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Justice Rehnquist
| 1,976 | 19 |
majority
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Fitzpatrick v. Bitzer
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https://www.courtlistener.com/opinion/109520/fitzpatrick-v-bitzer/
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In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of a private individual against a state government found to have subjected that person to employment discrimination on the basis of *448 "race, color, religion, sex, or national origin"[1] The principal question presented by these cases is whether, as against the shield of sovereign immunity afforded the State by the Eleventh Amendment, Congress has the power to authorize federal courts to enter such an award against the State as a means of enforcing the substantive guarantees of the Fourteenth Amendment The Court of Appeals for the Second Circuit held that the effect of our decision in was to foreclose Congress' power We granted certiorari to resolve this important constitutional question We reverse I Petitioners in No 75-251 sued in the United States District Court for the District of Connecticut on behalf of all present and retired male employees of the State of Connecticut Their amended complaint asserted, inter alia, that certain provisions in the State's statutory retirement benefit plan discriminated against them because of their sex, and therefore contravened Title VII of the 1964 Act, as amended, 42 US C 2000e et seq (1970 ed and Supp IV) Title VII, which originally did not include state and local governments, *449 had in the interim been amended to bring the States within its purview[2] The District Court held that the Connecticut State Employees Retirement Act violated Title VII's prohibition against sex-based employment discrimination [3] It entered prospective injunctive relief in petitioners' favor against respondent state officials[4] Petitioners also sought an award of retroactive retirement benefits as compensation for losses *450 caused by the State's discrimination,[5] as well as "a reasonable attorney's fee as part of the costs"[6] But the District Court held that both would constitute recovery of money damages from the State's treasury, and were therefore precluded by the Eleventh Amendment and by this Court's decision in On petitioners' appeal,[7] the Court of Appeals affirmed in part and reversed in part It agreed with the District Court that the action, "insofar as it seeks damages, is in essence against the state and as such is subject to the Eleventh Amendment" The Court of Appeals also found that under the 1972 Amendments to Title VII, "Congress intended to authorize a private suit for backpay by state employees against the state" Notwithstanding this statutory authority, the Court of Appeals affirmed the District Court and held that under a "private federal action
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Justice Rehnquist
| 1,976 | 19 |
majority
|
Fitzpatrick v. Bitzer
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https://www.courtlistener.com/opinion/109520/fitzpatrick-v-bitzer/
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District Court and held that under a "private federal action for retroactive damages" is not a "constitutionally *451 permissible method of enforcing Fourteenth Amendment rights" It reversed the District Court and remanded as to attorneys' fees, however, reasoning that such an award would have only an "ancillary effect" on the state treasury of the kind permitted under The petition filed here by the state employees in No 75-251 contends that Congress does possess the constitutional power under 5 of the Fourteenth Amendment to authorize their Title VII damages action against the State The state officials' cross-petition, No 75-283, argues that under the Eleventh Amendment bars any award of attorneys' fees here because it would be paid out of the state treasury II In this Court held that monetary relief awarded by the District Court to welfare plaintiffs, by reason of wrongful denial of benefits which had occurred previous to the entry of the District Court's determination of their wrongfulness, violated the Eleventh Amendment Such an award was found to be indistinguishable from a monetary award against the State itself which had been prohibited in Ford Motor It was therefore controlled by that case rather than by Ex parte Young, which permitted suits against state officials to obtain prospective relief against violations of the Fourteenth Amendment went on to hold that the plaintiffs in that case could not avail themselves of the doctrine of waiver expounded in cases such as and because the necessary predicate for that doctrine was congressional *452 intent to abrogate the immunity conferred by the Eleventh Amendment We concluded that none of the statutes relied upon by plaintiffs in contained any authorization by Congress to join a State as defendant The Civil Rights Act of 1871, 42 US C 1983, had been held in to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant The provisions of the Social Security Act relied upon by plaintiffs were held by their terms not to "authorize suit against anyone," and they, too, were incapable of supplying the predicate for a claim of waiver on the part of the State All parties in the instant litigation agree with the Court of Appeals that the suit for retroactive benefits by the petitioners is in fact indistinguishable from that sought to be maintained in since what is sought here is a damages award payable to a private party from the state treasury[8] Our analysis begins where ended, for in this Title VII case the "threshold fact of
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Justice Rehnquist
| 1,976 | 19 |
majority
|
Fitzpatrick v. Bitzer
|
https://www.courtlistener.com/opinion/109520/fitzpatrick-v-bitzer/
|
for in this Title VII case the "threshold fact of congressional authorization," to sue the State as employer is clearly present This is, of course, the prerequisite found present in Parden and wanting in Employees We are aware of the factual differences between the type of state activity involved in Parden and that involved in the present case, but we do not think that difference is material for our purposes The congressional authorization involved in Parden was based on the power of Congress under the Commerce Clause; here, however, the *453 Eleventh Amendment defense is asserted in the context of legislation passed pursuant to Congress' authority under 5 of the Fourteenth Amendment[9] As ratified by the States after the Civil War, that Amendment quite clearly contemplates limitations on their authority In relevant part, it provides: "Section 1 No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws "Section 5 The Congress shall have power to enforce, by appropriate legislation, the provisions of this article" The substantive provisions are by express terms directed at the States Impressed upon them by those provisions are duties with respect to their treatment of private individuals Standing behind the imperatives is Congress' power to "enforce" them "by appropriate legislation" The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under 5, were examined at length by this Court in Ex parte A state judge had been arrested and indicted under a federal criminal statute *454 prohibiting the exclusion on the basis of race of any citizen from service as a juror in a state court The judge claimed that the statute was beyond Congress' power to enact under either the Thirteenth[10] or the Fourteenth Amendment The Court first observed that these Amendments "were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress" It then addressed the relationship between the language of 5 and the substantive provisions of the Fourteenth Amendment: "The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial Such enforcement
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Justice Rehnquist
| 1,976 | 19 |
majority
|
Fitzpatrick v. Bitzer
|
https://www.courtlistener.com/opinion/109520/fitzpatrick-v-bitzer/
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whether that action be executive, legislative, or judicial Such enforcement is no invasion of State sovereignty No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights This is true in the general But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power Her rights do not reach to that extent Nor can she deny to the general government the right to exercise all its *455 granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States It is carved out of them "The argument in support of the petition for a habeas corpus ignores entirely the power conferred upon Congress by the Fourteenth Amendment Were it not for the fifth section of that amendment, there might be room for argument that the first section is only declaratory of the moral duty of the State But the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment It is but a limited authority, true, extending only to a single class of cases; but within its limits it is complete" Ex parte 's early recognition of this shift in the federal-state balance has been carried forward by more recent decisions of this Court See, e g, South ; There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States The legislation considered in each case was grounded on the expansion of Congress' powers with the corresponding diminution of state sovereignty found to be intended by the Framers and made part of the Constitution upon the States' ratification of those *456 Amendments, a phenomenon aptly described as a "carv[ing] out" in Ex parte It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under 5 of the Fourteenth Amendment But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see are necessarily limited by the enforcement provisions of 5 of
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Justice Rehnquist
| 1,976 | 19 |
majority
|
Fitzpatrick v. Bitzer
|
https://www.courtlistener.com/opinion/109520/fitzpatrick-v-bitzer/
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are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority When Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts[11] See ; Ford Motor III In No 75-283, the state officials contest the Court of Appeals' conclusion that an award of attorneys' fees in *457 this case would under have only an "ancillary effect" on the state treasury and could therefore be permitted as falling outside the Eleventh Amendment under the doctrine of Ex parte Young, 415 US, We need not address this question, since, given the express congressional authority for such an award in a case brought under Title VII,[12] it follows necessarily from our holding in No 75-251 that Congress' exercise of power in this respect is also not barred by the Eleventh Amendment We therefore affirm the Court of Appeals' judgment in No 75-283 on this basis The judgment in No 75-251 is Reversed The judgment in No 75-283 is Affirmed MR JUSTICE BRENNAN, concurring in the judgment
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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In decided June 2, this Court, by a 5-3 vote, held that when a person in military service is charged with a crime that is not "service connected," the defendant is entitled, despite his military status, to the benefit of "two important constitutional guarantees," *668 namely, indictment by a grand jury[1] and trial by jury in a civilian court The Court noted that O'Callahan was "properly absent from his military base when he committed the crimes with which he is charged," ibid; that there was no connection between his military duties and the crimes; that the offenses were committed off the military post or enclave; that the victim was not performing any duty relating to the military; that the situs of the crimes was not occupied territory or under military control; that they were peacetime offenses; that the civilian courts were open; and that the offenses involved no question of the flouting of military authority, post security, or the integrity of military property Later, in we granted certiorari "limited to retroactivity and scope of " When Relford was decided, we held that an offense committed on a military post by an individual in service, in violation of the security of another person or property on that post, was "service connected," within O'Callahan's language Relford's offenses so qualified His case, thus, went off on the scope of O'Callahan and did not reach the issue of retroactivity We concluded that the latter issue, although having "important dimensions, both direct and collateral," was "better resolved in other litigation where, perhaps, it would be solely dispositive of the case" One of the cases, Gosa, now before us presents that issue solely The other case, Flemings, presents the issue, but not solely *669 I No 71-6314 In December 1966 petitioner James Roy Gosa, an airman third class, stationed at Warren Air Force Base in Wyoming, was tried by a court-martial and convicted of rape, in violation of Art 120 of the Uniform Code of Military Justice, 10 US C 920 The offense took place the preceding August, in what the respondent has stated to be peacetime,[2] when Gosa was in the city of Cheyenne At the time, he was officially off duty and absent from the base on authorized leave He was not in uniform The victim was not connected with the military or related to military personnel Shortly after the incident Gosa was arrested by civilian authorities He was unable to make bond and was detained pending a preliminary hearing The complaining witness did not appear at the hearing Gosa, accordingly, was released He
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Justice Blackmun
| 1,973 | 11 |
majority
|
Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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not appear at the hearing Gosa, accordingly, was released He was taken into military custody, however, and charged with the Art 120 violation A general court-martial was convened Gosa was tried and convicted He was sentenced to 10 years' imprisonment at hard labor, forfeiture of pay and allowances, reduction in rank to the lowest pay grade of airman basic, and a bad conduct discharge As required by Art 61 of the Code, 10 US C 861, the convening authority then referred the case to his staff judge advocate for review The staff judge advocate's recommendation that the findings and sentence of the general court-martial be approved were adopted by the convening authority Pursuant to Art 66 of the Code, 10 US C 866, the case was referred to an Air Force Board of Review That Board affirmed the conviction and sentence On August 16, 1967, the United Court of Military Appeals denied a petition for review 17 U S *670 C M A 648 The case thereupon became final, Art 76 of the Code, 10 US C 876, subject, of course, to the habeas corpus exception recognized in United At no time throughout the trial and the review proceedings did Gosa raise any question as to the power of the military tribunal to try him Following the Court's decision in O'Callahan, Gosa filed an application for a writ of habeas corpus in the United District Court for the Northern District of Florida seeking his release from the Federal Correctional Institution at Tallahassee where he was then confined[3] Subsequently, he filed with the United Court of Military Appeals a motion to vacate his sentence and conviction; this was treated as a petition for reconsideration and was denied by a divided vote with accompanying opinions 19 US C M A 327, 41 Cow M R 327 The habeas application also was denied by the District Court upon its determination that the standards promulgated in and related cases, precluded retroactive application of O'Callahan On appeal, in the face of a Government concession that the alleged offense was not service connected, the Court of Appeals for the Fifth Circuit, one judge dissenting, affirmed No 71-18 In 1944, when the United was formally at war, respondent James W Flemings, then age 18 and a seaman second class, was stationed at the Naval Ammunition Depot in New On August 7 of that year Flemings failed to return on time from an *671 authorized three-day leave He was apprehended by Pennsylvania police while he was in an automobile stolen two days earlier in Trenton, New Flemings was
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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automobile stolen two days earlier in Trenton, New Flemings was turned over to military authorities He was charged with unauthorized absence from his duty station during wartime and with theft of an automobile "from the possession of a civilian"[4] A court-martial was convened at the Brooklyn Navy Yard Flemings, represented by a reserve lieutenant, pleaded guilty to the two charges He was sentenced to three years' imprisonment, reduction in rank to apprentice seaman, and dishonorable discharge After two years' confinement he was released and was dishonorably discharged in October 1946 In 1970, Flemings instituted suit in the United District Court for the Eastern District of New York, relying on O'Callahan and seeking to compel the Secretary of the Navy to overturn the 1944 court-martial conviction for auto theft and to correct his military records with respect to the dishonorable discharge He did not challenge the validity of his conviction for being absent without leave The District Court held that the auto theft offense was not service connected in the O'Callahan sense and that O'Callahan was to be applied retroactively to invalidate the court-martial conviction on that charge The Court of Appeals for the Second Circuit affirmed We granted certiorari in both cases to resolve the conflict [5] *672 II to use the words MR JUSTICE STEWART employed in was "a clear break with the past" In O'Callahan the Court concluded that, in harmonizing *673 the express guarantees of the Fifth and Sixth Amendments, with respect to grand jury indictment and trial by a civilian jury, with the power of Congress, under Art I, 8, cl 14, of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces," a military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection Although the Court in O'Callahan did not expressly overrule any prior decision, it did announce a new constitutional principle, and it effected a decisional change in attitude that had prevailed for many decades The Court long and consistently had recognized that military status in itself was sufficient for the exercise of court-martial jurisdiction ; ; ; ; ; ; Ex parte Milligan, Indeed, in 206 U S, at the Court observed, "While the jurisdiction of general courts-martial extends to all crimes, not capital, committed against public law by an officer or soldier of the Army within the limits of the territory in which he is serving, this jurisdiction is not exclusive, but only concurrent with that of the civil courts" The new approach announced in O'Callahan was cast, to
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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courts" The new approach announced in O'Callahan was cast, to be sure, in "jurisdictional" terms, but this was "lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers" (footnote omitted) 5 US, -273 The Court went on to emphasize that the "power of Congress to make `Rules for the Government and Regulation *674 of the land and naval Forces,' Art I, 8, cl 14, need not be sparingly read in order to preserve those two important constitutional guarantees For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights" The basis for the "jurisdictional" holding in O'Callahan obviously was the increasing awareness and recognition of the important constitutional values embodied in the Fifth and Sixth Amendments Faced with the need to extend the protection of those Amendments as widely as possible, while at the same time respecting the power of Congress to make "Rules for the Government and Regulation of the land and naval Forces," the Court, heeded the necessity for restricting the exercise of jurisdiction by military tribunals to those crimes with a service connection as an appropriate and beneficial limitation "to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service" Toth v Quarles, 350 US 11, That O'Callahan dealt with the appropriate exercise of jurisdiction by military tribunals is apparent from where the Court ruled that the Necessary and Proper Clause, Art I, 8, cl 18, does not enable Congress to broaden the term "land and naval Forces" in Art I, 8, cl 14, to include a civilian dependent accompanying a member of the Armed Forces overseas In such a case, it was held, a civilian dependent is entitled to the of Art III and of the Fifth and Sixth Amendments, and conviction by court-martial is not constitutionally permissible: "But the power to `make Rules for the Government and Regulation of the land and naval Forces' bears no limitation as to offenses The power there *675 granted includes not only the creation of offenses but the fixing of the punishment therefor If civilian dependents are included in the term `land and naval Forces' at all, they are subject to the full power granted the Congress therein to create
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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to the full power granted the Congress therein to create capital as well as noncapital offenses This Court cannot diminish and expand that power, either on a caseby-case basis or on a balancing of the power there granted Congress against the of Article III and the Fifth and Sixth Amendments Due process cannot create or enlarge power It deals neither with power nor with jurisdiction, but with their exercise" 361 US, at 246 Although the decision in O'Callahan emphasizes the difference in procedural protections respectively afforded by the military and the civilian tribunals, the Court certainly did not hold, or even intimate, that the prosecution in a military court of a member of the Armed Services for a nonservice-connected crime was so unfair as to be void ab initio Rather, the prophylactic rule there formulated "created a protective umbrella serving to enhance" a newly recognized constitutional principle Michigan v 412 US 47, That recognition and effect are given to a theretofore unrecognized and uneffectuated constitutional principle does not, of course, automatically mandate retroactivity In Williams v United 401 US 646, MR JUSTICE WHITE made it clear, citing Linkletter v Walker, 381 US 618 that the Court has "firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored" See Chicot County Drainage District v Baxter State Bank, 308 US 371, And in Johnson v New 384 US 719, *676 it was said that "the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved" Duncan v 1 US 145 and Bloom v 1 US 194 are illustrative of the context of the O'Callahan decision In Duncan, the Court held that since "trial by jury in criminal cases is fundamental to the American scheme of justice, the Fourteenth Amendment guarantees a right of jury trial in all criminal cases whichwere they to be tried in a federal courtwould come within the Sixth Amendment's guarantee" (footnote omitted) 1 US, at 149 In Bloom the Court held that serious criminal contempts may not be summarily punished and that they are subject to the Constitution's jury trial provision 1 US, at 201-210 In those two cases the Court ruled that a state court exercising jurisdiction over a defendant in a serious criminal or criminal contempt case, but failing to honor a request for a jury trial, in effect was without jurisdiction Yet in DeStefano v 2 US 631 the Court by a per curiam opinion, denied retroactive
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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631 the Court by a per curiam opinion, denied retroactive application to those new constitutional holdings The Court thus concluded that it did not follow that every judgment rendered in a Duncan or in a Bloom situation, prior to the decisions in those cases, was so infected by unfairness as to be null and void The same analysis has pertinent application to these very similar cases, and it leads us to the conclusion that the validity of convictions by military tribunals, now said to have exercised jurisdiction inappropriately over non-service-connected offenses is not sufficiently in doubt so as to require the reversal of all such convictions rendered since 1916 when Congress provided for military trials for civilian offenses committed by persons in the Armed Services Act of Aug 29, 1916, c 418, Stat 652 *677 The clearly opposing and contrasting situation is provided by the argument made by respondent Flemings to the effect that the retroactivity of O'Callahan is to be determined and is controlled by United v U S Coin & Currency, 401 US 715 In that case the Court held that its decisions in Marchetti v United 0 US and Grosso v United 0 US 62 precluding the criminal conviction of a gambler who properly asserted his Fifth Amendment privilege against self-incrimination as a reason for his failure to register and to pay the federal gambling tax, would be applied retroactively so as to invalidate forfeiture proceedings under 26 US C 7302 ensuing upon the invalid conviction To suggest that Coin & Currency is controlling is to ignore the important distinction between that case and these There the Court determined that retrospective application of Marchetti and Grosso was required because they "dealt with the kind of conduct that cannot constitutionally be punished in the first instance," 401 US, at 7; it was conduct "constitutionally immune from punishment" in any court In O'Callahan, on the other hand, the offense was one for which the defendant was not so immune in any court The question was not whether O'Callahan could have been prosecuted; it was, instead, one related to the forum, that is, whether, as we have said, the exercise of jurisdiction by a military tribunal, pursuant to an act of Congress, over his nonservice-connected offense was appropriate when balanced against the important guarantees of the Fifth and Sixth Amendments The Court concluded that in the circumstances there presented the exercise of jurisdiction was not appropriate, and fashioned a rule limiting the exercise of court-martial jurisdiction in order to protect the rights to indictment and jury trial The Court did
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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the rights to indictment and jury trial The Court did not hold that a military *678 tribunal was and always had been without authority to exercise jurisdiction over a nonservice-connected offense III The foregoing conclusion, of course, does not end our inquiry as to whether O'Callahan should be accorded retroactive application In two cases decided earlier this Term, retrospectivity of a new constitutional decision was also an issue Robinson v 409 US 505 concerned successive municipal and state prosecutions for alleged offenses arising from the same circumstances, and a claim of double jeopardy, based on this Court's intervening decisions in Benton v Maryland, 5 US 784 and Waller v Florida, 7 US 387 We recognized that in Linkletter the Court was "charting new ground" in the retrospectivity 409 US, at 507, that "Linkletter and succeeding cases," ib obviously including 388 U S, at established standards for determining retroactivity; that Robinson, however, did not readily lend itself to the Linkletter analysis; that Linkletter and its related cases dealt with procedural rights and trial methods; and that guarantees not related to procedural rules "cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis" Robinson v 409 U S, at 508 In Michigan v 412 US 47 we were concerned with the retroactivity of North Carolina v Pearce, 5 US 711 and the standards it promulgated with respect to an increased judge-imposed sentence on retrial after a successful appeal We there employed the Stovall criteria and held that Pearce was not to be applied retroactively In the present cases we are not concerned, of course, with procedural rights or trial methods, as is exemplified by the decisions concerning the exclusionary rule (Link-letter), *679 the right of confrontation (Stovall), adverse comment on a defendant's failure to take the stand ), and a confession's admissibility ) But neither are we concerned, as we were in Robinson, with a constitutional right that operates to prevent another trial from taking place at all Our concern, instead, is with the appropriateness of the exercise of jurisdiction by a military forum These cases, therefore, closely parallel DeStefano v where the Court denied retroactive application to Duncan v and Bloom v in each of which a right to a jury trial had been enunciated In denying retroactivity, the integrity of each of the earlier proceedings, without a jury, was recognized The test applied in DeStefano was the Stovall test 2 US, at 633-635 Similarly here, then, the three-prong test of Stovall has pertinency, and we proceed to measure Gosa's and Flemings' claims by that test directed to "(a)
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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Gosa's and Flemings' claims by that test directed to "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards" 388 US, at A Purpose "Foremost among these factors is the purpose to be served by the new constitutional rule" In his opinion for the plurality in Williams v United 401 U S, at 653, MR JUSTICE WHITE emphasized that where "the major purpose of new constitutional doctrine is to overcome" a trial aspect "that substantially impairs its truth-finding function," the new rule is given complete retroactive effect, and "[n]either good-faith reliance" nor "severe impact on the administration of justice" suffices to require prospectivity *680 Our initial concern, therefore, is whether the major purpose of the holding in O'Callahan was to overcome an aspect of military trials which substantially impaired the truth-finding process and brought into question the accuracy of all the guilty verdicts rendered by military tribunals At the same time, however, the fact that a new rule tends incidentally to improve or enhance reliability does not in itself mandate the rule's retroactive application The Court in Johnson v New 384 U S, at repeated what had been suggested in Linkletter and Tehan, that "we must determine retroactivity `in each case' by looking to the peculiar traits of the specific `rule in question'" and "[f]inally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the factfinding process at trial is necessarily a matter of degree We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other are available to protect the integrity of the truth-determining process at trial" 384 US, at -729 See Michigan v 412 U S, at 55 Thus, retroactivity is not required by a determination that the old standard was not the most effective vehicle for ascertaining the truth, or that the truth-determining process has been aided somewhat by the new standard, or that one of several purposes in formulating the new standard was to prevent distortion in the process Although the opinion in O'Callahan was not uncritical of the military system of justice, and stressed possible command influence and the lack of certain procedural 5 US, at 263-266, the decision there, as has been pointed out above, certainly was not based on any conviction that the court-martial lacks fundamental *681 integrity in its
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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conviction that the court-martial lacks fundamental *681 integrity in its truth-determining process[6] Indeed, our subsequent ruling in Relford itself indicates our conclusion that military criminal proceedings are not basically unfair, for Relford clearly approves prosecution in a military court, of what is otherwise a civilian crime, when factors are present that establish the offense's "service connection" 401 US, at 364- See Mr Chief Justice Warren's paper, The Bill of Rights and the Military, 37 N Y U L Rev 181, 188-189 (1962) It, of course, would demean the constitutional rights to indictment and trial by a jury to assert that those guarantees do not play some role in assuring the integrity of the truth-determining process "[T]he right to jury trial generally tends to prevent arbitrariness and repression" DeStefano v 2 U S, at 633 The same mission is fulfilled by the indictment right But a policy directed at the prevention of arbitrariness and repression is not confined to the truth-determining process It is concerned, as well, with a larger range of possible evils: prosecution that is malicious, prosecutorial overzealousness, excessiveness of sentence, and the like These very ingredients were also present in the background *682 in Duncan and Bloom Yet, the Court did not find it necessary to hold retroactive the rights newly established by those cases Nothing said in O'Callahan indicates that the major purpose of that decision was to remedy a defect in the truth-determining process in the military trial Rather, the broad guarantees of the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to jury trial weighed heavily in the limitation of the exercise of court-martial jurisdiction to "`the least possible power adequate to the end proposed,'" Toth v Quarles, 350 US 11, a phrase taken from Anderson v Dunn, 6 Wheat 204, 1 The purpose behind the rule enunciated in O'Callahan thus does not mandate retroactivity B Reliance With respect to this factor, we repeat what has been emphasized above, namely, that, before O'Callahan, the law was settled that the exercise of military jurisdiction over an offense allegedly committed by a member of the Armed Forces was appropriately based on the military status of the defendant and was not dependent on the situs or nature of the offense There was justifiable and extensive reliance by the military and by all others on the specific rulings of this Court Military authorities were acting appropriately pursuant to provisions of the Uniform Code of Military Justice, Art 2, 10 US C 802, and its predecessors, and could not be said to be attempting to usurp
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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and could not be said to be attempting to usurp civilian authority The military is not to be faulted for its reliance on the law as it stood before O'Callahan and for not anticipating the "clear break with the past" that O'Callahan entailed The reliance factor, too, favors prospectivity C Effect on the Administration of Justice In DeStefano v 2 U S, at 634, the Court, in considering the retroactivity of Duncan and Bloom, attached *683 special significance to the fact that "the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases" The very same factor is present with like significance here, for the military courts have been functioning in this since 1916, appropriately assuming from this Court's successive holdings, that they were properly exercising jurisdiction in cases concerning nonservice-connected offenses allegedly committed by servicemen A mere glance at the reports of the United Court of Military Appeals discloses the volume of prosecutions in military tribunals Retrospective application of O'Callahan would not only affect the validity of many criminal convictions but would result in adjustments and controversy over back pay, veterans' benefits, retirement pay, pensions, and other matters In addition, the task of establishing a service connection on the basis of a stale record or in a new trial would prove formidable if not impossible in many cases, since at the time the record was made the question whether there was a service connection was of no importance Gosa and Flemings press upon us a recent law review article Blumenfeld, Retroactivity After O'Callahan: An Analytical and Statistical Approach, 60 Geo L J 551 The author of that article concludes: (1) On the basis of a sampling of cases reviewed by the Court of Military Appeals and the Army Court of Military Review between June 2, (the date of O'Callahan), and December 31, 1970, only about 1% of the general court-martial cases were service connected at 580 n 147 (2) "[V]ery few" servicemen have sought collateral review of their convictions since O'Callahan was decided at 578 n 141 The author asserts, however: "Even if the number of requests for relief sent *684 to military departments should exceed expectations, the Defense Department, with an abundance of personnel and computers, could develop procedures to insure a quick review" (3) The military has necessary machinery to process claims and petitions for review (4) The financial impact of a ruling of retroactivity would not be great since most servicemen convicted of
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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retroactivity would not be great since most servicemen convicted of nonservice-connected crimes would not be entitled to retirement or pension pay and, in any event, the average return should not exceed $1,500 In Mercer v Dillon, 19 US C M A 264, 41 Cow M R 264 the United Court of Military Appeals, a tribunal composed of civilian judges, 10 US C 867, but uniquely familiar with the military system of justice, spoke in another vein[7] A pertinent factor, too, is that *685 until Flemings' case emerged in the Second Circuit, the civilian and the military courts had ruled against applying O'Callahan retroactively; thus there was no decisional impetus to encourage litigation We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved We conclude that the purpose to be served by O'Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O'Callahan be accorded prospective application only We so hold[8] IV Flemings also urges that, because his court-martial proceeding was convened in Brooklyn, whereas the auto theft took place in New and his arrest in Pennsylvania, he was deprived of the right to a trial in the vicinage, as guaranteed by Art III, 2, cl 3, of the *686 Constitution This claim was not raised before the military court Moreover, a military tribunal is an Article I legislative court with jurisdiction independent of the judicial power created and defined by Article III Ex parte Quirin, 317 US 1, ; Whelchel v McDonald, 340 US 1, ; Kennedy v Mendoza-Martinez, 372 US 144, General court-martial jurisdiction is not restricted territorially to the limits of a particular State or district 1 W Winthrop, Military Law and Precedents 104-105 (2d ed 1896) And the vicinage requirement has primary relevance to trial by jury In any event, Flemings has demonstrated no prejudice The judgment in No 71-6314 is affirmed; that in No 71-18
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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judgment in No 71-6314 is affirmed; that in No 71-18 is reversed It is so ordered MR JUSTICE DOUGLAS, concurring in the result in part in No 71-6314 and concurring in the result in No 71-18 I agree with MR JUSTICE STEWART that respondent Flemings committed a "service connected" crime[1] As to the Gosa case I think the case should be put down for reargument on whether res judicata controls the disposition of the case The argument that it does goes as follows: Petitioner Gosa was tried for rape before a military tribunal and convicted The case went through the hierarchy of review within the military establishment and after the conviction and sentence were affirmed, a *687 petition for review was filed with the Court of Military Appeals (a civilian court created by Congress); but that court denied review[2] The events described took place in 1966 and 1967 On June 2, we decided invalidating the court-martial conviction for rape committed off the military base by a serviceman who was on leave O'Callahan in that respect is on all fours with the instant case, for here petitioner was officially off-duty, in civilian clothes, and was found to have raped a civilian in no way connected with the military, while he was in Cheyenne, Wyoming, near Warren Air Force Base but not on the base O'Callahan was decided in and in reliance on it petitioner Gosa started this habeas corpus action[3] seeking *688 release from his confinement under the military sentence The question whether one of our constitutional decisions should be retroactively applied has been before us on numerous occasions Linkletter v Walker, 381 US 618; ; ; DeStefano v 2 US 631 But in all cases to date which involved retroactivity the question has been whether the court whose judgment is being reviewed should be required in the interests of substantial justice to retry the accused under the new constitutional rule announced by the Court after the first trial had been completed but before the new constitutional *689 decision was announced The measure applied as to whether the new rule should be prospective or retroactive[4] was the three-pronged test stated in at : "The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards" Here the question is whether a civilian, rather than a military, tribunal should have tried him Does the question
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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a military, tribunal should have tried him Does the question whether the "jurisdiction"[5] of the military tribunal can be contested at this late date turn on whether res judicata bars that inquiry? Petitioner Gosa in the review of his conviction by the military tribunal never raised the question raised in O'Callahan[6] If he was "constitutionally immune from punishment" in any court, we would have the problem presented in United v U S Coin & Currency, 401 US 715, 7-724 But petitioner was not tried by a *690 kangaroo court or by eager vigilantes but by military authorities within the framework established by Congress in the Uniform Code of Military Justice The case is somewhat unlike McClaughry v Deming, 186 US 49, where a court-martial was constituted of officers of the regular army who by an Act of Congress were not authorized to sit in judgment on volunteers The court-martial was held incompetent to sit on the case because it acted in plain violation of an Act of Congress There was therefore no tribunal authorized by law to render the challenged judgment Consent to be so tried could not confer jurisdiction in face of the mandate of the statute In the present cases Congress by express provisions of the Code had authorized the military tribunals to sit in these types of cases In Chicot County Drainage District v Baxter State Bank, 308 US 371, municipal debts were readjusted by a federal district court under an Act of Congress which this Court later held to be unconstitutional The latter ruling was in Ashton v Cameron County District, 298 US 513, where a closely divided Court held that an extension of the Bankruptcy Act to include a readjustment of the debts of municipalities and counties was unconstitutional Petitioner had its debts readjusted under that Act, which permitted less than all of the outstanding bondholders to agree to a plan That plan was consummated before the Ashton decision Respondent was one of the nonconsenting bondholders After the Ashton decision it brought suit on its bonds The question before the Court in the Chicot County Drainage District case was the extent to which the Ashton case should be made retroactive The Court, speaking through Mr Chief Justice Hughes, said that the proceedings in the District Court "were conducted in complete conformity to the statute" and that "no question had been raised as to the regularity *691 of the court's action" 308 US, at 375 Since the parties had an opportunity to raise the question of invalidity but did not do so, they "were not the
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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invalidity but did not do so, they "were not the less bound by the decree because they failed to raise it" Ibid Mr Chief Justice Hughes added, at 377: "Whatever the contention as to jurisdiction may be, whether it is that the boundaries of a valid statute have been transgressed, or that the statute itself is invalid, the question of jurisdiction is still one for judicial determination If the contention is one as to validity, the question is to be considered in the light of the standing of the party who seeks to raise the question and of its particular application" He went on to say, at 378: "[R]es judicata may be pleaded as a bar, not only as respects matters actually presented to sustain or defeat the right asserted in the earlier proceeding, `but also as respects any other available matter which might have been presented to that end' Grubb v Public Utilities Comm'n, [281 US 470, ]" Petitioner claims, as did respondent in the Chicot County Drainage District case, that the tribunal that first adjudicated the cause acted unconstitutionally At the time the military court acted, however, it was assumed to have "jurisdiction" and its "jurisdiction" was in no way challenged in the review proceedings available to petitioner Did the issue of "jurisdiction" for that case therefore become res judicata? These are, in brief, the reasons why res judicata arguably should lead to an affirmance in the Gosa case Contrary to intimations in the dissenting opinion I have reached no position on the merits and would reserve judgment until the issue was fully explored on reargument *692 MR JUSTICE REHNQUIST, concurring in the judgments I do not believe that decisions of this Court would support a holding that the rule announced in should not be applied retroactively to court-martial convictions entered before the decision in that case In O'Callahan, the Court clearly held that courts-martial did not have jurisdiction to try servicemen for "non-service connected" crimes For substantially the reasons stated by my Brother MARSHALL, I believe that Robinson v 409 US 505 and prior decisions mandate that O'Callahan be applied retroactively In No 71-6314, since I believe that the O'Callahan rule could not in any event be given only prospective application, the question arises whether the analytical inquiry sanctioned by that decision should even be undertaken O'Callahan, was, in my opinion, wrongly decided, and I would overrule it for the reasons set forth by Mr Justice Harlan in his dissenting opinion 5 US, at -284 In No 71-18, even if O'Callahan were followed, I agree with the
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Justice Blackmun
| 1,973 | 11 |
majority
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Gosa v. Mayden
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https://www.courtlistener.com/opinion/108860/gosa-v-mayden/
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71-18, even if O'Callahan were followed, I agree with the views of my Brother STEWART The offense was committed during a period of declared war, and furthermore while respondent was absent without official leave from his military duties For purposes of the "service connected""non-service connected" dichotomy announced by O'Callahan, I would hold that any crime committed by a member of the Armed Forces during time of war is "service connected," and that he can validly be tried by a court-martial for that offense Cf I therefore concur in the judgments of the Court, and would affirm the judgment of the Court of Appeals in No 71-6314 and reverse that in No 71-18 *693 MR JUSTICE STEWART, dissenting in No 71-6314, Gosa v Mayden, and, joined by MR JUSTICE DOUGLAS, concurring in the result in No 71-18, Warner v Flemings I dissented in and continue to believe that that case was wrongly decided Until or unless O'Callahan is overruled, however, I think it must be given fully retroactive application for the reasons stated in my Brother MARSHALL'S persuasive dissenting opinion, post, this page Accordingly, I join his dissenting opinion as it applies to No 71-6314, Gosa v Mayden But that view, in my opinion, does not dispose of No 71-18, Warner v Flemings I think that a serviceman who deserts his post during a time of congressionally declared war and steals an automobile is guilty of a "service connected" offense Accordingly, I conclude that the respondent Flemings was properly tried before a court-martial under O'Callahan Cf For this reason I concur in the result reached by the Court in the Flemings case MR JUSTICE MARSHALL, with whom MR JUSTICE BRENNAN and MR
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Justice Breyer
| 2,002 | 2 |
majority
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Kansas v. Crane
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https://www.courtlistener.com/opinion/118479/kansas-v-crane/
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This case concerns the constitutional requirements substantively limiting the civil commitment of a dangerous sexual offendera matter that this Court considered in The State of Kansas argues that the Kansas Supreme Court has interpreted our decision in in an overly restrictive manner. We agree and vacate the Kansas court's judgment. I In this Court upheld the Kansas Sexually Violent Predator Act, -29a01 et seq. against constitutional In doing so, the Court characterized the confinement at issue as civil, not criminal, confinement. And it held that the statutory criterion for confinement embodied in the statute's words "mental abnormality or personality disorder" satisfied "`substantive' due process requirements." In reaching its conclusion, the Court's opinion pointed out that "States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety." It said that "[w]e have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled with the proof of some additional factor, such as a `mental illness' or `mental *410 abnormality.' " -358. It noted that the Kansas "Act unambiguously requires a finding of dangerousness either to one's self or to others," and then "links that finding to the existence of a `mental abnormality' or `personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior," (citing -29a02(b) ). And the Court ultimately determined that the statute's "requirement of a `mental abnormality' or `personality disorder' is consistent with the requirements of other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness." The Court went on to respond to ' claim that earlier cases had required a finding, not of "mental abnormality" or "personality disorder," but of "mental illness." In doing so, the Court pointed out that we "have traditionally left to legislators the task of defining [such] terms." It then held that, to "the extent that the civil commitment statutes we have considered set forth criteria relating to an individual's inability to control his dangerousness, the Kansas Act sets forth comparable criteria." It added that ' own condition "doubtless satisfies those criteria," for (1) he suffers from pedophilia, (2) "the psychiatric profession itself classifies" that condition "as a serious mental disorder," and (3) conceded that he cannot "`control the urge'
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Justice Breyer
| 2,002 | 2 |
majority
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Kansas v. Crane
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https://www.courtlistener.com/opinion/118479/kansas-v-crane/
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disorder," and (3) conceded that he cannot "`control the urge' " to molest children. And it concluded that this "admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings." II In the present case the State of Kansas asks us to review the Kansas Supreme Court's application of The State here seeks the civil commitment of Michael *411 Crane, a previously convicted sexual offender who, according to at least one of the State's psychiatric witnesses, suffers from both exhibitionism and antisocial personality disorder. In re Crane, ; cf. also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 569 (DSMIV) (detailing exhibitionism), 701-706 (detailing antisocial personality disorder). After a jury trial, the Kansas District Court ordered Crane's civil commitment. -288. But the Kansas Supreme Court reversed. In that court's view, the Federal Constitution as interpreted in insists upon "a finding that the defendant cannot control his dangerous behavior"even if (as provided by Kansas law) problems of "emotional capacity" and not "volitional capacity" prove the "source of bad behavior" warranting commitment. 269 Kan., ; see also -29a02(b) ( Cum. Supp.) (defining "[m]ental abnormality" as a condition that affects an individual's emotional or volitional capacity). And the trial court had made no such finding. Kansas now argues that the Kansas Supreme Court wrongly read as requiring the State always to prove that a dangerous individual is completely unable to control his behavior. That reading, says Kansas, is far too rigid. III We agree with Kansas insofar as it argues that set forth no requirement of total or complete lack of control. referred to the Kansas Act as requiring a "mental abnormality" or "personality disorder" that makes it "difficult, if not impossible, for the [dangerous] person to control his dangerous behavior." The word "difficult" indicates that the lack of control to which this Court referred was not absolute. Indeed, as different amici on opposite sides of this case agree, an absolutist approach is unworkable. Brief for Association for the *412 Treatment of Sexual Abusers as Amicus Curiae 3; cf. Brief for American Psychiatric Association et al. as Amici Curiae 10; cf. also American Psychiatric Association, Statement on the Insanity Defense 11 (1982), reprinted in G. Melton, J. Petrila, N. Poythress, & C. Slobogin, Psychological Evaluations for the Courts 200 ("`The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk' "). Moreover, most severely ill peopleeven those commonly termed "psychopaths"retain some ability to
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Justice Breyer
| 2,002 | 2 |
majority
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Kansas v. Crane
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https://www.courtlistener.com/opinion/118479/kansas-v-crane/
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severely ill peopleeven those commonly termed "psychopaths"retain some ability to control their behavior. See Morse, Culpability and Control, ; cf. Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 Psychol. Pub. Pol'y & L. 505, 520-525 (1998). Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities. We do not agree with the State, however, insofar as it seeks to claim that the Constitution permits commitment of the type of dangerous sexual offender considered in without any lack-of-control determination. See Brief for Petitioner 17; Tr. of Oral Arg. 22, 30-31. underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment "from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings." 521 U.S., That distinction is necessary lest "civil commitment" become a "mechanism for retribution or general deterrence"functions properly those of criminal law, not civil commitment. ; cf. also Moran, The Epidemiology of Antisocial Personality Disorder, 34 Social Psychiatry & Psychiatric Epidemiology 231, 234 (1999) (noting that 40%60% of the male prison population is diagnosable with antisocial personality disorder). The presence of what the "psychiatric profession itself classifie[d] as a serious mental disorder" helped to make that distinction in And a critical distinguishing feature of that "serious disorder" there *413 consisted of a special and serious lack of ability to control behavior. In recognizing that fact, we did not give to the phrase "lack of control" a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, "inability to control behavior" will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. 521 U.S., -358; see also We recognize that as so read provides a less precise constitutional standard than would those more definite rules for which the parties have argued. But the Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules. For one thing, the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment.
|
Justice Breyer
| 2,002 | 2 |
majority
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Kansas v. Crane
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https://www.courtlistener.com/opinion/118479/kansas-v-crane/
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and personality disorders that make an individual eligible for commitment. 521 U. S., ; For another, the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law. See See also, e. g., ; DSMIV xxx ("concept of mental disorder lacks a consistent operational definition"); at xxxiixxxiii (noting the "imperfect fit between the questions of ultimate concern to the law and *414 the information contained in [the DSM's] clinical diagnosis"). Consequently, we have sought to provide constitutional guidance in this area by proceeding deliberately and contextually, elaborating generally stated constitutional standards and objectives as specific circumstances require. embodied that approach. IV The State also questions how often a volitional problem lies at the heart of a dangerous sexual offender's serious mental abnormality or disorder. It points out that the Kansas Supreme Court characterized its state statute as permitting commitment of dangerous sexual offenders who (1) suffered from a mental abnormality properly characterized by an "emotional" impairment and (2) suffered no "volitional" impairment. It adds that, in the Kansas court's view, absolutely forbids the commitment of any such -, And the State argues that it was wrong to read in this way. Brief for Petitioner 11; Tr. of Oral Arg. 5. We agree that limited its discussion to volitional disabilities. And that fact is not surprising. The case involved an individual suffering from pedophiliaa mental abnormality that critically involves what a lay person might describe as a lack of control. DSMIV 571-572 (listing as a diagnostic criterion for pedophilia that an individual have acted on, or been affected by, "sexual urges" toward children). himself stated that he could not "`control the urge' " to molest children. 521 U.S., In addition, our cases suggest that civil commitment of dangerous sexual offenders will normally involve individuals who find it particularly difficult to control their behaviorin the general sense described above. Cf. ; cf. also Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of Adults: Nonpsychotic Mental Disorders 271 (M. Thase, *415 B. Edelstein, & M. Hersen eds. 1990) (sex offenders' "compulsive, repetitive, driven behavior appears to fit the criteria of an emotional or psychiatric illness"). And it is often appropriate to say of such individuals, in ordinary English, that they are "unable to control their dangerousness." Regardless, must be read in context. The Court did not draw a clear distinction between the purely "emotional" sexually related mental abnormality and the "volitional." Here, as in other areas of psychiatry, there may be "considerable overlap
|
Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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The Court is correct, i my view, to coclude that we may ot “add provisios to a federal statute.” Ate, at 20. Plaitiffs do ot request as much, however, i cotedig that North Carolia was required by the Compact to carry out its obligatios i good faith. Rather, plaitiffs’ argu met is that the Compact’s terms, properly costrued, speak ot oly to the specific duties imposed upo the parties but also to the maer i which those duties must be carried out. This is a iterpretive argumet familiar to cotract disputes. See, e.g., Restatemet (Secod) of Cotracts (1979) (hereiafter Restatemet). As the opiio for the Court otes, cogressioal co set to a iterstate compact gives it the status of a fed eral statute. See ate, at 20. This is a apt ad proper way to idicate that a compact has all the digity of a Act of Cogress. Ad that is surely what was meat i New where it was stated that the Court may ot “ ‘order relief ico sistet with [the] express terms’ ” of a compact. Ate, at 20 (quotig New ; alteratio i origial; some iter 2 ALABAMA v. NORTH CAROLINA Opiio of KENNEDY, J. al quotatio marks omitted); see also (“[C]ogressioal coset tras forms a iterstate compact ito a law of the Uited States”). From this priciple, however, it simply does ot follow that a law’s ature ad origi as a compact must be dis missed as irrelevat. Like a treaty, a compact represets a agreemet betwee parties. See New at 831 (SCALIA, J., dissetig) (“[T]he Compact here is of course a treaty”). The Court’s duty i iterpretig a com pact ivolves ascertaiig the itet of the parties. See (“[T]reaties are to be iterpreted upo the priciples which gover the iterpretatio of cotracts with a view to makig effective the purposes of the high cotractig parties”); (“Treaties must receive a fair iterpretatio, accordig to the itetio of the cotractig parties”). Carryig out this duty may lead the Court to cosult sources that might differ from those ormally reviewed whe a ordiary federal statute is at issue. That much is surely implicit i the Court’s refer ece to cotract law priciples elsewhere i its opiio i the istat case. See, e.g., ate, at 14 (“[T]he parties’ course of performace uder the Compact is highly sigifi cat”); (citig the Restatemet); at 18–19 (same); see also New at 830–831 (SCALIA, J., dis setig) (costruig a compact i light of “horbook co tracts law that the practical costructio of a ambiguous agreemet revealed by later coduct of the parties
|
Justice Kennedy
| 2,010 | 4 |
concurring
|
Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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a ambiguous agreemet revealed by later coduct of the parties is good idicatio of its meaig”). That said, it is quite correct to hold here that the rea soable expectatios of the cotractig States, as mai fested i the Compact, do ot reveal a itet to limit North Carolia’s power of withdrawal. For purposes of rejectig this argumet, it is sufficiet to ote—as the Court does—that the Compact permits ay State to with Cite as: 560 U. S. (2010) 3 Opiio of KENNEDY, J. draw; imposes o limitatio o this right; ad explicitly provides that the Compact shall ot be costrued to abridge the sovereig rights of ay party State. See ate, at 20–21. Federalism cocers also cousel reluctace to fid that a State has implicitly restricted its sovereigty i such a maer. The Court is therefore correct to reject plaitiffs’ fial exceptio. With these observatios, I joi the Court’s opiio with the exceptio of Part II–E. Cite as: 560 U. S. (2010) 1 Opiio of ROBERTS, C. J. SUPREME COURT OF THE UNITED STATES No. 132, Orig. STATE OF ALABAMA, STATE OF FLORIDA, STATE OF TENNESSEE, COMMONWEALTH OF VIRGINIA, AND SOUTHEAST INTERSTATE LOW-LEVEL RADIO- ACTIVE WASTE MANAGEMENT COMMISSION, PLAINTIFFS v. STATE OF NORTH CAROLINA ON EXCEPTIONS TO THE PRELIMINARY AND SECOND REPORTS OF THE SPECIAL MASTER [Jue 1, 2010] CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS jois, cocurrig i part ad dissetig i part. The parties to this case are Alabama, Florida, North Carolia, Teessee, Virgiia, ad the Southeast Iter state Low-Level Radioactive Waste Maagemet Commis sio. Oe of these thigs is ot like the others: The Com missio is ot a sovereig State. The Court etertais its suit—despite North Carolia’s sovereig immuity— because the Commissio “asserts the same claims ad seeks the same relief as the other plaitiffs.” Ate, at 23. Our Costitutio does ot couteace such “o harm, o foul” jurisdictio, ad I respectfully disset. The Court has made this mistake before. I v. Califoria, we allowed Idia Tribes that could ot sue sovereig States to piggyback o the claims of the Uited States, which could. We reasoed that oce the Uited States had iitiated suit, the state defedats could “o loger assert [their] immuity with respect to the subject matter of [the] actio,” so the Tribes were free to pile o ad joi the suit. Today the Court retraces ’s steps, quotig that case for the propositio that whe private plaitiffs “ ‘do 2 ALABAMA v. NORTH CAROLINA Opiio of ROBERTS, C. J. ot seek to brig ew claims or issues, our judicial power over the
|
Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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brig ew claims or issues, our judicial power over the cotroversy is ot elarged ad the States’ sovereig immuity protected by the Eleveth Amedmet is ot compromised.’ ” Ate, at 23 (quotig ). That statemet is cotrary to the laguage of the Co stitutio. The Eleveth Amedmet provides: “The Judicial power of the Uited States shall ot be costrued to exted to ay suit i law or equity, commeced or prosecuted agaist oe of the Uited States by Citizes of aother State, or by Citizes or Subjects of ay Foreig State.” The immuity coferred is agaist the “commece[met] or prosecut[io]” of “ay suit i law or equity.” There is o carve-out for suits “prosecuted” by private parties so log as those parties “ ‘do ot seek to brig ew claims or is sues.’ ” Ate, at 23 (quotig ). Uderstadably, the Court’s opiio leas heavily o which has ever bee squarely overruled. Ate, at 23–24. But itself is built o sad. The relevat portio of that opiio is almost wholly ureasoed. It cites oly a footote i a prior case, the pertiet para graph of which failed eve to discuss the State’s immuity from private suit. See 460 U.S., ). That para graph addressed oly itervetio, ot sovereig immu ity, ad the two issues are distict. See South Carolia v. North Carolia, 558 U. S. 5 (2010) (slip op., at 10, 5). Most importatly, the subsequet developmet of our sovereig immuity jurisprudece has oly udermied ’s already weak foudatios. We recogized i that the Costi tutio left itact the States’ pre-existig “immuity from private suits”; as the Eleveth Amedmet cofirms, the Cite as: 560 U. S. (2010) 3 Opiio of ROBERTS, C. J. States did ot “ ‘surreder this immuity i the pla of the covetio.’ ” (quotig The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilto)); see also at –722, 755–756. There is o reaso to suppose that the States, at the foudig, made a excep tio for private suits that happe to mimic other plaitiffs’ claims—ad either or the Court today suggests otherwise. Whether or ot a plaitiff “seeks the same relief” or imposes ay “additioal defese or liability,” ate, at 23– 24, simply does ot matter i light of our recogitio that sovereig immuity provides a “immuity from suit,” ot a “defese to liability.” Federal Maritime Comm’ v. South Carolia Ports Authority, As we have explaied, “the relief sought by a plaitiff suig a State is irrelevat to the questio whether the suit is barred.” Semiole Tribe of 58 Ideed, we have suggested that
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Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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barred.” Semiole Tribe of 58 Ideed, we have suggested that private parties may ot sue eve if a court is “precluded from award ig them ay relief.” Federal Maritime Comm’, at (emphasis added) (dictum). It is the fact that a pri vate party is allowed to sue a sovereig State—ot the burde of litigatio or the relief sought—that ifriges the immuity of the State. “The Eleveth Amedmet is cocered ot oly with the States’ ability to withstad suit, but with their privilege ot to be sued.” Puerto Rico Aqueduct ad Sewer Authority v. Metcalf & Eddy, Ic., 147, 5 It is therefore impossible for the Court to hear private claims agaist a ocosetig State without expadig “our judicial power over the cotroversy.” Sovereig immuity is a limitatio o that power. The similarity of claims may be relevat to joider or itervetio, but those are procedural meas of processig claims, ot fots of judicial authority. See Hederso v. Uited States, 4 ALABAMA v. NORTH CAROLINA Opiio of ROBERTS, C. J. Nor may the Court etertai private claims without “compromis[ig]” “the States’ sovereig immuity.” Ari zoa, 460 U.S., As a party, the Commissio ejoys legally eforceable rights agaist the defedat State: It may object to settlemet, seek taxatio of costs, advace argumets we are obliged to cosider, ad plead the judgmet as res judicata i future litigatio. If the Com missio truly sought othig for itself—other tha “a full expositio of the issues,” Prelimiary Report of the Special Master 14—it could have participated as a amicus. The Commissio ad North Carolia kow that more is at stake if the Commissio is allowed to sue the State. It is precisely the Commissio’s status as a party, its attempt to “prosecut[e]” a “suit i law or equity agaist oe of the Uited States,” U. S. Cost., Amdt. 11, that sovereig immuity forbids. I would sustai North Carolia’s first exceptio to the Special Master’s reports.* —————— * I also joi JUSTICE BREYER’s opiio ad all of the Court’s opiio save Parts II–D ad III–B. JUSTICE THOMAS jois all but Part III–B of the Court’s opiio. Cite as: 560 U. S. (2010) 1 Opiio of BREYER, J. SUPREME COURT OF THE UNITED STATES No. 132, Orig. STATE OF ALABAMA, STATE OF FLORIDA, STATE OF TENNESSEE, COMMONWEALTH OF VIRGINIA, AND SOUTHEAST INTERSTATE LOW-LEVEL RADIO- ACTIVE WASTE MANAGEMENT COMMISSION, PLAINTIFFS v. STATE OF NORTH CAROLINA ON EXCEPTIONS TO THE PRELIMINARY AND SECOND REPORTS OF THE SPECIAL MASTER [Jue 1, 2010] JUSTICE BREYER, with whom THE CHIEF JUSTICE jois, cocurrig i part ad dissetig i part. I joi Parts
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Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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cocurrig i part ad dissetig i part. I joi Parts I, II–A, II–B, ad III of the Court’s opiio. Ulike the Court, however, I believe that North Carolia breached the Southeast Iterstate Low-Level Radioactive Waste Maagemet Compact (Compact) whe it sus peded its efforts toward buildig a waste disposal facility. (THE CHIEF JUSTICE jois all but Parts II–D ad III–B of the Court’s opiio.) Article 5(C) is the critical term of the Compact. It states: “Each party state desigated as a host state for a re gioal facility shall take appropriate steps to esure that a applicatio for a licese to costruct ad op erate a facility is filed with ad issued by the ap propriate authority.” Omibus Low-Level Radioactive Waste Iterstate Compact Coset Act (Coset Act), I September 1986, North Carolia was “desigated as a host state for a regioal” low-level uclear waste disposal “facility.” ; see also App. 417, 432. Soo thereafter, North Carolia’s Geeral Assembly eacted legislatio 2 ALABAMA v. NORTH CAROLINA Opiio of BREYER, J. authorizig a state agecy to “site, fiace, [ad] build” a waste disposal facility. N. C. Ge. Stat. (1987) (repealed 2000). Pursuat to this legislatio, a ew facil ity was to be completed by Jauary 1, 1993. From August 1987 util December 1997, North Carolia took a series of steps to prepare for the costructio of the storage facility. See Brief for North Carolia i Support of Exceptios to Reports of the Special Master 6–8. Ad while doig so it cotiually assured its Compact parters that it “remai[ed] committed to fulfillig its obligatios to the Compact to serve as the ext host state.” App. 92 (Letter from James G. Marti, Goveror of North Caro lia, to Carroll R. Campbell, Jr., Goveror of South Caro lia (October 25, 1990)); Statemet of Udisputed Mate rial Facts ¶¶24–26, 28, 33, 37, 39 (detailig press releases, guberatorial letters, ad other statemets made by North Carolia expressig its commitmet to its Compact obligatios). But North Carolia ever secured a licese, ever ob taied adequate fudig, ad ever bega costructio o a ew facility. See Secod Report of Special Master 2–3 (hereiafter Secod Report). Evetually, the State simply stopped tryig: O December 19, 1997, North Carolia iformed its fellow member States that it would “com mece the orderly shutdow” of the waste disposal “pro ject.” App. 319. After this poit, North Carolia admit tedly took o further steps toward obtaiig a licese or buildig a facility before withdrawig from the Compact i July 1999. (North Carolia Admissios ¶11 (North Carolia “did ot [after 1997] take additioal steps to
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Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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(North Carolia “did ot [after 1997] take additioal steps to licese a waste disposal facility”)); Secod Report 10 (“The parties do ot dispute that North Carolia did ot take additioal steps to pursue a licese for a waste facil ity” after December 1997). Whatever oe might thik of the sufficiecy of North Carolia’s activities durig the previous decade, I do ot Cite as: 560 U. S. (2010) 3 Opiio of BREYER, J. see how the Court ca fid that a year ad a half of doig othig—which North Carolia admits it did betwee December 1997 ad July 1999—costitutes “tak[ig] appropriate steps.” If a studet promises to “take appro priate steps to esure” that he will pass the bar ad the refuses to study, has he ot broke his promise? More to the poit, if a builder promises that he will “take appro priate steps to esure” that a customer will be able to move ito a ew home i two years, ad the does othig at all, has the builder ot broke his promise? As the majority otes, “[o]ther cotemporaeously e acted iterstate compacts” delieated a host State’s obli gatios i more detail tha the Southeast Compact does. Ate, at 16–17. But this fact may just as easily be read to idicate what the parties here iteded, rather tha, as the majority argues, what they did ot ited. Regard less, the laguage of the Compact ad the cotext i which it was eacted—as part of a cogressioal effort to e courage regioal solutios to this Natio’s low-level radio active waste problem, see Coset Act, ; Low- Level Radioactive Waste Policy Act, 94 Stat. 3348—both idicate that North Carolia was supposed to take “appropriate steps” to build a low-level radioactive waste disposal facility. Ad North Carolia’s Geeral Assembly passed a state statute recogizig ad acceptig this resposibility. See N. C. Ge. Stat. (creatig a state agecy to “site, fiace, [ad] build” a waste dis posal facility). How ca it be that two years of iactivity followed by withdrawal satisfies this promise? The aswer, says the Court, is that ay further “appro priate steps” would have cost a sigificat amout of moey. Ate, at 14–15. I 1997, the Southeast Iterstate Low-Level Radioactive Waste Maagemet Commissio (Commissio), the etity resposible for admiisterig the Compact, made clear that it would ot advace North Carolia ay more moey toward buildig a facility. See 4 ALABAMA v. NORTH CAROLINA Opiio of BREYER, J. App. 315. I respose, North Carolia cocluded that it was uwillig to fud the rest of the project itself. See at 317–319. Ad
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Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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the rest of the project itself. See at 317–319. Ad the Court agrees that it would have bee “imprudet” for North Carolia to sped further fuds, i light of the Commissio’s refusal to do so also. Ate, at 15–16. But this is a odd excuse. If a builder promises to “take appropriate steps” to build me a house, the fact that he rus out of fuds would ot ormally excuse his breakig his promise—at least if it is he, ad ot I, who is resposi ble for fiacig the project. See 2 E. Farsworth, Co tracts p. 638 (3d ed. 2004) (Farsworth) (courts “geerally” coclude that “additioal expese” “does ot rise to the level of impracticability” so as to excuse a party from performace). Ad here it is North Carolia, ad ot ayoe else, who bears ultimate resposibility for fidig the fuds. The text, structure, ad purpose of the Compact all demostrate this fact. As the Court recogizes, ate, at 2, the Compact expressly provides that the Commissio “is ot resposible for ay costs associated with the crea tio of ay facility,” Art. 4(K)(1), Rather, the Compact States determied that each “party state” should take a tur as the “host state,” durig which time that State would be obligated to build a facility ad the operate it for 20 years. See Art. 3(A), ; Art. 5(A), ; Art. 5(C), ; Art. 5(E), ; see also Art. 3(C), –1874 (“Host states are resposible for the availability, the subsequet post closure observatio ad maiteace, ad the exteded istitutioal cotrol of their regioal facilities”). The host State would the recover its upfrot costructio expeses from the cosiderable fees ad surcharges charged to the waste geerators served by the facility. N. C. Ge. Stat. (repealed 2000) (“It is the itet of the Geeral Assembly that the cost of all activities [toward Cite as: 560 U. S. (2010) 5 Opiio of BREYER, J. sitig, buildig, ad operatig a facility] be bore by the waste geerators” who use it); Brief for Plaitiffs i Sur reply to North Carolia’s Reply 1, 1 (otig that a dis posal facility i South Carolia collected over $47 millio i fees i 2008). Of course, as the majority otes, South Carolia’s with drawal from the Compact could have affected North Caro lia’s ability to “recoup” its “costructio costs.” Ate, at 18. But, as far as I am aware, North Carolia did ot seriously seek to amed the Compact whe South Caro lia departed (eve though the State had sought ad obtaied a amedmet previously, see ate, at 20, 4; Brief for
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Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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a amedmet previously, see ate, at 20, 4; Brief for North Carolia i Reply to Exceptios By Plai tiffs to Reports of the Special Master 27), or has it argued to this Court that South Carolia’s departure voided its cotractual obligatios. Ideed, there is evidece i the record idicatig that, eve after South Carolia left the Compact, North Carolia cotiued to believe that the operatio of a waste disposal facility preseted a substa tial fiacial opportuity. App. 255, 266 (eclosig a busiess pla idetifyig $600 millio i cost savigs that could provide a “substatial retur” o the “ivestmet eeded to put the North Carolia facility ito operatio”)). I thus caot coclude, as the majority does, that the Compact’s rotatioal desig, as I uderstad it, is “fool ish.” Ate, at 18. Rather, the Compact’s structure repre sets what, i my view, was a uderstadable decisio by the cotractig States, all of whom eeded a waste dis posal facility, to bid themselves together so that each would take a tur “bear[ig] the cost of buildig” the ecessary facility. Prelimiary Report of Special Master 21 (citig Art. 4(K), –1877); see Brief for 6 ALABAMA v. NORTH CAROLINA Opiio of BREYER, J. Rocky Moutai Low-Level Radioactive Waste Compact Board et al. as Amici Curiae 16–18. This rotatioal ap proach is surely a sesible solutio to the problems caused by the widespread existece of low-level uclear waste ad the political upopularity of buildig the ecessary facili ties to house it. See at 13–16; New York v. Uited States, The oly cotrary evidece—i.e., that idicates that North Carolia did ot bear ultimate fudig resposibil ity—cosists of the fact that the Commissio volutarily advaced North Carolia early $80 millio betwee 1988 ad 1998 i order to help it defray its costs. Secod Re port 16. The Court believes that this “course of perform ace” demostrates that, oce the Commissio tured off its moetary spigot, North Carolia was o loger re quired to do aythig further. Ate, at 14–15. But why? If I advace my builder half the cost of a buildig, I have ot thereby promised to advace him the whole cost. This is particularly true whe the cotract says I am resposi ble for oe of the cost of the buildig. At the very least, somethig more i the circumstaces would have to show that additioal expediture had become a reasoable expectatio. I this case, othig suggests that North Carolia could reasoably expect further fiacig assistace. Ideed, I ca fid othig i the majority’s opiio, or the record, that suggests that the Commissio or the other
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Justice Kennedy
| 2,010 | 4 |
concurring
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Alabama v. North Carolina
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https://www.courtlistener.com/opinion/147530/alabama-v-north-carolina/
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the record, that suggests that the Commissio or the other Compact States iteded to let North Carolia off the hook. Ad umerous documets idicate precisely the opposite—that despite the Commissio’s fudig assistace, North Caro lia was still resposible for fudig the project. See, e.g., App. 63 (Resolutio (Feb. 9, 1988) (“The Commissio, although ot obligated to do so uder the Compact,” pro vides fudig for North Carolia)); (Letter from Richard S. Hodes, M. D., Chairma, Southeast Compact Commissio, to James B. Hut, Goveror of North Caro Cite as: 560 U. S. (2010) 7 Opiio of BREYER, J. lia (“At some poit, Commissio fuds will o loger be available to North Carolia ad North Carolia will eed to make alterate plas”)); (Press Release by James G. Marti, Goveror of North Carolia (Nov. 8, 1989) (“ ‘The task of sitig ad operatig a low-level radioactive waste disposal facility is a com mitmet the state of North Carolia has made ad oe which I am persoally committed to keepig’ ”)); (Letter from Goveror of North Carolia, to Goveror of South Carolia (“North Carolia remais committed to fulfillig its obligatios to the Compact to serve as the ext host state”); (Letter from James B. Hut, Jr., Goveror of North Carolia, to David M. Beasley, Goveror of South Carolia (Mar. 14, 1995) (“Let me assure you that North Carolia is committed to hoorig its obligatio to the Compact”)); Statemet of Udisputed Material Facts ¶¶28, 33, 39 (other public statemets about North Carolia’s commitmet to buildig a facility). Without better evidece of a reallocatio of fudig resposibility, I ca oly coclude that North Carolia remaied uder a obligatio to “take appropriate steps” at all times relevat to this case. Ad North Carolia admittedly took o steps towards buildig a disposal facil ity from December 1997 ad July 1999: It did o i-depth study of the further fiacig that might be ecessary; it made o serious effort to look for alterative fudig; the Executive of the State did ot ask its legislature for ay appropriatio. Rather, North Carolia simply withdrew from the Compact. Ate, at 5. Of course, North Carolia was free to withdraw from the Compact. Art. 7(G), –1880. But that fact does ot repair what, i my view, was a breach of a key cotractual provisio. See Fracoia Associates v. Uited States, (“Failure by the promisor to perform establishes a immediate breach”); Restatemet (Secod) of Cotracts (1979) (“Whe 8 ALABAMA v. NORTH CAROLINA Opiio of BREYER, J. performace of a duty uder a cotract is due ay o performace is a breach” (emphasis added)); 2
|
Justice Rehnquist
| 2,003 | 19 |
dissenting
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Green Tree Financial Corp. v. Bazzle
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https://www.courtlistener.com/opinion/130157/green-tree-financial-corp-v-bazzle/
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The parties entered into contracts with an arbitration clause that is governed by the Federal Arbitration Act (FAA), 9 U.S. C. 1 et seq. The Supreme Court of South Carolina held that arbitration under the contracts could proceed as a class action even though the contracts do not by their terms permit class-action arbitration. The plurality now vacates that judgment and remands the case for the arbitrator to make this determination. I would reverse because this determination is one for the courts, not for the arbitrator, and the holding of the Supreme Court of South Carolina contravenes the terms of the contracts and is therefore pre-empted by the FAA. *456 The agreement to arbitrate involved here, like many such agreements, is terse. Its operative language is contained in one sentence: "All disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract shall be resolved by binding arbitration by one arbitrator selected by us with consent of you." App. 34. The decision of the arbitrator on matters agreed to be submitted to him is given considerable deference by the courts. See Major League Baseball Players The Supreme Court of South Carolina relied on this principle in deciding that the arbitrator in this case did not abuse his discretion in allowing a class action. 351 S. C. 244, 266-268, But the decision of what to submit to the arbitrator is a matter of contractual agreement by the parties, and the interpretation of that contract is for the court, not for the arbitrator. As we stated in First of Chicago, : "[G]iven the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the `who should decide arbitrability' point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide." Just as fundamental to the agreement of the parties as what is submitted to the arbitrator is to whom it is submitted. Those are the two provisions in the sentence quoted above, and it is difficult to say that one is more important than the other. I have no hesitation in saying that the choice of arbitrator is as important a component of the agreement *457 to arbitrate as is the choice of what is to be submitted to him. Thus, this case is controlled by First and not by our
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Justice Rehnquist
| 2,003 | 19 |
dissenting
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Green Tree Financial Corp. v. Bazzle
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https://www.courtlistener.com/opinion/130157/green-tree-financial-corp-v-bazzle/
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this case is controlled by First and not by our more recent decision in There, the agreement provided that any dispute "shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member." Howsam chose the National Association of Securities Dealers (NASD), and agreed to that organization's "Uniform Submission Agreement" which provided that the arbitration would be governed by NASD's "Code of Arbitration Procedure." That code, in turn, contained a limitation. This Court held that it was for the arbitrator to interpret that limitation provision: "`"[P]rocedural" questions which grow out of the dispute and bear on its final disposition' are presumptively not for the judge, but for an arbitrator, to decide. John Wiley [& Sons, ] (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide `allegation[s] of waiver, delay, or a like defense to arbitrability.'" I think that the parties' agreement as to how the arbitrator should be selected is much more akin to the agreement as to what shall be arbitrated, a question for the courts under First than it is to "allegations of waiver, delay, or like defenses to arbitrability," which are questions for the arbitrator under Howsam. "States may regulate contracts, including arbitration clauses, under general contract law principles," Allied-Bruce Terminix "[T]he interpretation of private contracts is ordinarily a question of *458 state law, which this Court does not sit to review." Information Sciences, But "state law may nonetheless be pre-empted to the extent that it actually conflicts with federal lawthat is, to the extent that it `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" ). The parties do not dispute that these contracts fall within the coverage of the FAA. 351 S. C., at The "central purpose" of the FAA is "to ensure that private agreements to arbitrate are enforced according to their terms." (quoting ). See also Doctor's Associates, ; First In other words, Congress sought simply to "place such agreements upon the same footing as other contracts." at ). This aim "requires that we rigorously enforce agreements to arbitrate," Mitsubishi ), in order to "give effect to the contractual rights and expectations of the parties," See also Mitsubishi at Under the FAA, "parties are generally free to structure their arbitration agreements as they see fit." Here, the parties saw fit to agree that any disputes arising out of the contracts "shall be resolved by
|
Justice Rehnquist
| 2,003 | 19 |
dissenting
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Green Tree Financial Corp. v. Bazzle
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https://www.courtlistener.com/opinion/130157/green-tree-financial-corp-v-bazzle/
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disputes arising out of the contracts "shall be resolved by binding arbitration by one arbitrator selected by us with consent of you." App. 34. Each contract expressly defines "us" as petitioner, and "you" as the respondent or respondents *459 named in that specific contract. Each contract also specifies that it governs all "disputes. arising from. this contract or the relationships which result from this contract." These provisions, which the plurality simply ignores, see ante, at 450-451, make quite clear that petitioner must select, and each buyer must agree to, a particular arbitrator for disputes between petitioner and that specific buyer. While the observation of the Supreme Court of South Carolina that the agreement of the parties was silent as to the availability of class-wide arbitration is literally true, the imposition of class-wide arbitration contravenes the just-quoted provision about the selection of an arbitrator. To be sure, the arbitrator that administered the proceedings was "selected by [petitioner] with consent of" the Bazzles, Lackey, and the Buggses. App. 34-36. But petitioner had the contractual right to choose an arbitrator for each dispute with the other 3,734 individual class members, and this right was denied when the same arbitrator was foisted upon petitioner to resolve those claims as well. Petitioner may well have chosen different arbitrators for some or all of these other disputes; indeed, it would have been reasonable for petitioner to do so, in order to avoid concentrating all of the risk of substantial damages awards in the hands of a single arbitrator. As petitioner correctly concedes, Brief for Petitioner 32, 42, the FAA does not prohibit parties from choosing to proceed on a classwide basis. Here, however, the parties simply did not so choose. "Arbitration under the Act is a matter of consent, not coercion." Here, the Supreme Court of South Carolina imposed a regime that was contrary to the express agreement of the parties as to how the arbitrator would be chosen. It did not enforce the "agreemen[t] *460 to arbitrate according to [its] terms." I would therefore reverse the judgment of the Supreme Court of South Carolina.
|
Justice Rehnquist
| 1,989 | 19 |
dissenting
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Healy v. Beer Institute
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https://www.courtlistener.com/opinion/112301/healy-v-beer-institute/
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In the Court held that a New York statute setting minimum prices for milk sold in that State violated the Commerce Clause when applied to milk produced more cheaply in Vermont but imported into New York for sale. Today the Court applies the doctrine of that case to invalidate a Connecticut statute which sets a maximum price for beer imported into *346 Connecticut from other States. The Court's analysis seems wrong to me both as a matter of economics and as a matter of law: the maximum prices set by Connecticut in this case have a quite different effect than did the minimum prices set by New York in the Baldwin case, and by reason of the Twenty-first Amendment the States possess greater authority to regulate commerce in beer than they do commerce in milk. The New York statute passed upon in Baldwin provided that no milk could be sold in the New York City metropolitan area unless it had been purchased from the producer for a price at least equal to the minimum specified by law. When this statute was applied to milk produced in Vermont but brought into the New York City metropolitan area for sale, the result was to require Vermont producers to give up the natural advantage which they would otherwise have obtained from the fact that the costs of production of milk in Vermont were lower than the costs of production in New York. The Court rightly held that this sort of a regulation violated the Commerce Clause because it "set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported." In Milk Control decided four years after Baldwin, the Court upheld a different state milk price regulation, and in so doing distinguished Baldwin as a case in which "this Court condemned an enactment aimed solely at interstate commerce attempting to affect and regulate the price to be paid for milk in a sister state." The Connecticut statute here is markedly different from the New York statute condemned in Baldwin. Connecticut has no motive to favor local brewers over out-of-state brewers, because there are no local brewers. Ante, at 327, n. 2. Its motive unchallenged here is to obtain from out-of-state brewers prices for Connecticut retailers and Connecticut beer drinkers as low as those charged by the brewers in neighboring States. Connecticut does not seek to erect any *347 sort of tariff barrier to exclude out-of-state beer; its residents will drink out-of-state beer if they drink
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Justice Rehnquist
| 1,989 | 19 |
dissenting
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Healy v. Beer Institute
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https://www.courtlistener.com/opinion/112301/healy-v-beer-institute/
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beer; its residents will drink out-of-state beer if they drink beer at all, and the State simply wishes its inhabitants to be treated as favorably as those of neighboring States by the brewers who sell interstate. There is no "tariff wall" between Connecticut and other States; there is only a maximum price regulation with which the interstate brewer would rather not have to bother. But that is not a sufficient reason for saying that such a regulation violates the Commerce Clause. Neither the parties nor the Court points to any concrete evidence that the Connecticut regulation will have any effect on the beer prices charged in other States, much less a constitutionally impermissible one. It is merely assumed that consumers in the neighboring States possess "competitive advantages" over Connecticut consumers. Ante, at 339. But it is equally possible that Connecticut's affirmation laws, a response to a history of unusually high beer prices in that State, see United States Brewers Assn., may be justifiable as a remedy for some market imperfection that permits supracompetitive prices to be charged Connecticut consumers. The Court expresses the view that these regulations will affect the prices of beer in other States and goes on to say that such an effect constitutes "regulating" or "controlling" beer sales beyond its borders. Ante, at 337, 342. But this view is simply the Court's personal forecast about the business strategies that distributors may use to set their prices in light of regulatory obligations in various States. Certainly a distributor that considers the Connecticut affirmation law when setting its prices in Massachusetts, or offering a discount in New York, is under no legal obligation to do so. And it is quite arbitrary, and inconsistent with other Commerce Clause doctrine, to strike down Connecticut's affirmation law because together with the laws of neighboring States it might require a brewer to plan its pricing somewhat farther in advance, ante, at 337-338, than it would prefer to do in a totally unregulated economy. *348 "[T]he question is not whether what [the State] has done will restrict appellants' freedom of action outside [the State] by subjecting the exercise of such freedom to financial burdens. The mere fact that state action may have repercussions beyond state lines is of no judicial significance so long as the action is not within that domain which the Constitution forbids." See also Joseph E. Seagram & Sons, I am no more convinced by the Court's alternative rationale, that the Connecticut statute "facially discriminates" against brewers and shippers of beer engaged in interstate commerce in favor of brewers and shippers
|
Justice Rehnquist
| 1,989 | 19 |
dissenting
|
Healy v. Beer Institute
|
https://www.courtlistener.com/opinion/112301/healy-v-beer-institute/
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engaged in interstate commerce in favor of brewers and shippers who do business wholly within Connecticut. Ante, at 340. As the Court acknowledges, there are no Connecticut brewers, ante, at 327, n. 2, and the Court has not pointed to any evidence of shippers doing business in Connecticut but not in its border States. Consequently, the Court strikes down Connecticut's statute because it facially discriminates in favor of entities that apparently do not exist. But cf. Amerada Hess We do not know what actions Connecticut might take to eliminate discriminatory effects if a local brewer began business and a true danger of discrimination in favor of local business appeared. It is not a proper exercise of our constitutional power to invalidate state legislation as facially discriminatory just because it has not taken into account every hypothetical circumstance that might develop in the market. All of the foregoing is based on the assumption that a State has no more freedom to regulate commerce in beer than it does commerce in milk or any other commodity. But the Twenty-first Amendment, as the Court concedes, at least in theory, provides otherwise: *349 "The transportation or importation into any State for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Less than 10 years ago we acknowledged that the Twenty-first Amendment confers on the States "virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system." California Retail Liquor Dealers And while this "special power" of the States to regulate liquor, must coexist with Congress' power to regulate commerce, "[t]his Court's decisions have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause." The Court in the present cases barely pays lipservice to the additional authority of the States to regulate commerce and alcoholic beverages granted by the Twenty-first Amendment. Neglecting to consider that increased authority is especially disturbing here where the perceived proscriptive force of the Commerce Clause does not flow from an affirmative legislative decision and so is at its nadir. Even the most restrictive view of the Twenty-first Amendment should validate Connecticut's efforts to obtain from interstate brewers prices for its beer drinkers which are as favorable as the prices which those brewers charge in neighboring States. The result reached by the Court in these cases can only be described as perverse. A proper view of the Twenty-first Amendment would require that States have greater latitude under the Commerce Clause to regulate producers of alcoholic beverages than they do
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
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This case has illuminated the character of an institution. The record demonstrates that the Pennhurst State School and Hospital has been operated in violation of state law. In after three years of litigation, the District Court entered detailed findings of fact that abundantly support that conclusion. In after four more years of litigation, this Court ordered the United States Court of Appeals for the Third Circuit to decide whether the law of Pennsylvania provides an independent and adequate ground which can support the District Court's remedial order. The Court of Appeals, sitting en banc, unanimously concluded that it did. This Court does not disagree with that conclusion. Rather, it reverses the Court of Appeals because it did precisely what this Court ordered it to do; the only error committed by the Court of Appeals was its faithful obedience to this Court's command. This remarkable result is the product of an equally remarkable misapplication of the ancient doctrine of sovereign immunity. In a completely unprecedented holding, today the Court concludes that Pennsylvania's sovereign immunity prevents a federal court from enjoining the conduct that Pennsylvania itself has prohibited. No rational view of the sovereign immunity of the States supports this result. To the *127 contrary, the question whether a federal court may award injunctive relief on the basis of state law has been answered affirmatively by this Court many times in the past. Yet the Court repudiates at least 28 cases, spanning well over a century of this Court's jurisprudence, proclaiming instead that federal courts have no power to enforce the will of the States by enjoining conduct because it violates state law. This new pronouncement will require the federal courts to decide federal constitutional questions despite the availability of state-law grounds for decision, a result inimical to sound principles of judicial restraint. Nothing in the Eleventh Amendment, the conception of state sovereignty it embodies, or the history of this institution, requires or justifies such a perverse result. I The conduct of petitioners that the Court attributes to the State of Pennsylvania in order to find it protected by the Eleventh Amendment is described in detail in the District Court's findings. As noted in our prior opinion, Pennhurst State School and and by the majority today, ante, at 92-93, those findings were undisputed: "Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the `habilitation' of the retarded. Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst." The court concluded that
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
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some residents have deteriorated at Pennhurst." The court concluded that Pennhurst was actually hazardous to its residents.[1] Organized programs of training or education *128 were inadequate or entirely unavailable, and programs of treatment or training were not developed for residents. When they visited Pennhurst, shocked parents of residents would find their children bruised, drugged, and unattended. These conditions often led to a deterioration in the condition of the residents after being placed in Pennhurst. Terri Lee Halderman, for example, was learning to talk when she entered Pennhurst; after residing there she lost her verbal skills. At every stage of this litigation, petitioners have conceded that Pennhurst fails to provide even minimally adequate habilitation for its residents. See ; The District Court held that these conditions violated each resident's rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, 504 of the Rehabilitation Act of 1973, 29 U.S. C. 794, and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., Tit. 50, 4101-4704 (Purdon 1969 and Supp. 1983-1984) (MH/MR Act). The en banc Court of Appeals for the Third Circuit affirmed most of the District Court's judgment, but it grounded its decision solely on the "bill of rights" provision in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S. C. 6010. The court did not consider the constitutional issues or 504 of the Rehabilitation Act. While it affirmed the District Court's holding that the MH/MR Act provides a right to adequate habilitation, the court did not decide whether that state right justified all of the relief granted by the District Court. Petitioners sought review by this Court, asserting that the Court of Appeals had erred in its construction of both federal and state statutes. This Court granted certiorari and reversed, *129 holding that 42 U.S. C. 6010 created no substantive rights. We did not accept respondents' state-law contention, because there was a possibility that the Court of Appeals' analysis of the state statute had been influenced by its erroneous reading of federal law. Concluding that it was "unclear whether state law provides an independent and adequate ground which can support the court's remedial order," we "remand[ed] the state-law issue for reconsideration in light of our decision here." In a footnote we declined to consider the effect of the Pennsylvania Supreme Court's then recent decision, In re Schmidt, on the state-law issues in the case, expressly stating that on remand the Court of Appeals could "consider the state-law issues in light of the Pennsylvania Supreme Court's recent decision." n. 24. On remand, the
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
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Pennsylvania Supreme Court's recent decision." n. 24. On remand, the Court of Appeals, noting that this Court had remanded for reconsideration of the state-law issue, examined the impact of Schmidt.[2] According to the Court of Appeals, which was unanimous on this point, the State Supreme Court had "spoken definitively" on the duties of the State under the MH/MR Act, holding that the State was required to provide care to the mentally retarded in the "least restrictive environment." Since the MH/MR Act fully justified the relief issued in the Court of Appeals' prior judgment, the court reinstated its prior judgment on the basis of petitioners' violation of state law.[3] *130 Thus, the District Court found that petitioners have been operating the Pennhurst facility in a way that is forbidden by state law, by federal statute, and by the Federal Constitution. The en banc Court of Appeals for the Third Circuit unanimously concluded that state law provided a clear and adequate basis for upholding the District Court and that it was not necessary to address the federal questions decided by that court. That action conformed precisely to the directive issued by this Court when the case was here before. Petitioners urge this Court to make an unprecedented about-face, and to hold that the Eleventh Amendment prohibited the Court of Appeals from doing what this Court ordered it to do when we instructed it to decide whether respondents were entitled to relief under state law. Of course, if petitioners are correct, then error was committed not by the Court of Appeals, which after all merely obeyed the instruction of this Court, but rather by this Court in when we ordered the Court of Appeals to consider the state-law issues in the case. Petitioners' position is utterly without support. The Eleventh Amendment and the doctrine of sovereign immunity it embodies have never been interpreted to deprive a court of jurisdiction to grant relief against government officials who are engaged in conduct that is forbidden by their sovereign. On the contrary, this Court has repeatedly and consistently exercised the power to enjoin state officials from violating state law.[4] The majority proceeds as if this Court has not had previous occasion to consider the Eleventh Amendment argument made by petitioners, and contends that Ex parte Young, has no application to a suit seeking injunctive relief on the basis of state law. That is simply not the case. The Court rejected the argument that the Eleventh *131 Amendment precludes injunctive relief on the basis of state law twice only two Terms ago. In Florida Dept. of four
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
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twice only two Terms ago. In Florida Dept. of four Justices concluded that a suit for possession of property in the hands of state officials was not barred by the Eleventh Amendment inasmuch as the State did not have even a colorable claim to the property under state law. See Four additional Justices accepted the proposition that if the state officers' conduct had been in violation of a state statute, the Eleventh Amendment would not bar the action.[5] And in just one short paragraph in the Court thrice restated the settled rule that the Eleventh Amendment does not bar suits against state officers when they are "alleged to be acting against federal or state law."[6] These *132 are only the two most recent in an extraordinarily long line of cases. By 1908, it was firmly established that conduct of state officials under color of office that is tortious as a matter of state law is not protected by the Eleventh Amendment. See ; ;[7] Cf. ; 5-519 (93)[8] In the Court explained the relationship of these cases to the doctrine of sovereign immunity. "[I]mmunity from suit is a high attribute of sovereignty a prerogative of the State itself which cannot be availed of by public agents when sued for their own torts. The Eleventh Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the State's citizens. To grant them such immunity would be to create a privileged class free from liability for wrongs inflicted or injuries threatened. ". Besides, neither a State nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator. In such cases the law of agency has no application the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction against the commission of acts causing irreparable injury."[9] *134 The principles that were decisive in these cases are not confined to actions under state tort law. They also apply to claims that state officers have violated state statutes. In (19), the Court reversed the dismissal of an action against the bank commissioner of Oklahoma and his surety to recover damages for the loss of plaintiff's bank deposit, allegedly caused by the commissioner's failure to safeguard the business and assets of the bank in negligent or willful disregard of his duties under applicable state statutes. The Court explained that the action was not one against the State. "To answer it otherwise would be to
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
against the State. "To answer it otherwise would be to assert, we think, that whatever an officer does, even in contravention of the laws of the State, is state action, identifies him with it and makes the redress sought against him a claim against the State and therefore prohibited by the Eleventh Amendment. Surely an officer of a State may be delinquent without involving the State in delinquency, indeed, may injure the State by delinquency as well as some resident of the State, and be amenable to both." Similarly, in (87), the Court rejected the argument that a suit to enjoin a state officer to comply with state law violated the Eleventh Amendment. The Court wrote: "Here the suit is to get a state officer to do what a statute requires of him. The litigation is with the officer, not the state."[10] *135 Significantly, this rule was expressly reaffirmed in a case decided by this Court in the same Term as Ex parte Young and published in the same volume of the United States Reports. *136 The appellants in brought a diversity suit seeking injunctive relief against the dairy and food commissioner of the State of Michigan, on the ground that "under cover of his office" he had maliciously engaged in a course of conduct designed to ruin plaintiffs' business in the State. The Circuit Court dismissed the complaint on Eleventh Amendment grounds. On appeal, the plaintiffs contended that the Eleventh Amendment "does not apply where a suit is brought against defendants who, claiming to act as officers of the State, and under color of a statute which is valid and constitutional, but wrongfully administered by them, commit, or threaten to commit, acts of wrong or injury to the rights and property of the plaintiff, or make such administration of the statute an illegal burden and exaction upon the plaintiff." This Court agreed. It noted that the complaint alleged action "in dereliction of duties enjoined by the statutes of the State," and concluded that it was "manifest from this summary of the allegations of the bill that this is not a suit against the State."[11] Finally, in and its companion cases, Louisville & Nashville R. ; Illinois Central R. the plaintiffs challenged the conduct of state officials under both federal and state law. The Court, citing, inter alia, Young and Clemson, held that the Eleventh Amendment did not bar injunctive relief on the basis of state law, noting that the plaintiffs' federal claim was sufficiently substantial to justify the exercise *137 of pendent jurisdiction over plaintiffs' state-law claims,[12] and that
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
*137 of pendent jurisdiction over plaintiffs' state-law claims,[12] and that since violations of federal and state law had been alleged, it was appropriate for the federal court to issue injunctive relief on the basis of state law without reaching the federal claims, despite the strictures of the Eleventh Amendment. In short, the Court approved of precisely the methodology employed by the Court of Appeals in this case.[13] None of these cases contain only "implicit" or sub silentio holdings; all of them explicitly consider and reject the claim that the Eleventh Amendment prohibits federal courts from issuing injunctive relief based on state law. There is therefore no basis for the majority's assertion that the issue presented by this case is an open one, ante, at 119.[14] *138 The Court tries to explain away these cases by arguing that the applicable state statutes gave petitioners such "broad discretion" over Pennhurst that their actions were not ultra vires, ante, at 110-111. The Court, however, does not dispute the Court of Appeals' conclusion that these state statutes gave petitioners no discretion whatsoever to disregard their duties with respect to institutionalization of the retarded as they did. Petitioners acted outside of their lawful discretion every bit as much as did the government officials in the cases I have discussed, which hold that when an official commits an act prohibited by law, he acts beyond his authority and is not protected by sovereign immunity.[15] After all, it is only common sense to conclude that States do not authorize their officers to violate their legal duties. The Court also relies heavily on the fact that the District Court found petitioners immune from damages liability because they " `acted in the utmost good faith within the sphere of their official responsibilities,' " ante, at 107 (emphasis in original) ( ). This confuses two distinct concepts. An official can act in good faith and therefore be immune from damages liability despite the *139 fact that he has done that which the law prohibits, a point recognized as recently as Nevertheless, good-faith immunity from damages liability is irrelevant to the availability of injunctive relief. See The state officials acted in nothing less than good faith and within the sphere of their official responsibilities in asserting Florida's claim to the treasure in Treasure Salvors; the same can be said for the bank commissioner's actions in safeguarding bank deposits challenged in the fund commissioner's decision to sell property mortgaged to the State challenged in Rolston, and the state food and dairy commissioner's decision to prosecute the appellant for violating the state food
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
decision to prosecute the appellant for violating the state food impurity Act challenged in Scully, to give just a few examples. Yet in each of these cases the state officers' conduct was enjoined. makes this point perfectly clear. There state officers did nothing more than carry out responsibilities clearly assigned to them by a statute. Their conduct was nevertheless enjoined because this Court held that their conduct violated the State Constitution, despite the fact that their reliance on a statute made it perfectly clear that their conduct was not only in good faith but reasonable. See Until today the rule has been simple: conduct that exceeds the scope of an official's lawful discretion is not conduct the sovereign has authorized and hence is subject to injunction.[16] Whether that conduct also gives rise to damages liability is an entirely separate question. *140 I On its face, the Eleventh Amendment applies only to suits against a State brought by citizens of other States and foreign nations.[17] This textual limitation upon the scope of the States' immunity from suit in federal court was set aside in (90). was a suit against the State of Louisiana, brought by a citizen of Louisiana seeking to recover interest on the State's bonds. The Court stated that some of the arguments favoring sovereign immunity for the States made during the process of the Amendment's ratification had become a part of the judicial scheme created by the Constitution. As a result, the Court concluded that the Constitution prohibited a suit by a citizen against his or her own State. When called upon to elaborate in the Court explained that the Eleventh Amendment did more than simply prohibit suits brought by citizens of one State against another State. Rather, it exemplified the broader and more ancient doctrine of sovereign immunity, which operates to *141 bar a suit brought by a citizen against his own State without its consent.[] The Court has subsequently adhered to this interpretation of the Eleventh Amendment. For example, in the Court referred to the Eleventh Amendment as incorporating "the traditional sovereign immunity of the States." Similarly, in the Court referred to "the Eleventh Amendment, and the principle of state sovereignty which it embodies" See also[19] Thus, under our cases it is the doctrine of sovereign immunity, rather than the text of the Amendment *142 itself, which is critical to the analysis of any Eleventh Amendment problem.[20] The doctrine of sovereign immunity developed in England, where it was thought that the King could not be sued. However, common-law courts, in applying the doctrine, traditionally distinguished between
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
However, common-law courts, in applying the doctrine, traditionally distinguished between the King and his agents, on the theory that the King would never authorize unlawful conduct, and that therefore the unlawful acts of the King's officers ought not to be treated as acts of the sovereign. See 1 W. Blackstone, Commentaries *244. As early as the 15th century, writes, servants of the King were held liable for their unlawful acts. See 3 W. A History of English Law 388 (1903). During the 17th century, this rule of law was used extensively to curb the King's authority. The King's officers "could do wrong, and if they committed wrongs, whether in the course of their employment or not, they could be made legally liable. The command or instruction of the king could not protect them. If the king really had given such commands or instructions, he must have been deceived." 6 In one famous case, it was held that although process would not issue against the sovereign himself, it could issue against his officers. "[F]or the warrant of no man, not even of the King himself, can excuse the doing of an illegal act." Sands v. Child, 3 Lev. 351, 352, 83 Eng. Rep. 725, 726 (K. B. 1693).[21] By the th century, this rule of law was unquestioned. *143 See 10 And in the 19th century this view was taken by the court to be so well settled as not to require the citation of authority, see Feather v. Queen, 6 B. & S. 257, 295-297, 122 Eng. Rep. 1, 1205-1206 (Q. B. 65).[22] It was only natural, then, that this Court, in applying the principles of sovereign immunity, recognized the distinction between a suit against a State and one against its officer.[23] For example, while the Court did inquire as to whether a suit was "in essence" against the sovereign, it soon became settled law that the Eleventh Amendment did not bar suits against state officials in their official capacities challenging unconstitutional conduct. See 5-519 (98); (91);[24] This rule was reconciled with sovereign immunity *144 principles by use of the traditional rule that an action against an agent of the sovereign who had acted unlawfully was not considered to be against the sovereign. When an official acts pursuant to an unconstitutional statute, the Court reasoned, the absence of valid authority leaves the official ultra vires his authority, and thus a private actor stripped of his status as a representative of the sovereign.[25] In Ex parte Young, the Court was merely restating a settled principle when it wrote: "The Act to
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
restating a settled principle when it wrote: "The Act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct."[26] *145 The majority states that the holding of Ex parte Young is limited to cases in which relief is provided on the basis of federal law, and that it rests entirely on the need to protect the supremacy of federal law. That position overlooks the foundation of the rule of Young as well and Young's other predecessors. The Young Court distinguished between the State and its Attorney General because the latter, in violating the Constitution, had engaged in conduct the sovereign could not authorize. The pivotal consideration was not that the conduct violated federal law, since nothing in the jurisprudence of the Eleventh Amendment permits a suit against a sovereign merely because federal law is at issue.[27] Indeed, at least since (90), the law has been settled that the Eleventh Amendment applies even though the State is accused of violating the Federal Constitution. In the Court held that the Eleventh Amendment applies to all cases within the jurisdiction of the federal courts including those brought to require compliance with federal law, and bars any suit where the State is the proper defendant under sovereign immunity principles. A long line of cases has endorsed that proposition, holding that irrespective *146 of the need to vindicate federal law a suit is barred by the Eleventh Amendment if the State is the proper defendant.[28] It was clear until today that "the State [is not] divested of its immunity `on the mere ground that the case is one arising under the Constitution or laws of the United States.' " 377 U.S. 4, 6 ( ). The pivotal consideration in Young was that it was not conduct of the
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
in Young was that it was not conduct of the sovereign that was at issue.[29] The rule that unlawful acts of an officer should not be attributed to the sovereign has deep roots in the history of sovereign immunity and makes Young reconcilable with the principles of sovereign immunity found in the Eleventh Amendment,[30] rather *147 than merely an unprincipled accommodation between federal and state interests that ignores the principles contained in the Eleventh Amendment. This rule plainly applies to conduct of state officers in violation of state law. Young states that the significance of the charge of unconstitutional conduct is that it renders the state official's conduct "simply an illegal act," and hence the officer is not entitled to the sovereign's immunity. Since a state officer's conduct in violation of state law is certainly no less illegal than his violation of federal law, in either case the official, by committing an illegal act, is "stripped of his official or representative character." For example, one of Young's predecessors held that a suit challenging an unconstitutional attempt by the Virginia Legislature to disavow a state contract was not barred by the Eleventh Amendment, reasoning that "inasmuch as, by the Constitution of the United States, which is also the supreme law of Virginia, that contract, when made, became thereby unchangeable, irrepealable by the State, the subsequent act of January 26, 82, and all other like acts, which deny the obligation of that contract and forbid its performance, are not the acts of the State of Virginia. The true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it. Whatever having that effect, if operative, has been attempted or done, is the work of its government acting without authority, in violation of its fundamental law, and must be looked upon, in all courts of justice, as if it were not and never had been. The State of Virginia has done none of *148 these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands." -293[31] It is clear that the Court in Poindexter attached no significance to the fact that Virginia had been accused of violating federal and not its own law.[32] To the contrary, the Court treated the Federal Constitution as part of Virginia's law, and concluded that the challenged action was not that of Virginia precisely because it violated Virginia's law. The majority's
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
of Virginia precisely because it violated Virginia's law. The majority's position turns the Young doctrine on its head sovereign immunity did not bar actions challenging unconstitutional conduct by state officers since the Federal Constitution was also to be considered part of the State's law and since the State could not and would not authorize a violation of its own law, the officers' conduct was considered individual *149 and not sovereign. No doubt the Courts that produced Poindexter and Young would be shocked to discover that conduct authorized by state law but prohibited by federal law is not considered conduct attributable to the State for sovereign immunity purposes, but conduct prohibited by state law is considered conduct attributable to the very State which prohibited that conduct. Indeed, in (99), the Court specifically found that it was impossible to distinguish between a suit challenging unconstitutional conduct of state officers and a suit challenging any other type of unlawful behavior: "If a suit against officers of a State to enjoin them from enforcing an unconstitutional statute be not one against the State, it is impossible to see how a suit against the individuals to recover the possession of property belonging to the plaintiff and illegally withheld by the defendants can be deemed a suit against the State."[33] These cases are based on the simple idea that an illegal act strips the official of his state-law shield, thereby depriving the official of the sovereign's immunity. The majority criticizes this approach as being "out of touch with reality" because it ignores the practical impact of an injunction on the *150 State though directed at its officers. Ante, at 106-108. Yet that criticism cannot account for Young, since an injunction has the same effect on the State whether it is based on federal or state law. Indeed, the majority recognizes that injunctions approved by Young have an "obvious impact on the State itself," ante, at 104. In the final analysis the distinction between the State and its officers, realistic or not, is one firmly embedded in the doctrine of sovereign immunity. It is that doctrine and not any theory of federal supremacy which the Framers placed in the Eleventh Amendment and which this Court therefore has a duty to respect. It follows that the basis for the Young rule is present when the officer sued has violated the law of the sovereign; in all such cases the conduct is of a type that would not be permitted by the sovereign and hence is not attributable to the sovereign under traditional sovereign immunity principles. In
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
attributable to the sovereign under traditional sovereign immunity principles. In such a case, the sovereign's interest lies with those who seek to enforce its laws, rather than those who have violated them. "[P]ublic officials may become tort-feasors by exceeding the limits of their authority. And where they unlawfully seize or hold a citizen's realty or chattels, recoverable by appropriate action at law or in equity [t]he dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld."[34] The majority's position that the Eleventh Amendment does not permit federal courts to enjoin conduct that the sovereign State itself seeks to prohibit thus is inconsistent with both *151 the doctrine of sovereign immunity and the underlying respect for the integrity of state policy which the Eleventh Amendment protects. The issuance of injunctive relief which enforces state laws and policies, if anything, enhances federal courts' respect for the sovereign prerogatives of the States.[35] The majority's approach, which requires federal courts to ignore questions of state law and to rest their decisions on federal bases, will create more rather than less friction between the States and the federal judiciary. Moreover, the majority's rule has nothing to do with the basic reason the Eleventh Amendment was added to the Constitution. There is general agreement that the Amendment was passed because the States were fearful that federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin.[36] Entertaining a suit for injunctive relief based on state law implicates none of the concerns of the Framers. Since only injunctive relief is sought there is no threat to the state treasury of the type that concerned the Framers, see -290 ; ; and if the State wishes to avoid the federal injunction, it can easily do so simply by changing its law. The possibility of States left helpless in the face of disruptive federal decrees which led to the passage of the Eleventh *152 Amendment simply is not presented by this case. Indeed, the Framers no doubt would have preferred federal courts to base their decisions on state law, which the State is then free to reexamine, rather than forcing courts to decide cases on federal grounds, leaving the litigation beyond state control. In light of the preceding, it should come as no surprise that there is absolutely no authority for the majority's position that the rule of Young is inapplicable to violations of state law. The only cases the majority cites, ante, at 105-106, for the proposition
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
cases the majority cites, ante, at 105-106, for the proposition that Young is limited to the vindication of federal law do not consider the question whether Young permits injunctive relief on the basis of state law in each of the cases the question was neither presented, briefed, argued, nor decided.[37] It is curious, to say the least, that the majority disapproves of reliance on cases in which the issue we face today was decided sub silentio, see ante, at 119, yet it is willing to rely on cases in which the issue was not decided at all. In fact, not only is there no precedent for the majority's position, but, as I have demonstrated in Part there is an avalanche of precedent squarely to the contrary.[38] *153 That the doctrine of sovereign immunity does not protect conduct which has been prohibited by the sovereign is clearly demonstrated by the case on which petitioners chiefly rely, The Larson opinion teaches that the actions of state officials are not attributable to the State are ultra vires in two different types of situations: (1) when the official is engaged in conduct that the sovereign has not authorized, and (2) when he has engaged in conduct that the sovereign has forbidden. A sovereign, like any other principal, cannot authorize its agent to violate the law. When an agent does so, his actions are considered ultra vires and he is liable for his own conduct under the law of agency. Both types of ultra vires conduct are clearly identified in Larson. "There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. If the War Assets Administrator had completed a sale of his personal home, he presumably could be enjoined from later conveying it to a third person. On a similar theory, where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing *154 the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power.
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies." Larson thus clearly indicates that the immunity determination depends upon the merits of the plaintiff's claim. The same approach is employed by Young the plaintiff can overcome the state official's immunity only by succeeding on the merits of its claim of unconstitutional conduct. Following the two-track analysis of Larson, the cases considering the question whether the state official is entitled to the sovereign's immunity can be grouped into two categories. In cases like Larson, and Florida Dept. of which usually involve the State functioning in its proprietary capacity, the ultra vires issue can be resolved solely by reference to the law of agency. Since there is no specific limitation on the powers of the officers other than the general limitations on their authority, the only question that need be asked is whether they have acted completely beyond their authority. But when the State has placed specific limitations on the manner in which state officials may perform their duties, as it often does in regulatory or other administrative contexts such as were considered in and (19), the ultra vires inquiry also involves the question whether the officials acted in a way that state law forbids. No sovereign would authorize its officials to violate its own law, and if the official does so, then Larson indicates that his conduct is ultra vires and not protected by sovereign immunity. Larson confirms that the Court's disposition of this case in ordering the Court of Appeals to consider respondents' state-law claims was fully harmonious with established sovereign immunity principles. The jurisdiction of the federal court was established by a federal claim;[39] the Court of Appeals therefore had jurisdiction to resolve the case and to grant injunctive relief on either federal or state grounds. Respondents pleaded a specific statutory limitation on the way in which petitioners were entitled to run Pennhurst. The District Court and the Court of Appeals have both found that petitioners operated Pennhurst in a way that the sovereign has forbidden. Specifically, both courts concluded that petitioners placed residents in Pennhurst without any consideration at all of the limitations on institutional confinement that are found in state law, and that
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
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institutional confinement that are found in state law, and that they failed to create community living programs that are mandated by state law. In short, there can be no dispute that petitioners ran Pennhurst in a way that the sovereign had *156 forbidden. Under the second track of the Larson analysis, petitioners were acting ultra vires because they were acting in a way that the sovereign, by statute, had forbidden.[40] *157 Petitioners readily concede, both in their brief and at oral argument, that the Eleventh Amendment does not bar a suit against state officers who have acted ultra vires. The majority makes a similar concession, ante, -102, n. 11. Yet both ignore the fact that the cases, and most especially Larson, set out a two-step analysis for ultra vires conduct conduct that is completely beyond the scope of the officer's authority, or conduct that the sovereign has forbidden. In fact, the majority goes so far as to quote the passage from Larson indicating that a state official acts ultra vires when he completely lacks power delegated from the State, ante, n. 11. That quotation ignores sentences immediately preceding and following the quoted passage stating in terms that where an official violates a statutory prohibition, he acts ultra vires and is not protected by sovereign immunity. This omission is understandable, since petitioners' conduct in this case clearly falls into the category of conduct the sovereign has specifically forbidden by statute. Petitioners were told by Pennsylvania how to run Pennhurst, and there is no dispute that they disobeyed their instructions. Yet without explanation, the Court repudiates the two-track analysis of Larson and holds that sovereign immunity extends to conduct the sovereign has statutorily prohibited.[41] Thus, contrary *158 to the Court's assertion, Larson is in conflict with the result reached today.[42] In sum, a century and a half of this Court's Eleventh Amendment jurisprudence has established the following. A suit alleging that the official had acted within his authority but in a manner contrary to state statutes was not barred because the Eleventh Amendment prohibits suits against States; it does not bar suits against state officials for actions not permitted by the State under its own law. The sovereign could not and would not authorize its officers to violate its own law; hence an action against a state officer seeking redress for conduct not permitted by state law is a suit against the officer, not the sovereign. Ex parte Young concluded in as explicit a fashion as possible that unconstitutional action by state officials is not action by the State even if
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
state officials is not action by the State even if it purports to be authorized by state law, because the Federal Constitution strikes down the state-law shield. In the tort cases, if the plaintiff proves his case, there is by definition no state-law defense to shield the defendant. Similarly, when the state officer violates a state statute, the sovereign has by definition erected no shield against liability. These precedents make clear that there is no foundation for the contention that the majority embraces that Ex parte Young authorizes injunctive relief against state officials only on the basis of federal law. To the contrary, Young is as clear as a *159 bell: the Eleventh Amendment does not apply where there is no state-law shield. That simple principle should control this case. IV The majority's decision in this case is especially unwise in that it overrules a long line of cases in order to reach a result that is at odds with the usual practices of this Court. In one of the most respected opinions ever written by a Member of this Court, Justice Brandeis wrote: "The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are: ". The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter." 297 U.S. The Siler case, cited with approval by Justice Brandeis in Ashwander, employed a remarkably similar approach to that used by the Court of Appeals in this case. A privately owned railroad corporation brought suit against the members of the railroad commission of Kentucky to enjoin the enforcement of a rate schedule promulgated by the commission. The Federal Circuit Court found that the schedule violated the plaintiff's federal constitutional rights and granted relief. *160 This Court affirmed, but it refused to decide the constitutional question because injunctive relief against the state officials was adequately supported by state law. The Court held that the plaintiff's claim that the schedule violated the Federal Constitution was sufficient to justify the assertion of federal jurisdiction over the case, but then declined to reach the
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
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jurisdiction over the case, but then declined to reach the federal question, deciding the case on the basis of state law instead: "Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record."[43] The Siler principle has been applied on numerous occasions; when a suit against state officials has presented both federal constitutional questions and issues of state law, the Court has upheld injunctive relief on state-law grounds. See, e. g., ; (3); ; Louisville & Nashville R. ; 512-514.[44] *161 In the Court quoted from the Siler opinion and noted that the "Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims." It added: "Numerous decisions of this Court have stated the general proposition endorsed in Siler that a federal court properly vested with jurisdiction may pass on the state or local law question without deciding the federal constitutional issues and have then proceeded to dispose *162 of the case solely on the nonfederal ground. See, e. g., ; Waggoner ; Chicago G. W. R. v. Kendall, ; United Gas v. Railroad Comm'n, ; Risty v. Chicago, R. I. & P. R. These and other cases illustrate in practice the wisdom of the federal policy of avoiding constitutional adjudication where not absolutely essential to disposition of a case." In fact, in this very case we applied the Siler rule by remanding the case to the Court of Appeals with explicit instructions to consider whether respondents were entitled to relief under state law. Not only does the Siler rule have an impressive historical pedigree, but it is also strongly supported by the interest in avoiding duplicative litigation and the unnecessary decision of federal constitutional questions. "The policy's ultimate foundations lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their
|
Justice Stevens
| 1,984 | 16 |
second_dissenting
|
Pennhurst State School and Hospital v. Halderman
|
https://www.courtlistener.com/opinion/111094/pennhurst-state-school-and-hospital-v-halderman/
|
other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our *163 system." Rescue[45] In addition, application of the Siler rule enhances the decisionmaking autonomy of the States. Siler directs the federal court to turn first to state law, which the State is free to modify or repeal.[46] By leaving the policy determinations underlying injunctive relief in the hands of the State, the Court of Appeals' approach gives appropriate deference to established state policies. In contrast, the rule the majority creates today serves none of the interests of the State. The majority prevents federal courts from implementing state policies through equitable enforcement of state law. Instead, federal courts are required to resolve cases on federal grounds that no state authority can undo. Leaving violations of state law unredressed and ensuring that the decisions of federal courts may never be reexamined by the States hardly comports with the respect for States as sovereign entities commanded by the Eleventh Amendment. V One basic fact underlies this case: far from immunizing petitioners' conduct, the State of Pennsylvania prohibited it. Respondents do not complain about the conduct of the State of Pennsylvania it is Pennsylvania's commands which they seek to enforce. Respondents seek only to have Pennhurst *164 run the way Pennsylvania envisioned that it be run. Until today, the Court understood that the Eleventh Amendment does not shield the conduct of state officers which has been prohibited by their sovereign. Throughout its history this Court has derived strength from institutional self-discipline. Adherence to settled doctrine is presumptively the correct course.[47] Departures are, of course, occasionally required by changes in the fabric of our society.[48] When a court, rather than a legislature, initiates *165 such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well-settled respected doctrine that plainly commands affirmance of the Court of Appeals the doctrine of the law of the case,[49] the doctrine of stare decisis (the Court repudiates at least 28 cases),[50] the *166 doctrine of sovereign immunity,[51] the doctrine of pendent jurisdiction,[52] and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court's voyage into the sea of undisciplined lawmaking. *167 As I said at
|
Justice Thomas
| 2,019 | 1 |
concurring
|
Quarles v. United States
|
https://www.courtlistener.com/opinion/4627817/quarles-v-united-states/
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I join the opinion of the Court because it correctly ap- plies our precedent requiring a “categorical approach” to the enumerated-offenses clause of the Armed Career Criminal Act (ACCA). I write separately to question this approach altogether. This case demonstrates the absurdity of applying the categorical approach to the enumerated-offenses clause. The categorical approach relies on a comparison of the crime of conviction and a judicially created ideal of bur- glary. But this ideal is starkly different from the reality of petitioner’s actual crime: Petitioner attempted to climb through an apartment window to attack his ex-girlfriend. More importantly, there are strong reasons to suspect that the categorical approach described in is not compelled by ACCA’s text but was rather a misguided attempt to avoid Sixth Amendment problems. See Sessions v. Dimaya, 584 U. S. – (2018) (THOMAS, J., dissenting) (slip op., at 21–23). Under our precedent, any state burglary stat- ute with a broader definition than the one adopted in Taylor is categorically excluded simply because other conduct might be swept in at the margins. It is far from obvious that this is the best reading of the statute. A jury could readily determine whether a particular conviction 2 QUARLES v. UNITED STATES THOMAS, J., concurring satisfied the federal definition of burglary or instead fell outside that definition. See Ovalles v. United States, 905 F.3d 1231, 1258–1260 (CA11 2018) (W. Pryor, J., concur- ring). Moreover, allowing a jury to do so would end the unconstitutional judicial factfinding that occurs when applying the categorical approach. See, e.g., Dimaya, at – (opinion of THOMAS, J.) (slip op., at 22– 23); Mathis v. United States, 579 U. S. (2016) (THOMAS, J., concurring) (slip op., at 2); (THOMAS, J., concurring in judgment); 231– 232 (2007) (THOMAS, J., dissenting); (THOMAS, J., concurring in part and concurring in judgment). Of course, addressing this issue would not help petitioner: He has not preserved a Sixth Amendment challenge. Moreover, any reasonable jury reviewing the record here would have concluded that petitioner was convicted of burglary, so any error was harmless. * * * Because the categorical approach employed today is difficult to apply and can yield dramatically different sentences depending on where a burglary occurred, the Court should consider whether its approach is actually required in the first place for ACCA’s enumerated-offenses clause. With these observations, I join the opinion of the Court
|
Justice Burger
| 1,981 | 12 |
concurring
|
Upjohn Co. v. United States
|
https://www.courtlistener.com/opinion/110374/upjohn-co-v-united-states/
|
I join in Parts I and III of the opinion of the Court and in the judgment. As to Part II, I agree fully with the Court's rejection of the so-called "control group" test, its reasons for doing so, and its ultimate holding that the communications at issue are privileged. As the Court states, however, "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Ante, at 393. For this very reason, I believe that we should articulate a standard that will govern similar cases and afford guidance to corporations, counsel advising them, and federal courts. The Court properly relies on a variety of factors in concluding that the communications now before us are privileged. See ante, at 394-395. Because of the great importance of the issue, in my view the Court should make clear now that, as a *403 general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment. The attorney must be one authorized by the management to inquire into the subject and must be seeking information to assist counsel in performing any of the following functions: (a) evaluating whether the employee's conduct has bound or would bind the corporation; (b) assessing the legal consequences, if any, of that conduct; or (c) formulating appropriate legal responses to actions that have been or may be taken by others with regard to that conduct. See, e. g., Diversified Industries, ; Harper & Row Publishers, aff'd by an equally divided Court, ; Duplan Other communications between employees and corporate counsel may indeed be privilegedas the petitioners and several amici have suggested in their proposed formulations[*] but the need for certainty does not compel us now to prescribe all the details of the privilege in this case. Nevertheless, to say we should not reach all facets of the privilege does not mean that we should neglect our duty to provide guidance in a case that squarely presents the question in a traditional adversary context. Indeed, because Federal Rule of Evidence 501 provides that the law of privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience," this Court has a special duty to clarify aspects of the law of privileges properly *404 before us. Simply
|
Justice Scalia
| 1,989 | 9 |
second_dissenting
|
South Carolina v. Gathers
|
https://www.courtlistener.com/opinion/112277/south-carolina-v-gathers/
|
Two Terms ago, when we decided I was among four Members of the Court who believed that the decision imposed a restriction upon state and federal criminal procedures that has no basis in the Constitution. See ; I continue to believe that Booth was wrongly decided, and my conviction that it does perceptible harm has been strengthened by subsequent writings pointing out the indefensible consequences of a rule that the specific harm visited upon society by a murderer may not be taken into account when the jury decides whether to impose the sentence of death. See ante, at 816-820 (O'CONNOR, J., dissenting); Once it is accepted, moreover, that the nature of the specific harm may be considered, I see no basis for drawing a distinction for Eighth Amendment purposes between the admirable personal characteristics of the particular victim and the particular injury caused to the victim's family and fellow citizens. Indeed, I would often find it impossible to tell which was which. (Would the fact that the victim was a dutiful husband and father be a personal characteristic or an indication of injury to others?) I *824 therefore think the present case squarely calls into question the validity of Booth, and I would overrule that case. It has been argued that we should not overrule so recent a decision, lest our action "appear to be occasioned by nothing more than a change in the Court's personnel," and the rules we announce no more than " `the opinions of a small group of men who temporarily occupy high office.' " Brief for Barbara Babcock et al. as Amici Curiae 29-30 ). I doubt that overruling Booth will so shake the citizenry's faith in the Court. Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. But that is hardly unprecedented. See, e. g., ); United ; West Virginia Board of Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it. That is particularly true with respect to a decision such as Booth, which is in that line of cases purporting to reflect "evolving standards of decency"
|
Justice Scalia
| 1,989 | 9 |
second_dissenting
|
South Carolina v. Gathers
|
https://www.courtlistener.com/opinion/112277/south-carolina-v-gathers/
|
line of cases purporting to reflect "evolving standards of decency" applicable to capital punishment. Once a law-abiding society has revised its laws and practices to comply with such an erroneous decision, *825 the existence of a new "consensus" can be appealed to or at least the existence of the pre-existing consensus to the contrary will no longer be evident thus enabling the error to triumph by our very failure promptly to correct it. Cf. In any case, I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible (a description that surely does not apply to Booth), I agree with Justice Douglas: "A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Douglas, Stare Decisis, Or as the Court itself has said: "[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions." Booth has not even an arguable basis in the common-law background that led up to the Eighth Amendment, in any longstanding societal tradition, or in any evidence that present society, through its laws or the actions of its juries, has set its face against considering the harm caused by criminal acts in assessing responsibility. The Court's opinion in Booth, like today's opinion, did not even try to assert the contrary. We provide far greater reassurance of the rule of law by eliminating than by retaining such a decision. I respectfully dissent.
|
Justice Ginsburg
| 2,016 | 5 |
concurring
|
Whole Woman's Health v. Hellerstedt
|
https://www.courtlistener.com/opinion/3217528/whole-womans-health-v-hellerstedt/
|
The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services. Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, “complications from an abortion are both rare and rarely dangerous.” Planned Parenthood of See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 6–10 (collecting studies and concluding “[a]bortion is one of the safest medical procedures performed in the United States”); Brief for Social Science Researchers as Amici Curiae 5–9 (compiling studies that show “[c]omplication rates from abortion are very low”). Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory- surgical-center or hospital admitting-privileges require- ments. See ante, at 31; Planned Parenthood of 806 F.3d, at 921–922. See also Brief for Social Science Re- searchers 9–11 (comparing statistics on risks for abortion with tonsillectomy, colonoscopy, and in-office dental sur- gery); Brief for American Civil Liberties Union et al. as Amici Curiae 7 (all District Courts to consider admitting- 2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT GINSBURG, J., concurring privileges requirements found abortion “is at least as safe as other medical procedures routinely performed in outpa- tient settings”). Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.” Planned Parenthood of When a State se- verely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to and Planned Parenthood of Southeastern (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of cannot survive judicial inspection. Cite as: 579 U. S. (2016) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 15–274 WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL.
|
Justice Rehnquist
| 2,001 | 19 |
majority
|
Atkinson Trading Co. v. Shirley
|
https://www.courtlistener.com/opinion/118431/atkinson-trading-co-v-shirley/
|
In we held that, with limited exceptions, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian fee land within a reservation. The question with which we are presented is whether this general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land. We hold that it does and that neither of `s exceptions obtains here. In 1916, Hubert lured by the possibility of trading with wealthy Gray Mountain Navajo cattlemen, built the Cameron Trading Post just south of the Little Colorado River near Cameron, Arizona. G. Navajo Trader 136-137 (1986). purchased the land *648 directly from the United States, but the Navajo Nation Reservation, which had been established in 1868, see was later extended eight miles south so that the Cameron Trading Post fell within its exterior boundaries. See Act of June 14, 1934, ch. 521, -962. This 1934 enlargement of the Navajo Reservationwhich today stretches across northeast Arizona, northwest New Mexico, and southeast Utahdid not alter the status of the property: It is, like millions of acres throughout the United States, non-Indian fee land within a tribal reservation. 's "drafty, wooden store building and four small, one-room-shack cabins overlooking the bare river canyon," have since evolved into a business complex consisting of a hotel, restaurant, cafeteria, gallery, curio shop, retail store, and recreational vehicle facility. The current owner, petitioner Atkinson Trading Company, Inc., benefits from the Cameron Trading Post's location near the intersection of Arizona Highway 64 (which leads west to the Grand Canyon) and United States Highway 89 (which connects Flagstaff on the south with Glen Canyon Dam to the north). A significant portion of petitioner's hotel business stems from tourists on their way to or from the Grand Canyon National Park. In 1992, the Navajo Nation enacted a hotel occupancy tax, which imposes an 8 percent tax upon any hotel room located within the exterior boundaries of the Navajo Nation Reservation. See 24 Navajo Nation Code 101-142 (1995), App. to Pet. for Cert. 102a124a. Although the legal incidence of the tax falls directly upon the guests, the owner or operator of the hotel must collect and remit it to respondents, members of the Navajo Tax Commission. 104, 107. The nonmember guests at the Cameron Trading Post pay approximately $84,000 in taxes to respondents annually. Petitioner's challenge under to the Navajo Nation's authority to impose the hotel occupancy tax was rejected by both the Navajo Tax Commission and the Navajo *649 Supreme Court. Petitioner then sought relief in the United States District Court for the District of New Mexico, which also
|
Justice Rehnquist
| 2,001 | 19 |
majority
|
Atkinson Trading Co. v. Shirley
|
https://www.courtlistener.com/opinion/118431/atkinson-trading-co-v-shirley/
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District Court for the District of New Mexico, which also upheld the tax. A divided panel of the Court of Appeals for the Tenth Circuit affirmed. See Although the Court of Appeals agreed with petitioner that our cases in this area "did make an issue of the fee status of the land in question," it nonetheless concluded that the status of the land as "fee land or tribal land is simply one of the factors a court should consider" when determining whether civil jurisdiction exists, at 1258 (citing 18 U.S. C. 1151). Relying in part upon our decision in the court "complement[ed]" `s framework with a "case-by-case approach" that balanced the non-Indian fee status of the land with "the nature of the inherent sovereign powers the tribe is attempting to exercise, its interests, and the impact that the exercise of the tribe's powers has upon the nonmember interests involved." 1257, 1261. The Court of Appeals then likened the Navajo hotel occupancy tax to similar taxes imposed by New Mexico and Arizona, concluding that the tax fell under `s first exception because a "consensual relationship exists in that the nonmember guests could refrain from the privilege of lodging within the confines of the Navajo Reservation and therefore remain free from liability for the [tax]." ). The dissenting judge would have applied without "any language or `factors' derived from " and concluded that, based upon her view of the record, none of the exceptions We granted certiorari, and now reverse. Tribal jurisdiction is limited: For powers not expressly conferred upon them by federal statute or treaty, Indian tribes *650 must rely upon their retained or inherent sovereignty. In the most exhaustively reasoned of our modern cases addressing this latter authority, we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed. At issue in was the Crow Tribe's attempt to regulate nonmember fishing and hunting on non-Indian fee land within the reservation. Although we "readily agree[d]" that the 1868 Fort Laramie Treaty authorized the Crow Tribe to prohibit nonmembers from hunting or fishing on tribal land, we held that such "power cannot apply to lands held in fee by non-Indians." This delineation of members and nonmembers, tribal land and non-Indian fee land, stemmed from the dependent nature of tribal sovereignty. Surveying our cases in this area dating back to 1810, see (stating that Indian tribes have lost any "right of governing every person within their limits except themselves"), we noted that "through their original incorporation into the United States as well as through specific treaties and statutes, Indian
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States as well as through specific treaties and statutes, Indian tribes have lost many of the attributes of sovereignty."[1] We concluded that the inherent sovereignty of Indian tribes was limited to "their members and their territory": "[E]xercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations *651 is inconsistent with the dependent status of the tribes." at 564 ). Although we extracted from our precedents "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," we nonetheless noted in two possible bases for tribal jurisdiction over non-Indian fee land. First, "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements." Second, "[a] tribe may exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Applying these precepts, we found that the nonmembers at issue there had not subjected themselves to "tribal civil jurisdiction" through any agreements or dealings with the Tribe and that hunting and fishing on non-Indian fee land did not "imperil the subsistence or welfare of the Tribe." We therefore held that the Crow Tribe's regulations could not be enforced. The framework set forth in "broadly addressed the concept of `inherent sovereignty.' " (quoting ). In Strate, we dealt with the Three Affiliated Tribes' assertion of judicial jurisdiction over an automobile accident involving two nonmembers traveling on a state highway within the reservation. Although we did not question the ability of tribal police to patrol the highway, see n. 11, we likened the public right-of-way to non-Indian fee land because the Tribes lacked the power to *652 "assert a landowner's right to occupy and exclude," Recognizing that "immediately involved regulatory authority,"[2] we nonetheless concluded that its reasoning had "delineatedin a main rule and exceptionsthe bounds of the power tribes retain to exercise `forms of civil jurisdiction over non-Indians.' " 520 U.S., at (quoting ). We accordingly held that governed tribal assertions of adjudicatory authority over non-Indian fee land within a reservation. See 520 U.S., at ("Subject to controlling provisions in treaties and statutes, and the two exceptions identified in the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally `do[es] not extend to the activities of nonmembers of the tribe' " (quoting
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to the activities of nonmembers of the tribe' " (quoting )). Citing our decision in respondents submit that and Strate do not restrict an Indian tribe's power to impose revenue-raising taxes.[3] In just one year after our decision in we upheld a severance tax imposed by the Jicarilla Apache Tribe upon non-Indian lessees authorized to extract oil and gas from tribal land. In so doing, we noted that the power to tax derives not solely from an Indian tribe's power to exclude non-Indians from tribal land, but also from an Indian tribe's "general authority, as sovereign, to control economic activity within its jurisdiction." Such authority, we held, was incident to the benefits conferred upon nonmembers: "They benefit from the provision of police protection and other governmental services, as well as from ` "the advantages of a civilized society"` that are assured by the existence of tribal *653 government." ). however, was careful to note that an Indian tribe's inherent power to tax only extended to "`transactions occurring on trust lands and significantly involving a tribe or its members.'" ). There are undoubtedly parts of the opinion that suggest a broader scope for tribal taxing authority than the quoted language above.[4] But involved a tax that only applied to activity occurring on the reservation, and its holding is therefore easily reconcilable with the -Strate line of authority, which we deem to be controlling. See An Indian tribe's sovereign power to taxwhatever its derivationreaches no further than tribal land.[5] *654 We therefore do not read to exempt taxation from `s general rule that Indian tribes lack civil authority over nonmembers on non-Indian fee land. Accordingly, as in Strate, we apply straight up. Because Congress has not authorized the Navajo Nation's hotel occupancy tax through treaty or statute, and because the incidence of the tax falls upon nonmembers on non-Indian fee land, it is incumbent upon the Navajo Nation to establish the existence of one of `s exceptions. Respondents argue that both petitioner and its hotel guests have entered into a consensual relationship with the Navajo Nation justifying the imposition of the hotel occupancy tax.[6] Echoing the reasoning of the Court of Appeals, respondents note that the Cameron Trading Post benefits from the numerous services provided by the Navajo Nation. The record reflects that the Arizona State Police and the Navajo Tribal Police patrol the portions of United States *655 Highway 89 and Arizona Highway 64 traversing the reservation; that the Navajo Tribal Police and the Navajo Tribal Emergency Medical Services Department will respond to an emergency call from the Cameron Trading Post;
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respond to an emergency call from the Cameron Trading Post; and that local Arizona Fire Departments and the Navajo Tribal Fire Department provide fire protection to the area.[7] Although we do not question the Navajo Nation's ability to charge an appropriate fee for a particular service actually rendered,[8] we think the generalized availability of tribal services patently insufficient to sustain the Tribe's civil authority over nonmembers on non-Indian fee land. The consensual relationship must stem from "commercial dealing, contracts, leases, or other arrangements," 450 U. S., and a nonmember's actual or potential receipt of tribal police, fire, and medical services does not create the requisite connection. If it did, the exception would swallow the rule: All non-Indian fee lands within a reservation benefit, to some extent, from the "advantages of a civilized society" offered by the Indian tribe. Such a result does not square with our precedents; indeed, we implicitly rejected this argument in Strate,[9] where we held that the nonmembers had not consented to the Tribes' adjudicatory authority by availing themselves of the benefit of tribal police protection while traveling within the reservation. See -457, and n. 11. We therefore reject respondents' broad reading of `s first exception, which ignores the dependent status of Indian tribes and subverts the territorial restriction upon tribal power. *656 Respondents and their principal amicus, the United States, also argue that petitioner consented to the tax by becoming an "Indian trader." Congress has authorized the Commissioner of Indian Affairs "to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians." 25 U.S. C. 261. Petitioner has acquired the requisite license to transact business with the Navajo Nation and therefore is subject to the regulatory strictures promulgated by the Indian Affairs Commissioner. See 25 CFR pt. 141[10] But whether or not the Navajo Nation could impose a tax on activities arising out of this relationship, an issue not before us, it is clear that petitioner's "Indian trader" status by itself cannot support the imposition of the hotel occupancy tax. `s consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a nexus to the consensual relationship itself. In Strate, for example, even though respondent A-1 Contractors was on the reservation to perform landscaping work for the Three Affiliated Tribes at the time of the accident, we nonetheless held that the Tribes lacked adjudicatory authority because the other nonmember "was not
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Tribes lacked adjudicatory authority because the other nonmember "was not a party to the subcontract, and the [T]ribes were strangers to the accident." A nonmember's consensual relationship in one area thus does not trigger tribal civil authority in anotherit is not "in for a penny, in for a Pound." E. Ravenscroft, The Canterbury Guests; Or A Bargain Broken, act v, sc. 1. The hotel occupancy tax at issue here is grounded in petitioner's relationship with its nonmember hotel guests, who can reach the Cameron Trading Post on United States Highway 89 and *657 Arizona Highway 64, non-Indian public rights-of-way. Petitioner cannot be said to have consented to such a tax by virtue of its status as an "Indian trader." Although the Court of Appeals did not reach `s second exception, both respondents and the United States argue that the hotel occupancy tax is warranted in light of the direct effects the Cameron Trading Post has upon the Navajo Nation. Again noting the Navajo Nation's provision of tribal services and petitioner's status as an "Indian trader," respondents emphasize that petitioner employs almost 100 Navajo Indians; that the Cameron Trading Post derives business from tourists visiting the reservation; and that large amounts of tribal land surround petitioner's isolated property.[11] Although we have no cause to doubt respondents' assertion that the Cameron Chapter of the Navajo Nation possesses an "overwhelming Indian character," Brief for Respondents 13-14, we fail to see how petitioner's operation of a hotel on non-Indian fee land "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."[12] *658 We find unpersuasive respondents' attempt to augment this claim by reference to In this portion of per the reasoning of two Justices, we held that the Yakima Nation had the authority to zone a small, non-Indian parcel located "in the heart" of over 800,000 acres of closed and largely uninhabited tribal land. Respondents extrapolate from this holding that Indian tribes enjoy broad authority over nonmembers wherever the acreage of non-Indian fee land is minuscule in relation to the surrounding tribal land. But we think it plain that the judgment in turned on both the closed nature of the non-Indian fee land[13] and the fact that its development would place the entire area "in jeopardy."[14] Irrespective of the percentage of non-Indian fee land within a reservation, `s second exception grants Indian tribes nothing "`beyond what is necessary to *659 protect tribal self-government or to control internal relations.' " Strate, (quoting ). Whatever effect petitioner's operation of the Cameron Trading Post might have
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effect petitioner's operation of the Cameron Trading Post might have upon surrounding Navajo land, it does not endanger the Navajo Nation's political integrity. See (holding that the impact of the nonmember's conduct "must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe"). Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory," but their dependent status generally precludes extension of tribal civil authority beyond these limits. United The Navajo Nation's imposition of a tax upon nonmembers on non-Indian fee land within the reservation is, therefore, presumptively invalid. Because respondents have failed to establish that the hotel occupancy tax is commensurately related to any consensual relationship with petitioner or is necessary to vindicate the Navajo Nation's political integrity, the presumption ripens into a holding. The judgment of the Court of Appeals for the Tenth Circuit is accordingly Reversed.
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Hendrick Hudson Dist. Bd. of Ed. v. Rowley
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This case presents a question of statutory interpretation. Petitioners contend that the Court of Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals. I The Education of the Handicapped Act (Act), as amended, 20 U.S. C. 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State's compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress' perception that a majority of handicapped children in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" H. R. Rep. No. 94-332, p. 2 (1975) (H. R. Rep.). The Act's evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case. Congress first addressed the problem of educating the handicapped in 1966 when it amended the Elementary and *180 Secondary Education Act of 1965 to establish a grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects for the education of handicapped children." Pub. L. 89-750, 161, That program was repealed in 1970 by the Education of the Handicapped Act, Pub. L. 91-230, Part B of which established a grant program similar in purpose to the repealed legislation. Neither the 1966 nor the 1970 legislation contained specific guidelines for state use of the grant money; both were aimed primarily at stimulating the States to develop educational resources and to train personnel for educating the handicapped.[1] Dissatisfied with the progress being made under these earlier enactments, and spurred by two District Court decisions holding that handicapped children should be given access to a public education,[2] Congress in 1974 greatly increased federal funding for education of the handicapped and for the first time required recipient States to adopt "a goal of providing full educational opportunities to all handicapped children." Stat. 579, 583 (1974 statute). The 1974 statute was recognized as an interim measure only, adopted "in order to give the Congress an additional year in which to study what if any additional Federal assistance [was] required to enable the States to meet the needs of handicapped children." H. R. Rep., at 4. The ensuing year of study produced the
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Rep., at 4. The ensuing year of study produced the Education for All Handicapped Children Act of 1975. In order to qualify for federal financial assistance under the Act, a State must demonstrate that it "has in effect a policy *181 that assures all handicapped children the right to a free appropriate public education." 20 U.S. C. 1412(1). That policy must be reflected in a state plan submitted to and approved by the Secretary of Education,[3] 1413, which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. 1412, 1413. States receiving money under the Act must provide education to the handicapped by priority, first "to handicapped children who are not receiving an education" and second "to handicapped children with the most severe handicaps who are receiving an inadequate education," 1412(3), and "to the maximum extent appropriate" must educate handicapped children "with children who are not handicapped." 1412(5).[4] The Act broadly defines "handicapped children" to include "mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific learning disabilities." 1401(1).[5] The "free appropriate public education" required by the Act is tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). *182 1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child, consists of a written document containing "(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." 1401(19). Local or regional educational agencies must review, and where appropriate revise, each child's IEP at least annually. 1414(a)(5). See 1413(a)(11). In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon States receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in "the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child," and must
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a free appropriate public education to such child," and must be permitted to bring a complaint about "any matter relating to" such evaluation and education. 1415(b)(1)(D) and (E).[6]*183 Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. 1415(b)(2) and (c).[7] Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing has "the right to bring a civil action with respect to the complaint in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 1415(e)(2). Thus, although the Act leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, 1414(b)(2)(A), 1416, and by the provision for judicial review. At present, all States except New *184 Mexico receive federal funds under the portions of the Act at issue today. Brief for United States as Amicus Curiae 2, n. 2. II This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N. Y. Amy has minimal residual hearing and is an excellent lip-reader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supplemental services would be necessary to her education. Several members of the school administration prepared for Amy's arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents who are deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the
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regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP but insisted that Amy be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators *185 likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district's Committee on the Handicapped, which had received expert evidence from Amy's parents on the importance of a sign-language interpreter, received testimony from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators' determination that an interpreter was not necessary because "Amy was achieving educationally, academically, and socially" without such assistance. App. to Pet. for Cert. F-22. The examiner's decision was affirmed on appeal by the New York Commissioner of Education on the basis of substantial evidence in the record. at E-4. Pursuant to the Act's provision for judicial review, the Rowleys then brought an action in the United States District Court for the Southern District of New York, claiming that the administrators' denial of the sign-language interpreter constituted a denial of the "free appropriate public education" guaranteed by the Act. The District Court found that Amy "is a remarkably well-adjusted child" who interacts and communicates well with her classmates and has "developed an extraordinary rapport" with her teachers. It found that "she performs better than the average child in her class and is advancing easily from grade to grade," but "that she understands considerably less of what goes on in class than she could if she were not deaf" and thus "is not learning as much, or performing as well academically, as she would without her handicap," This disparity between Amy's achievement and her potential led the court to decide that she was not receiving a "free appropriate public *186 education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other
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[her] full potential commensurate with the opportunity provided to other children." According to the District Court, such a standard "requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or `shortfall' be compared to the shortfall experienced by nonhandicapped children." The District Court's definition arose from its assumption that the responsibility for "giv[ing] content to the requirement of an `appropriate education'" had "been left entirely to the [federal] courts and the hearing officers."[8] A divided panel of the United States Court of Appeals for the Second Circuit affirmed. The Court of Appeals "agree[d] with the [D]istrict [C]ourt's conclusions of law," and held that its "findings of fact [were] not clearly erroneous." We granted certiorari to review the lower courts' interpretation of the Act. Such review requires us to consider two questions: What is meant by the Act's requirement of a "free appropriate public education"? And what is the role of state and federal courts in exercising the review granted by 20 U.S. C. 1415? We consider these questions separately.[9] *187 III A This is the first case in which this Court has been called upon to interpret any provision of the Act. As noted previously, the District Court and the Court of Appeals concluded that "[t]he Act itself does not define `appropriate education,'" 483 F. Supp., but leaves "to the courts and the hearing officers" the responsibility of "giv[ing] content to the requirement of an `appropriate education.'" See 632 F.2d, at Petitioners contend that the definition of the phrase "free appropriate public education" used by the courts below overlooks the definition of that phrase actually found in the Act. Respondents agree that the Act defines "free appropriate public education," but contend that the statutory definition is not "functional" and thus "offers judges no guidance in their consideration of controversies involving `the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.'" Brief for Respondents 28. The United States, appearing as amicus curiae on behalf of respondents, states that "[a]lthough the Act includes definitions of a `free appropriate public education' and other related terms, the statutory definitions do not adequately explain what is meant by `appropriate.'" Brief for United States as Amicus Curiae 13. We are loath to conclude that Congress failed to offer any assistance in defining the meaning of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define "free appropriate public education": *188
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the Act does expressly define "free appropriate public education": *188 "The term `free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." 1401(18) "Special education," as referred to in this definition, means "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." 1401(16). "Related services" are defined as "transportation, and such developmental, corrective, and other supportive services as may be required to assist a handicapped child to benefit from special education." 1401(17).[10] Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the definition is a "functional" one, as respondents contend it is not, it is the principal tool which Congress has given us for parsing the critical phrase of the Act. We think more must be made of it than either respondents or the United States seems willing to admit. According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction specially designed to meet the unique needs of the handicapped *189 child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act. Other portions of the statute shed light upon congressional intent. Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were "excluded entirely from the public school system" and more than half were receiving an inappropriate education. note following 1401. In addition, as mentioned in Part I, the Act requires States
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addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an "inadequate education." 1412(3). When these express statutory findings and priorities are read together with the Act's extensive procedural requirements and its definition of "free appropriate public education," the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child. Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courtsthat States maximize the potential of handicapped children "commensurate with the opportunity *190 provided to other children." 483 F. Supp., That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of "free appropriate public education" to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. For an answer, we turn to that history.[11] *191 B (i) As suggested in Part I, federal support for education of the handicapped is a fairly recent development. Before passage of the Act some States had passed laws to improve the educational services afforded handicapped children,[12] but many of these children were excluded completely from any form of public education or were left to fend for themselves in classrooms designed for education of their nonhandicapped peers. As previously noted, the House Report begins by emphasizing this exclusion and misplacement, noting that millions of handicapped children "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" H. R. Rep., at 2. See S. Rep., at 8. One of the Act's two principal sponsors in the Senate urged its passage in similar terms: "While much progress has been made in the last few years, we can take no solace in that progress until all handicapped children are, in fact, receiving an education. The most recent statistics provided by the Bureau of Education for the Handicapped estimate that 1.75 million handicapped children do not receive any educational services, and 2.5 million handicapped children are not
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Hendrick Hudson Dist. Bd. of Ed. v. Rowley
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any educational services, and 2.5 million handicapped children are not receiving an appropriate education." 121 Cong. Rec. 19486 (1975) (remarks of Sen. Williams). This concern, stressed repeatedly throughout the legislative history,[13] confirms the impression conveyed by the language *192 of the statute: By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly "recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." S. Rep., 1. Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside. Both the House and the Senate Reports attribute the impetus for the Act and its predecessors to two federal-court judgments rendered in and As the Senate Report states, passage of the Act "followed a series of landmark court cases establishing in law the right to education for all handicapped children." S. Rep., at 6.[14] The first case, Pennsylvania Assn. for Retarded and was a suit on behalf of retarded children challenging the constitutionality of a Pennsylvania statute which acted to exclude them from public education and training. The case ended in a consent decree which enjoined the State from "deny[ing] to any mentally retarded child access to a free public program of education and training." PARC was followed by a case in which the plaintiff handicapped children had been excluded *193 from the District of Columbia public schools. The court's judgment, quoted in S. Rep., at 6, provided that "no [handicapped] child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative." Mills and PARC both held that handicapped children must be given access to an adequate, publicly supported education. Neither case purports to require any particular substantive level of education.[15] Rather, like the language of the Act, *194 the cases set forth extensive procedures
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of the Act, *194 the cases set forth extensive procedures to be followed in formulating personalized educational programs for handicapped children. See -883; -1267.[16] The fact that both PARC and Mills are discussed at length in the legislative Reports[17] suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after discussing these cases the Senate Report describes the 1974 statute as having "incorporated the major principles of the right to education cases." S. Rep., at 8. Those principles in turn became the basis of the Act, which itself was designed to effectuate the purposes of the 1974 statute. H. R. Rep., at 5.[18] *195 That the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education is perhaps best demonstrated by the fact that Congress, in explaining the need for the Act, equated an "appropriate education" to the receipt of some specialized educational services. The Senate Report states: "[T]he most recent statistics provided by the Bureau of Education for the Handicapped estimate that of the more than 8 million children with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education." S. Rep., at 8.[19] This statement, which reveals Congress' view that 3.9 million handicapped children were "receiving an appropriate education" in 1975, is followed immediately in the Senate Report by a table showing that 3.9 million handicapped children were "served" in 1975 and a slightly larger number were "unserved." A similar statement and table appear in the House Report. H. R. Rep., 1-12. *196 It is evident from the legislative history that the characterization of handicapped children as "served" referred to children who were receiving some form of specialized educational services from the States, and that the characterization of children as "unserved" referred to those who were receiving no specialized educational services. For example, a letter sent to the United States Commissioner of Education by the House Committee on Education and Labor, signed by two key sponsors of the Act in the House, asked the Commissioner to identify the number of handicapped "children served" in each State. The letter asked for statistics on the number of children "being served" in various types of "special education program[s]" and the number of children who were not "receiving educational services." Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of the
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1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of the Act's principal sponsors in the Senate, noted that roughly one-half of the handicapped children in the United States "are receiving special educational services."[20] By *197 characterizing the 3.9 million handicapped children who were "served" as children who were "receiving an appropriate education," the Senate and House Reports unmistakably disclose Congress' perception of the type of education required by the Act: an "appropriate education" is provided when personalized educational services are provided.[21] *198 (ii) Respondents contend that "the goal of the Act is to provide each handicapped child with an equal educational opportunity." Brief for Respondents 35. We think, however, that the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential "commensurate with the opportunity provided other children." Respondents and the United States correctly note that Congress sought "to provide assistance to the States in carrying out their responsibilities under. the Constitution of the United States to provide equal protection of the laws." S. Rep., 3.[22] But we do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services. The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student's ability to assimilate information presented in the classroom. The requirement that States provide "equal" educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped *199 children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go. Thus to speak in terms of "equal" services in one instance gives less than what is required by the Act and in another instance more. The theme of the Act is "free appropriate public education," a phrase which is too complex to be captured by the word "equal" whether one is speaking of opportunities or services. The legislative conception of the requirements of equal protection was undoubtedly informed by the two District Court decisions referred to above. But cases such as Mills and PARC held simply that handicapped children may not be excluded entirely from public education. In Mills, the District Court said: "If sufficient funds are not available to finance all
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said: "If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom." The PARC court used similar language, saying "[i]t is the commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity." 334 F. Supp., 260. The right of access to free public education enunciated by these cases is significantly different from any notion of absolute equality of opportunity regardless of capacity. To the extent that Congress might have looked further than these cases which are mentioned in the legislative history, at the time of enactment of the Act this Court had held at least twice that the Equal Protection Clause of the Fourteenth *200 Amendment does not require States to expend equal financial resources on the education of each child. San Antonio Independent School ; aff'd sub nom. In explaining the need for federal legislation, the House Report noted that "no congressional legislation has required a precise guarantee for handicapped children, i. e. a basic floor of opportunity that would bring into compliance all school districts with the constitutional right of equal protection with respect to handicapped children." H. R. Rep., 4. Assuming that the Act was designed to fill the need identified in the House Reportthat is, to provide a "basic floor of opportunity" consistent with equal protectionneither the Act nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access. Therefore, Congress' desire to provide specialized educational services, even in furtherance of "equality," cannot be read as imposing any particular substantive educational standard upon the States. The District Court and the Court of Appeals thus erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. (iii) Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for
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upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the *201 handicapped child receive no benefit from that education. The statutory definition of "free appropriate public education," in addition to requiring that States provide each child with "specially designed instruction," expressly requires the provision of "such supportive services as may be required to assist a handicapped child to benefit from special education." 1401(17) We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.[23] *202 The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation. The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible.[24] When that "mainstreaming" preference of the Act *203 has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been "educated" at least to the grade level they have completed, and access to an "education" for handicapped children is precisely what Congress sought to provide in the Act.[25] C When the
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Congress sought to provide in the Act.[25] C When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of *204 the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.[26] IV A As mentioned in Part I, the Act permits "[a]ny party aggrieved by the findings and decision" of the state administrative hearings "to bring a civil action" in "any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." 1415(e)(2). The complaint, and therefore the civil action, may concern "any matter relating to the identification, evaluation, or educational placement of the child, or the provision *205 of a free appropriate public education to such child." 1415(b)(1)(E). In reviewing the complaint, the Act provides that a court "shall receive the record of the [state] administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 1415(e)(2). The parties disagree sharply over the meaning of these provisions, petitioners contending that courts are given only limited authority to review for state compliance with the Act's procedural requirements and no power to review the substance of the state program, and respondents contending that the Act requires courts to exercise de novo review over state educational decisions and We find petitioners' contention unpersuasive, for Congress expressly rejected provisions that would have so severely restricted the role of reviewing courts. In substituting the current language of the statute for language that would have made state administrative findings conclusive if supported by substantial evidence, the Conference Committee explained that courts were to make "independent decision[s] based on a preponderance of the evidence." S. Conf. Rep. No. 94-455, p. 50 (1975). See 121 Cong. Rec.
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Rep. No. 94-455, p. 50 (1975). See 121 Cong. Rec. 37416 (1975) (remarks of Sen. Williams). But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in 1415, which is entitled "Procedural safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e. g., 1415(a)-(d), as it did upon the measurement of the resulting *206 IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. Thus the provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that 1415(e) requires that the reviewing court "receive the records of the [state] administrative proceedings" carries with it the implied requirement that due weight shall be given to these proceedings. And we find nothing in the Act to suggest that merely because Congress was rather sketchy in establishing substantive requirements, as opposed to procedural requirements for the preparation of an IEP, it intended that reviewing courts should have a free hand to impose substantive standards of review which cannot be derived from the Act itself. In short, the statutory authorization to grant "such relief as the court determines is appropriate" cannot be read without reference to the obligations, largely procedural in nature, which are imposed upon recipient States by Congress. Therefore, a court's inquiry in suits brought under 1415(e)(2) is twofold. First, has the State complied with the procedures set
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twofold. First, has the State complied with the procedures set forth in the Act?[27] And second, is the *207 individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?[28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. B In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States.[29] The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Act expressly charges States with the responsibility of "acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials." 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended *208 courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to 1415(e)(2).[30] We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." San Antonio Independent School We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States. V Entrusting a child's education to state and local agencies does not leave the child without protection. Congress sought to protect individual children by providing for parental involvement in the development of state plans and 82-183, and n. 6, and in the formulation of the child's individual educational program. As the Senate Report states: "The Committee recognizes that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome. By changing the language [of the provision relating to individualized educational programs] to emphasize the process of parent and child *209 involvement and to provide a written record of reasonable expectations, the Committee intends to clarify that such individualized planning conferences are a
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intends to clarify that such individualized planning conferences are a way to provide parent involvement and protection to assure that appropriate services are provided to a handicapped child." S. Rep., 1-12. See S. Conf. Rep. No. 94-445, p. 30 (1975); 34 CFR 300.345 As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act.[31] VI Applying these principles to the facts of this case, we conclude that the Court of Appeals erred in affirming the decision of the District Court. Neither the District Court nor the Court of Appeals found that petitioners had failed to comply with the procedures of the Act, and the findings of neither court would support a conclusion that Amy's educational program failed to comply with the substantive requirements of the Act. On the contrary, the District Court found that the "evidence firmly establishes that Amy is receiving an *210 `adequate' education, since she performs better than the average child in her class and is advancing easily from grade to grade." 483 F. Supp., In light of this finding, and of the fact that Amy was receiving personalized instruction and related services calculated by the Furnace Woods school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.[32] So ordered. JUSTICE BLACKMUN, concurring in the judgment.
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Gerstein v. Pugh
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The issue in this case is whether a person arrested and held for trial under a prosecutor's information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty. I In March respondents Pugh and Henderson were arrested in Dade County, Fla. Each was charged with several offenses under a prosecutor's information.[1] Pugh was denied bail because one of the charges against him carried a potential life sentence, and Henderson remained in custody because he was unable to post a $4,00 bond. In Florida, indictments are required only for prosecution of capital offenses. Prosecutors may charge all other crimes by information, without a prior preliminary hearing and without obtaining leave of court. Fla. Rule Crim. Proc. 3.140 (a); ; Di At the time respondents were arrested, a Florida rule seemed to authorize adversary preliminary hearings to test probable cause for detention in all cases. Fla. Rule Crim. Proc. 1.122 *106 But the Florida courts had held that the filing of an information foreclosed the suspect's right to a preliminary hearing. See State ex rel.[2] They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. See The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days.[3] and arraignment, which the District Court found was often delayed a month or more after arrest.[4] As a result, a person charged by information could be detained for a substantial period solely on the decision of a prosecutor. Respondents Pugh and Henderson filed a class action against Dade Country officials in the Federal District *107 Court,[] claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief.[6] Respondents Turner and Faulk, also in custody under informations, subsequently intervened.[7] Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants.[8] After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. The court certified the case as a class action under Fed. Rule Civ. Proc. 23 (b) (2), and held that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable *108 cause for further detention.[9] It also ordered them to
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*108 cause for further detention.[9] It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information. The defendants submitted a plan prepared by Sheriff E. Wilson Purdy, and the District Court adopted it with modifications. The final order prescribed a detailed post-arrest procedure. Upon arrest the accused would be taken before a magistrate for a "first appearance hearing." The magistrate would explain the charges, advise the accused of his rights, appoint counsel if he was indigent, and proceed with a probable cause determination unless either the prosecutor or the accused was unprepared. If either requested more time, the magistrate would set the date for a "preliminary hearing," to be held within four days if the accused was in custody and within 10 days if he had been released pending trial. The order provided sanctions for failure to hold the hearing at prescribed times. At the "preliminary hearing" the accused would be entitled to counsel, and he would be allowed to confront and cross-examine adverse witnesses, to summon favorable witnesses, and to have a transcript made on request. If the magistrate found no probable cause, the accused would be discharged. He then could not be charged with the same offense by complaint or information, but only by indictment returned within 30 days. *109 The Court of Appeals for the Fifth Circuit stayed the District Court's order pending appeal, but while the case was awaiting decision, the Dade Country judiciary voluntarily adopted a similar procedure of its own. Upon learning of this development, the Court of Appeals remanded the case for specific findings on the constitutionality of the new Dade County system. Before the District Court issued its findings, however, the Florida Supreme Court amended the procedural rules governing preliminary hearings statewide, and the parties agreed that the District Court should direct its inquiry to the new rules rather than the Dade County procedures. Under the amended rules every arrested person must be taken before a judicial officer within 24 hours. Fla. Rule Crim. Proc. 3.130 (b). This "first appearance" is similar to the "first appearance hearing" ordered by the District Court in all respects but the crucial one: the magistrate does not make a determination of probable The rule amendments also changed the procedure for preliminary hearings, restricting them to felony charges and codifying the rule that no hearings are available to persons charged by information or indictment. Rule 3.131; see In re Rule 3.131 (b), Florida Rules of Criminal In a supplemental opinion the District Court held that the amended rules had not answered
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District Court held that the amended rules had not answered the basic constitutional objection, since a defendant charged by information still could be detained pending trial without a judicial determination of probable Reaffirming its original ruling, the District Court declared that the continuation of this practice was unconstitutional.[10] The Court of Appeals *110 affirmed, modifying the District Court's decree in minor particulars and suggesting that the form of preliminary hearing provided by the amended Florida rules would be acceptable, as long as it was provided to all defendants in custody pending trial. State Attorney Gerstein petitioned for review, and we granted certiorari because of the importance of the issue.[11]*111 We affirm in part and reverse in part. II As framed by the proceedings below, this case presents two issues: whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution. A Both the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents. See ; Ex parte ; Ex parte Burford, The standard for arrest is probable cause, defined in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." *112 See also ; This standard, like those for searches and seizures, represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime. "These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." To implement the Fourth Amendment's protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible. The
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decided by a neutral and detached magistrate whenever possible. The classic statement of this principle appears in : "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection *113 consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." See also[12] Maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement. Thus, while the Court has expressed a preference for the use of arrest warrants when feasible, ; Wong it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant. See ; ;[13] Under this practical compromise, a policeman's on-the-scene assessment of probable cause provides legal justification *114 for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32- (196); L. Katz, Justice Is the Crime 1-62 Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. See e. g., 18 U.S. C. 3146 (a) (2), (). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. This result has historical support in the common law that has guided interpretation of the Fourth Amendment. See At common law it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest. 2
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before a justice of the peace shortly after arrest. 2 M. Hale, Pleas of the Crown 77, 81, 9, 121 (1736); 2 W. Pleas of the Crown 116-117 (4th ed. 1762). See also[14] The justice of the peace *11 would "examine" the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime. If there was, the suspect would be committed to jail or bailed pending trial. If not, he would be discharged from custody. 1 M. Hale, ; 2 W. ; 1 J. History of the Criminal Law of England 233 (1883).[1] The initial determination of probable cause also could be reviewed by higher courts on a writ of habeas corpus. 2 W. ; 1 J. ; see Ex parte -101. This practice furnished the model for criminal procedure in America immediately following the adoption of the *116 Fourth Amendment, see Ex parte supra;[16]Ex parte Burford, ; United and there are indications that the Framers of the Bill of Rights regarded it as a model for a "reasonable" seizure. See -320[17] B Under the Florida procedures challenged here, a person arrested without a warrant and charged by information may be jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination.[18] Petitioner defends this practice on the *117 ground that the prosecutor's decision to file an information is itself a determination of probable cause that furnishes sufficient reason to detain a defendant pending trial. Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment. Indeed, we think the Court's previous decisions compel disapproval of the Florida procedure. In Albrecht v. United the Court held that an arrest warrant issued solely upon a United Attorney's information was invalid because the accompanying affidavits were defective. Although the Court's opinion did not explicitly state that the prosecutor's official oath could not furnish probable cause, that conclusion was implicit in the judgment that the arrest was illegal under the Fourth Amendment.[19] More recently, in 449-43 the Court held that a prosecutor's responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate. We reaffirmed that principle in Shadwick 407 U.S. 34 and held that probable cause for the issuance of an arrest warrant must be determined by someone independent of police and prosecution. See also United v. United District Court,[20] The reason for this separation of functions was expressed by Mr. Justice Frankfurter in
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Justice Powell
| 1,975 | 17 |
majority
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Gerstein v. Pugh
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https://www.courtlistener.com/opinion/109186/gerstein-v-pugh/
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separation of functions was expressed by Mr. Justice Frankfurter in a similar context: "A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counselled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication." McNabb v. United In holding that the prosecutor's assessment of probable *119 cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. 369 U.S. 41, 4 ; Lem 229 U.S. 86 (13). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. 342 U.S. 19 (192); Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable -787. Compare with and Cooley v. Stone, 134 U. S. App. D. C. III Both the District Court and the Court of Appeals held that the determination of probable cause must be accompanied by the full panoply of adversary safeguards counsel, confrontation, cross-examination, and compulsory process for witnesses. A full preliminary hearing of this sort is modeled after the procedure used in many states to determine whether the evidence justifies going to trial under an information or presenting the case to a grand jury. See ; Y. Kamisar, W. LaFave & J. Israel, Modern Criminal 97-967, 996-1000 The standard of proof required of the prosecution is usually referred to as "probable cause," but in some jurisdictions it may approach a prima facie case of guilt. *120 ALI, Model Code of Pre-arraignment Commentary on Art. 330, pp. 90- When the hearing takes this form, adversary procedures are customarily employed. The importance of the issue to both the State and the accused justifies the
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Justice Powell
| 1,975 | 17 |
majority
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Gerstein v. Pugh
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https://www.courtlistener.com/opinion/109186/gerstein-v-pugh/
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issue to both the State and the accused justifies the presentation of witnesses and full exploration of their testimony on cross-examination. This kind of hearing also requires appointment of counsel for indigent defendants. And, as the hearing assumes increased importance and the procedures become more complex, the likelihood that it can be held promptly after arrest diminishes. See ALI, Model Code of Pre-arraignment These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest.[21] That standardprobable cause to believe the suspect has committed a crimetraditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof. "Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, *121 to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property. "In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved." -17. Cf. The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109[22] This is not to say that confrontation and *122 cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable [23] Because of its limited function and its nonadversary character, the probable cause determination is not a "critical
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Justice Powell
| 1,975 | 17 |
majority
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Gerstein v. Pugh
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nonadversary character, the probable cause determination is not a "critical stage" in the prosecution that would require appointed counsel. The Court has identified as "critical stages" those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. ; United v. Wade, In where the Court held that a preliminary hearing was a critical stage of an prosecution, the majority and concurring opinions identified two critical factors that distinguish the preliminary hearing from the probable cause determination required by the Fourth Amendment. First, *123 under law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense. A finding of no probable cause could mean that he would not be tried at all. The Fourth Amendment probable cause determination is addressed only to pretrial custody. To be sure, pretrial custody may affect to some extent the defendant's ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman. Second, allowed the suspect to confront and cross-examine prosecution witnesses at the preliminary hearing. The Court noted that the suspect's defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses' testimony. This consideration does not apply when the prosecution is not required to produce witnesses for cross-examination. Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the It may be found desirable for example, to make the probable cause determination a the suspect's first appearance before a judicial officer,[24]*124 see McNabb v. United -344, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention.[2] Whatever *12 procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty,[26] and this determination must
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Justice O'Connor
| 1,984 | 14 |
concurring
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United States v. Doe
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https://www.courtlistener.com/opinion/111110/united-states-v-doe/
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I concur in both the result and reasoning of JUSTICE POWELL'S opinion for the Court. I write separately, however, just to make explicit what is implicit in the analysis of that opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in but our decision in sounded the death knell for Boyd. "Several of Boyd's express or implicit declarations [had] not stood the test of time," and its privacy of papers concept "ha[d] long been a rule searching for a rationale" Today's decision puts a long overdue end to that fruitless search. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in part and dissenting in part. I concur in the Court's affirmance of the Court of Appeals' ruling that the act of producing the documents could not be compelled without an explicit grant of use immunity pursuant to 18 U.S. C. 6002 and 600. I dissent, however, with respect to that part of the Court's opinion reversing the Court of Appeals. The basis for the reversal is the majority's disagreement with the Court of Appeals' discussion of whether the Fifth Amendment protected the contents of the documents respondent sought to withhold from disclosure. Inasmuch as the Court of Appeals' judgment did not rest upon the disposition of this issue, this Court errs by reaching out to decide it. As JUSTICE STEVENS rightly insists, " `[t]his Court reviews judgments, not statements in opinions.' " Post, at 619 ). *619 Contrary to what JUSTICE O'CONNOR contends, ante, at 618, I do not view the Court's opinion in this case as having reconsidered whether the Fifth Amendment provides protection for the contents of "private papers of any kind." This case presented nothing remotely close to the question that JUSTICE O'CONNOR eagerly poses and answers. First, as noted above, the issue whether the Fifth Amendment protects the contents of the documents was obviated by the Court of Appeals' rulings relating to the act of production and statutory use immunity. Second, the documents at stake here are business records[1] which implicate a lesser degree of concern for privacy interests than, for example, personal diaries.[2] Were it true that the Court's opinion stands for the proposition that "the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind," ib, I would assuredly dissent. I continue to believe that under the Fifth Amendment "there are certain documents no person ought to be compelled to produce at the Government's request." JUSTICE STEVENS, concurring
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Justice O'Connor
| 1,984 | 14 |
concurring
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United States v. Doe
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https://www.courtlistener.com/opinion/111110/united-states-v-doe/
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compelled to produce at the Government's request." JUSTICE STEVENS, concurring in part and dissenting in part. "This Court reviews judgments, not statements in opinions." *620[1] When both the District Court and the Court of Appeals correctly apply the law, and correctly dispose of the issue before them, I think it is poor appellate practice for this Court to reverse. The question in this case is whether, without tendering statutory immunity, the Government can compel the sole proprietor of a business to produce incriminating records pursuant to a grand jury subpoena. Except for the records that are required by law to be kept or to be disclosed to public agencies, the District Court held that production could not be required. The basis for that decision turned, not on any suggestion that the contents of the documents were privileged, but rather on the significance of the act of producing them. As the District Court explained: "[T]he relevant inquiry is not whether the subpoenaed documents on their face reveal incriminating communications, but whether the act of producing the documents has communicative aspects which warrant Fifth Amendment protection. In yielding to the command of the subpoena, Mr. [Doe] may be required to make any one of several communications. The mere act of producing the documents may be considered `a communication of testimonial significance as an admission that the subpoenaed records exist and that they are authentic.' In Re Grand Jury Empanelled (Colucci), ; 475 In addition, the act of *621 production may indicate a belief that the papers produced are those described in the subpoena. "With few exceptions, enforcement of the subpoenas would compel Mr. [Doe] to admit that the records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, would violate Mr. [Doe's] Fifth Amendment rights." In re Grand Jury Empanelled March 19, 1980,[2] The Court of Appeals agreed with the District Court's reasoning and affirmed. It explained: "To be sure, the documents requested here, like those sought in were voluntarily prepared, and therefore `cannot be said to contain compelled testimonial evidence' in and of themselves. See 425 U. S. -10 But the Supreme Court in went to great lengths to demonstrate that, in certain situations, the very act of producing subpoenaed records might amount to an incriminating declaration. See at 410-1 ; see also at 40-4 (Marshall, J., concurring in the judgment). And such a situation, we believe, is present in the dispute at bar. "The record contains no explanation by the United States as to how documents of
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Justice O'Connor
| 1,984 | 14 |
concurring
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United States v. Doe
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https://www.courtlistener.com/opinion/111110/united-states-v-doe/
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explanation by the United States as to how documents of this sort could be authenticated without the appellee's explicit or implicit participation. As the district court observed in this connection, `the government can give no assurances that the act of turning over the documents will not constitute incriminating *622 admissions against [the appellee] either before the grand jury or at a subsequent trial, if he is indicated. The government argues that the existence, possession and authenticity of the documents can be proved without [the appellee's] testimonial communication, but it cannot satisfy this court as to how that representation can be implemented to protect [the appellee] in subsequent proceedings.' "Appendix at 98 (footnote omitted). Under these circumstances, we are unable to say, as did the Court in that responding to the subpoenas `would not appear to represent a substantial threat of self-incrimination.' 425 U.S. at 41 "Accordingly, we hold, therefore, that enforcement of these subpoenas would result in a compelled testimonial communication, an outcome neither compatible with the fifth amendment nor consonant with" In re Grand Jury Empanelled March 19, 1980, 680 F.2d 27, 4, 5-6 In addition, the Court of Appeals noted that the Government had had an opportunity to obtain the documents by providing the respondent with statutory immunity, but had declined to do so. It wrote: "Finally, the United States argues that the district court erred in not compelling the appellee to produce the subpoenaed documents subject to `the functional equivalent of use immunity with respect to the act of production.' Under this arrangement, presumably the appellee would turn over the requested records to the Government, which in turn would be obligated not to use the appellee's act of production against him in any way. "We are unpersuaded by the Government's proposition. As the appellee stresses, although the Government, on a number of occasions, suggested to the district court that there were means by which the appellee's act of production could be immunized, no procedure ever *62 was agreed upon and no formal immunization offer under 18 U.S. C. 6002 or 600 was advanced. Given this failure on the part of the Government to identify with particularity the immunity proposal it envisioned, we cannot say that the district court erred in rejecting this approach, especially in view of the court's finding that `the government can give no assurances that the act of turning over the documents will not constitute incriminating admissions against [the appellee] either before the grand jury or at a subsequent trial.' Appendix at 98; see United" at 7. This Court's opinion is entirely consistent with
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Justice O'Connor
| 1,983 | 14 |
majority
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Rice v. Rehner
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https://www.courtlistener.com/opinion/111011/rice-v-rehner/
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The question presented by this case is whether the State of California may require a federally licensed Indian trader, who operates a general store on an Indian reservation, to obtain a state liquor license in order to sell liquor for off-premises consumption. Because we find that Congress has delegated authority to the States as well as to the Indian tribes to regulate the use and distribution of alcoholic beverages in Indian country,[1] we reverse the judgment of the Court of Appeals for the Ninth Circuit. I The respondent Rehner is a federally licensed Indian trader[2] who operates a general store on the Pala Reservation in San Diego, Cal. The Pala had adopted a tribal ordinance *716 permitting the sale of liquor on the reservation providing that the sales conformed to state law, and this ordinance was approved by the Secretary of the Interior. See (1960). Rehner then sought from the State an exemption from its law requiring a state license for retail sale of distilled spirits for off-premises consumption.[3] When she was refused an exemption, Rehner filed suit seeking a declaratory judgment that she did not need a license from the State, and an order directing that liquor wholesalers could sell to her. The District Court granted the State's motion to dismiss, ruling that Rehner was required to have a state license under 18 U.S. C. 1161, which provides that liquor transactions in Indian country are not subject to prohibition under federal law provided those transactions are "in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country"[4] The Court of Appeals reversed the District Court, holding that 1161 did not confer jurisdiction on the States to require liquor licenses. The court held that "18 U.S. C. 1161 pre-empts state licensing and distribution jurisdiction over tribal liquor sales in Indian country."[5]*717 In deciding the pre-emption issue, the court focused on two aspects of 1161. First, it held that "there is insufficient evidence to show that Congress intended section 1161 to confer on the states regulatory jurisdiction over on-reservation liquor traffic." The court reasoned that the liquor transactions at issue were governed exclusively by federal law, and that if Congress wished to remove "its veil of preemption," it needed to do so by an express statement that the State had jurisdiction to impose its licensing requirement. Second, the court held that "section 1161 has preemptive effect" because Congress provided for tribal ordinances that were to be certified by the
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Justice O'Connor
| 1,983 | 14 |
majority
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Rice v. Rehner
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for tribal ordinances that were to be certified by the Secretary of the Interior and published in the Federal Register. In this way, "the regulatory authority of the tribes was safeguarded by federal supervision."[6] *718 The decisions of this Court concerning the principles to be applied in determining whether state regulation of activities in Indian country is pre-empted have not been static. In Chief Justice Marshall wrote that an Indian reservation "is a distinct community, occupying its own territory, with boundaries accurately described, in which [state laws] can have no force." Despite this early statement emphasizing the importance of tribal self-government, "Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall," Organized of "[E]ven on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law." Mescalero Apache Although "[f]ederal treaties and statutes have been consistently construed to reserve the right of self-government to the tribes," F. Cohen, Handbook of Federal Indian Law 273 ( ed.) (hereafter Cohen), our recent cases have established a "trend away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption." The goal of any pre-emption inquiry is "to determine the congressional plan," but tribal sovereignty may not be ignored and we do not necessarily apply "those standards of pre-emption that have emerged in other areas of the law." White Mountain Apache We have instead employed a pre-emption analysis that is informed by historical notions of tribal sovereignty, rather than determined by them. "[C]ongressional authority and the `semi-independent position' of Indian tribes [are] two *719 independent but related barriers to the assertion of state regulatory authority over tribal reservations and members." Although "[t]he right of tribal self-government is ultimately dependent on and subject to the broad power of Congress," at we still employ the tradition of Indian sovereignty as a "backdrop against which the applicable treaties and federal statutes must be read" in our pre-emption analysis. at We do not necessarily require that Congress explicitly pre-empt assertion of state authority insofar as Indians on reservations are concerned, but we have recognized that "any applicable regulatory interest of the State must be given weight" and " `automatic exemptions "as a matter of constitutional law" ' are unusual." ). The role of tribal sovereignty in pre-emption analysis varies in accordance with the particular "notions of sovereignty that have developed from historical traditions of tribal independence." These traditions
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Justice O'Connor
| 1,983 | 14 |
majority
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Rice v. Rehner
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https://www.courtlistener.com/opinion/111011/rice-v-rehner/
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have developed from historical traditions of tribal independence." These traditions themselves reflect the "accommodation between the interests of the and the Federal Government, on the one hand, and those of the State, on the other." However, it must be remembered that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States." "The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance." United See also Confederated When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect " `except *720 where Congress has expressly provided that State laws shall apply.' " Repeal by implication of an established tradition of immunity or self-governance is disfavored. If, however, we do not find such a tradition, or if we determine that the balance of state, federal, and tribal interests so requires, our pre-emption analysis may accord less weight to the "backdrop" of tribal sovereignty. See Confederated -159; Mescalero Apache A We first determine the nature of the "backdrop" of tribal sovereignty that will inform our pre-emption analysis. The "backdrop" in this case concerns the licensing and distribution of alcoholic beverages, and we must determine whether there is a tradition of tribal sovereign immunity that may be repealed only by an explicit directive from Congress. We begin by noting that there is nothing in the record to indicate that a federally licensed Indian trader like Rehner may sell liquor for off-premises consumption only to members of the Pala Indeed, the State contends, and Rehner does not dispute, that Rehner, or any other federally licensed trader, may sell liquor to Indian and non-Indian buyers alike. See Brief for Petitioner 81; Tr. of Oral Arg. 14. To the extent that Rehner seeks to sell to non-Indians, or to Indians who are not members of the tribe with jurisdiction over the reservation on which the sale occurred, the decisions of this Court have already foreclosed Rehner's argument that the licensing requirements infringe upon tribal sovereignty.[7] *721 If there is any interest in tribal sovereignty implicated by imposition of California's alcoholic beverage regulation, it exists only insofar as the State attempts to regulate Rehner's sale of liquor to other members of the Pala on the Pala Reservation. The only interest that Rehner advances in this regard is that freedom to regulate alcoholic beverages is important to Indian self-governance. To the
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Justice O'Connor
| 1,983 | 14 |
majority
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Rice v. Rehner
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https://www.courtlistener.com/opinion/111011/rice-v-rehner/
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regulate alcoholic beverages is important to Indian self-governance. To the extent California limits the absolute number of licenses that it distributes, state regulation may effectively preclude this aspect of self-governance. See Brief for Respondent 63-. Rehner relies on our statement in United that the distribution and use of intoxicants is a "matte[r] that affect[s] the internal and social relations of tribal life." Rehner's reliance on as establishing tribal sovereignty in the area of liquor licensing and distribution is misplaced. In we held that "independent tribal authority is quite sufficient to protect Congress' decision to vest in tribal councils this portion of [Congress'] own authority" to regulate commerce with the Indians. We expressly declined to base our holding on whether "independent [tribal] authority is itself sufficient for the tribes to impose" their own liquor regulations. The reason that we declined is apparent in the light of the history of federal control of liquor in this context, which must be characterized as "one of the most comprehensive [federal] activities in Indian affairs" Cohen, 07. Unlike the authority to tax certain transactions on reservations that we have characterized as "a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status," Confederated tradition simply has not recognized a sovereign immunity or inherent authority in favor of liquor regulation by Indians. The colonists regulated Indian liquor trading before this Nation was formed, and Congress exercised its authority over these transactions as early as 1802. See Indian Law, 81. Congress imposed complete prohibition by 1, and these prohibitions are still in effect subject to suspension conditioned on compliance with state law and tribal ordinances.[8] *723 Although in Indian matters Congress usually acts "upon the assumption that the States have no power to regulate the affairs of Indians on a reservation," that assumption would be unwarranted in the narrow context of the regulation of liquor. In addition to the congressional divestment of tribal self-government in this area, the States have also been permitted, and even required, to impose regulations related to liquor transactions. As a condition of entry into the United States, Arizona, New Mexico, and Oklahoma were required by Congress to enact prohibitions against the sale of liquor to Indians and introduction of liquor into Indian country.[9] Several States, including California, pursuant to state police power, long prohibited liquor transactions with Indians.[10] These state prohibitions indicate that " `absolute' federal jurisdiction is not invariably exclusive jurisdiction." Kake Indeed, we have recognized expressly that "[t]he federal prohibition against taking intoxicants into this Indian colony does
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