaly—an exception, applying to 10 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting union fees alone, from the usual rules governing public employees’ speech. “Time and again our cases have recognized that the Government has a much freer hand” in dealing with its employees than with “citizens at large.” (internal quotation marks omit- ted). The government, we have stated, needs to run “as effectively and efficiently as possible.” (internal quotation marks omitted). That means it must be able, much as a private employer is, to manage its workforce as it thinks fit. A public employee thus must submit to “cer- tain limitations on his or her freedom.” Government workers, of course, do not wholly “lose their constitutional rights when they accept their positions.” But under our precedent, their rights often yield when weighed “against the realities of the employment context.” If it were otherwise—if every employment decision were to “bec[o]me a constitutional matter”—“the Govern- ment could not function.” (inter- nal quotation marks omitted). Those principles apply with full force when public employees’ expressive rights are at issue. As we have ex- plained: “Government employers, like private employers, need a significant degree of control over their employees’ words” in order to “efficient[ly] provi[de] public services.” 547 U.S., 18. Again, significant control does not mean absolute authority. In particular, the Court has guarded against government efforts to “leverage the em- ployment relationship” to shut down its employees’ speech as private citizens. 19. But when the government imposes speech restrictions relating to workplace opera- tions, of the kind a private employer also would, the Court reliably upholds them. See, e.g., 26; Connick v. Myers, Cite as: 585 U. S. (2018) 11 KAGAN, J., dissenting In striking the proper balance between employee speech rights and managerial interests, the Court has long ap- plied a test originating in (1968). That case arose out of an individual employment action: the firing of a public school teacher. As we later described the inquiry, the Court first asks whether the employee “spoke as a citizen on a matter of public
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employee “spoke as a citizen on a matter of public concern.” 547 U.S., 18. If she did not—but rather spoke as an employee on a workplace matter—she has no “possibility of a First Amendment claim”: A public employer can curtail her speech just as a private one could. But if she did speak as a citizen on a public matter, the public employer must demonstrate “an adequate justification for treating the employee differ- ently from any other member of the general public.” The government, that is, needs to show that legitimate workplace interests lay behind the speech regulation. coheres with that framework. The point here is not, as the majority suggests, that is an overt, one- to-one “application of” Ante, at 26. It is not. related to a municipality’s labor policy, and so the Court looked to prior cases about unions, not to ’s analysis of an employee’s dismissal. (And truth be told, was not at that time much to look at: What the Court now thinks of as the two-step test, as the majority’s own citations show, really emerged from and Connick—two cases post-dating See ante, at 22.)2 But and raised variants of the same basic issue: the extent of the government’s authority to —————— 2 For those reasons, it is not surprising that the “categorization schemes” in and are not precisely coterminous. Ante, at 25. The two cases are fraternal rather than identical twins—both standing for the proposition that the government receives great defer- ence when it regulates speech as an employer rather than as a sover- eign. See infra this page and 12–1. 12 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting make employment decisions affecting expression. And in both, the Court struck the same basic balance, enabling the government to curb speech when—but only when—the regulation was designed to protect its managerial inter- ests. Consider the parallels: Like drew the constitutional line by analyzing the connection between the government’s man- agerial interests and different kinds of expression. The Court first discussed the use of agency fees to subsidize the speech involved in “collective bargaining, contract administration, and grievance adjustment.” 41 U.S., at 225–226. It understood that expression (really, who would not?) as intimately tied to the workplace and employment relationship. The speech was about “working conditions, pay, discipline, promotions, leave, vacations, and termina- tions,” Borough of ; the speech occurred (almost always) in the work- place; and the speech was directed (at least mainly) to the employer. As noted earlier, described the manage- rial interests of employers in channeling all that speech through a
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second_dissenting
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interests of employers in channeling all that speech through a single union. See 41 U.S., –222, 224– 226; And so allowed the government to mandate fees for collective bargaining—just as permits the government to regulate employees’ speech on similar workplace matters. But still, realized that compulsion could go too far. The Court barred the use of fees for union speech supporting political candidates or “ideological causes.” 41 U.S., That speech, it understood, was “unrelated to [the union’s] duties as exclusive bargaining representative,” but instead was directed at the broader public sphere. And for that reason, the Court saw no legitimate managerial interests in compelling its subsidization. The employees’ First Amendment claims would thus prevail—as, again, they would have under thus dovetailed with the Court’s usual attitude in Cite as: 585 U. S. (2018) 1 KAGAN, J., dissenting First Amendment cases toward the regulation of public employees’ speech. That attitude is one of respect—even solicitude—for the government’s prerogatives as an em- ployer. So long as the government is acting as an employ- er—rather than exploiting the employment relationship for other ends—it has a wide berth, comparable to that of a private employer. And when the regulated expression concerns the terms and conditions of employment—the very stuff of the employment relationship—the govern- ment really cannot lose. There, managerial interests are obvious and strong. And so government employees are just employees, even though they work for the govern- ment. Except that today the government does lose, in a first for the law. Now, the government can constitutionally adopt all policies regulating core workplace speech in pursuit of managerial goals—save this single one. 2 The majority claims it is not making a special and un- justified exception. It offers two main reasons for declin- ing to apply here our usual deferential approach, as exem- plified in to the regulation of public employee speech. First, the majority says, this case involves a “blanket” policy rather than an individualized employment decision, so is a “painful fit.” Ante, at 2. Sec- ond, the majority asserts, the regulation here involves compelling rather than restricting speech, so the pain gets sharper still. See ante, at 24–25. And finally, the majority claims that even under the solicitous standard, the government should lose, because the speech here involves a matter of public concern and the government’s managerial interests do not justify its regulation. See ante, at 27–1. The majority goes wrong at every turn. First, this Court has applied the same basic approach whether a public employee challenges a general policy or an individualized decision. Even the majority must con- JANUS
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or an individualized decision. Even the majority must con- JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting cede that “we have sometimes looked to in con- sidering general rules that affect broad categories of em- ployees.” Ante, at 2. In fact, the majority cannot come up with any case in which we have not done so. All it can muster is one case in which while applying the test to a broad rule—barring any federal employee from accepting any payment for any speech or article on any topic—the Court noted that the policy’s breadth would count against the government at the test’s second step. See United (1995). Which is completely predictable. The inquiry at that stage, after all, is whether the government has an employment-related interest in going however far it has gone—and in Treasury Employees, the government had indeed gone far. (The Court ultimately struck down the rule because it applied to speech in which the government had no identifiable managerial interest. See 70, 477.) Nothing in Treasury Employees suggests that the Court defers only to ad hoc actions, and not to general rules, about public employee speech. That would be a perverse regime, given the greater regularity of rulemak- ing and the lesser danger of its abuse. So I would wager a small fortune that the next time a general rule governing public employee speech comes before us, we will dust off Second, the majority’s distinction between compelling and restricting speech also lacks force. The majority posits that compelling speech always works a greater injury, and so always requires a greater justification. See ante, at 8. But the only case the majority cites for that reading of our precedent is possibly (thankfully) the most exceptional in our First Amendment annals: It involved the state forcing children to swear an oath contrary to their religious beliefs. See ). Regulations challenged as compelling expression do not usually look Cite as: 585 U. S. (2018) 15 KAGAN, J., dissenting anything like that—and for that reason, the standard First Amendment rule is that the “difference between compelled speech and compelled silence” is “without con- stitutional significance.” ; see Wooley v. Maynard, (referring to “[t]he right to speak and the right to refrain from speaking” as “complementary components” of the First Amendment). And if anything, the First Amendment scales tip the oppo- site way when (as here) the government is not compelling actual speech, but instead compelling a subsidy that oth- ers will use for expression. See Brief for Eugene Volokh et al. as Amici Curiae 4–5 (offering many examples to
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| 2,018 | 3 |
second_dissenting
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et al. as Amici Curiae 4–5 (offering many examples to show that the First Amendment “simply do[es] not guar- antee that one’s hard-earned dollars will never be spent on speech one disapproves of ”). So when a government mandates a speech subsidy from a public employee—here, we might think of it as levying a tax to support collective bargaining—it should get at least as much deference as when it restricts the employee’s speech. As this case shows, the former may advance a managerial interest as well as the latter—in which case the government’s “freer hand” in dealing with its employees should apply with equal (if not greater) force. 562 U.S., at Third and finally, the majority errs in thinking that under the usual deferential approach, the government should lose this case. The majority mainly argues here —————— That’s why this Court has blessed the constitutionality of compelled speech subsidies in a variety of cases beyond involving a variety of contexts beyond labor relations. The list includes mandatory fees imposed on state bar members (for professional expression); university students (for campus events); and fruit processors (for generic advertis- ing). See ; Board of Regents of Univ. of Wis. (2000); (1997); see also infra, at 20. 16 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting that, at ’s first step, “union speech in collective bargaining” is a “matter of great public concern” because it “affect[s] how public money is spent” and addresses “other important matters” like teacher merit pay or tenure. Ante, at 27, 29 (internal quotation marks omitted). But to start, the majority misunderstands the threshold inquiry set out in and later cases. The question is not, as the majority seems to think, whether the public is, or should be, interested in a government employee’s speech. In- stead, the question is whether that speech is about and directed to the workplace—as contrasted with the broader public square. Treasury Employees offers the Court’s fullest explanation. The Court held there that the gov- ernment’s policy prevented employees from speaking as “citizen[s]” on “matters of public concern.” 51 U.S., at 466 ( U.S., at 568). Why? Because the speeches and articles “were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their Government employ- ment.” 51 U.S., 66; see 65, 470 (repeating that analysis twice more). The Court could not have cared less whether the speech at issue was “important.” Ante, at 29. It instead asked whether the speech was truly of the workplace—addressed to it, made in it, and (most of all) about it.
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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it, made in it, and (most of all) about it. Consistent with that focus, speech about the terms and conditions of employment—the essential stuff of collective bargaining—has never survived ’s first step. This Court has rejected all attempts by employees to make a “federal constitutional issue” out of basic “employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations.” Guarnieri, 564 U.S., at ; see Board of Comm’rs, Wabaunsee (stating that public employees’ “speech on merely private employment matters is unprotected”). For that reason, even the Jus- Cite as: 585 U. S. (2018) 17 KAGAN, J., dissenting tices who originally objected to conceded that the use of agency fees for bargaining on “economic issues” like “salaries and pension benefits” would not raise significant First Amendment n. 16 (Powell, J., concurring in judgment). Of course, most of those issues have budgetary consequences: They “affect[ ] how public money is spent.” Ante, at 29. And some raise important non-budgetary disputes; teacher merit pay is a good example, see ante, 0. But arguing about the terms of employment is still arguing about the terms of employment: The workplace remains both the context and the subject matter of the expression. If all that speech really counted as “of public concern,” as the majority suggests, the mass of public employees’ complaints (about pay and benefits and workplace policy and such) would become “federal constitutional issue[s].” Guarnieri, 564 U.S., at And contrary to decades’ worth of precedent, government employers would then have far less control over their workforces than private employers do. See at 9–11. Consider an analogy, not involving union fees: Suppose a government entity disciplines a group of (non-unionized) employees for agitating for a better health plan at various inopportune times and places. The better health plan will of course drive up public spending; so according to the majority’s analysis, the employees’ speech satisfies Picker- ing’s “public concern” test. Or similarly, suppose a public employer penalizes a group of (non-unionized) teachers who protest merit pay in the school cafeteria. Once again, the majority’s logic runs, the speech is of “public concern,” so the employees have a plausible First Amendment claim. (And indeed, the majority appears to concede as much, by asserting that the results in these hypotheticals should turn on various “factual detail[s]” relevant to the interest balancing that occurs at the test’s second step. Ante, 2, n. 2.) But in fact, this Court has always 18 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting understood such cases to end at ’s first step: If an employee’s speech is about,
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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at ’s first step: If an employee’s speech is about, in, and directed to the work- place, she has no “possibility of a First Amendment claim.” 547 U.S., 18; see So take your pick. Either the majority is exposing government entities across the country to increased First Amendment litiga- tion and liability—and thus preventing them from regulat- ing their workforces as private employers could. Or else, when actual cases of this kind come around, we will dis- cover that today’s majority has crafted a “unions only” carve-out to our employee-speech law. What’s more, the government should prevail even if the speech involved in collective bargaining satisfies Picker- ing’s first part. Recall that the next question is whether the government has shown “an adequate justification for treating the employee differently from any other member of the general public.” 547 U.S., 18; That inquiry is itself famously respectful of gov- ernment interests. This Court has reversed the govern- ment only when it has tried to “leverage the employment relationship” to achieve an outcome unrelated to the workplace’s “effective functioning.” 547 U.S., at 419; Nothing like that is true here. As described, many government entities have found agency fees the best way to ensure a stable and productive relationship with an exclusive bargaining agent. See 41 U.S., –221, 224–226; –4. And here, Illinois and many governmental amici have explained again how agency fees advance their workplace goals. See Brief for State Re- spondents 12, 6; Brief for Governor Tom Wolf et al. as Amici Curiae 21–. In no other employee-speech case has this Court dismissed such work-related interests, as the majority does here. See at 6–9 (discussing the majority’s refusal to engage with the logic of the State’s position). Time and again, the Court has instead respected Cite as: 585 U. S. (2018) 19 KAGAN, J., dissenting and acceded to those interests—just as did. The key point about is that it fit naturally with this Court’s consistent teaching about the permissibility of regulating public employees’ speech. The Court allows a government entity to regulate that expression in aid of managing its workforce to effectively provide public ser- vices. That is just what a government aims to do when it enforces a fair-share agreement. And so, the key point about today’s decision is that it creates an unjustified hole in the law, applicable to union fees alone. This case is sui generis among those addressing public employee speech— and will almost surely remain so. III But the worse part of today’s opinion is where the ma- jority subverts all known principles of stare decisis.
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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the ma- jority subverts all known principles of stare decisis. The majority makes plain, in the first pages of its decision, that it believes was wrong.4 But even if that were true (which it is not), it is not enough. “Respecting stare decisis means sticking to some wrong decisions.” Kimble v. Marvel Entertainment, LLC, 576 U. S. (2015) (slip op., at 7). Any departure from settled precedent (so the Court has often stated) demands a “special justifica- tion—over and above the belief that the precedent was wrongly decided.” at (slip op., at 8) (internal quo- tation marks omitted); see, e.g., Arizona v. Rum, 467 U.S. 20, 212 And the majority does not have anything close. To the contrary: all that is “special” in this case—especially the massive reliance interests at stake— demands retaining beyond even the normal precedent. Consider first why these principles about precedent are so important. Stare decisis—“the idea that today’s Court —————— 4 And then, after ostensibly turning to stare decisis, the majority spends another four pages insisting that was “not well rea- soned,” which is just more of the same. Ante, 8; see ante, 5–8. 20 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting should stand by yesterday’s decisions”—is “a foundation stone of the rule of law.” Kimble, 576 U. S., at (slip op., at 7) ( Michigan v. Bay Mills Indian Commu- nity, 572 U. S. (20) (slip op., at 15)). It “pro- motes the evenhanded, predictable, and consistent devel- opment” of legal doctrine. v. Tennessee, 501 U.S. 808, 827 It fosters respect for and reliance on judicial decisions. See And it “contributes to the actual and perceived integrity of the judicial process,” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals,” Vasquez v. Hillery, U.S. 254, And is not just any precedent: It is embedded in the law (not to mention, as I’ll later address, in the world) in a way not many decisions are. Over four decades, this Court has cited favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot). See, e.g., 21–2 (2009); ; Teachers v. Hudson, ; Reviewing those decisions not a decade ago, this Court—unanimously— called the rule “a general First Amendment princi- ple.” And indeed, the Court has relied on that rule when deciding cases involving com- pelled speech subsidies outside the labor sphere—cases today’s decision does not question. See, e.g., ; Board of Regents of
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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does not question. See, e.g., ; Board of Regents of Univ. of Wis. 529 U.S. 217, 20–22 (2000) (public university student fees); 521 U.S. 457, 471–47 (1997) (commercial advertising assess- ments); see also n. Ignoring our repeated validation of the majority Cite as: 585 U. S. (2018) 21 KAGAN, J., dissenting claims it has become “an outlier among our First Amend- ment cases.” Ante, 2. That claim fails most spectacu- larly for reasons already discussed: coheres with the approach to reviewing regulation of public employees’ speech. See –1. Needing to stretch further, the majority suggests that conflicts with “our political patronage decisions.” Ante, 4. But in fact those decisions strike a balance much like ’s. On the one hand, the Court has enabled governments to compel policymakers to support a political party, because that requirement (like fees for collective bargaining) can reasonably be thought to advance the interest in work- place effectiveness. See 427 U.S. 47, 66–67 (1976); (1980). On the other hand, the Court has barred govern- ments from extending that rule to non-policymaking em- ployees because that application (like fees for political campaigns) can’t be thought to promote that interest, see 427 U.S., 66; the government is instead trying to “leverage the employment relationship” to achieve other goals, 547 U.S., 19. So all that the majority has left is Knox and Harris. See ante, Dicta in those recent decisions indeed began the assault on that has culminated today. But neither actually ad- dressed the extent to which a public employer may regu- late its own employees’ speech. Relying on them is boot- strapping—and mocking stare decisis. Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as “special justifications.” The majority is likewise wrong to invoke “workability” as a reason for overruling Ante, 8. Does require drawing a line? Yes, between a union’s collective- bargaining activities and its political activities. Is that line perfectly and pristinely “precis[e],” as the majority demands? Ante, 8. Well, not quite that—but as exer- 22 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting cises of constitutional linedrawing go, stands well above average. In the 40 years since this Court has had to resolve only a handful of cases raising ques- tions about the distinction. To my knowledge, the circuit courts are not divided on any classification issue; neither are they issuing distress signals of the kind that some- times prompt the Court to reverse a decision. See, e.g., Johnson v. United States, 576 U. S. (2015) (overruling precedent because
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| 2,018 | 3 |
second_dissenting
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v. United States, 576 U. S. (2015) (overruling precedent because of frequent splits and mass confusion). And that tranquility is unsurprising: There may be some gray areas (there always are), but in the mine run of cases, everyone knows the difference between politicking and collective bargaining. The majority cites some disa- greement in two of the classification cases this Court decided—as if non-unanimity among Justices were some- thing startling. And it notes that a dissenter in one of those cases called the Court’s approach “malleable” and “not principled,” ante, 9—as though those weren’t stock terms in dissenting vocabulary. See, e.g., Murr v. Wisconsin, 582 U. S. (2017) (ROBERTS, C. J., dis- senting) (slip op., at 2); Dietz v. Bouldin, 579 U. S. (2016) (THOMAS, J., dissenting) (slip op., at 1); Alabama Legislative Black Caucus v. Alabama, 575 U. S. (2015) (slip op., at 1) (SCALIA, J., dissenting). As I wrote in Harris a few Terms ago: “If the kind of hand-wringing about blurry lines that the majority offers were enough to justify breaking with precedent, we might have to discard whole volumes of the U. S. Reports.” 57 U. S., at (slip op., at 15). And in any event, one stare decisis factor—reliance— dominates all others here and demands keeping Stare decisis, this Court has held, “has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous deci- sion.” That is because overruling a Cite as: 585 U. S. (2018) 2 KAGAN, J., dissenting decision would then “require an extensive legislative response” or “dislodge settled rights and expectations.” Both will happen here: The Court today wreaks havoc on entrenched legislative and contractual arrangements. Over 20 States have by now enacted statutes authoriz- ing fair-share provisions. To be precise, 22 States, the District of Columbia, and Puerto Rico—plus another two States for police and firefighter unions. Many of those States have multiple statutory provisions, with variations for different categories of public employees. See, e.g., Brief for State of California as Amicus Curiae 24–25. Every one of them will now need to come up with new ways— elaborated in new statutes—to structure relations be- tween government employers and their workers. The majority responds, in a footnote no less, that this is of no proper concern to the Court. See ante, 7, n. 27. But in fact, we have weighed heavily against “abandon[ing] our settled jurisprudence” that “[s]tate legislatures have relied upon” it and would have to “reexamine [and amend] their statutes” if it were overruled. Allied-Signal, ; Hilton, 502 U.S.,
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| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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statutes” if it were overruled. Allied-Signal, ; Hilton, 502 U.S., at 20. Still more, thousands of current contracts covering millions of workers provide for agency fees. Usually, this Court recognizes that “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.” Not today. The majority undoes bargains reached all over the country.5 It prevents the parties from fulfilling other commitments they have made based on those agreements. It forces the —————— 5 Indeed, some agency-fee provisions, if canceled, could bring down entire contracts because they lack severability clauses. See ante, 6 (noting that unions could have negotiated for that result); Brief for Governor Tom Wolf et al. as Amici Curiae 11. 24 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting parties—immediately—to renegotiate once-settled terms and create new tradeoffs. It does so knowing that many of the parties will have to revise (or redo) multiple contracts simultaneously. (New York City, for example, has agreed to agency fees in 4 contracts with 97 public-sector un- ions. See Brief for New York City Municipal Labor Com- mittee as Amicus Curiae 4.) It does so knowing that those renegotiations will occur in an environment of legal uncer- tainty, as state governments scramble to enact new labor legislation. See at 2. It does so with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teach- ing, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans. The majority asserts that no one should care much because the canceled agreements are “of rather short duration” and would “expire on their own in a few years’ time.” Ante, 5, 46. But to begin with, that response ignores the substantial time and effort that state legisla- tures will have to devote to revamping their statutory schemes. See at 2. And anyway, it misunder- stands the nature of contract negotiations when the par- ties have a continuing relationship. The parties, in renew- ing an old collective-bargaining agreement, don’t start on an empty page. Instead, various “long-settled” terms— like fair-share provisions—are taken as a given. Brief for Governor Tom Wolf et al. 11; see Brief for New York City Sergeants Benevolent Assn. as Amicus Curiae 18. So the majority’s ruling does more than advance by a few years a future renegotiation (though even that would be signifi- cant). In most cases, it commands new bargaining over how to replace a term that the parties never expected to change. And not
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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term that the parties never expected to change. And not just new bargaining; given the interests at stake, complicated and possibly contentious bargaining Cite as: 585 U. S. (2018) 25 KAGAN, J., dissenting as well. See Brief for Governor Tom Wolf et al. 11.6 The majority, though, offers another reason for not worrying about reliance: The parties, it says, “have been on notice for years regarding this Court’s misgivings about” Ante, 5. Here, the majority proudly lays claim to its 6-year crusade to ban agency fees. In Knox, the majority relates, it described as an “anomaly.” Ante, 5 ( 567 U.S., 11). Then, in Harris, it “cataloged ’s many weaknesses.” Ante, 5. Finally, in Friedrichs, “we granted a petition for certiorari asking us to” reverse but found ourselves equally divided. Ante, 5. “During this period of time,” the majority concludes, public-sector unions “must have un- derstood that the constitutionality of [an agency-fee] provision was uncertain.” And so, says the majority, they should have structured their affairs accordingly. But that argument reflects a radically wrong under- standing of how stare decisis operates. Justice Scalia once confronted a similar argument for “disregard[ing] reliance interests” and showed how antithetical it was to rule-of- law principles. Quill 20 (concurring opinion). He noted first what we always tell lower courts: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [they] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” —————— 6 In a single, cryptic sentence, the majority also claims that argu- ments about reliance “based on [’s] clarity are misplaced” because did not provide a “clear or easily applicable standard” to sepa- rate fees for collective bargaining from those for political activities. Ante, 5. But to begin, the standard for separating those activities was clear and workable, as I have already shown. See at 21–22. And in any event, the reliance engendered was based not on the clarity of that line, but on the clarity of its holding that governments and unions could generally agree to fair-share arrangements. 26 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting 21 ; some alterations omitted). That instruction, Justice Scalia explained, was “incompatible” with an expectation that “private parties anticipate our overrulings.” 406 U.S., at 20. He concluded: “[R]eliance upon a square, unaban- doned holding of the Supreme Court is always justifiable reliance.” ’s holding was square. It was una- bandoned before today. It was, in other words, the law— however
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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before today. It was, in other words, the law— however much some were working overtime to make it not. Parties, both unions and governments, were thus justified in relying on it. And they did rely, to an extent rare among our decisions. To dismiss the overthrowing of their settled expectations as entailing no more than some “adjustments” and “unpleasant transition costs,” ante, at 47, is to trivialize stare decisis. IV There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. Departures from stare decisis are supposed to be “excep- tional action[s]” demanding “special justification,” Rum- —but the majority offers nothing like that here. In contrast to the vigor of its attack on the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. ’s legal underpinnings have not eroded over time: is now, as it was when issued, consistent Cite as: 585 U. S. (2018) 27 KAGAN, J., dissenting with this Court’s First Amendment law. provided a workable standard for courts to apply. And has generated enormous reliance interests. The majority has overruled for no exceptional or special reason, but because it never liked the decision. It has overruled because it wanted to. Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local govern- ments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in- betweeners). Today, that healthy—that democratic— debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.” Ante, 7, n.
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Justice Kagan
| 2,018 | 3 |
second_dissenting
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Janus v. State, County, and Municipal Employees
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https://www.courtlistener.com/opinion/4511640/janus-v-state-county-and-municipal-employees/
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the federal government and 28 other States.” Ante, 7, n. 27. And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. See, e.g., National Institute of Family and Life Advocates v. Becerra, ante, p. (invalidating a law requiring medical and counseling facilities to provide relevant information to users); (striking down a law that restricted pharmacies from selling various data). And it threatens not to be the last. Speech is everywhere—a part of every human activity 28 JANUS v. STATE, COUNTY, AND MUNICIPAL EMPLOYEES KAGAN, J., dissenting (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to pro- tect democratic governance—including over the role of public-sector unions.
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Justice Alito
| 2,018 | 8 |
majority
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Koons v. United States
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https://www.courtlistener.com/opinion/4503546/koons-v-united-states/
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Under 18 U.S. C. a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission. The five petition- ers in today’s case claim to be eligible under this provision. They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sen- tences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders. We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commis- sion later lowered. Petitioners are therefore ineligible for sentence reductions. I All five petitioners pleaded guilty before the same sen- tencing judge to methamphetamine conspiracy offenses that subjected them to mandatory minimum sentences 2 KOONS v. UNITED STATES Opinion of the Court under 21 U.S. C. Before the District Court imposed those sentences, however, it first calculated peti- tioners’ advisory Guidelines ranges, as district courts do in sentencing proceedings all around the country. These ranges take into account the seriousness of a defendant’s offense and his criminal history in order to produce a set of months as a recommended sentence (e.g., 151 to 188 months for petitioner Koons). But not only are these ranges advisory, they are also tentative: They can be overridden by other considerations, such as a congression- ally mandated minimum sentence. Indeed, the Guidelines themselves instruct that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required mini- mum sentence shall be the [final] guideline sentence.” United States Sentencing Commission, Guidelines Manual (Nov. 2016) (USSG); see also That is what happened here. In each of petitioners’ cases, the top end of the Guidelines range fell below the applicable mandatory minimum sentence, and so the court concluded that the mandatory minimum superseded the Guidelines range. E.g., App. 197; see also Thus, in all five cases, the court discarded the advisory ranges in favor of the mandatory minimum sentences. See at 114–115, 148, 174, 197, 216. When a statute sets out a mandatory minimum sen- tence, a defendant convicted under that statute will gen- erally receive a sentence at or above the mandatory mini- mum—but not always. If the defendant has substantially assisted the Government “in the investigation or prosecu- tion of another person,” the Government may move under 18 U.S. C. to allow the district court to “impose a sentence below” the mandatory minimum “so as to reflect [the] defendant’s substantial
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Justice Alito
| 2,018 | 8 |
majority
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Koons v. United States
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https://www.courtlistener.com/opinion/4503546/koons-v-united-states/
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the mandatory minimum “so as to reflect [the] defendant’s substantial assistance.” The Government filed such motions in each of petition- ers’ cases, and in each case, the District Court departed Cite as: 584 U. S. (2018) 3 Opinion of the Court downward from the mandatory minimum because of peti- tioners’ substantial assistance. In settling on the final sentences, the court considered the so-called “substantial- assistance factors” found in of the Guidelines, all of which relate to the assistance defendants supply the Government. App. 80, 197; see, e.g., USSG §(1)– (3), (5) (the “extent,” “timeliness,” “significance[,] and usefulness” of the defendant’s assistance and the “truth- fulness, completeness, and reliability of [the] information” provided). In no case did the court consider the original drug Guidelines ranges that it had earlier discarded. See App. 115–116, 148–154, 174–177, 197–198, 216–218. The sentences ultimately imposed in these cases represented downward departures from the mandatory minimums of between 25 and 45 percent. See Brief for United States 3. Years after petitioners’ sentences became final, the Sentencing Commission issued amendment 782, which reduced the Guidelines’ base offense levels for certain drug offenses, including those for which petitioners were con- victed. See USSG App. C, Amdt. 782 (Supp. Nov. 2012– Nov. 2016); see also Hughes v. United States, ante, at 7. And because the amendment applied retroactively, ib it made defendants previously convicted of those offenses potentially eligible for a sentence reduction under Petitioners sought such reductions, but in order to qualify, they had to show that their sentences were “based on” the now-lowered drug Guidelines ranges. The courts below held that petitioners could not make that showing, App. 93–97; and we granted certiorari to review the question, 583 U. S. II We hold that petitioners do not qualify for sentence reductions under because their sentences 4 KOONS v. UNITED STATES Opinion of the Court were not “based on” their lowered Guidelines ranges. Instead, their sentences were “based on” their mandatory minimums and on their substantial assistance to the Government.1 A For a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence. Hughes, ante, at 14; see ante, at 10–11. The Guidelines range will often play that part, for district judges must calculate the defendant’s advisory range and then will frequently tie the sentence they im- pose to that range. See ante, at 9–10; see also But that is not always the case. After all, the Guidelines are advisory, and in some instances they even explicitly call
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Justice Alito
| 2,018 | 8 |
majority
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Koons v. United States
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https://www.courtlistener.com/opinion/4503546/koons-v-united-states/
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are advisory, and in some instances they even explicitly call for the ranges to be tossed aside. When that hap- pens—when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sen- tence—the resulting sentence is not “based on” a Guide- lines range. Petitioners’ sentences fall into this latter category of cases. Their sentences were not “based on” the lowered Guidelines ranges because the District Court did not consider those ranges in imposing its ultimate sentences. On the contrary, the court scrapped the ranges in favor of —————— 1 The Government argues that defendants subject to mandatory min- imum sentences can never be sentenced “based on a sentencing range” that the Commission has lowered, 18 U.S. C. because such defendants’ “sentencing range[s]” are the mandatory minimums, which the Commission has no power to lower. See Brief for United States 19– 28. We need not resolve the meaning of “sentencing range” today. Even if it referred to the discarded Guidelines range rather than the mandatory minimum—as petitioners contend, see Brief for Petitioners 20–21—petitioners still would not be eligible for sentence reductions: As explained in the text that follows, their sentences were not “based on” even that range. Cite as: 584 U. S. (2018) 5 Opinion of the Court the mandatory minimums, and never considered the ranges again; as the court explained, the ranges dropped out of the case. App. 114–115, 148, 174, 197, 216. And once out of the case, the ranges could not come close to forming the “basis for the sentence that the District Court imposed,” Hughes, ante, at 14, and petitioners thus could not receive sentence reductions. B Petitioners’ four counterarguments do not change our conclusion. First, petitioners insist that because the Guidelines ranges serve as “the starting point for every sentencing calculation in the federal system,” all sentences are “based on” Guidelines ranges. See Brief for Petitioners 21–22; Reply Brief 16–17. It is true that our cases require sentencing judges to calculate the now-advisory Guidelines range in every sentencing proceeding. And it is true that many judges use those ranges as “the foundation of [their] sen- tencing decisions.” Hughes, ante, at 8. But it does not follow that any sentence subsequently imposed must be regarded as “based on” a Guidelines range. What matters, instead, is the role that the Guide- lines range played in the selection of the sentence eventu- ally imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began
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Justice Alito
| 2,018 | 8 |
majority
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Koons v. United States
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https://www.courtlistener.com/opinion/4503546/koons-v-united-states/
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the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sen- tences ultimately selected. See Hughes, ante, at 9–11. In constructing a house, a builder may begin by considering one design but may ultimately decide to use entirely dif- ferent plans. While the first design would represent the starting point in the builder’s decisionmaking process, the house finally built would not be “based on” that design. 6 KOONS v. UNITED STATES Opinion of the Court The same is true here. Petitioners’ sentences were not “based on” Guidelines ranges that the sentencing judge dis- carded in favor of mandatory minimums and substantial- assistance factors. Second, petitioners argue that even if their sentences were not actually based on their Guidelines ranges, they are eligible under because their sentences should have been based on those ranges. See Brief for Petitioners 25–34.2 But even under that reading of “based on,” petitioners are not eligible because the District Court made no mistake at sentencing. Petitioners emphasize that when a court departs downward because of a defend- ant’s substantial assistance, requires it to impose a sentence “in accordance with the guidelines.” (emphasis deleted). But that does not mean “in accord- ance with the guidelines range.” Instead, a court imposes a sentence “in accordance with the guidelines” when it follows the Guidelines—including the parts of the Guide- lines that instruct it to disregard the advisory ranges, see USSG 5G1.1(b)—in settling on a sentence. And that is precisely what the court did here. It properly discarded the advisory ranges, ib and permissibly considered only factors related to petitioners’ substantial assistance, rather than factors related to the advisory ranges, as a guide in determining how far to depart downward, USSG See3 Third, petitioners stress that the Sentencing Commis- —————— 2 We assume for argument’s sake that what should have happened at the initial sentencing proceedings, rather than what actually happened, matters for purposes of But cf. 825–826, 831 3 Many courts have held that prohibits consideration of the advi- sory Guidelines ranges in determining how far to depart downward. See, e.g., United (collecting cases). We take no view on that issue. All we must decide today is that, at the least, neither nor the Guidelines required the District Court to use the advisory ranges in determining how far to depart downward. Cite as: 584 U. S. (2018) 7 Opinion of the Court sion’s policy statement makes clear that the Commission wanted defendants in their shoes to be eligible for sen- tence reductions. Brief for Petitioners
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Justice Alito
| 2,018 | 8 |
majority
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Koons v. United States
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https://www.courtlistener.com/opinion/4503546/koons-v-united-states/
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to be eligible for sen- tence reductions. Brief for Petitioners 35–38; see USSG (policy statement). But the Commission’s policy statement cannot alter which applies only when a sentence was “based on” a subsequently lowered range. The Sentencing Commission may limit the application of its retroactive Guidelines amendments through its “ ‘applicable policy statements.’ ” Dillon v. United States, But policy statements cannot make a defendant eligible when makes him ineligible. See at 824–825. In short, because petitioners do not satisfy ’s threshold “based on” requirement, the Commission had no power to enable their sentence reductions. Fourth and finally, far from creating “unjustifiable sentencing disparities,” Brief for Petitioners 38–42, our rule avoids such disparities. Identically situated defend- ants sentenced today may receive the same sentences as petitioners received. See App. 89–90. Now, as then, dis- trict courts calculate the advisory Guidelines ranges, see USSG discard them in favor of the mandatory minimum sentences, 5G1.1(b); and then may use the substantial-assistance factors to determine how far to depart downward, 5K1.1(a). See Those resulting sentences, like the sentences here, are not “based on” a lowered Guidelines range—they are “based on” the defendants’ mandatory minimums and substantial assistance to the Government. And those defendants, like petitioners, are not eligible for sentence reductions under * * * For these reasons, we affirm. It is so ordered
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Justice Sotomayor
| 2,011 | 24 |
majority
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DePierre v. United States
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https://www.courtlistener.com/opinion/218451/depierre-v-united-states/
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At the time of petitioner’s conviction and sentence, federal law mandated a minimum 10-year sentence for persons convicted of certain drug offenses, 21 U.S. C. including those involving 50 grams or more of “a mixture or substance which contains cocaine base,” and a minimum 5-year sentence for offenses involving 5 grams or more of the same, This case requires us to decide whether the term “cocaine base” as used in this statute refers generally to cocaine in its chemically basic form or exclu sively to what is colloquially known as “crack cocaine.” We conclude that “cocaine base” means the former. I A As a matter of chemistry, cocaine is an alkaloid with the molecular formula C17H21NO4. Webster’s Third New In ternational Dictionary 434 (2002). An alkaloid is a base— that is, a compound capable of reacting with an acid to form a salt.1 ; see also Brief for Individual —————— 1 There are more detailed theories of how acids and bases interact. 2 DEPIERRE v. UNITED STATES Opinion of the Court Physicians and Scientists as Amici Curiae 2–3 (herein after Physicians Brief). Cocaine is derived from the coca plant native to South America. The leaves of the coca plant can be processed with water, kerosene, sodium car bonate, and sulphuric acid to produce a paste-like sub stance. R. Weiss, S. Mirin, & R. Bartel, Cocaine 10 (2d ed. 19). When dried, the resulting “coca paste” can be vaporized (through the application of heat) and inhaled, i.e., “smoked.” See United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 11–12 (hereinafter Commission Report). Coca paste contains C17H21NO4—that is, cocaine in its base form. Dissolving coca paste in water and hydrochloric acid produces (after several intermediate steps) cocaine hydro chloride, which is a salt with the molecular formula C17H22NO4+Cl-. ; Physicians Brief 3. Cocaine hydrochloride, therefore, is not a base. It generally comes in powder form, which we will refer to as “powder cocaine.” It is usually insufflated (breathed in through the nose), though it can also be ingested or diluted in water and injected. Because cocaine hydrochloride vaporizes at a much higher temperature than chemically basic cocaine (at which point the cocaine molecule tends to decompose), it is generally not smoked. See Commission Report 11, n. 15, 12–13. Cocaine hydrochloride can be converted into cocaine in its base form by combining powder cocaine with water and a base, like sodium bicarbonate (also known as baking soda). The chemical reaction changes the cocaine hydrochloride molecule into a chemically basic —————— For our purposes, it is sufficient to note
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Justice Sotomayor
| 2,011 | 24 |
majority
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DePierre v. United States
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https://www.courtlistener.com/opinion/218451/depierre-v-united-states/
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basic —————— For our purposes, it is sufficient to note the fundamental proposition that a base and an acid can combine to form a salt, and all three are different types of compounds. See generally Brief for Individual Physi cians and Scientists as Amici Curiae 8; A Dictionary of Chemistry 6–7, 62–63, 496 Cite as: 564 U. S. (2011) 3 Opinion of the Court cocaine molecule, Physicians Brief 4, and the resulting solid substance can be cooled and broken into small pieces and then smoked, Commission Report 14. This substance is commonly known as “crack” or “crack cocaine.”2 Alter natively, powder cocaine can be dissolved in water and ammonia (also a base); with the addition of ether, a solid substance—known as “freebase”—separates from the solu tion, and can be smoked. As with crack cocaine, freebase contains cocaine in its chemically basic form. Chemically, therefore, there is no difference between the cocaine in coca paste, crack cocaine, and freebase—all are cocaine in its base form. On the other hand, cocaine in its base form and in its salt form (i.e., cocaine hydrochloride) are chemically different, though they have the same active ingredient and produce the same physiological and psy chotropic effects. See –22. The key difference between them is the method by which they generally enter the body; smoking cocaine in its base form—whether as coca paste, freebase, or crack cocaine—allows the body to absorb the active ingredient quickly, thereby producing a shorter, more intense high than obtained from insufflating cocaine hydrochloride. ; see generally v. United States, B In 1986, increasing public concern over the dangers associated with illicit drugs—and the new phenomenon of crack cocaine in particular—prompted Congress to re vise the penalties for criminal offenses involving cocaine related substances. See at 95–96. At the time, federal law generally tied the penalties for drug offenses to both the type of drug and the quantity involved, with no pro —————— 2 Though the terms “crack” and “crack cocaine” are interchangeable, in this opinion we adopt DePierre’s practice and generally employ the latter. 4 DEPIERRE v. UNITED STATES Opinion of the Court vision for mandatory minimum sentences. See, e.g., (1982 ed., Supp. III). After holding several hearings specifically addressing the emergence of crack cocaine, Congress enacted the Anti-Drug Abuse Act of 1986 (ADAA), which provided mandatory minimum sentences for controlled-substance offenses in volving specific quantities of drugs. As relevant here, the ADAA provided a mandatory 10 year sentence for certain drug offenses involving 5 kilo grams or more of “a mixture or substance containing a detectable amount of ” various cocaine-related
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Justice Sotomayor
| 2,011 | 24 |
majority
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DePierre v. United States
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https://www.courtlistener.com/opinion/218451/depierre-v-united-states/
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or substance containing a detectable amount of ” various cocaine-related elements, including coca leaves, cocaine, and cocaine salts; it also called for the same sentence for offenses involving only 50 grams or more of “a mixture or substance which contains cocaine base.” ADAA, –2 (amending §(A)(ii)–(iii)) (emphasis added). The ADAA also stipulated a mandatory 5-year sentence for offenses involving 500 grams of a mixture or substance containing coca leaves, cocaine, and cocaine salts, or 5 grams of a mixture or substance containing “cocaine base.” at 3207–3 (amending §(B)(ii)–(iii)). Thus, the ADAA established a 100-to-1 ratio for the threshold quantities of cocaine-related substances that triggered the statute’s mandatory minimum penalties. That is, 5 grams or more of “a mixture or substance which contains cocaine base” was penalized as severely as 100 times that amount of the other cocaine-related ele ments enumerated in the statute. These provisions were still in effect at the time of petitioner’s conviction and sentence.3 See §(A)–(B) (2000 ed. and Supp. V). —————— 3 Due to a recent amendment, the quantity ratio in is now roughly 18-to-1, but otherwise the relevant statutory provisions are unchanged from those in effect at the time DePierre was sentenced. See Fair Sentencing Act of (FSA), (changing the quantity in (A)(iii) from 50 to 280 grams and in subparagraph (B)(iii) from 5 to 28 grams). Cite as: 564 U. S. (2011) 5 Opinion of the Court The United States Sentencing Commission subsequently promulgated Sentencing Guidelines for drug-trafficking offenses. Under the Guidelines, the offense levels for drug crimes are tied to the drug type and quantity involved. See United States Sentencing Commission, Guidelines Manual (USSG). The Commission originally adopted the ADAA’s 100-to-1 ratio for offenses involving “cocaine” and “cocaine base,” though instead of setting only two quantity thresholds, as the ADAA did, the Guidelines “set sentences for the full range of possible drug quantities.” Commission Report 1; see generally –97.4 The original version of did not define “cocaine base” as used in that provision, but in 1993 the Commis sion issued an amendment to explain that “ ‘[c]ocaine base,’ for the purposes of this guideline, means ‘crack,’ ” that is, “the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” USSG App. C, Amdt. 487 ; see also USSG n. (D). The Commission noted that “forms of cocaine base other than crack (e.g., coca paste) will be treated as cocaine.” USSG App. C, Amdt. 487.5 C In April 2005, petitioner Frantz DePierre sold two bags —————— 4 In
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Justice Sotomayor
| 2,011 | 24 |
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DePierre v. United States
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2005, petitioner Frantz DePierre sold two bags —————— 4 In 2007 the Commission increased the quantity of cocaine base re quired to trigger each offense level, reducing the cocaine base-to-cocaine sentencing ratio under the Guidelines. See USSG Supp. App. C, Amdt. 706 Unless otherwise noted, we cite to the current versions of the relevant Guidelines provisions. 5 The Guidelines’ Drug Quantity Table only lists “cocaine” and “co caine base” among its enumerated controlled substances, but the application notes make clear that the term “cocaine” includes “ecgonine and coca leaves,” as well as “salts, isomers, and salts of isomers” of cocaine. and comment., n. 5. 6 DEPIERRE v. UNITED STATES Opinion of the Court of drugs to a Government informant. DePierre was subse quently indicted on a charge of distributing 50 grams or more of cocaine base under and (b)(1)(A)(iii).6 At trial, a Government chemist testified that the sub stance in the bags, which weighed 55.1 grams, was “co caine base.” Tr. 488, 490. She was not able to identify any sodium bicarbonate. A police officer testified that the substance in question was “off-white [and] chunky.” DePierre asked the District Court to instruct the jury that, in order to find him guilty of distribution of cocaine base, it must find that his offense involved “the form of cocaine base known as crack cocaine.” App. in No. 08– 2101 (CA1), p. 43. His proposed jury instruction defined “crack” identically to the Guidelines definition. See at 43–44; see also USSG n. (D). In addition, De- Pierre asked the court to instruct the jury that “[c]hemi cal analysis cannot establish a substance as crack because crack is chemically identical to other forms of cocaine base, although it can reveal the presence of sodium bicarbonate, which is usually used in the processing of crack.” App. in No. 08–2101, The court, however, instructed the jury that “the statute that’s relevant asks about cocaine base. Crack cocaine is a form of cocaine base, so you’ll tell us whether or not what was involved is cocaine base” Tr. 585 (paragraph break omitted). The jury form asked whether the offense involved “over 50 grams of cocaine base.” App. to Pet. for Cert. 17a. The jury found DePierre guilty of distributing 50 grams or more of cocaine base, and the court sentenced DePierre to months in prison as required by the statute. —————— 6 DePierre was also indicted for distribution of powder cocaine under and possession of a firearm with an obliterated serial num ber under 18 U.S. C. He was convicted by jury of the former offense and pleaded
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Justice Sotomayor
| 2,011 | 24 |
majority
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DePierre v. United States
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was convicted by jury of the former offense and pleaded guilty to the latter prior to trial. Cite as: 564 U. S. (2011) 7 Opinion of the Court The United States Court of Appeals for the First Cir cuit affirmed, rejecting DePierre’s argument that (A)(iii) should be read only to apply to offenses involving crack cocaine. While noting the division on this question among the Courts of Appeals, at and nn. 3, 4, the First Circuit adhered to its own precedent and “read the statute according to its terms,” holding that “ ‘cocaine base’ refers to ‘all forms of cocaine base, including but not limited to crack cocaine.’ ” at ). We granted certiorari to resolve the longstanding division in authority among the Courts of Appeals on this question. 562 U. S. II A We begin with the statutory text. See United States v. Ron Pair Enterprises, Inc., Section 841(b)(1)(A) provides a mandatory 10-year mini mum sentence for certain drug offenses involving “(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of— “(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and de rivatives of ecgonine or their salts have been removed; “(II) cocaine, its salts, optical and geometric iso mers, and salts of isomers; “(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or “(IV) any compound, mixture, or preparation which contains any quantity of any of the substances re ferred to in subclauses (I) through (III); [or] “(iii) 50 grams or more of a mixture or substance de 8 DEPIERRE v. UNITED STATES Opinion of the Court scribed in clause (ii) which contains cocaine base.”7 We agree with the Government that the most natural reading of the term “cocaine base” is “cocaine in its base form”—i.e., C17H21NO4, the molecule found in crack co caine, freebase, and coca paste. On its plain terms, then, “cocaine base” reaches more broadly than just crack co caine. In arguing to the contrary, DePierre asks us to stray far from the statute’s text, as the term “crack co caine” appears nowhere in the ADAA (or the United States Code, for that matter). While the Government’s reading is not without its problems,8 that reading follows from the words Congress chose to include in the text. See United (eschewing an interpretation that was “not faithful to the statutory text”). In short, the term “cocaine base” is more plausibly read to mean the “chemically basic form of cocaine,” Brief for United States 15, than it is “crack cocaine,” Brief for —————— 7 As
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than it is “crack cocaine,” Brief for —————— 7 As noted earlier, (B) calls for a mandatory minimum 5 year sentence for offenses involving exactly the same substances; the only difference in subparagraph (B) is that the threshold quantity in clause (ii) is 500 grams, and in clause (iii) it is 5 grams. Because the 100-to-1 ratio is a feature of both §(A) and (B), and those subparagraphs are identical in all other respects, throughout this opinion we use the terms “clause (ii)” and “clause (iii)” to refer to those clauses as present in either subparagraph. 8 The Government urges us to give “cocaine base” its “settled, unam biguous scientific meaning,” i.e., “the form of cocaine classified chemi cally as a base, with the chemical formula C17H21NO4 and a particular molecular structure.” Brief for United States 20; cf. McDermott Int’l, (“In the absence of contrary indication, we assume that when a statute uses a term [of art], Congress intended it to have its established meaning”). But the scien tifically proper appellation for C17H21NO4 is “cocaine” tout court, and the Government cites no source that uses “cocaine base” to refer to C17H21NO4 (save lower-court opinions construing the statute at issue in this case). Therefore, there is no “settled meaning”—scientific or otherwise—of “cocaine base” for us to apply to Cite as: 564 U. S. (2011) 9 Opinion of the Court Petitioner 24, 28.9 We agree with DePierre that using the term “cocaine base” to refer to C17H21NO4 is technically redundant; as noted earlier, chemically speaking cocaine is a base. If Congress meant in clause (iii) to penalize more severely offenses involving “a mixture or substance which contains” cocaine in its base form it could have simply (and more correctly) used the word “cocaine” instead. But Congress had good reason to use “cocaine base” in the ADAA—to distinguish the substances covered by clause (iii) from other cocaine-related substances. For example, at the time Congress enacted the statute, the word “co caine” was commonly used to refer to cocaine hydrochlo ride, i.e., powder cocaine. See, e.g., United (repeatedly referring to cocaine hydrochloride as “co caine”); “Crack” Cocaine, Hearing before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 99th Cong., 2d Sess., (1986) (hereinafter Crack Cocaine Hearing) (prepared statement of David L. Westrate, Assistant Administrator, Drug Enforcement Admin., Dept. of Justice) (discussing produc tion of “a white, crystalline powder, cocaine hydrochloride, otherwise known simply as cocaine”). To make things more confusing, in the scientific and medical literature the word “cocaine” is often used to refer to all cocaine-related substances, including powder
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often used to refer to all cocaine-related substances, including powder co caine. See, e.g., J. Fay, The Alcohol/Drug Abuse Diction ary and Encyclopedia 26–27 ; Weiss et al., Cocaine, at 15–25; R. Lewis, Hawley’s Condensed Chemical Dic —————— 9 The statute itself gives us good reason to reject DePierre’s reading. Substituting “crack cocaine” for “cocaine base” would mean that clause (iii) only applies to a “mixture or substance which contains [crack cocaine].” But crack cocaine is itself a “substance” involved in drug offenses; it is the end product that is bought, sold, and consumed. We are aware of no substance that “contains” crack cocaine. 10 DEPIERRE v. UNITED STATES Opinion of the Court tionary 317 Accordingly, Congress’ choice to use the admittedly redundant term “cocaine base” to refer to chemically basic cocaine is best understood as an effort to make clear that clause (iii) does not apply to offenses involving powder cocaine or other nonbasic cocaine-related substances. B Notwithstanding DePierre’s arguments to the contrary, reading “cocaine base” to mean chemically basic cocaine is also consistent with ’s somewhat confounding structure. DePierre is correct that the interpretation we adopt today raises the question why Congress included the word “cocaine” in subclause (II) of clause (ii). That sub clause lists “cocaine, its salts, optical and geometric iso mers, and salts of isomers” as elements subject to clause (ii)’s higher quantity threshold. §(A)(ii)(II), (B)(ii)(II) (emphasis added). If, as we conclude, the terms “cocaine” and “cocaine base” both mean chemically basic cocaine, offenses involving a mixture or substance which contains such cocaine will always be penalized according to the lower quantity thresholds of clause (iii), and never the higher quantity thresholds clause (ii) establishes for mixtures and substances containing “cocaine.”10 While this much is true, we do not agree with DePierre that the word “cocaine” in subclause (II) is therefore su perfluous. For without the word “cocaine” subclause (II) makes no sense: It would provide a minimum sentence for offenses involving a specified quantity of simply “its salts, optical and geometric isomers, and salts of isomers.” In —————— 10 DePierre makes a similar argument with respect to coca leaves: Because they contain chemically basic cocaine, he contends, under the Government’s interpretation offenses involving coca leaves will never be subject to the lower quantity threshold associated with subclause (I), rendering that provision superfluous. For reasons discussed later, see infra, at 15–16, we are not convinced. Cite as: 564 U. S. (2011) 11 Opinion of the Court light of the structure of the subclause, the word “cocaine” is needed as the reference point for “salts” and
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DePierre v. United States
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“cocaine” is needed as the reference point for “salts” and “isomers.” The word “cocaine” in subclause (II) also performs an other critical function. Clause (iii) penalizes offenses involving “a mixture or substance described in clause (ii) which contains cocaine base.” § (B)(iii) (emphasis added). In other words, clause (ii) imposes a penalty for offenses involving cocaine-related substances generally, and clause (iii) imposes a higher penalty for a subset of those substances—the ones that “contai[n] cocaine base.” For this structure to work, however, must “describ[e] in clause (ii)” substances con taining chemically basic cocaine, which then comprise the subset described in clause (iii). If such substances were not present in clause (ii), clause (iii) would only apply to substances that contain both chemically basic cocaine and one of the other elements enumerated in clause (ii). Pre sumably, the result would be that clause (iii) would not apply to crack cocaine, freebase, or coca paste offenses, as there is no indication that, in addition to “cocaine base” (i.e., C17H21NO4), those substances contain cocaine “salts” (e.g., cocaine hydrochloride), ecgonine, or any of the other elements enumerated in clause (ii). In short, the exclusion of “cocaine” from clause (ii) would result in clause (iii) effectively describing a null set, which obviously was not Congress’ intent. Of course, this redundancy could have been avoided by simply drafting clause (iii) to penalize offenses involving “a mixture or substance which contains cocaine base,” without reference to clause (ii)—that is, Congress could have drafted clause (iii) to specify a separate set of cocaine related substances, not a subset of those in clause (ii). That we may rue inartful legislative drafting, however, does not excuse us from the responsibility of construing a 12 DEPIERRE v. UNITED STATES Opinion of the Court statute as faithfully as possible to its actual text.11 And as noted earlier, there is no textual support for DePierre’s interpretation of “cocaine base” to mean “crack cocaine.” We also recognize that our reading of “cocaine” in sub clause (II) and “cocaine base” in clause (iii) to both refer to chemically basic cocaine is in tension with the usual rule that “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Sosa v. Alvarez-Machain, (internal quotation marks omitted). However, because “Congress sometimes uses slightly different language to convey the same message,” (internal quotation marks omitted), we must be careful not to place too much emphasis on the marginal semantic divergence between the terms “cocaine” and “cocaine base.” As we have already explained, Congress had
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and “cocaine base.” As we have already explained, Congress had good reason to employ the latter term in clause (iii), and the slight inconsistency in nomenclature is insuffi cient reason to adopt DePierre’s interpretation. Cf. Public Lands —————— 11 At the time the ADAA was enacted, the definition of “narcotic drug” in the same subchapter of the United States Code included, as relevant, the following: “(C) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed. “(D) Cocaine, its salts, optical and geometric isomers, and salts of isomers. “(E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers. “(F) Any compound, mixture, or preparation which contains any quan tity of any of the substances referred to in [the preceding] subpara graphs ” 21 U.S. C. (1982 ed., Supp. III). Accordingly, the likely explanation for the ADAA’s curious structure is that Congress simply adopted this preexisting enumeration of cocaine related controlled substances, and then engrafted clause (iii) to provide enhanced penalties for the subset of offenses involving chemically basic cocaine. Cite as: 564 U. S. (2011) 13 Opinion of the Court (suggesting that a “statute’s basic purpose” might support the conclusion that “two sets of different words mean the same thing”). III DePierre offers four additional arguments in support of his view that the term “cocaine base” in clause (iii) is best read to mean “crack cocaine.” We do not find them convincing. A DePierre first argues that we should read “cocaine base” to mean “crack cocaine” because, in passing the ADAA, Congress in 1986 intended to penalize crack cocaine offenses more severely than those involving other sub stances containing C17H21NO4. As is evident from the pre ceding discussion, this position is not supported by the statutory text. To be sure, the records of the contempora neous congressional hearings suggest that Congress was most concerned with the particular dangers posed by the advent of crack cocaine. See, e.g., Crack Cocaine Hearing 1 (statement of Chairman Roth) (“[We] mee[t] today to examine a frightening and dangerous new twist in the drug abuse problem—the growing availability and use of a cheap, highly addictive, and deadly form of cocaine known on the streets as ‘crack’ ”); see generally Commission Re port 116–118; –96. It does not necessarily follow, however, that in passing the ADAA Congress meant for clause (iii)’s lower quantity thresholds to apply exclusively to crack cocaine offenses. Numerous witnesses at the hearings testified that the primary reason crack cocaine was so dangerous was because—contrary to powder cocaine—cocaine
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crack cocaine was so dangerous was because—contrary to powder cocaine—cocaine in its base form is smoked, which was understood to produce a faster, more intense, and more addictive high than powder co caine. See, e.g., Crack Cocaine Hearing 20 (statement of Dr. Robert Byck, Yale University School of Medicine) 14 DEPIERRE v. UNITED STATES Opinion of the Court (stating that the ability to inhale vapor “is the reason why crack, or cocaine free-base, is so dangerous”). This is not, however, a feature unique to crack cocaine, and freebase and coca paste were also acknowledged as dangerous, smokeable forms of cocaine. See, e.g., (prepared statement of Dr. Charles R. Schuster, Director, National Institute on Drug Abuse) (reporting on the shift from snorting powder cocaine to “newer more dangerous routes of administration, such as freebase smoking”); at 19– 20 (describing the damaging ef fects of cocaine smoking on people in Peru). Moreover, the testimony of witnesses before Congress did not clearly distinguish between these base forms of cocaine; witnesses repeatedly used terms like “cocaine base,” “freebase,” or “cocaine freebase” in a manner that grouped crack cocaine with other substances containing chemically basic forms of cocaine. See, e.g., Trafficking and Abuse of “Crack” in New York City, House Select Committee on Narcotics Abuse and Control, 99th Cong., 2d Sess., 258 (1986) (statement of Robert M. Stutman, Special Agent in Charge, Drug Enforcement Admin., Dept. of Justice) (“[C]ocaine in its alkaloid form [is] commonly known on the street as crack, rock, base, or freebase”); Crack Cocaine Hearing 71 (statement of Dr. Schuster) (“In other words, ‘crack’ is a street name for cocaine freebase”). In fact, prior to passage of the ADAA, multiple bills were introduced in Congress that imposed enhanced penalties on those who trafficked in “cocaine base,” e.g., S. 2787, 99th Cong., 2d Sess., (1986), as well as “cocaine free base,” e.g., H. R. 53, 99th Cong., 2d Sess., 01 (1986); H. R. 5484, 99th Cong., 2d Sess., (1986). Given crack cocaine’s sudden emergence and the simi larities it shared with other forms of cocaine, this lack of clarity is understandable, as is Congress’ desire to adopt a statutory term that would encompass all forms. Congress faced what it perceived to be a new threat of massive Cite as: 564 U. S. (2011) 15 Opinion of the Court scope. See, e.g., Crack Cocaine Hearing 4 (statement of Sen. Nunn) (“[C]ocaine use, particularly in the more pure form known as crack, is at near epidemic proportions”); (“We are dealing with a worse drug than we have ever dealt with, or that anybody has ever
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we have ever dealt with, or that anybody has ever dealt with in history”). Accordingly, Con gress chose statutory language broad enough to meet that threat. As we have noted, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” In the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penal ties, we cannot adopt DePierre’s narrow construction. See Lewis v. Chicago, 560 U. S. (slip op., at 9) (“It is not for us to rewrite [a] statute so that it covers only what we think is necessary to achieve what we think Congress really intended”). B DePierre also argues that we should read the term “co caine base” to mean “crack cocaine,” rather than chemi cally basic cocaine, because the latter definition leads to an absurd result. Cf. He contends that, because coca leaves themselves contain cocaine, under the Government’s approach an offense involving 5 grams of coca leaves will be subject to the 5 year minimum sentence in (B)(iii), even though those leaves would produce only05 grams of smokeable cocaine. See Brief for Petitioner 41–42. While we agree that it would be questionable to treat 5 grams of coca leaves as equivalent to 500 grams of powder cocaine for minimum sentence purposes, we are not persuaded that such a result would actually obtain in light of our decision today. To begin with, it is a matter of dispute between the 16 DEPIERRE v. UNITED STATES Opinion of the Court parties whether coca leaves in their natural, unprocessed form actually contain chemically basic cocaine. Compare Brief for Petitioner 15, 17, n. 10, with Brief for United States 43. Even assuming that DePierre is correct as a matter of chemistry that coca leaves contain cocaine in its base form,12 see Physicians Brief 2, 11, the Government has averred that it “would not be able to make that show ing in court,” Tr. of Oral Arg. 27, and that “coca leaves should not be treated as containing ‘cocaine base’ for purposes of Clause (iii),” Brief for United States 45. It is unsurprising, therefore, that the Government in its brief disclaimed awareness of any prosecution in which it had sought, or the defendant had received, a statutory minimum sentence enhanced under clause (iii) for an of fense involving coca leaves. And although this question is not before us today, we note that Congress’ deliberate choice to enumerate “coca leaves” in clause (ii) strongly indicates its intent that offenses involving such leaves be subject to the higher quantity thresholds
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involving such leaves be subject to the higher quantity thresholds of that clause. Accordingly, there is little danger that the statute will be read in the “absurd” manner DePierre fears. C In addition, DePierre suggests that because the Sen tencing Commission has, since 1993, defined “cocaine base” to mean “crack” for the purposes of the Federal Sentencing Guidelines, we should do the same with re spect to We do not agree. We have never held that, when interpreting a term in a criminal statute, deference is warranted to the Sentencing Commission’s definition of the same term in the Guidelines. Cf. v. United States, And we —————— 12 It appears that Congress itself is of the view that coca leaves con tain “cocaine,” as subclause (I) exempts offenses involving “coca leaves from which cocaine ha[s] been removed.” §(A)(ii)(I), (B)(ii)(I). Cite as: 564 U. S. (2011) 17 Opinion of the Court need not decide now whether such deference would be appropriate, because the Guidelines do not purport to interpret See USSG n. (D) (“ ‘Co caine base,’ for the purposes of this guideline, means ‘crack’ ” (emphasis added)).13 We recognize that, because the definition of “cocaine base” in clause (iii) differs from the Guidelines definition, certain sentencing anomalies may result. For example, an offense involving 5 grams of crack cocaine and one involv ing 5 grams of coca paste both trigger a minimum 5 year sentence under But defendants convicted of offenses involving only 4 grams of each sub stance—which do not trigger the statutory minimums— would likely receive different sentences, because of the Guidelines’ differential treatment of those substances with respect to offense level.14 Compare USSG (9) (providing an offense level of 22 for at least 4 grams of “cocaine base,” i.e., “crack”) with (14) (providing an offense level of 12 for less than 25 grams of “cocaine,” which, under the Guidelines, includes coca paste). As we have noted in previous opinions, however, such disparities are the inevitable result of the dissimilar operation of the fixed minimum sentences Congress has provided by stat- —————— 13 We also disagree with DePierre’s contention that Congress’ failure to reject the Guidelines definition of “cocaine base” means that it has effectively adopted that interpretation with respect to the statute. See v. United States, (“Ordinarily, we resist reading congressional intent into congressional inaction”). 14 In defining “cocaine base” as “crack,” the Commission explained that “forms of cocaine base other than crack” are treated as “cocaine” for purposes of the Guidelines. USSG App. C, Amdt. 487 This includes coca paste, which the Commission described as “an intermediate
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DePierre v. United States
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includes coca paste, which the Commission described as “an intermediate step in the processing of coca leaves into cocaine hydrochloride.” As we have explained, however, coca paste is a smokeable form of cocaine in its own right, and we see no reason why, as a statutory matter, it should be subject to lesser penalties than crack or freebase. 18 DEPIERRE v. UNITED STATES Opinion of the Court ute and the graduated sentencing scheme established by the Guidelines. See –108; –292. Accordingly, we reject De- Pierre’s suggestion that the term “cocaine base” as used in clause (iii) must be given the same definition as it has under the Guidelines. D Finally, DePierre argues that, because is at the very least ambiguous, the rule of lenity requires us to interpret the statute in his favor. See United States v. Santos, (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”). As evinced by the preceding discussion, we cannot say that the statute is crystalline. The rule, however, is reserved for cases where, “after seizing everything from which aid can be derived, the Court is left with an ambiguous statute.” (internal quotation marks and alterations omitted). Applying the normal rules of statutory construction in this case, it is clear that Congress used the term “cocaine base” in clause (iii) to penalize more severely not only offenses involving “crack cocaine,” but those involving substances containing chemically basic cocaine more generally. There is no per suasive justification for reading the statute otherwise. Because the statutory text allows us to make far more than “a guess as to what Congress intended,” Reno v. Koray, (internal quotation marks omitted), the rule of lenity does not apply in DePierre’s favor. * * * We hold that the term “cocaine base” as used in means not just “crack cocaine,” but cocaine in its chemically basic form. We therefore affirm the judg ment of the Court of Appeals. It is so ordered. Cite as: 564 U. S. (2011) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 09–1533 FRANTZ DEPIERRE, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [June 9, 2011] JUSTICE SCALIA, concurring in part and concurring in the judgment. I concur in the Court’s judgment and in all of its opinion except for Part III–A, which needlessly contradicts De- Pierre’s version of legislative history. Our holding today is that the statutory term “cocaine base” refers to cocaine base, rather than, as DePierre contends, one particular
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to cocaine base, rather than, as DePierre contends, one particular type of cocaine base. This holding is in my view obvious, and the Court does not disagree. It begins its discussion of the legislative history by saying that DePierre’s position “is not supported by the statutory text,” ante, ; and ends the discussion by saying that “[i]n the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penal ties, we cannot adopt DePierre’s narrow construction,” ante, at 15. Everything in-between could and should have been omitted. Even if Dr. Byck had not lectured an unde- termined number of likely somnolent Congressmen on “the damaging effects of cocaine smoking on people in Peru,” ante, we would still hold that the words “cocaine base” mean cocaine base. And here, as always, the need less detour into legislative history is not harmless. It con veys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this. 2 DEPIERRE v. UNITED STATES Opinion of SCALIA, J. In fact, however, even a hypothetical House Report ex pressing the Committee’s misunderstanding (or perhaps just the Committee staff’s misunderstanding, who knows?) that “cocaine base means crack cocaine” could not have changed the outcome of today’s opinion
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Victory Carriers, Inc. v. Law
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https://www.courtlistener.com/opinion/108411/victory-carriers-inc-v-law/
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The question presented here is whether state law or federal maritime law governs the suit of a longshoreman *203 injured on a pier while driving a forklift truck which was moving cargo that would ultimately be loaded aboard ship. The facts are undisputed. When the accident happened, respondent Bill Law, a longshoreman employed by Gulf Stevedore Corp. in Mobile, Alabama, was on the pier driving a forklift loaded with cargo destined for the S. S. Sagamore Hill, a vessel owned by petitioner Victory Carriers, Inc., which was tied up at the pier. Law had picked up the load on the dock and was transferring it to a point alongside the vessel where it was to be subsequently hoisted aboard by the ship's own gear. The forklift was owned and under the direction of his stevedore employer. As Law returned toward the pickup point, the overhead protection rack of the forklift came loose and fell on him. He subsequently brought an action in a federal District Court against the ship and Victory Carriers, Inc., claiming that the unseaworthiness of the vessel and the negligence of Victory had caused his injuries. His claim invoked both the diversity jurisdiction of the District Court under 28 U.S. C. 1332 and its admiralty and maritime jurisdiction under 28 U.S. C. 1333. Victory filed a third-party complaint against Gulf for indemnity in the event Victory was held liable to Law. The unseaworthiness claim became the critical issue.[1] On cross motions for summary judgment, the District Court gave judgment for petitioners on the ground that Law was not engaged in loading the vessel and that the doctrine of unseaworthiness did not extend to him. The Court of Appeals reversed. Relying on Seas Shipping and it held that the fundamental question was whether Law at the time was engaged in loading the Sagamore Hill and that since he was so engaged, he should be entitled to prove his allegations of unseaworthiness at a trial. We granted certiorari and now reverse the judgment of the Court of Appeals. Article III, 2, cl. 1, of the Constitution of the United States extends the federal judicial power "to all Cases of admiralty and maritime Jurisdiction." Congress has implemented that provision by 28 U.S. C. 1333 which now provides that the district courts shall "have original jurisdiction, exclusive of the courts of the States, of [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." Under the saving-to-suitors clause of 1333, the plaintiff was entitled to assert his claims
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Victory Carriers, Inc. v. Law
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of 1333, the plaintiff was entitled to assert his claims under the diversity jurisdiction of the District Court, as well as under 1333 itself, cf. Pope & Talbot, but under either section the claim that a ship or its gear was unseaworthy would be rooted in federal maritime law, not the law of the State of Alabama. Whether federal maritime law governed this accident in turn depends on whether this is a case within the admiralty and maritime jurisdiction conferred on the district courts by the Constitution and the jurisdictional statutes. More precisely, the threshold issue is whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. We hold that under the controlling precedents, federal maritime law does not govern this accident. Nor, in the absence of congressional guidance, are we now inclined to depart from prior law and extend the reach of the federal law to pier-side accidents caused by a stevedore's pier-based equipment. *205 The historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States. Maritime contracts are differently viewed, but as Mr. Justice Story remarked long ago: "In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide." (No. 13,902) (CC Me. 1813). The view has been constantly reiterated.[2] "The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the *206 transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled." Grant Smith-Porter Ship The maritime law was thought to reach "[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters" Atlantic Transport But, accidents on land were not within the maritime jurisdiction as historically construed by this Court.[3] Piers and docks were consistently deemed *207 extensions of land;[4] injuries inflicted to or on them were held not compensable under the maritime law. The Plymouth, ; Ex parte Phenix Insurance ; ; Cleveland Terminal &
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Victory Carriers, Inc. v. Law
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; Ex parte Phenix Insurance ; ; Cleveland Terminal & Valley R. The gangplank has served as a rough dividing line between the state and maritime regimes. In defense of this boundary and the exclusive jurisdiction of the maritime law, the Court twice rejected congressional efforts to apply state workmen's compensation statutes to shipboard injuries suffered by maritime workers and longshoremen.[5] Accepting these decisions, Congress passed the Longshoremen's and Harbor Workers' *208 Compensation Act[6] in 1927, providing a system of compensation for longshoremen injured on navigable waters but anticipating that dockside accidents would remain under the umbrella of state law and state workmen's compensation systems. Nacirema Operating ; South Chicago Coal & Dock The relative roles of state and federal law nevertheless remained somewhat confused on the seaward side of the pier.[7] But shoreward, absent legislation, the line held *209 fast. The Court refused to permit recovery in admiralty even where a ship or its gear, through collision or otherwise, caused damage to persons ashore or to bridges, docks, or other shore-based property. The Plymouth, Cleveland Terminal & Valley R. The Troy, ; Congress was dissatisfied with these decisions and passed the Admiralty Extension Act of 1948 specifically to overrule or circumvent this line of cases.[8] The law as enacted provided that "[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S. C. 740. The statute survived constitutional attack in the lower federal courts[9] and was applied without question by this *210 Court in to provide compensation for a longshoreman injured on a dock by defective cargo containers being unloaded from a ship located on navigable waters. No case in this Court has sustained the application of maritime law to the kind of accident that occurred in this case. State Industrial has not been overruled. There, the Court held that compensation for a longshoreman injured when he slipped on a dock while stacking bags of cement that had been unloaded from a ship was governed by local law, not federal maritime law. It is argued, however, that if a longshoreman may recover for unseaworthiness if injured on a ship in the course of the unloading process, Seas Shipping and if he has an unseaworthiness claim for injuries sustained on the pier and caused by the ship's unloading gear, he is also entitled to sue in admiralty when he is injured on the dock by his
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majority
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Victory Carriers, Inc. v. Law
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admiralty when he is injured on the dock by his own employer's equipment at the time he is engaged in the service of a ship located on navigable waters. however, did not call into question the extent of federal admiralty and maritime jurisdiction since the accident there occurred on navigable waters.[10] And in federal admiralty jurisdiction was clearly present since the Admiralty Extension Act on its face reached the injury there involved. The decision in turned, not on the "function" the stevedore was performing at the time of his injury, but, rather, upon the fact that his *211 injury was caused by an appurtenance of a ship, the defective cargo containers, which the Court held to be an "injury, to person caused by a vessel on navigable water" which was consummated ashore under 46 U.S. C. 740. The Court has never approved an unseaworthiness recovery for an injury sustained on land merely because the injured longshoreman was engaged in the process of "loading" or "unloading."[11]Nacirema Operating a case decided several years after makes this quite clear: "There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen's Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act." See also Rodrigue v. Aetna Casualty & Surety 3 We are not inclined at this juncture to disturb the existing precedents and to extend shoreward the reach of the maritime law further than Congress has approved. We are dealing here with the intersection of federal and *212 state law. As the law now stands, state law has traditionally governed accidents like this one. To afford respondent a maritime cause of action would thus intrude on an area that has heretofore been reserved for state law, would raise difficult questions concerning the extent to which state law would be displaced or pre-empted, and would furnish opportunity for circumventing state workmen's compensation statutes. In these circumstances, we should proceed with caution in construing constitutional and statutory provisions dealing with the jurisdiction of the federal courts. As the Court declared in "The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which [a federal] statute
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Justice White
| 1,972 | 6 |
majority
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Victory Carriers, Inc. v. Law
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own jurisdiction to the precise limits which [a federal] statute has defined." See also Romero v. Int'l Terminal Operating and 408 (BRENNAN, J., dissenting and concurring) (1959). That longshoremen injured on the pier in the course of loading or unloading a vessel are legally distinguished from longshoremen performing similar services on the ship is neither a recent development nor particularly paradoxical. The maritime law is honeycombed with differing treatment for seamen and longshoremen, on and off the ship,[12] and affirmance of the Court of Appeals *213 would not equalize the remedies that both this Court and Congress have recognized are available to longshoremen injured on navigable waters and those injured ashore, whether in service of a ship or not.[13] In part, this differential treatment stems from the geographical and historical accident that personal injuries on land are covered, for the most part, by state substantive law while such injuries on navigable water are generally governed by federal maritime law. These two bodies of law do overlap and interpenetrate in some situations, and the amphibious nature of the longshoreman's occupation creates frequent taxonomic problems. In the present case, however, the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment that was part of the ship's usual gear or that was stored on board, the equipment *214 that injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank. Affirmance of the decision below would raise a host of new problems as to the standards for and limitations on the applicability of maritime law to accidents on land.[14] At least in the absence of explicit congressional authorization, we shall not extend the historic boundaries of the maritime law. *215 Without necessarily disagreeing with the proposition that the hazards of the longshoreman's occupation make him especially deserving of a remedy dispensing with proof of fault,[15] we are constrained to note that the longshoreman already has a remedy under state workmen's compensation laws that does not depend upon proving derelictions on the part of his employer. Recovery without proving negligence is not the issue here; nor is it the equities of the injured longshoreman's position as against those of the shipowner who has had and exercises no control whatsoever over the use of the stevedore's equipment on the dock. What is at issue is the amount of the recovery, not against a shipowner, but against the stevedore employer. As this case
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Justice White
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Victory Carriers, Inc. v. Law
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a shipowner, but against the stevedore employer. As this case illustrates, the shipowner's liability for unseaworthiness would merely be shifted, with attendant transaction costs, to the stevedore by way of a third-party action for indemnity. Ryan Stevedoring v. Pan-Atlantic S. S. Corp., The State's own arrangements for compensating industrial accidents would be effectively circumvented. Perhaps such laws provide inadequate benefits, but we are poorly positioned to conclude that they do or for that reason to give special remedies to longshoremen when other employees operating forklifts for other employers in perhaps equally hazardous circumstances are *216 left to the mercies of state law. Claims like these are best presented in the legislative forum, not here. This is particularly true since extending the constitutional boundaries of the maritime law would not require Congress to make an equivalent extension of the jurisdiction of the federal courts sitting in admiralty. Congress might well prefer not to extend the jurisdiction of the federal courts. On the other hand, if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution.[16] Reversed. MR. JUSTICE DOUGLAS, with whom MR.
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. See ante, at 577 579. Like Justice Breyer, however, see post, at 589 (opinion concurring in part and concurring in judgment), I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet. The plurality's opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. See ante, at 577-579. I agree, given respondents' failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents' examples of material for which community *587 standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples. Brief for Respondents 43. Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient interest in any community, and educational material like the former must, on any objective inquiry, see ante, at 579, have scientific value for minors. But respondents' failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them. And in future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth. Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest. Nor do I think such future cases can be resolved by application of the approach we took in and Communications of Cal., I agree with Justice Kennedy that, given Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in and may be entirely too much to ask,
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did in and may be entirely too much to ask, and would potentially suppress an inordinate amount of expression. See post, at 594-596 (opinion concurring in judgment); contra, ante, at 580-584. For these reasons, adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity. Our precedents do not forbid adoption of a national standard. Local community-based standards originated with *588 In that case, we approved jury instructions that based the relevant "community standards" on those of the State of California rather than on the Nation as a whole. In doing so, we held that "[n]othing in the First Amendment requires" that a jury consider national standards when determining if something is obscene as a matter of fact. The First Amendment, we held, did not require that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." But we said nothing about the constitutionality of jury instructions that would contemplate a national standardi. e., requiring that the people who live in all of these places hold themselves to what the nationwide community of adults would find was patently offensive and appealed to the prurient interest. Later, in we confirmed that "Miller approved the use of [instructions based on local standards]; it did not mandate their use." The instructions we approved in that case charged the jury with applying "community standards" without designating any particular "community." In holding that a State may define the obscenity standard by stating the Miller standard without further specification, 418 U.S., at Jenkins left open the possibility that jurors would apply any number of standards, including a national standard, in evaluating material's obscenity. To be sure, the Court in Miller also stated that a national standard might be "unascertainable," 413 U.S., and "[un]realistic," But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (Table 20)) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of
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Justice O'Connor
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Ashcroft v. American Civil Liberties Union
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has itself made jurors more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with Justice Breyer that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem. See post, at 591. In my view, a national standard is not only constitutionally permissible, but also reasonable. While I would prefer that the Court resolve the issue before it by explicitly adopting a national standard for defining obscenity on the Internet, given respondents' failure to demonstrate substantial overbreadth due solely to the variation between local communities, I join Parts I, II, IIIB, and IV of Justice Thomas' opinion and the judgment. Justice Breyer, concurring in part and concurring in the judgment. I write separately because I believe that Congress intended the statutory word "community" to refer to the Nation's adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific "community" to which it refers. It says only that the "average person, applying contemporary community standards," must find that the "material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest" 47 U.S. C. 231(e)(6) (1994 ed., Supp. V). *590 In the statute's legislative history, however, Congress made clear that it did not intend this ambiguous statutory phrase to refer to separate standards that might differ significantly among different communities. The relevant House of Representatives Report says: "The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an `adult' standard, rather than a `geographic' standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors. " H. R. Rep. No. 105-775, p. 28 (emphasis added). This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult. At the same time, this view of the statute avoids the need to examine the serious First Amendment problem that would otherwise exist. See ; ("`When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided' "). To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious. See American Civil Liberties And these special difficulties also potentially weaken the authority of prior cases in which they were not present. Cf. *591 Communications of Cal., ; A nationally uniform adult-based standardwhich Congress, in its Committee Report, said that it intendedsignificantly alleviates any special need for First Amendment protection. Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic. See For these reasons I do not join Part III of Justice Thomas' opinion, although I agree with much of the reasoning set forth in Parts IIIB and IIID, insofar as it explains the conclusion to which I just referred, namely, that variation reflecting application of the same national standard by different local juries does not violate the First Amendment. Justice Kennedy, with whom Justice Souter and Justice Ginsburg join, concurring in the judgment. I If a law restricts substantially more speech than is justified, it may be subject to a facial challenge. There is a very real likelihood that the Child Online Protection Act (COPA or Act) is overbroad and cannot survive such a challenge. Indeed, content-based regulations like this one are presumptively invalid abridgments of the freedom of speech. See R. A. V. v. St. Paul, Yet COPA is a major federal statute, enacted in the wake of our previous determination that its predecessor violated the First Amendment. See Congress and the President were aware of our decision, and we should assume that in seeking to comply with it they have given careful consideration to the constitutionality of the new enactment. For these reasons, even if this facial challenge appears to have considerable *592 merit, the Judiciary must proceed with caution and identify overbreadth with care before invalidating the Act. In this case, the District Court issued a preliminary injunction against enforcement of COPA, finding it too broad across several dimensions. The Court of affirmed, but on a different ground. COPA defines "material that is harmful to minors" by reference to "contemporary community standards," 47 U.S.
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concurring
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Ashcroft v. American Civil Liberties Union
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to minors" by reference to "contemporary community standards," 47 U.S. C. 231(e)(6) (1994 ed., Supp. V); and on the theory that these vary from place to place, the Court of held that the definition dooms the statute "without reference to its other provisions." American Civil Liberties The Court of found it unnecessary to construe the rest of the Act or address the District Court's reasoning. This single, broad proposition, stated and applied at such a high level of generality, cannot suffice to sustain the Court of ' ruling. To observe only that community standards vary across the country is to ignore the antecedent question: community standards as to what? Whether the national variation in community standards produces overbreadth requiring invalidation of COPA, see depends on the breadth of COPA's coverage and on what community standards are being invoked. Only by identifying the universe of speech burdened by COPA is it possible to discern whether national variation in community standards renders the speech restriction overbroad. In short, the ground on which the Court of relied cannot be separated from those that it overlooked. The statute, for instance, applies only to "communication for commercial purposes." 47 U.S. C. 231(e)(2)(A). The Court of however, did not consider the amount of commercial communication, the number of commercial speakers, or the character of commercial speech covered by the Act. Likewise, the statute's definition of "harmful to minors" requires material to be judged "as a whole." 231(e)(6)(C). The notion of judging work as a whole is *593 familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites. Some examination of the group of covered speakers and the categories of covered speech is necessary in order to comprehend the extent of the alleged overbreadth. The Court of found that COPA in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one, but it alone cannot suffice to invalidate COPA without careful examination of the speech and the speakers within the ambit of the Act. For this reason, I join the judgment of the Court vacating the opinion of the Court of and remanding for consideration of the statute as a whole. Unlike Justice Thomas, however, I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic.
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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https://www.courtlistener.com/opinion/118503/ashcroft-v-american-civil-liberties-union/
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enough to render the national variation in community standards unproblematic. Indeed, if the District Court correctly construed the statute across its other dimensions, then the variation in community standards might well justify enjoining enforcement of the Act. I would leave that question to the Court of in the first instance. II COPA provides a three-part conjunctive definition of "material that is harmful to minors." The first part of the definition is that "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, [that it] is designed to appeal to, or is designed to pander to, the prurient interest." 47 U.S. C. 231(e)(6)(A). (The parties agree that the second part of the definition, 231(e)(6)(B), likewise invokes contemporary community standards, though only implicitly. See ante, at 576, n. 7.) The nub of the problem is, as the Court has said, that "the `community standards' criterion as applied to the Internet means that any communication available to *594 a nationwide audience will be judged by the standards of the community most likely to be offended by the message." -878. If material might be considered harmful to minors in any community in the United States, then the material is covered by COPA, at least when viewed in that place. This observation was the linchpin of the Court of ' analysis, and we must now consider whether it alone suffices to support the holding below. The quoted sentence from was not casual dicta; rather, it was one rationale for the holding of the case. In the Court found "[t]he breadth of [COPA's predecessor] wholly unprecedented," in part because of variation in community standards. The Court also relied on that variation to assess the strength of the Government's interest, which it found "not equally strong throughout the coverage of this broad statute." The Court illustrated the point with an example: A parent who e-mailed birth control information to his 17-year-old child at college might violate the Act, "even though neither he, his child, nor anyone in their home community found the material `indecent' or `patently offensive,' if the college town's community thought otherwise." Variation in community standards rendered the statute broader than the scope of the Government's own expressed compelling interest. It is true, as Justice Thomas points out, ante, at 580-583, that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See ; Communications of Cal., These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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the one before us, because each mode of expression has its own unique characteristics, and each "must be assessed for First Amendment purposes by standards suited to it." Southeastern Promotions, Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." Red Lion Broadcasting The economics and the technology of each medium affect both the burden of a speech restriction and the Government's interest in maintaining it. In this case the District Court found as a fact that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community." American Civil Liberties By contrast, in upholding a ban on obscene phone messages, we emphasized that the speaker could "hire operators to determine the source of the calls or engag[e] with the telephone company to arrange for the screening and blocking of out-of-area calls or fin[d] another means for providing messages compatible with community standards." And if we did not make the same point in that is likely because it is so obvious that mailing lends itself to geographic restriction. (The Court has had no occasion to consider whether venue would be proper in "every hamlet into which [obscene mailings] may wander," for the petitioners in did not challenge the statute as overbroad on its face.) A publisher who uses the mails can choose the location of his audience. The economics and technology of Internet communication differ in important ways from those of telephones and mail. Paradoxically, as the District Court found, it is easy and cheap to reach a worldwide audience on the Internet, see but expensive if not impossible to reach a geographic subset, at A Web publisher in a community where avant garde culture is the norm may have no *596 desire to reach a national market; he may wish only to speak to his neighbors; nevertheless, if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web. And it is no answer to say that the speaker should "take the simple step of utilizing a [different] medium." Ante, at 583 (principal opinion of Thomas, J.). "Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression [T]he danger they pose to the freedom
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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https://www.courtlistener.com/opinion/118503/ashcroft-v-american-civil-liberties-union/
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medium of expression [T]he danger they pose to the freedom of speech is readily apparentby eliminating a common means of speaking, such measures can suppress too much speech." City of Justice Breyer would alleviate the problem of local variation in community standards by construing the statute to comprehend the "Nation's adult community taken as a whole," rather than the local community from which the jury is drawn. Ante, at 589 (opinion concurring in part and concurring in judgment); see also ante, at 586-589 (O'Connor, J., concurring in part and concurring in judgment). There is one statement in a House Committee Report to this effect, "reflecting," Justice Breyer writes, "what apparently was a uniform view within Congress." Ante, at 590. The statement, perhaps, reflects the view of a majority of one House committee, but there is no reason to believe that it reflects the view of a majority of the House of Representatives, let alone the "uniform view within Congress." In any event, we need not decide whether the statute invokes local or national community standards to conclude that vacatur and remand are in order. If the statute does incorporate some concept of national community standards, the actual standard applied is bound to vary by community nevertheless, as the Attorney General concedes. See ante, at 577 (principal opinion of Thomas, J.); Brief for Petitioner 39. *597 For this reason the Court of was correct to focus on COPA's incorporation of varying community standards; and it may have been correct as well to conclude that in practical effect COPA imposes the most puritanical community standard on the entire country. We have observed that it is "neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." On the other hand, it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York. "People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." In striking down COPA's predecessor, the Court identified this precise problem, and if the and Courts did not find the problem fatal, that is because those cases involved quite different media. The national variation in community standards constitutes a particular burden on Internet speech. III The question that remains is whether this observation "by itself" suffices to enjoin the Act. See ante, at 585. I agree with the Court
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Justice O'Connor
| 2,002 | 14 |
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Ashcroft v. American Civil Liberties Union
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Act. See ante, at 585. I agree with the Court that it does not. We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the variations in community standards with respect to that speech. First, the breadth of the Act itself will dictate the degree of overbreadth caused by varying community standards. Indeed, Justice Thomas sees this point and uses it in an attempt to distinguish the Communications Decency Act of 1996, which was at issue in See ante, at 577-578 ("The CDA's use of community standards to identify patently *598 offensive material, however, was particularly problematic in light of that statute's unprecedented breadth and vagueness"); ante, at 578 ("The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country"). To explain the ways in which COPA is narrower than the CDA, Justice Thomas finds that he must construe sections of COPA elided by the Court of Though I agree with the necessity for doing so, Justice Thomas' interpretationundertaken without substantial arguments or briefingis not altogether persuasive, and I would leave this task to the Court of in the first instance. As this case comes to us, once it is accepted that we cannot strike down the Act based merely on the phrase "contemporary community standards," we should go no further than to vacate and remand for a more comprehensive analysis of the Act. Second, community standards may have different degrees of variation depending on the question posed to the community. Defining the scope of the Act, therefore, is not relevant merely to the absolute number of Web pages covered, as Justice Stevens suggests, post, at 609-610 ; it is also relevant to the proportion of overbreadth, "judged in relation to the statute's plainly legitimate sweep," 413 U. S., at Because this issue was "virtually ignored by the parties and the amicus" in the Court of we have no information on the question. Instead, speculation meets speculation. On the one hand, the Court of found "no evidence to suggest that adults everywhere in America would share the same standards for determining what is harmful to minors." On the other hand, Justice Thomas finds "no reason to believe that the practical effect of varying community standards under COPA is significantly greater than the practical effect of varying community standards under federal obscenity statutes." Ante, at 583-584. When a key issue has "no evidence" on one side and "no reason to believe" *599 the other, it is a good indication that we
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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*599 the other, it is a good indication that we should vacate for further consideration. The District Court attempted a comprehensive analysis of COPA and its various dimensions of potential overbreadth. The Court of however, believed that its own analysis of "contemporary community standards" obviated all other concerns. It dismissed the District Court's analysis in a footnote: "[W]e do not find it necessary to address the District Court's analysis of the definition of `commercial purposes'; whether the breadth of the forms of content covered by COPA could have been more narrowly tailored; whether the affirmative defenses impose too great a burden on Web publishers or whether those affirmative defenses should have been included as elements of the crime itself; whether COPA's inclusion of criminal as well as civil penalties was excessive; whether COPA is designed to include communications made in chat rooms, discussion groups and links to other Web sites; whether the government is entitled to so restrict communications when children will continue to be able to access foreign Web sites and other sources of material that is harmful to them; what taken `as a whole' should mean in the context of the Web and the Internet; or whether the statute's failure to distinguish between material that is harmful to a six year old versus a sixteen year old is problematic." 217 F.3d, at n. 19. As I have explained, however, any problem caused by variation in community standards cannot be evaluated in a vacuum. In order to discern whether the variation creates substantial overbreadth, it is necessary to know what speech COPA regulates and what community standards it invokes. It is crucial, for example, to know how limiting is the Act's limitation to "communication for commercial purposes." 47 U.S. C. 231(e)(2)(A). In we remarked that COPA's *600 predecessor was so broad in part because it had no such 521 U.S., COPA, by contrast, covers a speaker only if: "the person who makes a communication or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." 47 U.S. C. 231(e)(2)(B). So COPA is narrower across this dimension than its predecessor; but how much narrower is a
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Justice O'Connor
| 2,002 | 14 |
concurring
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Ashcroft v. American Civil Liberties Union
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https://www.courtlistener.com/opinion/118503/ashcroft-v-american-civil-liberties-union/
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dimension than its predecessor; but how much narrower is a matter of debate. In the District Court, the Attorney General contended that the Act applied only to professional panderers, but the court rejected that contention, finding "nothing in the text of the COPA that limits its applicability to so-called commercial pornographers only." Indeed, the plain text of the Act does not limit its scope to pornography that is offered for sale; it seems to apply even to speech provided for free, so long as the speaker merely hopes to profit as an indirect result. The statute might be susceptible of some limiting construction here, but again the Court of did not address itself to this question. The answer affects the breadth of the Act and hence the significance of any variation in community standards. Likewise, it is essential to answer the vexing question of what it means to evaluate Internet material "as a whole," 47 U.S. C. 231(e)(6)(A), (C), when everything on the Web is connected to everything else. As a general matter, "[t]he artistic merit of a work does not depend on the presence of a single explicit scene. [T]he First Amendment requires *601 that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive." Ashcroft v. Free Speech Coalition, ante, at 248. COPA appears to respect this principle by requiring that the material be judged "as a whole," both as to its prurient appeal, 231(e)(6)(A), and as to its social value, 231(e)(6)(C). It is unclear, however, what constitutes the denominatorthat is, the material to be taken as a wholein the context of the World Wide Web. See ; at Several of the respondents operate extensive Web sites, some of which include only a small amount of material that might run afoul of the Act. The Attorney General contended that these respondents had nothing to fear from COPA, but the District Court disagreed, noting that the Act prohibits communication that "includes" any material harmful to minors. 231(a)(1). In the District Court's view, "it logically follows that [COPA] would apply to any Web site that contains only some harmful to minors material." The denominator question is of crucial significance to the coverage of the Act. Another issue is worthy of mention, because it too may inform whether the variation in community standards renders the Act substantially overbroad. The parties and the Court of did not address the question of venue, though it
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Ashcroft v. American Civil Liberties Union
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https://www.courtlistener.com/opinion/118503/ashcroft-v-american-civil-liberties-union/
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of did not address the question of venue, though it would seem to be bound up with the issue of varying community standards. COPA does not address venue in explicit terms, so prosecution may be proper "in any district in which [an] offense was begun, continued, or completed." 18 U.S. C. 37(a). The Act's prohibition includes an interstate *602 commerce element, 47 U.S. C. 231(a)(1), and "[a]ny offense involving interstate commerce may be inquired of and prosecuted in any district from, through, or into which such commerce moves." 18 U.S. C. 37(a). In the context of COPA, it seems likely that venue would be proper where the material originates or where it is viewed. Whether it may be said that a Web site moves "through" other venues in between is less certain. And since, as discussed above, juries will inevitably apply their own community standards, the choice of venue may be determinative of the choice of standard. The more venues the Government has to choose from, the more speech will be chilled by variation across communities. IV In summary, the breadth of the Act depends on the issues discussed above, and the significance of varying community standards depends, in turn, on the breadth of the Act. The Court of was correct to focus on the national variation in community standards, which can constitute a substantial burden on Internet communication; and its ultimate conclusion may prove correct. There may be grave doubts that COPA is consistent with the First Amendment; but we should not make that determination with so many questions unanswered. The Court of should undertake a comprehensive analysis in the first instance.
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Justice Souter
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majority
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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Section 1291 of the Judicial Code confines appeals as of right to those from "final decisions of the district courts." 28 U.S. C. 1291. This case raises the question whether an order vacating a dismissal predicated on the parties' settlement agreement is final as a collateral order even without a district court's resolution of the underlying cause of action. See We hold that an order denying effect to a settlement agreement does not come within the narrow ambit of collateral orders. I Respondent, Desktop Direct, Inc. (Desktop), sells computers and like equipment under the trade name "Desktop Direct." Petitioner, Digital Equipment Corporation, is engaged in a similar business and in late began using that trade name to market a new service it called "Desktop Direct from Digital." In response, Desktop filed this action in the *8 United States District Court for the District of Utah, charging Digital with unlawful use of the Desktop Direct name. Desktop sent Digital a copy of the complaint, and negotiations between officers of the two corporations ensued. Under a confidential settlement reached on March 25, Digital agreed to pay Desktop a sum of money for the right to use the "Desktop Direct" trade name and corresponding trademark, and for waiver of all damages and dismissal of the suit. That same day, Desktop filed a notice of dismissal in the District Court. Several months later, Desktop moved to vacate the dismissal and rescind the settlement agreement, alleging misrepresentation of material facts during settlement negotiations. The District Court granted the motion, concluding "that a fact finder could determine that [Digital] failed to disclose material facts to [Desktop] during settlement negotiations which would have resulted in rejection of the settlement offer." App. to Pet. for Cert. 13a. After the District Court declined to reconsider that ruling or stay its order vacating dismissal, Digital appealed. The Court of Appeals for the Tenth Circuit dismissed the appeal for lack of jurisdiction, holding that the District Court order was not appealable under 1291, because it neither "end[ed] the litigation on the merits" nor "[fell] within the long-recognized `collateral order' exception to the final judgment requirement." Applying the three-pronged test for determining when "collateral order" appeal is allowed, see Coopers & the Court of Appeals concluded that any benefits claimed under the settlement agreement were insufficiently "important" to warrant the immediate appeal as of right. Although Digital claimed what it styled a "right not to go to trial," the court reasoned that any such privately negotiated right as Digital sought to vindicate was different in kind from an immunity rooted in an
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Justice Souter
| 1,994 | 20 |
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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was different in kind from an immunity rooted in an explicit constitutional or statutory provision or "compelling *87 public policy rationale," the denial of which has been held to be immediately appealable. 993 F. 2d, -70.[1] The Tenth Circuit recognized that it was thus deviating from the rule followed in some other Courts of Appeals, see ; ; ; but see Transtech Industries, cert. pending, No. 93-90. We granted certiorari, to resolve this conflict and now affirm. II A The collateral order doctrine is best understood not as an exception to the "final decision" rule laid down by Congress in 1291, but as a "practical construction" of it, at ; see, e. g., Coopers & We have repeatedly held that the statute entitles a party to appeal not only from a district court decision that "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment," but also from a narrow class of decisions that do not terminate the litigation, but must, in the interest of "achieving a healthy legal system," cf. nonetheless be treated as "final." The latter category comprises only those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action. See generally Coopers & Immediate appeals from such orders, we have explained, *88 do not go against the grain of 1291, with its object of efficient administration of justice in the federal courts, see generally But we have also repeatedly stressed that the "narrow" exception should stay that way and never be allowed to swallow the general rule, that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated, see United We have accordingly described the conditions for collateral order appeal as stringent, see, e. g., Midland and have warned that the issue of appealability under 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a "particular injustic[e]" averted, Van by a prompt appellate court decision. See also (this Court "has expressly rejected efforts to reduce the finality requirement of 1291 to a case-by-case [appealability] determination"); B Here, the Court of Appeals accepted Digital's claim that the order vacating dismissal (and so rescinding the settlement agreement) was the "final word on the subject addressed,"
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Justice Souter
| 1,994 | 20 |
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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settlement agreement) was the "final word on the subject addressed," 993 F. 2d, at (citation omitted), and held the second condition, separability, to be satisfied, as well. Neither conclusion is beyond question,[2] but each is best left *89 untouched here, both because Desktop has made no serious effort to defend the Court of Appeals' judgment on those points and because the failure to meet the third condition of the test, that the decision on an "important" question be "effectively unreviewable" upon final judgment, would in itself suffice to foreclose immediate appeal under 1291.[3] Turning to these dispositive factors, we conclude, despite Digital's position that it holds a "right not to stand trial" requiring protection by way of immediate appeal, that rights under private settlement agreements can be adequately vindicated on appeal from final judgment. C The roots of Digital's argument that the settlement with Desktop gave it a "right not to stand trial altogether" (and that such a right per se satisfies the third requirement) are readily traced to where we held that 1291 entitles a criminal defendant to appeal an adverse ruling on a double jeopardy claim, without waiting for the conclusion of his trial. After holding the second requirement satisfied by the distinction between the former jeopardy claim and the question of guilt to be resolved at trial, we emphasized that the Fifth Amendment not only secures the right to be free from multiple *870 punishments, but by its very terms embodies the broader principle, "`deeply ingrained in the Anglo-American system of jurisprudence,' " that it is intolerable for "`the State, with all its resources to make repeated attempts to convict an individual [defendant], thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.' " -2 ). We found that immediate appeal was the only way to give "full protection" to this constitutional right "not to face trial at all." and n. 7; see also (decision denying immunity under the Speech and Debate Clause would be appealable under 1291). `s rationale was applied in where we held to be similarly appealable an order denying the petitioner absolute immunity from suit for civil damages arising from actions taken while petitioner was President of the United States. Seeing this immunity as a "functionally mandated incident of the President's unique office, rooted in the separation of powers and supported by our history," we stressed that it served "compelling public ends," and would be irretrievably lost if the former President were not allowed an immediate appeal to vindicate this right to
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Justice Souter
| 1,994 | 20 |
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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not allowed an immediate appeal to vindicate this right to be free from the rigors of trial, see Next, in we held that similar considerations supported appeal under 1291 from decisions denying government officials qualified immunity from damages suits. An "essential attribute," of this freedom from suit for past conduct not violative of clearly established law, we explained, is the "entitlement not to stand trial or face the other burdens of litigation," one which would be "effectively lost if a case [were] erroneously permitted to go to trial," Echoing the reasoning of ), we explained that requiring an official with a colorable immunity claim to defend a suit for damages would be "peculiarly disruptive of effective government," and would work the very "distraction from dut[y], inhibition of discretionary action, and deterrence of able people from public service" that qualified immunity was meant to avoid. See 472 U. S., ; see also Puerto Rico Aqueduct and Sewer (State's Eleventh Amendment immunity from suit in federal court may be vindicated by immediate appeal under 1291). D Digital puts this case on all fours with Mitchell. It maintains that it obtained dual rights under the settlement agreement with Desktop, not only a broad defense to liability but the "right not to stand trial," the latter being just like the qualified immunity held immediately appealable in Mitchell. As in Mitchell, that right must be enforceable on collateral order appeal, Digital asserts, or an adverse trial ruling will destroy it forever. While Digital's argument may exert some pull on a narrow analysis, it does not hold up under the broad scrutiny to which all claims of immediate appealability under 1291 must be subjected. To be sure, and Mitchell are fairly cited for the proposition that orders denying certain immunities are strong candidates for prompt appeal under 1291. But Digital's larger contention, that a party's ability to characterize a district court's decision as denying an irreparable "right not to stand trial" altogether is sufficient as well as necessary for a collateral order appeal, is neither an accurate distillation of our case law nor an appealing prospect for adding to it. Even as they have recognized the need for immediate appeals under 1291 to vindicate rights that would be "irretrievably lost," if review *872 were confined to final judgments only, our cases have been at least as emphatic in recognizing that the jurisdiction of the courts of appeals should not, and cannot, depend on a party's agility in so characterizing the right asserted. This must be so because the strong bias of 1291 against piecemeal appeals almost
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Digital Equipment Corp. v. Desktop Direct, Inc.
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because the strong bias of 1291 against piecemeal appeals almost never operates without some cost. A fully litigated case can no more be untried than the law's proverbial bell can be unrung, and almost every pretrial or trial order might be called "effectively unreviewable" in the sense that relief from error can never extend to rewriting history. Thus, erroneous evidentiary rulings, grants or denials of attorney disqualification, see, e. g., and restrictions on the rights of intervening parties, see may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment, cf. ; ; and other errors, real enough, will not seem serious enough to warrant reversal at all, when reviewed after a long trial on the merits, see In still other cases, see Coopers & an erroneous district court decision will, as a practical matter, sound the "death knell" for many plaintiffs' claims that might have gone forward if prompt error correction had been an option. But if immediate appellate review were available every such time, Congress's final decision rule would end up a pretty puny one, and so the mere identification of some interest that would be "irretrievably lost" has never sufficed to meet the third requirement. See generally Lauro ); *873 Nor does limiting the focus to whether the interest asserted may be called a "right not to stand trial" offer much protection against the urge to push the 1291 limits. We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a "right not to stand trial," see, e. g., Midland ; Van Allowing immediate appeals to vindicate every such right would move 1291 aside for claims that the district court lacks personal jurisdiction, see Van that the statute of limitations has run, see 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3918.5, and n. 5, p. 521 that the movant has been denied his Sixth Amendment right to a speedy trial, see that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case, see generally ; United 458 U. S., at and it would be no consolation that a party's meritless summary judgment motion or res judicata claim was rejected on immediate appeal; the damage to the efficient and congressionally mandated allocation of judicial responsibility
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Justice Souter
| 1,994 | 20 |
majority
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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to the efficient and congressionally mandated allocation of judicial responsibility would be done, and any improper purpose the appellant might have had in saddling its opponent with cost and delay would be accomplished. Cf. Thus, precisely because candor forces us to acknowledge that there is no single, "obviously correct way to characterize" an asserted right, Lauro we have held that 1291 requires courts of appeals to view claims of a "right not to be tried" with skepticism, if not a jaundiced eye. Cf. Van *874 In Midland for example, we had no trouble in dispatching a defendant's claim of entitlement to an immediate appeal from an order denying dismissal for alleged violation of Federal Rule of Criminal Procedure (e), forbidding disclosure of secret grand jury information. Noting "`a crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges,' " quoting Hollywood Motor we observed that Rule (e) "contains no hint," of an immunity from trial,and we contrasted that Rule with the Fifth Amendment's express provision that "[n]o person shall be held to answer" for a serious crime absent grand jury indictment. Only such an "explicit statutory or constitutional guarantee that trial will not occur," we suggested, could be grounds for an immediate appeal of right under 1291.[4] The characterization issue surfaced again (and more ominously for Digital, see infra, at 880) in Lauro where a defendant sought to appeal under 1291 from an order denying effect to a contractual provision that a Neapolitan court would be the forum for trying all disputes arising from the parties' cruise-ship agreement. While we realized of course that the value of the forum-selection clause would be diminished if the defendant could be tried before appealing, we saw the contractual right to limit trial to an Italian forum as "different in kind" from the entitlement to "avoid *875 suit altogether" that and Mitchell held could be "adequately vindica[ted]" only on immediate E As Digital reads the cases, the only things standing in the way of an appeal to perfect its claimed rights under the settlement agreement are the lone statement in Midland to the effect that only explicit statutory and constitutional immunities may be appealed immediately under 1291, and language (said to be stray) repeated in many of our collateral order decisions, suggesting that the "importance" of the right asserted is an independent condition of appealability. See Brief for Petitioner 28-34. The first, Digital explains, cannot be reconciled with Mitchell `s holding, that denial of qualified immunity (which we would be hard pressed to call "explicitly
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| 1,994 | 20 |
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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immunity (which we would be hard pressed to call "explicitly guarantee[d]" by a particular constitutional or statutory provision) is a collateralorder under 1291; as between Mitchell and the Midland dictum, Digital says, the dictum must give way. As for the second obstacle, Digital adamantly maintains that "importance" has no place in a doctrine justified as supplying a gloss on Congress's "final decision" language. 1 These arguments miss the mark. First, even if Mitchell could not be squared fully with the literal words of the Midland sentence (but cf. Lauro 490 U. S., at noting that Midland was a criminal case and Mitchell was not), that would be only because the qualified immunity right is inexplicit, not because it lacks a good pedigree in public law. Indeed, the insight that explicitness may not be needed for jurisdiction consistent with 1291 only leaves Digital with the unenviable task of explaining why other rights that might fairly be said to include an (implicit) "right to avoid trial" aspect are less in need of protection by immediate review, or more readily vindicated on appeal from final *87 judgment, than the (claimed) privately negotiated right to be free from suit. It is far from clear, for example, why 1291 should bless a party who bargained for the right to avoid trial, but not a party who "purchased" the right by having once prevailed at trial and now pleads res judicata, see In re Corrugated Container Antitrust ; or a party who seeks shelter under the statute of limitations, see, e. g., United which is usually understood to secure the same sort of "repose" that Digital seeks to vindicate here, see Brief for Petitioner 25; or a party not even subject to a claim on which relief could be granted. See also ; Firestone Tire & Rubber v. Risjord, Digital answers that the status under 1291 of these other (seemingly analogous) rights should not give us pause, because the text and structure of this particular settlement with Desktop confer what no res judicata claimant could ever have, an express right not to stand trial.[5] But we cannot attach much significance one way or another to the supposed clarity of the agreement's terms in this case. To ground a ruling here on whether this settlement agreement in terms confers the prized "right not to stand trial" (a point Desktop by no means concedes) would flout our own frequent admonitions, see, e. g., Van 48 U. S., at that availability of collateral order appeal must be determined at *877 a higher level of generality. Indeed, just because it
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Justice Souter
| 1,994 | 20 |
majority
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Digital Equipment Corp. v. Desktop Direct, Inc.
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https://www.courtlistener.com/opinion/1087952/digital-equipment-corp-v-desktop-direct-inc/
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*877 a higher level of generality. Indeed, just because it would be the rare settlement agreement that could not be construed to include (at least an implicit) freedom-from-trial "aspect," we decide this case on the assumption that if Digital prevailed here, any district court order denying effect to a settlement agreement could be appealed immediately. (And even if form were held to matter, settlement agreements would all include "immunity from suit" language a good deal plainer than what Digital relies on here, see Tr. of Oral Arg. 44.) See also Van[] 2 The more fundamental response, however, to the claim that an agreement's provision for immunity from trial can *878 distinguish it from other arguable rights to be trial free is simply that such a right by agreement does not rise to the level of importance needed for recognition under 1291. This, indeed, is the bone of the fiercest contention in the case. In disparaging any distinction between an order denying a claim grounded on an explicit constitutional guarantee of immunity from trial and an order at odds with an equally explicit right by private agreement of the parties, Digital stresses that the relative "importance" of these rights, heavily relied upon by the Court of Appeals, is a rogue factor. No decision of this Court, Digital maintains, has held an order unappealable as "unimportant" when it has otherwise met the three requirements, and whether a decided issue is thought "important," it says, should have no bearing on whether it is "final" under 1291. If "finality" were as narrow a concept as Digital maintains, however, the Court would have had little reason to go beyond the first factor in see also United ("`Final' is not a clear one-purpose word"). And if "importance" were truly aberrational, we would not find it featured so prominently in the opinion itself, which describes the "small class" of immediately appealable prejudgment decisions in terms of rights that are "too important to be denied review" right away, see 337 U. S., at To be sure, Digital may validly question whether "importance" is a factor "beyond" the three conditions or whether it is best considered, as we have sometimes suggested it should be, in connection with the second, "separability," requirement, see, e. g., Coopers & 437 U. S., ; Lauro but neither enquiry could lead to the conclusion that "importance" is itself unimportant. To the contrary, the third question, whether a right is "adequately vindicable" or "effectively reviewable," simply cannot be answered without a judgment about the value of the interests that would be lost *879 through rigorous
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Digital Equipment Corp. v. Desktop Direct, Inc.
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of the interests that would be lost *879 through rigorous application of a final judgment requirement. See generally Van (quoting 435 U. S., at ); Lauro While there is no need to decide here that a privately conferred right could never supply the basis of a collateral order appeal, but cf. n. 7, infra (discussing 9 U.S. C. 1), there are surely sound reasons for treating such rights differently from those originating in the Constitution or statutes. When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its "importance." Including a provision in a private contract, by contrast, is barely a prima facie indication that the right secured is "important" to the benefited party (contracts being replete with boilerplate), let alone that its value exceeds that of other rights not embodied in agreements (e. g., the right to be free from a second suit based on a claim that has already been litigated), or that it qualifies as "important" in `s sense, as being weightier than the societal interests advanced by the ordinary operation of final judgment principles. Where statutory and constitutional rights are concerned, "irretrievabl[e] los[s]" can hardly be trivial, and the collateral order doctrine might therefore be understood as reflecting the familiar principle of statutory construction that, when possible, courts should construe statutes (here 1291) to foster harmony with other statutory and constitutional law, see, e. g., Ruckelshaus v. Monsanto ; United States ex rel. Milwaukee Social Democratic Publishing v. Burleson, But it is one thing to say that the policy of 1291 to avoid piecemeal litigation should be reconciled with policies embodied in other statutes or the Constitution, and quite another to suggest that this *880 public policy may be trumped routinely by the expectations or clever drafting of private parties.[7] Indeed, we do not take issue with the Tenth Circuit's observation that this case shares more in common with Lauro than with Mitchell. It is hard to see how, for purposes of 1291, the supposedly explicit "right not to be tried" element of the settlement agreement in this case differs from the unarguably explicit, privately negotiated "right not to be tried in any forum other than Naples, Italy," in that one. There, no less than here (if Digital reads the settlement agreement correctly), one private party secured from another a promise not to bring suit for reasons that presumably included avoiding the burden, expense, and perhaps embarrassment of a certain class of trials (all
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and perhaps embarrassment of a certain class of trials (all but Neapolitan ones or, here, all prompted by Desktop). Cf. Lauro (asserted right was "surely as effectively vindicable" on final judgment appeal as was the right in Van ).[8] The losing argument in Lauro should be a losing argument here. *881 Nor are we swayed by Digital's last-ditch effort to come within ' s sense of "importance" by trying to show that settlement-agreement "immunities" merit first-class treatment for purposes of collateral order appeal, because they advance the public policy favoring voluntary resolution of disputes. It defies common sense to maintain that parties' readiness to settle will be significantly dampened (or the corresponding public interest impaired) by a rule that a district court's decision to let allegedly barred litigation go forward may be challenged as a matter of right only on appeal from a judgment for the plaintiff's favor. III A Even, finally, if the term "importance" were to be exorcised from the analysis altogether, Digital's rights would remain "adequately vindicable" or "effectively reviewable" on final judgment to an extent that other immunities, like the right to be free from a second trial on a criminal charge, are not. As noted already, experience suggests that freedom from trial is rarely the sine qua non (or "the essence," see Van 48 U. S., ) of a negotiated settlement agreement. Avoiding the burden of a trial is no doubt a welcome incident of out-of-court dispute resolution (just as it is for parties who prevail on pretrial motions), but in the run-of-the-mill cases this boon will rarely compare with the "`embarrassment' " and "`anxiety' " averted by a successful double jeopardy claimant, see -2, or the "`distraction from dut[y],' " Mitchell, 472 *882 U. S., avoided by qualified immunity. Judged within the four corners of the settlement agreement, avoiding trial probably pales in comparison with the benefit of limiting exposure to liability (an interest that is fully vindicable on appeal from final judgment). In the rare case where a party had a special reason, apart from the generic desire to triumph early, for having bargained for an immunity from trial, e. g., an unusual interest in preventing disclosure of particular information, it may seek protection from the district court. The case for adequate vindication without immediate appeal is strengthened, moreover, by recognizing that a settling party has a source of recompense unknown to trial immunity claimants dependent on public law alone. The essence of Digital's claim here is that Desktop, for valuable consideration, promised not to sue, and we have been given no reason
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Digital Equipment Corp. v. Desktop Direct, Inc.
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not to sue, and we have been given no reason to doubt that Utah law provides for the enforcement of that promise in the same way that other rights arising from private agreements are enforced, through an action for breach of contract. See, e. g., ; see generally 5A A. Corbin, Corbin on Contracts 1251 (194); cf. ; see also and n. 2 (existence of alternative fora for vindicating asserted rights is relevant to appealability under 1291). And as for Digital's suggestion, see Brief for Petitioner 25, that Desktop is using this proceeding not to remedy a fraud but merely to renege on a promise because it now thinks it should have negotiated a better deal, when a party claims fraud or otherwise seeks recision of a settlement for such improper purposes, its opponent need not rely on a court of appeals for protection. See *883 Fed. Rule Civ. Proc. 11 (opponent may move for sanction when litigation is motivated by an "improper purpose, such asunnecessary delay or needless increase in the cost of litigation"). B In preserving the strict limitations on review as of right under 1291, our holding should cause no dismay, for the law is not without its safety valve to deal with cases where the contest over a settlement's enforceability raises serious legal questions taking the case out of the ordinary run. While Digital's insistence that the District Court applied a fundamentally wrong legal standard in vacating the dismissal order here may not be considered in deciding appealability under 1291, see n. it plainly is relevant to the availability of the discretionary interlocutory appeal from particular district court orders "involv[ing] a controlling question of law as to which there is substantial ground for difference of opinion," provided for in 1292(b) of Title 28. Indeed, because we suppose that a defendant's claimed entitlement to a privately negotiated "immunity from suit" could in some instances raise "a controlling question of law [which] may materially advance the ultimate termination of the litigation," the discretionary appeal provision (allowing courts to consider the merits of individual claims) would seem a better vehicle for vindicating serious contractual interpretation claims than the blunt, categorical instrument of 1291 collateral order See Van 48 U. S., at -530 ; Coopers & -475.[9] *884 IV The words of 1291 have long been construed to recognize that certain categories of prejudgment decisions exist for which it is both justifiable and necessary to depart from the general rule, that "the whole case and every matter in controversy in it [must be] decided in a single " 141 U.S.
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A federal statute prohibits States from attaching a lien on the property of a Medicaid beneficiary to recover ben- efits paid by the State on the beneficiary’s behalf. 42 U.S. C. The anti-lien provision pre-empts a State’s effort to take any portion of a Medicaid benefi- ciary’s tort judgment or settlement not “designated as pay- ments for medical care.” Arkansas Dept. of Health and Human North Carolina has enacted a statute requiring that up to one-third of any damages recovered by a beneficiary for a tortious injury be paid to the State to reimburse it for pay- ments it made for medical treatment on account of the in- jury. See N. C. Gen. Stat. Ann. (Lexis 2011); –605, 669 S.E.2d 310, 314 (2008). The question presented is whether the North Carolina statute is compatible with the federal anti- lien provision. 2 WOS v. E. M. A. Opinion of the Court I When respondent E. M. A. was born in February 2000, she suffered multiple serious birth injuries which left her deaf, blind, and unable to sit, walk, crawl, or talk. The injuries also cause her to suffer from mental retardation and a seizure disorder. She requires between 12 and 18 hours of skilled nursing care per day. She will not be able to work, live independently, or provide for her basic needs. The cost of her ongoing medical care is paid in part by the State of North Carolina’s Medicaid program. In February 2003, E. M. A. and her parents filed a medical malpractice suit in North Carolina state court against the physician who delivered E. M. A. at birth and the hospital where she was born. The expert witnesses for E. M. A. and her parents in that proceeding estimated damages in excess of $42 million for medical and life-care expenses, loss of future earning capacity, and other as- sorted expenses such as architectural renovations to their home and specialized transportation equipment. App. 91– 112. By far the largest part of this estimate was for “Skilled Home Care,” totaling more than $37 million over E. M. A.’s lifetime. E. M. A. and her parents also sought damages for her pain and suffering and for her parents’ emotional distress. at 64–65, 67–68, 72–73, 75–76. Their experts did not estimate the damages in these last two categories. Assisted by a mediator, the parties began settlement negotiations. E. M. A. and her parents informed the North Carolina Department of Health and Human Services of the negotiations. The department had a statutory right to intervene in the malpractice suit and participate in the
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to intervene in the malpractice suit and participate in the settlement negotiations in order to obtain reimbursement for the medical expenses it paid on E. M. A.’s behalf, up to one-third of the total recovery. See N. C. Gen. Stat. Ann. §, 108A–59. It elected not to do so, though its representative informed E. M. A. and her parents that the Cite as: 568 U. S. (2013) 3 Opinion of the Court State’s Medicaid program had expended $1.9 million for E. M. A.’s medical care, which it would seek to recover from any tort judgment or settlement. In November 2006, the court approved a $2.8 million settlement. The amount, apparently, was dictated in large part by the policy limits on the defendants’ medical mal- practice insurance coverage. See Brief for Respondents 5. The settlement agreement did not allocate the money among the different claims E. M. A. and her parents had advanced. In approving the settlement the court placed one-third of the $2.8 million recovery into an interest- bearing escrow account “until such time as the actual amount of the lien owed by [E. M. A.] to [the State] is con- clusively judicially determined.” App. 87. E. M. A. and her parents then filed this action under Rev. Stat. 42 U.S. C. in the United States District Court for the Western District of North Carolina. They sought declaratory and injunctive relief, arguing that the State’s reimbursement scheme violated the Medi- caid anti-lien provision, While that litiga- tion was pending, the North Carolina Supreme Court con- fronted the same question in It held that the irrebuttable statutory presumption that one-third of a Medicaid beneficiary’s tort recovery is attributable to medical expenses was “a reasonable method for determin- ing the State’s medical reimbursements.” S. E. 2d, at 314. The United States District Court, in the instant case, agreed. Armstrong v. Cansler, 722 F. Supp. 2d 653 (2010). The Court of Appeals for the Fourth Circuit vacated and remanded. E. M. It concluded that North Carolina’s statutory scheme could not be reconciled with “’s clear holding that the general anti-lien provision in federal Medicaid law prohib- its a state from recovering any portion of a settlement or judgment not attributable to medical expenses.” at 4 WOS v. E. M. A. Opinion of the Court 310. In some cases, the court reasoned, the actual portion of a beneficiary’s tort recovery representing payment for medical care would be less than one-third. North Caro- lina’s statutory presumption that one-third of a tort recov- ery is attributable to medical expenses therefore must be “subject to adversarial testing”
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to medical expenses therefore must be “subject to adversarial testing” in a judicial or administra- tive proceeding. To resolve the conflict between the opinion of the Court of Appeals in this case and the decision of the North Caro- lina Supreme Court in this Court granted certio- rari. 567 U. S. II At issue is the interaction between certain provisions of the federal Medicaid statute and state law. Congress has directed States, in administering their Medicaid programs, to seek reimbursement for medical expenses incurred on behalf of beneficiaries who later recover from third-party tortfeasors. States must require beneficiaries “to assign the State any rights to support (specified as support for the purpose of medical care by a court or administra- tive order) and to payment for medical care from any third party.” 42 U.S. C. States receiving Medi- caid funds must also “ha[ve] in effect laws under which, to the extent that payment has been made under the State plan for med- ical assistance for health care items or services fur- nished to an individual, the State is considered to have acquired the rights of such individual to pay- ment by any other party for such health care items or services.” A separate provision of the Medicaid statute, however, exists in some tension with these requirements. It says that, with exceptions not relevant here, “[n]o lien may be imposed against the property of any individual prior to his Cite as: 568 U. S. (2013) 5 Opinion of the Court death on account of medical assistance paid or to be paid on his behalf under the State plan.” In the Court addressed this tension and held that the Medicaid statute sets both a floor and a ceiling on a State’s potential share of a beneficiary’s tort recovery. Federal law requires an assignment to the State of “the right to recover that portion of a settlement that repre- sents payments for medical care,” but it also “precludes attachment or encumbrance of the remainder of the set- tlement.” This is so because the beneficiary has a property right in the proceeds of the settlement, bringing it within the ambit of the anti-lien provision. That property right is subject to the specific statutory “exception” requiring a State to seek reimbursement for medical expenses paid on the benefi- ciary’s behalf, but the anti-lien provision protects the beneficiary’s interest in the remainder of the settlement. at A question the Court had no occasion to resolve in Ahl- born is how to determine what portion of a settlement represents payment for medical care. The parties in that
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settlement represents payment for medical care. The parties in that case stipulated that about 6 percent of respondent Ahl- born’s tort recovery (approximately $35,600 of a $550,000 settlement) represented compensation for medical care. The Court nonetheless anticipated the concern that some settlements would not include an itemized allocation. It also recognized the possibility that Medicaid beneficiaries and tortfeasors might collaborate to allocate an artificially low portion of a settlement to medical ex- penses. The Court noted that these problems could “be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.” North Carolina has attempted a different approach. Its statute provides: 6 WOS v. E. M. A. Opinion of the Court “Notwithstanding any other provisions of the law, to the extent of payments under this Part, the State, or the county providing medical assistance benefits, shall be subrogated to all rights of recovery, contractual or otherwise, of the beneficiary of this assistance The county attorney, or an attorney retained by the county or the State or both, or an attorney retained by the beneficiary of the assistance if this attorney has actual notice of payments made under this Part shall enforce this section. Any attorney retained by the beneficiary of the assistance shall, out of the proceeds obtained on behalf of the beneficiary by settlement with, judgment against, or otherwise from a third party by reason of injury or death, distribute to the Department the amount of assistance paid by the Department on behalf of or to the beneficiary, as prorated with the claims of all others having medical subrogation rights or medical liens against the amount received or recovered, but the amount paid to the Department shall not exceed one-third of the gross amount obtained or recovered.” N. C. Gen. Stat. Ann. (a). Before was decided, North Carolina and the state courts interpreted this statute to allow the State to “recover the costs of medical treatment provided even when the funds received by the [beneficiary] are not re- imbursement for medical expenses.” See also Ezell v. Grace Hospital, Inc., 631 S.E.2d 131 (per curiam). Under however, this construction of the statute is at odds with the Medicaid anti-lien provision, which “precludes attachment or encum- brance” of any portion of a settlement not “designated as payments for medical care.” 547 U.S., at Cite as: 568 U. S. (2013) 7 Opinion of the Court In response to the State advanced—and the North Carolina Supreme Court in accepted— a new interpretation of its statute. Under this interpreta- tion the
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new interpretation of its statute. Under this interpreta- tion the statute “defines ‘the portion of the settlement that represents payment for medical expenses’ as the lesser of the State’s past medical expenditures or one-third of the plaintiff ’s total recovery.” 362 N. C., at In other words, when the State’s Medicaid expenditures on behalf of a beneficiary exceed one-third of the beneficiary’s tort recovery, the statute establishes a conclusive presumption that one-third of the recovery represents compensation for medical expenses. Under this reading of the statute the presumption oper- ates even if the settlement or a jury verdict expressly allocates a lower percentage of the judgment to medical expenses. See Tr. of Oral Arg. 10, 16–17. Cf. at 602–, III A Under the Supremacy Clause, “[w]here state and federal law ‘directly conflict,’ state law must give way.” PLIVA, Inc. v. Mensing, 564 U. S. (2011) (slip op., ). The Medicaid anti-lien provision prohibits a State from making a claim to any part of a Medicaid beneficiary’s tort recovery not “designated as payments for medical care.” at North Carolina’s statute, there- fore, is pre-empted if, and insofar as, it would operate that way. And it is pre-empted for that reason. The defect in is that it sets forth no process for determining what portion of a beneficiary’s tort recovery is attributable to medical expenses. Instead, North Carolina has picked an arbitrary number—one-third—and by statutory com- mand labeled that portion of a beneficiary’s tort recovery as representing payment for medical care. Pre-emption is 8 WOS v. E. M. A. Opinion of the Court not a matter of semantics. A State may not evade the pre-emptive force of federal law by resorting to creative statutory interpretation or description at odds with the statute’s intended operation and effect. A similar issue was presented last Term, in National Meat Assn. v. Harris, 565 U. S. That case involved the pre-emptive scope of the Federal Meat In- spection Act, 21 U.S. C. et seq. The Act prohibited States from imposing “ ‘[r]equirements with respect to premises, facilities and operations’ ” at federally regulated slaughterhouses. National Meat Assn., 565 U. S., at (slip op., at 4) (quoting The State of California had enacted a law that prohibited slaughterhouses from (among other things) selling meat from nonambulatory ani- mals for human consumption. at (slip op., at 5) (citing Cal. Penal Code Ann. (West 2010)). Cali- fornia sought to defend the law on the ground that it did not regulate the activities of slaughterhouses but instead restricted what type of meat could be sold in the market- place after
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of meat could be sold in the market- place after the animals had been butchered. 565 U. S., at – (slip op., at 9–10). The Court rejected that argument. It recognized that if the argument were to prevail, “then any State could im- pose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the [Act’s] preemption provision.” at (slip op., at 10). In a pre-emption case, the Court held, a proper analysis requires consideration of what the state law in fact does, not how the litigant might choose to describe it. That reasoning controls here. North Carolina’s argu- ment, if accepted, would frustrate the Medicaid anti-lien provision in the context of tort recoveries. The argument lacks any limiting principle: If a State arbitrarily may designate one-third of any recovery as payment for medi- cal expenses, there is no logical reason why it could not Cite as: 568 U. S. (2013) 9 Opinion of the Court designate half, three-quarters, or all of a tort recovery in the same way. In the State of Arkansas, under this rationale, would have succeeded in claiming the full amount it sought from the beneficiary had it been more creative and less candid in describing the effect of its full- reimbursement law. Here the State concedes that it would be “difficult to defend” a law purporting to allocate most or all of a benefi- ciary’s tort recovery to medical expenses. Tr. of Oral Arg. 20. That is true; but, as a doctrinal matter, it is no eas- ier to defend North Carolina’s across-the-board allocation of one-third of all beneficiaries’ tort recoveries to medical ex- penses. The problem is not that it is an unreasonable ap- proximation in all cases. In some cases, it may well be a fair estimate. But the State provides no evidence to sub- stantiate its claim that the one-third allocation is reason- able in the mine run of cases. Nor does the law provide a mechanism for determining whether it is a reasonable approximation in any particular case. In some instances, no estimate will be necessary or appropriate. When there has been a judicial finding or approval of an allocation between medical and nonmedical damages—in the form of either a jury verdict, court de- cree, or stipulation binding on all parties—that is the end of the matter. was a case of this sort. All parties (including the State of Arkansas) stipulated that approxi- mately 6 percent of the plaintiff ’s settlement represented
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approxi- mately 6 percent of the plaintiff ’s settlement represented payment for medical 547 U.S., In other cases a settlement may not be reached and the judge or jury, in its findings, may make an allocation. With a stipulation or judgment under this procedure, the anti-lien provision protects from state demand the portion of a beneficiary’s tort recovery that the stipulation or judgment does not attribute to medical expenses. North Carolina’s statute, however, operates to allow the State to take one-third of the total recovery, even if a 10 WOS v. E. M. A. Opinion of the Court proper stipulation or judgment attributes a smaller per- centage to medical expenses. Consider the facts of Ahl- born. There, only $35,581.47 of the beneficiary’s settle- ment “constituted reimbursement for medical payments made.” North Carolina’s statute, had it been applied in would have allowed the State to claim $183,333.33 (one-third of the beneficiary’s $550,000 set- tlement). A conflict thus exists between North Carolina’s law and the Medicaid anti-lien provision. The instant case, to be sure, is not quite so clear cut; for there was no allocation of the settlement by either judi- cial decree or binding stipulation of the parties. But the reasoning of and the design of the federal statute contemplate that possibility. When the State and the beneficiary are unable to agree on an allocation, noted, the parties could “submi[t] the matter to a court for decision.” The facts of the present case demonstrate why anticipated that a judicial or administrative proceeding would be necessary in that situation. Of the damages stemming from the injuries E. M. A. suffered at birth, it is apparent that a quite substantial share must be allocated to the skilled home care she will require for the rest of her life. See App. 112. It also may be necessary to consider how much E. M. A. and her parents could have expected to receive as compensation for their other tort claims had the suit proceeded to trial. An irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate that a State may not demand any por- tion of a beneficiary’s tort recovery except the share that is attributable to medical expenses. B North Carolina offers responses to this reasoning, but none is persuasive. First, the State asserts that it is doing nothing more Cite as: 568 U. S. (2013) 11 Opinion of the Court than what said it could do: “adop[t] special rules and procedures for allocating tort settlements.” 547 U.S., n. 18. This misreads There the Court, citing an amicus brief, referred to
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misreads There the Court, citing an amicus brief, referred to judicial proceedings some States had established for allocating tort settlements where necessary for insurance or tax purposes. See Brief for Association of Trial Lawyers of America, O. T. 2005, No. 04–1506, pp. 20–21 (citing Henning v. Wineman, 306 N.W.2d 550 (Minn. 1981), and ). Those examples illustrated the kind of “special rules and procedures for allocating tort settlements” that con- sidered. The decision did not endorse irrebuttable pre- sumptions that designate some arbitrary fraction of a tort judgment to medical expenses in all cases. Second, North Carolina contends that its law falls with- in the scope of a State’s traditional authority to regulate tort actions, including the amount of damages that a party may recover. This argument begins from a correct prem- ise: In our federal system, there is no question that States possess the “traditional authority to provide tort remedies to their citizens” as they see fit. But North Carolina’s law is not an exercise of the State’s general authority to regu- late its tort system. It does not limit tort plaintiffs’ ability to recover for certain types of nonmedical damages, and it does not say that medical damages are to be privileged above other damages in tort suits. All it seeks to do is to allocate the share of damages attributable to medical expenses in tort suits brought by Medicaid beneficiaries. A statute that singles out Medicaid beneficiaries in this manner cannot avoid compliance with the federal anti-lien provision merely by relying upon a connection to an area of traditional state regulation. Third, North Carolina suggests that even though its allocation of one-third of a tort recovery to medical ex- 12 WOS v. E. M. A. Opinion of the Court penses may be arbitrary, other methods for allocating a recovery would be just as arbitrary. In the State’s view there is no “ascertainable ‘true value’ of [a] case that should control what portion of any settlement is subject to the State’s third-party recovery rights.” Brief for Peti- tioner 26–27. As explained earlier, allocations, while to some extent perhaps not precise, need not be arbitrary. See at 9–10. In some cases a judgment or stipulation binding on all parties will allocate the plaintiff ’s recovery across different claims. Where no such judgment or stipu- lation exists, a fair allocation of such a settlement may be difficult to determine. Trial judges and trial lawyers, however, can find objective benchmarks to make projec- tions of the damages the plaintiff likely could have proved had the case gone to trial. In the
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have proved had the case gone to trial. In the instant case, for example, the North Carolina trial court approved the settlement only after finding that it constituted “fair and just compensation” to E. M. A. and her parents for her “severe and debilitating injuries”; for “medical and life care expenses” her condition will require; and for “severe emotional distress” from her injuries. App. 82. What portion of this lump-sum settlement constitutes “fair and just compensation” for each individual claim will depend both on how likely E. M. A. and her parents would have been to prevail on the claims at trial and how much they reasonably could have expected to receive on each claim if successful, in view of damages awarded in compa- rable tort cases. This relates to North Carolina’s fourth argument: that it would be “wasteful, time consuming, and costly” to hold “frequent mini-trials” in order to divide a settlement be- tween medical and nonmedical expenses. Brief for Peti- tioner 28. Even if that were true, it would not relieve the State of its obligation to comply with the terms of the Medicaid anti-lien provision. And it is not true as a general proposition. States have considerable latitude to Cite as: 568 U. S. (2013) 13 Opinion of the Court design administrative and judicial procedures to ensure a prompt and fair allocation of damages. Sixteen States and the District of Columbia provide for hearings of this sort, and there is no indication that they have proved bur- densome. Brief for United States as Amicus Curiae 28– 29, and n. 7. See, e.g., Cal. Welf. & Inst. Code Ann. (West 2011); –11 ; –5–117(g)–(i) ; In re E. B., Many of these States have established rebuttable pre- sumptions and adjusted burdens of proof to ensure that speculative assessments of a plaintiff ’s likely recovery do not defeat the State’s right to recover medical costs, a concern North Carolina raises. See, e.g., Haw. Rev. Stat. (2011 Cum. Supp.) (rebuttable presumption of a one-third allocation); Mass. Gen. Laws, ch. 118E, (West 2010) (rebuttable presumption of full reimburse- ment); Okla. Stat., Tit. 63, (West 2011) (rebuttable presumption of full reimbursement, “unless a more limited allocation of damages to medical expenses is shown by clear and convincing evidence”). Without hold- ing that these rules are necessarily compliant with the federal statute, it can be concluded that they are more accurate than the procedure North Carolina has enacted. The task of dividing a tort settlement is a familiar one. In a variety of settings, state and federal courts are called upon to separate
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settings, state and federal courts are called upon to separate lump-sum settlements or jury awards into categories to satisfy different claims to a portion of the moneys recovered. See See also, e.g., 867–868 (CA5 2007) (separation of compensatory from noncompensatory damages for tax purposes); Donnel v. United States, 50 Fed. Cl. 375, 386–387 (2001) (separation of employee severance bonus from other payments for tax purposes); In re Harrison, 182–183 (Bkrtcy. Ct. ED Tex. 2003) (separation of pain-and-suffering damages from 14 WOS v. E. M. A. Opinion of the Court other damages for purposes of bankruptcy exemption); Colorado Compensation Ins. Auth. v. Jones, 131 P.3d 1074, 1077–1078 (Colo. App. 2005) (separation of economic from noneconomic damages for purposes of insurance sub- rogation); Spangler v. North Star Drilling Co., 552 So. 2d 673, 685 (La. App. 1989) (separation of past dam- ages from future damages for purposes of calculating pre- judgment interest). Indeed, North Carolina itself uses a judicial allocation procedure to ascertain the portion of a settlement subject to subrogation in a workers’ compensa- tion suit. It instructs trial courts to “consider the anticipated amount of prospective com- pensation the employer or workers’ compensation car- rier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable.” N. C. Gen. Stat. Ann. 10.2(j) (Lexis 2011). North Carolina would be on sounder footing had it adopted a similar procedure for allocating Medicaid beneficiaries’ tort recoveries. It might also consider a different one along the lines of what other States have done in Medicaid reimbursement cases. The State thus has ample means available to allocate Medicaid beneficiaries’ tort recoveries in an efficient man- ner that complies with federal law. Indeed, if States are concerned that case-by-case judicial allocations will prove unwieldy, they may even be able to adopt ex ante adminis- trative criteria for allocating medical and nonmedical expenses, provided that these criteria are backed by evi- dence suggesting that they are likely to yield reasonable results in the mine run of cases. What they cannot do is what North Carolina did here: adopt an arbitrary, one- size-fits-all allocation for all cases. Cite as: 568 U. S. (2013) 15 Opinion of the Court Fifth, and finally, North Carolina contends that in two documents—a July 2006 memorandum and a December 2009 letter responding to an inquiry from a member of North Carolina’s congressional delegation—the federal Centers for Medicare and Medicaid Services approved
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congressional delegation—the federal Centers for Medicare and Medicaid Services approved of North Carolina’s statutory scheme for Medicaid reim- bursement. In the State’s view, these agency pronounce- ments are entitled to deference. See Brief for Petitioner 33–36 ). The 2006 and 2009 documents, however, no longer re- flect the agency’s position. See Brief for United States as Amicus Curiae 8–34. And at any rate, the documents are opinion letters, not regulations with the force of law. We have held that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron- style deference.” Christensen v. Harris County, 529 U.S. 576, 587 (2000). These documents are “ ‘entitled to re- spect’ ” in proportion to their “ ‘power to persuade.’ ” (quoting (1944)). Insofar as the 2006 and 2009 documents approve of North Carolina’s statute, they lack persuasive force for the reasons discussed above. * * * The law here at issue, N. C. Gen. Stat. Ann. reflects North Carolina’s effort to comply with federal law and secure reimbursement from third-party tortfeasors for medical expenses paid on behalf of the State’s Medicaid beneficiaries. In some circumstances, however, the stat- ute would permit the State to take a portion of a Medicaid beneficiary’s tort judgment or settlement not “designated as payments for medical care.” 547 U.S., at The Medicaid anti-lien provision, 42 U.S. C. 16 WOS v. E. M. A. Opinion of the Court bars that result. The judgment of the Court of Appeals for the Fourth Circuit is affirmed. It is so ordered. Cite as: 568 U. S. (2013) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 12–98 ALDONA WOS, SECRETARY, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SER- VICES, PETITIONER v. E. M. A., A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, DANIEL H. JOHNSON, ET AL.
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