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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation. These essential principles of defamation law accommodate the special case of inaccurate quotations without the necessity for a discrete body of jurisprudence directed to this subject alone. Last Term, in we refused "to create a wholesale defamation exemption for anything that might be labeled `opinion.'" We recognized that "expressions of `opinion' may often imply an assertion of objective fact." We allowed the defamation action to go forward in that case, holding that a reasonable trier of fact could find that the so-called expressions of opinion could be interpreted as including false assertions as to factual matters. So too in the case before us, we reject any special test of falsity for quotations, including one which would draw the line at correction of grammar or syntax. We conclude, rather, that the exceptions suggested by petitioner for grammatical or syntactical corrections serve to illuminate a broader principle. The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. See Restatement (Second) of Torts 563, Comment c (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 776 It overlooks minor inaccuracies and concentrates upon substantial truth. As in other jurisdictions, California law permits the defense of substantial truth and would absolve a defendant even if she cannot "justify every word of the alleged defamatory matter; it is sufficient if the substance of the *517 charge be proved true, irrespective of slight inaccuracy in the details." 5 B. Witkin, Summary of California Law 495 (9th ed. 1988) (citing cases). In this case, of course, the burden is upon petitioner to prove falsity. See Philadelphia Newspapers, The essence of that inquiry, however, remains the same whether the burden rests upon plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as "the substance, the gist, the sting, of the libelous charge be justified." ; see also ; Put another way, the statement is not considered false unless it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." R. Sack, Libel, Slander, and Related Problems 138 ; see, e. g., ; see generally R. Smolla, Law of Defamation 5.08 (1991). Our definition of actual malice relies upon this historical understanding. We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times 376 U. S.,
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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falsity for purposes of New York Times 376 U. S., at and unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case. Deliberate or reckless falsification that comprises actual malice turns upon words and punctuation only because words and punctuation express meaning. Meaning is the life of language. And, for the reasons we have given, quotations may be a devastating instrument for conveying false meaning. In the case under consideration, readers of In the Freud Archives may have found Malcolm's portrait of petitioner especially *518 damning because so much of it appeared to be a selfportrait, told by petitioner in his own words. And if the alterations of petitioner's words gave a different meaning to the statements, bearing upon their defamatory character, then the device of quotations might well be critical in finding the words actionable. D The Court of Appeals applied a test of substantial truth which, in exposition if not in application, comports with much of the above discussion. The Court of Appeals, however, went one step beyond protection of quotations that convey the meaning of a speaker's statement with substantial accuracy and concluded that an altered quotation is protected so long as it is a "rational interpretation" of an actual statement, drawing this standard from our decisions in Time, v. and Bose Application of our protection for rational interpretation in this context finds no support in general principles of defamation law or in our First Amendment jurisprudence. Neither Time, v. nor Bose Corp. involved the fabrication of quotations, or any analogous claim, and because many of the quotations at issue might reasonably be construed to state or imply factual assertions that are both false and defamatory, we cannot accept the reasoning of the Court of Appeals on this point. In Time, v. we reversed a libel judgment which arose out of a magazine article summarizing a report by the United States Commission on Civil Rights discussing police civil rights abuses. The article quoted the Commission's summary of the facts surrounding an incident of police brutality, but failed to include the Commission's qualification that these were allegations taken from a civil complaint. The Court noted that "the attitude of the Commission toward the factual verity of the episodes recounted was anything but straightforward," and distinguished between a "direct account *519 of events that speak for themselves," 286, and an article descriptive of what the Commission
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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themselves," 286, and an article descriptive of what the Commission had reported. Time, v. took into account the difficult choices that confront an author who departs from direct quotation and offers his own interpretation of an ambiguous source. A fair reading of our opinion is that the defendant did not publish a falsification sufficient to sustain a finding of actual malice. In Bose Corp., a Consumer Reports reviewer had attempted to describe in words the experience of listening to music through a pair of loudspeakers, and we concluded that the result was not an assessment of events that speak for themselves, but "`one of a number of possible rational interpretations' of an event `that bristled with ambiguities' and descriptive challenges for the writer." 466 U.S., at (quoting Time, v. ). We refused to permit recovery for choice of language which, though perhaps reflecting a misconception, represented "the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies." The protection for rational interpretation serves First Amendment principles by allowing an author the interpretive license that is necessary when relying upon ambiguous sources. Where, however, a writer uses a quotation, and where a reasonable reader would conclude that the quotation purports to be a verbatim repetition of a statement by the speaker, the quotation marks indicate that the author is not involved in an interpretation of the speaker's ambiguous statement, but attempting to convey what the speaker said. This orthodox use of a quotation is the quintessential "direct account of events that speak for themselves." Time, v. More accurately, the quotation allows the subject to speak for himself. The significance of the quotations at issue, absent any qualification, is to inform us that we are reading the statement *520 of petitioner, not Malcolm's rational interpretation of what petitioner has said or thought. Were we to assess quotations under a rational interpretation standard, we would give journalists the freedom to place statements in their subjects' mouths without fear of liability. By eliminating any method of distinguishing between the statements of the subject and the interpretation of the author, we would diminish to a great degree the trustworthiness of the printed word and eliminate the real meaning of quotations. Not only public figures but the press doubtless would suffer under such a rule. Newsworthy figures might become more wary of journalists, knowing that any comment could be transmuted and attributed to the subject, so long as some bounds of rational interpretation were not exceeded. We would ill serve the values of the First Amendment
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Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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We would ill serve the values of the First Amendment if we were to grant near absolute, constitutional protection for such a practice. We doubt the suggestion that as a general rule readers will assume that direct quotations are but a rational interpretation of the speaker's words, and we decline to adopt any such presumption in determining the permissible interpretations of the quotations in question here. III A We apply these principles to the case before us. On summary judgment, we must draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence. So we must assume, except where otherwise evidenced by the transcripts of the tape recordings, that petitioner is correct in denying that he made the statements attributed to him by Malcolm, and that Malcolm reported with knowledge or reckless disregard of the differences between what petitioner said and what was quoted. *521 Respondents argue that, in determining whether petitioner has shown sufficient falsification to survive summary judgment, we should consider not only the tape-recorded statements but also Malcolm's typewritten notes. We must decline that suggestion. To begin with, petitioner affirms in an affidavit that he did not make the complained of statements. The record contains substantial additional evidence, moreover, evidence which, in a light most favorable to petitioner, would support a jury determination under a clear and convincing standard that Malcolm deliberately or recklessly altered the quotations. First, many of the challenged passages resemble quotations that appear on the tapes, except for the addition or alteration of certain phrases, giving rise to a reasonable inference that the statements have been altered. Second, Malcolm had the tapes in her possession and was not working under a tight deadline. Unlike a case involving hot news, Malcolm cannot complain that she lacked the practical ability to compare the tapes with her work in progress. Third, Malcolm represented to the editor in chief of The New Yorker that all the quotations were from the tape recordings. Fourth, Malcolm's explanations of the time and place of unrecorded conversations during which petitioner allegedly made some of the quoted statements have not been consistent in all respects. Fifth, petitioner suggests that the progression from typewritten notes, to manuscript, then to galleys provides further evidence of intentional alteration. Malcolm contests petitioner's allegations, and only a trial on the merits will resolve the factual dispute. But at this stage, the evidence creates a jury question whether Malcolm published the statements with knowledge or reckless disregard of the alterations. B We must determine whether the
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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disregard of the alterations. B We must determine whether the published passages differ materially in meaning from the tape-recorded statements so as to create an issue of fact for a jury as to falsity. *522 (a) "Intellectual Gigolo." We agree with the dissenting opinion in the Court of Appeals that "[f]airly read, intellectual gigolo suggests someone who forsakes intellectual integrity in exchange for pecuniary or other gain." A reasonable jury could find a material difference between the meaning of this passage and petitioner's tape-recorded statement that he was considered "much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with [him]." The Court of Appeals majority found it difficult to perceive how the "intellectual gigolo" quotation was defamatory, a determination supported not by any citation to California law, but only by the argument that the passage appears to be a report of Eissler's and Anna Freud's opinions of petitioner. We agree with the Court of Appeals that the most natural interpretation of this quotation is not an admission that petitioner considers himself an intellectual gigolo but a statement that Eissler and Anna Freud considered him so. It does not follow, though, that the statement is harmless. Petitioner is entitled to argue that the passage should be analyzed as if Malcolm had reported falsely that Eissler had given this assessment (with the added level of complexity that the quotation purports to represent petitioner's understanding of Eissler's view). An admission that two wellrespected senior colleagues considered one an "intellectual gigolo" could be as, or more, damaging than a similar selfappraisal. In all events, whether the "intellectual gigolo" quotation is defamatory is a question of California law. To the extent that the Court of Appeals based its conclusion in the First Amendment, it was mistaken. The Court of Appeals relied upon the "incremental harm" doctrine as an alternative basis for its decision. As the court explained it: "This doctrine measures the incremental reputational harm inflicted by the challenged statements beyond the harm imposed by the nonactionable remainder of the publication." ; see generally Note, 98 Harv. L. *523 Rev. 1909 ; R. Smolla, Law of Defamation 9.10[4][d] (1991). The court ruled, as a matter of law, that "[g]iven the. many provocative, bombastic statements indisputably made by Masson and quoted by Malcolm, the additional harm caused by the `intellectual gigolo' quote was nominal or nonexistent, rendering the defamation claim as to this quote nonactionable." 895 F.2d, This reasoning requires a court to conclude that, in fact, a plaintiff made the other quoted statements, cf. Liberty Lobby, v.
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Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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plaintiff made the other quoted statements, cf. Liberty Lobby, v. Anderson, 241 U. S. App. D. C. 246, 251, 6 F.2d 1563, vacated and remanded on other grounds, and then to undertake a factual inquiry into the reputational damage caused by the remainder of the publication. As noted by the dissent in the Court of Appeals, the most "provocative, bombastic statements" quoted by Malcolm are those complained of by petitioner, and so this would not seem an appropriate application of the incremental harm doctrine. Furthermore, the Court of Appeals provided no indication whether it considered the incremental harm doctrine to be grounded in California law or the First Amendment. Here, we reject any suggestion that the incremental harm doctrine is compelled as a matter of First Amendment protection for speech. The question of incremental harm does not bear upon whether a defendant has published a statement with knowledge of falsity or reckless disregard of whether it was false or not. As a question of state law, on the other hand, we are given no indication that California accepts this doctrine, though it remains free to do so. Of course, state tort law doctrines of injury, causation, and damages calculation might allow a defendant to press the argument that the statements did not result in any incremental harm to a plaintiff's reputation. (b) "Sex, Women, Fun." This passage presents a closer question. The "sex, women, fun" quotation offers a very different picture of petitioner's plans for Maresfield Gardens *524 than his remark that "Freud's library alone is priceless." See Petitioner's other tape-recorded remarks did indicate that he and another analyst planned to have great parties at the Freud house and, in a context that may not even refer to Freud house activities, to "pass women on to each other." We cannot conclude as a matter of law that these remarks bear the same substantial meaning as the quoted passage's suggestion that petitioner would make the Freud house a place of "sex, women, fun." (c) "It Sounded Better." We agree with the District Court and the Court of Appeals that any difference between petitioner's tape-recorded statement that he "just liked" the name Moussaieff, and the quotation that "it sounded better" is, in context, immaterial. Although Malcolm did not include all of petitioner's lengthy explanation of his name change, she did convey the gist of that explanation: Petitioner took his abandoned family name as his middle name. We agree with the Court of Appeals that the words attributed to petitioner did not materially alter the meaning of his statement. (d) "I Don't Know
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
alter the meaning of his statement. (d) "I Don't Know Why I Put It In." Malcolm quotes petitioner as saying that he "tacked on at the last minute" a "totally gratuitous" remark about the "sterility of psychoanalysis" in an academic paper, and that he did so for no particular reason. In the tape recordings, petitioner does admit that the remark was "possibly [a] gratuitously offensive way to end a paper to a group of analysts," but when asked why he included the remark, he answered "[because] it was true I really believe it." Malcolm's version contains material differences from petitioner's statement, and it is conceivable that the alteration results in a statement that could injure a scholar's reputation. (e) "Greatest Analyst Who Ever Lived." While petitioner did, on numerous occasions, predict that his theories would do irreparable damage to the practice of psychoanalysis, and did suggest that no other analyst shared his views, no tape-recorded statement appears to contain the substance or the *525 arrogant and unprofessional tone apparent in this quotation. A material difference exists between the quotation and the tape-recorded statements, and a jury could find that the difference exposed petitioner to contempt, ridicule, or obloquy. (f) "He Had The Wrong Man." The quoted version makes it appear as if petitioner rejected a plea to remain in stoic silence and do "the honorable thing." The tape-recorded version indicates that petitioner rejected a plea supported by far more varied motives: Eissler told petitioner that not only would silence be "the honorable thing," but petitioner would "save face," and might be rewarded for that silence with eventual reinstatement. Petitioner described himself as willing to undergo a scandal in order to shine the light of publicity upon the actions of the Freud Archives, while Malcolm would have petitioner describe himself as a person who was "the wrong man" to do "the honorable thing." This difference is material, a jury might find it defamatory, and, for the reasons we have given, there is evidence to support a finding of deliberate or reckless falsification. C Because of the Court of Appeals' disposition with respect to Malcolm, it did not have occasion to address petitioner's argument that the District Court erred in granting summary judgment to The New Yorker Magazine, and Alfred A. Knopf, on the basis of their respective relations with Malcolm or the lack of any independent actual malice. These questions are best addressed in the first instance on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE WHITE, with whom JUSTICE SCALIA joins, concurring in part and dissenting in part. I join Parts I, II-A, II-D, and III-A, but cannot wholly agree with the remainder of the opinion. My principal disagreement *526 is with the holding, ante, at 517, that "a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity unless the alteration results in a material change in the meaning conveyed by the statement." Under New York Times "malice" means deliberate falsehood or reckless disregard for whether the fact asserted is true or false. at As the Court recognizes, the use of quotation marks in reporting what a person said asserts that the person spoke the words as quoted. As this case comes to us, it is to be judged on the basis that in the instances identified by the Court, the reporter, Malcolm, wrote that Masson said certain things that she knew Masson did not say. By any definition of the term, this was "knowing falsehood": Malcolm asserts that Masson said these very words, knowing that he did not. The issue, as the Court recognizes, is whether Masson spoke the words attributed to him, not whether the fact, if any, asserted by the attributed words is true or false. In my view, we need to go no further to conclude that the defendants in this case were not entitled to summary judgment on the issue of malice with respect to any of the six erroneous quotations. That there was at least an issue for the jury to decide on the question of deliberate or reckless falsehood does not mean that plaintiffs were necessarily entitled to go to trial. If, as a matter of law, reasonable jurors could not conclude that attributing to Masson certain words that he did not say amounted to libel under California law, i. e., "expose[d] [Masson] to hatred, contempt, ridicule, or obloquy, or which cause[d] him to be shunned or avoided, or which ha[d] a tendency to injure him in his occupation," Cal. Civ. Code Ann. 45 (West 1982), a motion for summary judgment on this ground would be justified.[*] I would suppose, for example, *527 that if Malcolm wrote that Masson said that he wore contact lenses, when he said nothing about his eyes or his vision, the trial judge would grant summary judgment for the defendants and dismiss the case. The same would be true if Masson had said "I was spoiled as a child by my Mother,"
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
said "I was spoiled as a child by my Mother," whereas, Malcolm reports that he said "I was spoiled as a child by my parents." But if reasonable jurors could conclude that the deliberate misquotation was libelous, the case should go to the jury. This seems to me to be the straightforward, traditional approach to deal with this case. Instead, the Court states that deliberate misquotation does not amount to New York Times malice unless it results in a material change in the meaning conveyed by the statement. This ignores the fact that, under New York Times, reporting a known falsehood here the knowingly false attribution is sufficient proof of malice. The falsehood, apparently, must be substantial; the reporter may lie a little, but not too much. This standard is not only a less manageable one than the traditional approach, but it also assigns to the courts issues that are for the jury to decide. For a court to ask whether a misquotation substantially alters the meaning of spoken words in a defamatory manner is a far different inquiry from whether reasonable jurors could find that the misquotation was different enough to be libelous. In the one case, the court is measuring the difference from its own point of view; in the other it is asking how the jury would or could view the erroneous attribution. The Court attempts to justify its holding in several ways, none of which is persuasive. First, it observes that an interviewer who takes notes of any interview will attempt to reconstruct what the speaker said and will often knowingly attribute to the subject words that were not used by the speaker. Ante, at 514-515. But this is nothing more than an assertion that authors may misrepresent because they cannot remember what the speaker actually said. This *528 should be no dilemma for such authors, for they could report their story without purporting to quote when they are not sure, thereby leaving the reader to trust or doubt the author rather than believing that the subject actually said what he is claimed to have said. Moreover, this basis for the Court's rule has no application where there is a tape of the interview and the author is in no way at a loss to know what the speaker actually said. Second, the Court speculates that even with the benefit of a recording, the author will find it necessary at times to reconstruct, ante, at 515, but again, in those cases why should the author be free to put his or her reconstruction in
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 193,[1] this is the first time that we have confronted such an issue. The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did knowor at least had reason to knowthat the interception *518 was unlawful. Accordingly, these cases present a conflict between interests of the highest orderon the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment. I During 1992 and most of 1993, the Pennsylvania State Education Association, a union representing the teachers at the Wyoming Valley West High School, engaged in collectivebargaining negotiations with the school board. Petitioner Kane, then the president of the local union, testified that the negotiations were "`contentious' " and received "a lot of media attention." App. 79, 92. In May 1993, petitioner Bartnicki, who was acting as the union's "chief negotiator," used the cellular phone in her car to call Kane and engage in a lengthy conversation about the status of the negotiations. An unidentified person intercepted and recorded that call. In their conversation, Kane and Bartnicki discussed the timing of a proposed strike, difficulties created by public comment on the negotiations, and the need for a dramatic response to the board's intransigence. At one point, Kane said: "`If they're not gonna move for three percent, we're gonna have to go to their, their *519 homes To blow off their front porches, we'll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).' " In the early fall of
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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is bad news. (UNDECIPHERABLE).' " In the early fall of 1993, the parties accepted a nonbinding arbitration proposal that was generally favorable to the teachers. In connection with news reports about the settlement, respondent Vopper, a radio commentator who had been critical of the union in the past, played a tape of the intercepted conversation on his public affairs talk show. Another station also broadcast the tape, and local newspapers published its contents. After filing suit against Vopper and other representatives of the media, Bartnicki and Kane (hereinafter petitioners) learned through discovery that Vopper had obtained the tape from respondent Jack Yocum, the head of a local taxpayers' organization that had opposed the union's demands throughout the negotiations. Yocum, who was added as a defendant, testified that he had found the tape in his mailbox shortly after the interception and recognized the voices of Bartnicki and Kane. Yocum played the tape for some members of the school board, and later delivered the tape itself to Vopper. II In their amended complaint, petitioners alleged that their telephone conversation had been surreptitiously intercepted by an unknown person using an electronic device, that Yocum had obtained a tape of that conversation, and that he intentionally disclosed it to Vopper, as well as other individuals and media representatives. Thereafter, Vopper and other members of the media repeatedly published the contents of that conversation. The amended complaint alleged that each of the defendants "knew or had reason to know" that the recording of the private telephone conversation had been obtained by means of an illegal interception. *520 at 27. Relying on both federal and Pennsylvania statutory provisions, petitioners sought actual damages, statutory damages, punitive damages, and attorney's fees and costs.[2] After the parties completed their discovery, they filed cross-motions for summary judgment. Respondents contended that they had not violated the statute because (a) they had nothing to do with the interception, and (b) in any event, their actions were not unlawful since the conversation might have been intercepted inadvertently. Moreover, even if they had violated the statute by disclosing the intercepted conversation, respondents argued, those disclosures were protected by the First Amendment. The District Court rejected the first statutory argument because, under the plain statutory language, an individual violates the federal Act by intentionally disclosing the contents of an electronic communication when he or she "know[s] or ha[s] reason to know that the information was obtained" through an illegal interception.[3] App. to Pet. for Cert. in No. 99 1687, pp. 53a5a (emphasis deleted). Accordingly, actual involvement in the illegal interception is not necessary in order
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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involvement in the illegal interception is not necessary in order to establish a violation of that statute. With respect to the second statutory argument, the District Court agreed that petitioners had to prove that the interception in question *521 was intentional,[] but concluded that the text of the interception raised a genuine issue of material fact with respect to intent. That issue of fact was also the basis for the District Court's denial of petitioners' motion. Finally, the District Court rejected respondents' First Amendment defense because the statutes were content-neutral laws of general applicability that contained "no indicia of prior restraint or the chilling of free speech." at 55a56a. Thereafter, the District Court granted a motion for an interlocutory appeal, pursuant to 28 U.S. C. 1292(b). It certified as controlling questions of law: "(1) whether the imposition of liability on the media Defendants under the [wiretapping statutes] solely for broadcasting the newsworthy tape on the Defendant [Vopper's] radio news/public affairs program, when the tape was illegally intercepted and recorded by unknown persons who were not agents of [the] Defendants, violates the First Amendment; and (2) whether imposition of liability under the aforesaid [wiretapping] statutes on Defendant Jack Yocum solely for providing the anonymously intercepted and recorded tape to the media Defendants violates the First Amendment." App. to Pet. for Cert. in No. 99-1728, p. 76a. The Court of Appeals accepted the appeal, and the United States, also a petitioner, intervened pursuant to 28 U.S. C. 203 in order to defend the constitutionality of the federal statute. All three members of the panel agreed with petitioners and the Government that the federal and Pennsylvania wiretapping statutes are "content-neutral" and therefore subject to "intermediate scrutiny." Applying that standard, the majority concluded that the *522 statutes were invalid because they deterred significantly more speech than necessary to protect the privacy interests at stake. The court remanded the case with instructions to enter summary judgment for respondents. In dissent, Senior Judge Pollak expressed the view that the prohibition against disclosures was necessary in order to remove the incentive for illegal interceptions and to preclude compounding the harm caused by such interceptions through wider dissemination. In so doing, he agreed with the majority opinion in a similar case decided by the Court of Appeals for the District of Columbia, See also[5] We granted certiorari to resolve the conflict. III As we pointed out in sophisticated (and not so sophisticated) methods of eavesdropping on oral conversations and intercepting telephone calls have been practiced for decades, primarily by law enforcement authorities.[6] In Berger, we held that New
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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by law enforcement authorities.[6] In Berger, we held that New *523 York's broadly written statute authorizing the police to conduct wiretaps violated the Fourth Amendment. Largely in response to that decision, and to our holding in that the attachment of a listening and recording device to the outside of a telephone booth constituted a search, "Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968)." The ultimate result of those efforts was Title III of the Omnibus Crime Control and Safe Streets Act of 1968, entitled Wiretapping and Electronic Surveillance. One of the stated purposes of that title was "to protect effectively the privacy of wire and oral communications." In addition to authorizing and regulating electronic surveillance for law enforcement purposes, Title III also regulated private conduct. One part of those regulations, 2511(1), defined five offenses punishable by a fine of not more than $10,000, by imprisonment for not more than five years, or by both. Subsection (a) applied to any person who "willfully intercepts any wire or oral communication." Subsection (b) applied to the intentional use of devices designed to intercept oral conversations; subsection (d) applied to the use of the contents of illegally intercepted wire or *52 oral communications; and subsection (e) prohibited the unauthorized disclosure of the contents of interceptions that were authorized for law enforcement purposes. Subsection (c), the original version of the provision most directly at issue in this suit, applied to any person who "willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection." The oral communications protected by the Act were only those "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." 2510(2). As enacted in 1968, Title III did not apply to the monitoring of radio transmissions. In the Electronic Privacy Act of 1986, however, Congress enlarged the coverage of Title III to prohibit the interception of "electronic" as well as oral and wire communications. By reason of that amendment, as well as a 199 amendment which applied to cordless telephone communications, Title III now applies to the interception of conversations over both cellular and cordless phones.[7] Although a lesser criminal penalty may apply to the interception of such transmissions, the same civil remedies
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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to the interception of such transmissions, the same civil remedies are available whether the communication was "oral," "wire," or "electronic," as defined by 18 U.S. C. 2510 (199 ed. and Supp. V). IV The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases. Because of the procedural posture of these cases, it is appropriate to make certain important assumptions about those *525 facts. We accept petitioners' submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents "had reason to know" that it was unlawful. Accordingly, the disclosure of the contents of the intercepted conversation by Yocum to school board members and to representatives of the media, as well as the subsequent disclosures by the media defendants to the public, violated the federal and state statutes. Under the provisions of the federal statute, as well as its Pennsylvania analogue, petitioners are thus entitled to recover damages from each of the respondents. The only question is whether the application of these statutes in such circumstances violates the First Amendment.[8] In answering that question, we accept respondents' submission on three factual matters that serve to distinguish most of the cases that have arisen under 2511. First, respondents played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else. Cf. Florida Third, the subject matter of the conversation was a matter of public concern. If the statements about the labor negotiations had been made in a public arenaduring a bargaining session, for examplethey would have been newsworthy. This would also be true if a third party had inadvertently overheard Bartnicki making the same statements to Kane when the two thought they were alone. *526 V We agree with petitioners that 2511(1)(c), as well as its Pennsylvania analog, is in fact a content-neutral law of general applicability. "Deciding whether a particular regulation is content based or content neutral is not always a simple task. As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner Broadcasting System, In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, "[g]overnment regulation of expressive activity is content neutral so long
|
Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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"[g]overnment regulation of expressive activity is content neutral so long as it is `justified without reference to the content of the regulated speech.' " 91 U.S. 1,[9] In this suit, the basic purpose of the statute at issue is to "protec[t] the privacy of wire[, electronic,] and oral communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The statute does not distinguish based on the content of the intercepted conversations, nor is it justified by reference to the content of those conversations. Rather, the communications at issue are singled out by virtue of the fact that they were illegally interceptedby virtue of the source, rather than the subject matter. On the other hand, the naked prohibition against disclosures is fairly characterized as a regulation of pure speech. Unlike the prohibition against the "use" of the contents of *527 an illegal interception in 2511(1)(d),[10] subsection (c) is not a regulation of conduct. It is true that the delivery of a tape recording might be regarded as conduct, but given that the purpose of such a delivery is to provide the recipient with the text of recorded statements, it is like the delivery of a handbill or a pamphlet, and as such, it is the kind of "speech" that the First Amendment protects.[11] As the majority below put it, "[i]f the acts of `disclosing' and `publishing' information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct." VI As a general matter, "state action to punish the publication of truthful information seldom can satisfy constitutional standards." More specifically, this Court has repeatedly *528 held that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need of the highest order." ; see also Florida ; Landmark (19). Accordingly, in New York the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. In so doing, that decision resolved a conflict between the basic rule against prior restraints on publication and the interest in preserving the secrecy of information that, if disclosed, might seriously impair the security of the Nation. In resolving that conflict, the attention of every Member of this Court was focused on the character of the stolen documents' contents and the consequences of public disclosure. Although the undisputed fact that the newspaper intended to publish information obtained from stolen documents was noted in Justice Harlan's dissent, neither
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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from stolen documents was noted in Justice Harlan's dissent, neither the majority nor the dissenters placed any weight on that fact. However, New York v. United States raised, but did not resolve, the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well."[12]Florida n. 8. The question here, however, is a narrower version of that still-open question. Simply put, the issue here is this: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?" Boehner, -85 *529 Our refusal to construe the issue presented more broadly is consistent with this Court's repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment. Rather, "[o]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily. We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case." Flor- ida -533. See also Landmark Accordingly, we consider whether, given the facts of these cases, the interests served by 2511(1)(c) can justify its restrictions on speech. The Government identifies two interests served by the statutefirst, the interest in removing an incentive for parties to intercept private conversations, and second, the interest in minimizing the harm to persons whose conversations have been illegally intercepted. We assume that those interests adequately justify the prohibition in 2511(1)(d) against the interceptor's own use of information that he or she acquired by violating 2511(1)(a), but it by no means follows that punishing disclosures of lawfully obtained information of public interest by one not involved in the initial illegality is an acceptable means of serving those ends. The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of 2511(1)(a) do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter *530 conduct by a non-law-abiding third party. Although there are some rare occasions
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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a non-law-abiding third party. Although there are some rare occasions in which a law suppressing one party's speech may be justified by an interest in deterring criminal conduct by another, see, e. g., New[13] this is not such a case. With only a handful of exceptions, the violations of 2511(1)(a) that have been described in litigated cases have been motivated by either financial gain or domestic disputes.[1] In virtually all of those cases, the identity of the person or persons intercepting the communication has been known.[15] Moreover, petitioners cite no evidence that Congress viewed the prohibition against disclosures as a response to the difficulty of identifying persons making improper use of scanners and other surveillance devices and accordingly of deterring such conduct,[16] and there is no *531 empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions.[17] Although this suit demonstrates that there may be an occasional situation in which an anonymous scanner will risk criminal prosecution by passing on information without any expectation of financial reward or public praise, surely this is the exceptional case. Moreover, there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions. Unusual cases fall far short of a *532 showing that there is a "need of the highest order" for a rule supplementing the traditional means of deterring antisocial conduct. The justification for any such novel burden on expression must be "far stronger than mere speculation about serious harms." United[18] Accordingly, the Government's first suggested justification for applying 2511(1)(c) to an otherwise innocent disclosure of public information is plainly insufficient.[19] The Government's second argument, however, is considerably stronger. Privacy of communication is an important interest, Harper & Row, Publishers,[20] and Title III's restrictions are intended to protect that interest, thereby "encouraging the uninhibited exchange of ideas and information among private parties" Brief for United States 27. Moreover, *533 the fear of public disclosure of private conversations might well have a chilling effect on private speech. "In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas." President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 Accordingly, it seems to us that there are important interests to be considered on both sides of the
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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important interests to be considered on both sides of the constitutional calculus. In considering that balance, we acknowledge that some intrusions on privacy are more offensive than others, and that the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself. As a result, there is a valid independent justification for prohibiting such disclosures by persons who lawfully obtained access to the contents of an illegally intercepted message, even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place. We need not decide whether that interest is strong enough to justify the application of 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern. Cf. Time, In other words, the outcome of these cases does not turn on whether 2511(1)(c) may be enforced with respect to most violations of the statute without offending the First Amendment. The enforcement of that provision in these cases, however, implicates the core purposes *53 of the First Amendment because it imposes sanctions on the publication of truthful information of public concern. In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: "The right of privacy does not prohibit any publication of matter which is of public or general interest." The Right to Privacy, One of the costs associated with participation in public affairs is an attendant loss of privacy. "Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. `Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' " Time, ).[21] Our opinion in New York reviewed many of the decisions that settled the "general proposition that freedom of expression upon public questions is secured by the First Amendment." ; see ; ; Those cases all relied on our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York 376 U. S., at ; see ; De ; 27 U.S. 357, ; see also 35 U. S., at ; 283 U. S., at ; 31 U. S., at
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Justice Stevens
| 2,001 | 16 |
majority
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Bartnicki v. Vopper
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https://www.courtlistener.com/opinion/118427/bartnicki-v-vopper/
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; 283 U. S., at ; 31 U. S., at It was the overriding importance of that commitment that supported our holding that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. ; see also 371 U.S. 15, 5 ; ; (197); 32, 33, n. 5, 35 (196); 31 U. S., at We think it clear that parallel reasoning requires the conclusion that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.[22] The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in 27 U. S., at 372, but it is no less worthy of constitutional protection. The judgment is affirmed. It is so ordered.
|
Justice Burger
| 1,972 | 12 |
dissenting
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Stanley v. Illinois
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https://www.courtlistener.com/opinion/108497/stanley-v-illinois/
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The only constitutional issue raised and decided in the courts of Illinois in this case was whether the Illinois statute that omits unwed fathers from the definition of "parents" violates the Equal Protection Clause. We granted certiorari to consider whether the Illinois Supreme Court properly resolved that equal protection issue when it unanimously upheld the statute against petitioner Stanley's attack. No due process issue was raised in the state courts; and no due process issue was decided by any state court. As MR. JUSTICE DOUGLAS said for this Court in State Farm Mutual Automobile Ins. "Since the [state] Supreme Court did not pass on the question, we may not do so." We had occasion more recently to deal with this aspect of the jurisdictional limits placed upon this Court by 28 U.S. C. 1257 when we decided Having rejected the claim that should be retroactively applied to invalidate petitioner Hill's conviction on the ground that a search incident to arrest was overly extensive in scope, the Court noted Hill's additional contention that his personal diary, which was one of the items *660 of evidence seized in that search, should have been excluded on Fifth Amendment grounds as well. MR. JUSTICE WHITE, in his opinion for the Court, concluded that we lacked jurisdiction to consider the Fifth Amendment contention: "Counsel for [the petitioner] conceded at oral argument that the Fifth Amendment issue was not raised at trial. Nor was the issue raised, briefed, or argued in the California appellate courts. [Footnote omitted.] The petition for certiorari likewise ignored it. In this posture of the case, the question, although briefed and argued here, is not properly before us." In the case now before us, it simply does not suffice to say, as the Court in a footnote does say, that "we dispose of the case on the constitutional premise raised below, reaching the result by a method of analysis readily available to the state court." Ante, at 658 n. 10. The Court's method of analysis seems to ignore the strictures of JUSTICES DOUGLAS and WHITE, but the analysis is clear: the Court holds sua sponte that the Due Process Clause requires that Stanley, the unwed biological father, be accorded a hearing as to his fitness as a parent before his children are declared wards of the state court; the Court then reasons that since Illinois recognizes such rights to due process in married fathers, it is required by the Equal Protection Clause to give such protection to unmarried fathers. This "method of analysis" is, of course, no more or less than the
|
Justice Burger
| 1,972 | 12 |
dissenting
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Stanley v. Illinois
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https://www.courtlistener.com/opinion/108497/stanley-v-illinois/
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analysis" is, of course, no more or less than the use of the Equal Protection Clause as a shorthand condensation of the entire Constitution: a State may not deny any constitutional right to some of its citizens without violating the Equal Protection Clause through its failure to deny such rights to all of its citizens. The limits on this Court's jurisdiction are not properly expandable by the use of such semantic devices as that. *661 Not only does the Court today use dubious reasoning in dealing with limitations upon its jurisdiction, it proceeds as well to strike down the Illinois statute here involved by "answering" arguments that are nowhere to be found in the record or in the State's briefor indeed in the oral argument. I have been unable, for example, to discover where or when the State has advanced any argument that "it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children." Ante, at 647. Nor can I discover where the State has "argu[ed] that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children." Ante, at 653. Or where anyone has even remotely suggested the "argu[ment] that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley's." Ante, at 656. On the other hand, the arguments actually advanced by the State are largely ignored by the Court.[1] *662 All of those persons in Illinois who may have followed the progress of this case will, I expect, experience no little surprise at the Court's opinion handed down today. Stanley will undoubtedly be surprised to find that he has prevailed on an issue never advanced by him. The judges who dealt with this case in the state courts will be surprised to find their decisions overturned on a ground they never considered. And the legislators and other officials of the State of Illinois, as well as those attorneys of the State who are familiar with the statutory provisions here at issue, will be surprised to learn for the first time that the Illinois Juvenile Court Act establishes a presumption that unwed fathers are unfit. I must confess my own inability to find any such presumption in the Illinois Act. Furthermore, from the record of the proceedings in the Juvenile Court of Cook County in this case, I can only conclude that the judge of that court was unaware of any such presumption, for he clearly indicated that Stanley's
|
Justice Burger
| 1,972 | 12 |
dissenting
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Stanley v. Illinois
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https://www.courtlistener.com/opinion/108497/stanley-v-illinois/
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of any such presumption, for he clearly indicated that Stanley's asserted fatherhood of the children would stand him in good stead, rather than prejudice him, in any adoption or guardianship proceeding. In short, far from any intimations *663 of hostility toward unwed fathers, that court gave Stanley "merit points" for his acknowledgment of paternity and his past assumption of at least marginal responsibility for the children.[2] In regard to the only issue that I consider properly before the Court, I agree with the State's argument that the Equal Protection Clause is not violated when Illinois gives full recognition only to those father-child relationships that arise in the context of family units bound together by legal obligations arising from marriage or from adoption proceedings. Quite apart from the religious or quasi-religious connotations that marriage hasand has historically enjoyedfor a large proportion of this Nation's citizens, it is in law an essentially contractual relationship, the parties to which have legally enforceable rights and duties, with respect both to each other and to any children born to them. Stanley and the mother of these children never entered such a relationship. The record is silent as to whether they ever privately exchanged such promises as would have bound them in marriage under the common law. See In *664 any event, Illinois has not recognized common-law marriages since 1905. Ill. Rev. Stat., c. 89, 4. Stanley did not seek the burdens when he could have freely assumed them. Where there is a valid contract of marriage, the law of Illinois presumes that the husband is the father of any child born to the wife during the marriage; as the father, he has legally enforceable rights and duties with respect to that child. When a child is born to an unmarried woman, Illinois recognizes the readily identifiable mother, but makes no presumption as to the identity of the biological father. It does, however, provide two ways, one voluntary and one involuntary, in which that father may be identified. First, he may marry the mother and acknowledge the child as his own; this has the legal effect of legitimating the child and gaining for the father full recognition as a parent. Ill. Rev. Stat., c. 3, 12-8. Second, a man may be found to be the biological father of the child pursuant to a paternity suit initiated by the mother; in this case, the child remains illegitimate, but the adjudicated father is made liable for the support of the child until the latter attains age 18 or is legally adopted by another. Ill. Rev. Stat., c. 106
|
Justice Burger
| 1,972 | 12 |
dissenting
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Stanley v. Illinois
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https://www.courtlistener.com/opinion/108497/stanley-v-illinois/
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is legally adopted by another. Ill. Rev. Stat., c. 106 3/4, 52. Stanley argued before the Supreme Court of Illinois that the definition of "parents," set out in Ill. Rev. Stat., c. 37, 701-14, as including "the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, [or] any adoptive parent,"[3] violates the Equal Protection Clause in that it *665 treats unwed mothers and unwed fathers differently. Stanley then enlarged upon his equal protection argument when he brought the case here; he argued before this Court that Illinois is not permitted by the Equal Protection Clause to distinguish between unwed fathers and any of the other biological parents included in the statutory definition of legal "parents." The Illinois Supreme Court correctly held that the State may constitutionally distinguish between unwed fathers and unwed mothers. Here, Illinois' different treatment of the two is part of that State's statutory scheme for protecting the welfare of illegitimate children. In almost all cases, the unwed mother is readily identifiable, generally from hospital records, and alternatively by physicians or others attending the child's birth. Unwed fathers, as a class, are not traditionally quite so easy to identify and locate. Many of them either deny all responsibility or exhibit no interest in the child or its welfare; and, of course, many unwed fathers are simply not aware of their parenthood. Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male's often casual encounter. This view is reinforced by the observable fact that most unwed mothers exhibit a concern for their offspring either permanently or at least until *666 they are safely placed for adoption, while unwed fathers rarely burden either the mother or the child with their attentions or loyalties. Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State's obligations as parens patriae.[4] Stanley depicts himself as a somewhat unusual unwed father, namely, as one who has always acknowledged and never doubted his fatherhood of
|
Justice Burger
| 1,972 | 12 |
dissenting
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Stanley v. Illinois
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https://www.courtlistener.com/opinion/108497/stanley-v-illinois/
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who has always acknowledged and never doubted his fatherhood of these children. He alleges that he loved, cared for, and supported these children from the time of their birth until the death of their mother. He contends that he consequently must be treated the same as a married father of legitimate children. Even assuming the truth of Stanley's allegations, I am unable to construe the Equal Protection Clause as requiring Illinois to tailor its statutory definition of "parents" so meticulously as to include such unusual unwed fathers, while at the same time excluding those unwed, and generally unidentified, biological fathers who in no way share Stanley's professed desires. *667 Indeed, the nature of Stanley's own desires is less than absolutely clear from the record in this case. Shortly after the death of the mother, Stanley turned these two children over to the care of a Mr. and Mrs. Ness; he took no action to gain recognition of himself as a father, through adoption, or as a legal custodian, through a guardianship proceeding. Eventually it came to the attention of the State that there was no living adult who had any legally enforceable obligation for the care and support of the children; it was only then that the dependency proceeding here under review took place and that Stanley made himself known to the juvenile court in connection with these two children.[5] Even then, however, Stanley did not ask to be charged with the legal responsibility for the children. He asked only that such legal responsibility be given to no one else. He seemed, in particular, to be concerned with the loss of the welfare payments he would suffer as a result of the designation of others as guardians of the children. Not only, then, do I see no ground for holding that Illinois' statutory definition of "parents" on its face violates the Equal Protection Clause; I see no ground for holding that any constitutional right of Stanley has been denied in the application of that statutory definition in the case at bar. As Mr. Justice Frankfurter once observed, "Invalidating legislation is serious business" The *668 Court today pursues that serious business by expanding its legitimate jurisdiction beyond what I read in 28 U.S. C. 1257 as the permissible limits contemplated by Congress. In doing so, it invalidates a provision of critical importance to Illinois carefully drawn statutory system governing family relationships and the welfare of the minor children of the State. And in so invalidating that provision, it ascribes to that statutory system a presumption that is simply not there and
|
Justice Powell
| 1,984 | 17 |
majority
|
Davis v. Scherer
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https://www.courtlistener.com/opinion/111241/davis-v-scherer/
|
Appellants this case challenge the holdg of the Court of Appeals that a state official loses his qualified immunity from suit for deprivation of federal constitutional rights if he is found to have violated the clear command of a state admistrative regulation. I The present controversy arose when appellee Gregory Scherer, who was employed by the Florida Highway Patrol as a radio-teletype operator, applied for permission from the Patrol to work as well for the Escambia County Sheriff's Office as a reserve deputy. To avoid conflicts of terest, an order of the Florida Department of Highway Safety and Motor Vehicles required that proposed outside employment of Patrol members be approved by the Department. A letter from appellee's troop commander, Capt. K. S. Sconiers, dated September 1, 1977, granted appellee permission to accept the part-time work. The letter noted that permission would be rescded "should [the] employment terfere with your duties with [the] department." Later that month, Capt. Sconiers formed appellee by memorandum that permission to accept the employment was revoked. As Capt. Sconiers explaed at trial, his superiors the Highway Patrol had determed that appellee's reserve deputy duties could conflict with his duties at the Highway Patrol. Appellee contued to work at the second job, despite the revocation of permission. Oral discussions and an exchange of letters among appellee and his superiors ensued. Sgt. *16 Clark, appellee's immediate superior, advised appellee that he was violatg structions; appellee explaed that he had vested too much money uniforms to give up his part-time work. Lt. Wiggs, the next highest officer the cha of command, then orally and by memorandum ordered appellee to quit his part-time job. Appellee explaed to Lt. Wiggs that he saw no conflict between the two jobs and would not quit his second job. Sgt. Clark and Lt. Wiggs had submitted memoranda to Capt. Sconiers that described appellee's contued employment and their conversations with appellee. Appellee also wrote to Capt. Sconiers explag that he saw no reason to resign his outside employment. So advised, Capt. Sconiers recommended to Col. J. E. Beach, director of the Florida Highway Patrol, that appellee be suspended for three days for violation of the dual-employment policy. Capt. Sconiers submitted a number of documents, cludg his own letters approvg appellee's request and rescdg the approval; appellee's letter of request and subsequent letter explag his refusal to quit his job; and the memoranda of Sgt. Clark and Lt. Wiggs.[1] On the basis of these documents, Col. Beach on October 24, 1977, ordered that appellee's employment with the Florida Highway Patrol be termated. On November 10, 1977,
|
Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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https://www.courtlistener.com/opinion/111241/davis-v-scherer/
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the Florida Highway Patrol be termated. On November 10, 1977, appellee filed an appeal with the Florida Career Service Commission. Before the Commission had heard appellee's admistrative appeal from his dismissal, appellee and the Department settled the dispute. The settlement restated appellee with backpay. But friction between appellee and his superiors contued, and January 1979, after appellee was suspended from the Patrol, he resigned "to avoid further harassment and to remove a cloud over his employability." *17 Appellee then filed the present suit agast appellants the United States District Court for the Northern District of Florida, seekg relief under 42 U.S. C. 193.[2] Appellee's complat alleged that appellants 1977 had violated the Due Process Clause of the Fourteenth Amendment by dischargg appellee from his job without a formal pretermation or a prompt post-termation hearg.[3] Appellee requested a declaration that his rights had been violated and an award of money damages. The District Court granted the requested relief for violation of appellee's Fourteenth Amendment rights.[4] The court found that appellee had a property terest his job and that the procedures followed by appellants to discharge appellee were constitutionally "adequate" under the Fourteenth Amendment. Further, the court declared unconstitutional Florida's statutory provisions governg removal of state employees, Fla. Stat. 110.061 (1977). Fally, the District Court concluded that appellants had forfeited their qualified immunity from suit under 193 because appellee's "due process rights were clearly established at the time of his October 24, 1977, dismissal." Five days after entry of the District Court's order, the Court of Appeals for the Fifth Circuit decided The Court of Appeals there held that Florida officials 197 had violated no well-established *1 due process rights dischargg a permanent state employee without a pretermation or a prompt post-termation hearg. On motion for reconsideration, the District Court found that Weisbrod required it to vacate its prior holdg that appellants had forfeited their immunity by violatg appellee's clearly established constitutional rights. The court nevertheless reaffirmed its award of monetary damages. It reasoned that proof that an official had violated clearly established constitutional rights was not the "sole way" to overcome the official's claim of qualified immunity. Applyg the "totality of the circumstances" test of 247-24 the District Court held that "if an official violates his agency's explicit regulations, which have the force of state law, [that] is evidence that his conduct is unreasonable."[5] In this respect, the court noted that the personnel regulations of the Florida Highway Patrol clearly required "a complete vestigation of the charge and an opportunity [for the employee] to respond writg."[6] The District Court concluded that
|
Justice Powell
| 1,984 | 17 |
majority
|
Davis v. Scherer
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https://www.courtlistener.com/opinion/111241/davis-v-scherer/
|
the employee] to respond writg."[6] The District Court concluded that appellants dischargg appellee had "followed procedures contrary to the department's rules and *19 regulations"; therefore, appellants were "not entitled to qualified immunity because their belief the legality of the challenged conduct was unreasonable." The court explicitly relied upon the official violation of the personnel regulation, statg that "[i]f [the] departmental order had not been adopted prior to [appellee's] dismissal, no damages of any kd could be awarded." The District Court's order amendg the judgment did not discuss the issue whether appellants violated appellee's federal constitutional rights. On that issue, the District Court relied upon its previous opion; the court did not dicate that the personnel regulation was relevant to its analysis of appellee's rights under the Due Process Clause. The District Court also amended its judgment declarg the Florida civil service statute unconstitutional. The State's motion for reconsideration had formed the court that the statute had been repealed by the Florida Legislature. The District Court therefore declared unconstitutional the provisions of the newly enacted civil service statute, Fla. Stat., ch. 110 (192 and Supp. 193), sofar as "they fail to provide a prompt post-termation hearg." The Court of Appeals affirmed on the basis of the District Court's opion. 710 F.2d 3 (CA11 193). We noted probable jurisdiction, (193), to consider whether the Court of Appeals properly had declared the Florida statute unconstitutional and denied appellants' claim of qualified immunity. Appellants do not seek review of the District Court's fdg that appellee's constitutional rights were violated. As appellee now concedes that the District Court lacked jurisdiction to adjudicate the constitutionality of the Florida statute enacted 191, we consider only the issue of qualified immunity.[7] We reverse. *190 II In the present posture of this case, the District Court's decision that appellants violated appellee's rights under the Fourteenth Amendment is undisputed.[] This fdg of the District Court based entirely upon federal constitutional law resolves the merits of appellee's underlyg claim for relief under 193. It does not, however, decide the issue of damages. Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard. The precise standard for determg when an official may assert the qualified immunity defense has been clarified by recent cases, see 420 U.S. 30 ; 43 U.S. 47 (197); 457 U.S. 00 (192). The present case requires us to consider the application of the standard where the official's conduct violated a state regulation as well as
|
Justice Powell
| 1,984 | 17 |
majority
|
Davis v. Scherer
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https://www.courtlistener.com/opinion/111241/davis-v-scherer/
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the official's conduct violated a state regulation as well as a provision of the Federal Constitution. The District Court's analysis of appellants' qualified immunity, written before our decision *191 rests upon the "totality of the circumstances" surroundg appellee's separation from his job. This Court applied that standard -24. As subsequent cases recognized, the "totality of the circumstances" test comprised two separate quiries: an quiry to the objective reasonableness of the defendant official's conduct light of the governg law, and an quiry to the official's subjective state of md. rejected the quiry to state of md favor of a wholly objective standard. Under officials "are shielded from liability for civil damages sofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S., at 1. Whether an official may prevail his qualified immunity defense depends upon the "objective reasonableness of [his] conduct as measured by reference to clearly established law." (footnote deleted). No other "circumstances" are relevant to the issue of qualified immunity. Appellee suggests, however, that the District Court judgment can be reconciled with two ways. First, appellee urges that the record evces a violation of constitutional rights that were clearly established. Second, appellee's view, the District Court correctly found that, absent a violation of clearly established constitutional rights, appellants' violation of the state admistrative regulation although irrelevant to the merits of appellee's underlyg constitutional claim was decisive of the qualified immunity question. In our view, neither submission is consistent with our prior cases. A Appellee contends that the District Court's reliance its qualified immunity analysis upon the state regulation was "superfluous," Brief for Appellee 19, because the federal constitutional right to a pretermation or a prompt post-termation *192 hearg was well established the Fifth Circuit at the time of the conduct question. As the District Court recognized rejectg appellee's contention, is authoritative precedent to the contrary. The Court of Appeals that case found that the State had violated no clearly established due process right when it discharged a civil service employee without any pretermation hearg.[9] Nor was it unreasonable this case, under Fourteenth Amendment due process prciples, for the Department to conclude that appellee had been provided with the fundamentals of due process.[10] As stated above, the District Court found that appellee was formed several times of the Department's objection to his second employment and took advantage of several opportunities to present his reasons for believg that he should be permitted to reta his part-time employment despite the contrary rules of the Patrol. Appellee's statement of
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| 1,984 | 17 |
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Davis v. Scherer
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despite the contrary rules of the Patrol. Appellee's statement of reasons and other relevant formation *193 were before the senior official who made the decision to discharge appellee. And Florida law provided for a full evidentiary hearg after termation. We conclude that the District Court correctly held that appellee has demonstrated no violation of his clearly established constitutional rights. B Appellee's second ground for affirmance substance is that upon which the District Court relied. Appellee submits that appellants, by failg to comply with a clear state regulation, forfeited their qualified immunity from suit for violation of federal constitutional rights. Appellee makes no claim that the appellants' violation of the state regulation either is itself actionable under 193 or bears upon the claim of constitutional right that appellee asserts under 193.[11] And appellee also recognizes that makes immunity available only to officials whose conduct conforms to a standard of "objective legal reasonableness." 457 U.S., at 19. Nonetheless, appellee's view, official conduct that contravenes a statute or regulation is not "objectively reasonable" because officials fairly may be expected to conform their conduct to such legal norms. Appellee also argues that the lawfulness of official conduct under such a statute or regulation may be determed early the lawsuit on motion for summary judgment. Appellee urges therefore that a defendant official's violation of a clear statute or regulation, although not itself the basis of suit, should deprive the official of qualified immunity from damages for violation of other statutory or constitutional provisions. *194 On its face, appellee's reasong is not without some force. We decle, however, to adopt it. Even before our cases had made clear that, under the "objective" component of the good-faith immunity test, "an official would not be held liable damages under 193 unless the constitutional right he was alleged to have violated was `clearly established' at the time of the violation." 43 U. S., at 49 ; accord, (197). Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or admistrative provision.[12] We acknowledge of course that officials should conform their conduct to applicable statutes and regulations. For *195 that reason, it is an appealg proposition that the violation of such provisions is a circumstance relevant to the official's claim of qualified immunity. But determg what circumstances a court may consider decidg claims of qualified immunity, we choose "between the evils evitable any available alternative." 457 U. S., at 13-14. Appellee's submission, if adopted, would disrupt the balance that our cases strike between the terests vdication of citizens' constitutional rights and public
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Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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between the terests vdication of citizens' constitutional rights and public officials' effective performance of their duties. The qualified immunity doctre recognizes that officials can act without fear of harassg litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly termated. See ; 1-19. Yet, under appellee's submission, officials would be liable an determate amount for violation of any constitutional right one that was not clearly defed or perhaps not even foreshadowed at the time of the alleged violation merely because their official conduct also violated some statute or regulation. And, 193 suits, the issue whether an official enjoyed qualified immunity then might depend upon the meang or purpose of a state admistrative regulation, questions that federal judges often may be unable to resolve on summary judgment. Appellee proposes that his new rule for qualified immunity be limited by requirg that platiffs allege clear violation of a statute or regulation that advanced important terests or was designed to protect constitutional rights. Yet, once the door is opened to such quiries, it is difficult to limit their scope any prcipled manner. Federal judges would be granted large discretion to extract from various statutory and admistrative codes those provisions that seem to them sufficiently clear or important to warrant denial of qualified immunity. And such judgments fairly could be made only after an extensive quiry to whether the official the *196 circumstances of his decision should have appreciated the applicability and importance of the rule at issue. It would become more difficult, not only for officials to anticipate the possible legal consequences of their conduct,[13] but also for trial courts to decide even frivolous suits without protracted litigation. Nor is it always fair, or sound policy, to demand official compliance with statute and regulation on pa of money damages. Such officials as police officers or prison wardens, to say nothg of higher level executives who enjoy only qualified immunity, routely make close decisions the exercise of the broad authority that necessarily is delegated to them. These officials are subject to a plethora of rules, "often so volumous, ambiguous, and contradictory, and such flux that officials can only comply with or enforce them selectively." See P. Schuck, Sug Government 66 (193). In these circumstances, officials should not err always on the side of caution. "[O]fficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office."[14] *197 III A platiff
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Davis v. Scherer
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or constitute virtual abdication of office."[14] *197 III A platiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showg that those rights were clearly established at the time of the conduct at issue. As appellee has made no such showg, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedgs consistent with this opion. It is so ordered. JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS jo, concurrg part and dissentg part. In 457 U.S. 00 (192), the Court decided that Government officials seekg to establish qualified immunity must show that the acts or omissions violatg the platiff's rights were objectively reasonable specifically, that the conduct at issue did not "violate clearly established *19 statutory or constitutional rights of which a reasonable person would have known." at 1. The Court today does not purport to change that standard. Yet it holds that, despite dischargg a civil service employee 1977 without meangful notice and an opportunity to be heard, appellants are entitled to immunity from a suit for damages. The Court reaches this decision essentially by ignorg both the facts of this case and the law relevant to appellants' conduct at the time of the events at issue. In my view, appellants plaly violated appellee's clearly established rights and the Court's conclusion to the contrary seriously dilutes 's careful effort to preserve the availability of damages actions agast governmental officials as a critical "avenue for vdication of constitutional guarantees." Accordgly, I dissent from that portion of the judgment reversg the award of damages.[1] In order to determe whether a defendant has violated a platiff's clearly established rights, it would seem necessary to make two quiries, both of which are well with a court's familiar provce: (1) which particular act or omission of the defendant violated the platiff's federal rights, and (2) whether governg case or statutory law would have given a reasonable official cause to know, at the time of the relevant events, that those acts or omissions violated the platiff's rights. The Court, however, asks neither question. Its brief treatment of the issue cludes no reference to the District Court's fdgs of fact with respect to the conduct at issue here. This is not surprisg sce those fdgs which were affirmed summarily by the Court of Appeals and which appellants do not claim to be clearly erroneous demonstrate that appellee was never formed that he might be fired for violatg regulations agast dual employment. *199 Nor did
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Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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fired for violatg regulations agast dual employment. *199 Nor did appellee ever have an opportunity to persuade the relevant decisionmaker that he should not be discipled. The regulation appellee was ultimately fired for violatg required only that Patrol members receive prior approval of outside employment, order to avoid conflicts of terest with regular duties. Upon request, appellee obtaed approval from his troop commander for part-time work as a security guard on a movie set. Some three weeks later, the commander revoked the approval and there followed an exchange of memos between appellee's immediate superiors and the commander dicatg that appellee did not wish to relquish the part-time job. Apparently without formg appellee, the commander then recommended to the director of the Highway Patrol, Col. Beach, that appellee be suspended for three days and, nearly a week later, an termediate superior ordered appellee to termate his outside employment. On the same day, appellee wrote to the commander, statg that he did not believe his outside work caused any conflict of terest. Although some officials the Department suggested to each other ways which appellee's work might create a conflict, "[n]o one ever identified the conflict to platiff; [and the superior who had ordered appellee to termate the job] testified he didn't know what the conflict was." Meanwhile, Beach, the official with authority to termate appellee, received copies of the various letters that had been exchanged and, without formg appellee or solicitg his views, decided to discharge him. As the District Court summarized: "By certified letter dated October 24, 1977 and received by platiff on October 25, 1977, Scherer was termated from his FHP employment effective October 20, 1977. At no time prior to the letter of termation was the platiff given notice writg of a proposed discharge or an opportunity to respond verbally or writg to the official charged with makg the termation decision, *200 the defendant Beach. At no time prior to October 25, 1977, was the platiff notified of any right that he might have to respond to Col. Beach's letter of dismissal." at -9. The District Court further found that two other Highway Patrol employees appellee's troop had been given approval to engage the very same secondary employment for which appellee was fired, and their approval "was never revoked." at n. 1. Moreover, after beg termated, appellee successfully argued before a Florida admistrative officer that the regulation prohibitg dual employment had not been validly adopted and was therefore void. In short, although appellee was warned not to contue the second employment, he had no reason to believe prior to
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Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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second employment, he had no reason to believe prior to beg fired that retention of the second job constituted grounds for termation, and deed he had several reasons for believg otherwise. Nor did he have any opportunity to challenge, before the relevant decisionmaker, either his termation or the underlyg conclusion that his retention of the second job created a conflict of terest. By failg to warn appellee that his conduct could result deprivation of his protected property terest his Highway Patrol job and by denyg him an opportunity to challenge that deprivation, appellants violated the most fundamental requirements of due process of law meangful notice and a reasonable opportunity to be heard. Contrary to the Court's conclusion, these requirements were "clearly established" long before October 25, 1977, the date on which appellee learned he was fired. As long ago as 1914, the Court emphasized that "[t]he fundamental requisite of due process of law is the opportunity to be heard." 234 U.S. 35, In 1925, the Court explaed that a government failure to afford reasonable notice of the kds of conduct that will result deprivations of liberty and property "violates the first essential of due process of law." Connally 269 U.S. 35, ; 344 U.S. 13 ; see Board of 40 U.S. 564, In January 1972, nearly six years prior to appellee's termation, the Court reaffirmed that "[b]efore a person is deprived of a protected terest, he must be afforded opportunity for some kd of a hearg, `except for extraordary situations where some valid governmental terest is at stake that justifies postpong the hearg until after the event.' `While "[m]any controversies have raged about the Due Process Clause," it is fundamental that except emergency situations (and this is not one) due process requires that when a State seeks to termate [a protected] terest it must afford "notice and opportunity for hearg appropriate to the nature of the case" before the termation becomes effective.' For the rare and extraordary situations which we have held that deprivation of a protected terest need not not be preceded by opportunity for some kd of hearg, see, e. g., Central Union Trust ; 23 U.S. 59, ;" Board of Similarly, 1974, based on an exhaustive review of our cases, JUSTICE WHITE explaed that "where there is a legitimate entitlement to a job, as when a person is given employment subject to his meetg certa specific conditions, due process requires, order to sure agast arbitraress by the State the admistration of its law, that *202 a person be given notice and a hearg before he is
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Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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person be given notice and a hearg before he is fally discharged." 15 (concurrg part and dissentg part). See ; 3 ; 2-227 And fally, February more than a year and a half prior to appellee's termation, JUSTICE POWELL summarized for the Court fundamental legal prciples whose sources could be traced to cases from the 19th century: "Procedural due process imposes constrats on governmental decisions which deprive dividuals of `liberty' or `property' terests with the meang of the Due Process Clause of the Fifth or Fourteenth Amendment. This Court consistently has held that some form of hearg is required before an dividual is fally deprived of a property terest. 41 U.S. 539, 557-55 See, e. g., 23 U.S. 59, 596- See also (19). The `right to be heard before beg condemned to suffer grievous loss of any kd, even though it may not volve the stigma and hardships of a crimal conviction, is a prciple basic to our society.' Jot Anti-Fascist 16 The fundamental requirement of due process is the opportunity to be heard `at a meangful time and a meangful manner.' 30 U.S. 545, See 234 U.S. 35," See also ; 40 U.S. 593 ; Fuentes v. Shev, 407 U. S: 67 ; ; ; *203 ; ; If there were any ambiguity the repeated pronouncements of this Court, appellants had several other reasons to know that their failure to afford appellee meangful pretermation notice and hearg violated due process. Two years prior to appellee's discharge, the Florida Attorney General explaed an official opion that "[c]areer service employees who have attaed permanent status the career service system have acquired a property terest their public positions and emoluments thereof such as job security and seniority which they may not be deprived of without due process of law." Fla. Op. Atty. Gen. 075-94, p. 161 And more than a year before the events at issue here, a case volvg the Jacksonville, Fla., City Civil Service Board, the Court of Appeals for the Fifth Circuit left no doubt as to what it thought "clearly established" law required: "Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearg until after dismissal, risk reducg procedures must be accorded. These must clude prior to termation, written notice of the reasons for termation and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond writg to the charges made and to respond orally before the official charged with the responsibility of makg the termation decision." vacated and remanded on other
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Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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of makg the termation decision." vacated and remanded on other grounds, 43 U.S. 901 (197). Fally, some two months prior to appellee's discharge, the Florida Highway Patrol issued a regulation undoubtedly tended to conform admistrative practice with decisions like *204 Thurston.[2] The regulation, which has the force of statutory law, see 543 F. Supp., provides pertent part: "Upon receivg a report of a violation of Department or Division rules and regulations the Director shall order a complete vestigation to determe the true facts concerng the circumstances surroundg the alleged offense. The completed vestigation report will also conta a written statement made by the employee agast whom the complat was made. If after a thorough study of all formation concerng the violation, the Director decides that a dismissal will be order, he will present the employee writg with the reason or reasons for such actions." General Order No. 43, 1. C (Sept. 1, 1977), quoted -20. The Court ignores most of this evidence demonstratg the objective unreasonableness of appellants' conduct. Instead, the Court relies first on as "authoritative precedent" for the proposition that appellee's right to pretermation notice and a hearg was not "well established the Fifth Circuit at the *205 time of the conduct question." Ante, at 192. In Weisbrod, the Court of Appeals simply declared without citation to any of the cases just discussed, cludg its own decision Thurston that "the record dicates defendants did not act disregard of any well-settled constitutional rights" and that "Weisbrod offers no authority dicatg the failure to hold a pretermation hearg and the delay the process of her admistrative appeal were clear violations of her constitutional rights." It is unclear from the court's brief per curiam opion whether Weisbrod unlike appellee this case was formed prior to discharge that her conduct constituted grounds for termation. See In any event, the Court of Appeals' dubious and cursory ipse dixit Weisbrod, rendered four years after the conduct at issue this case, is hardly persuasive, much less controllg, authority for this Court's decision that appellee's rights were not clearly established 1977. The other basis for the Court's rejection of appellee's claim is an assertion that it was not "unreasonable this case, under Fourteenth Amendment prciples, for the Department to conclude that appellee had been provided with the fundamentals of due process." Ante, at 192. The Court seeks to support this statement by relyg on the fact that appellee had been told to discontue his second job and that he "took advantage of several opportunities to present his reasons for believg that he
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Justice Powell
| 1,984 | 17 |
majority
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Davis v. Scherer
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several opportunities to present his reasons for believg that he should be permitted to reta his part-time employment" Appellee did not, however, have an opportunity to present his reasons for retag his civil service job with the Florida Highway Patrol the employment which he had a protected property terest. See Indeed, he was, accordg to the District Court, never told that his Highway Patrol job was jeopardy, and he never had a chance to try to persuade the relevant decisionmaker that the second job did not create a conflict of terest. The Court concedes that our decisions by 197 had required notice and " `some kd of a hearg' *206 prior to discharge of an employee who had a constitutionally protected property terest his employment." Ante, at 192, n. 10. In this case, appellee received no meangful notice and no kd of hearg before the official who fired him. In sum, I believe that appellants' actions "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known," 457 U. S., at 1, and I would therefore affirm the District Court's award of damages.
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Justice Alito
| 2,016 | 8 |
second_dissenting
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Mathis v. United States
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https://www.courtlistener.com/opinion/3216494/mathis-v-united-states/
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Sabine Moreau lives in Solre-sur-Sambre, a town in Belgium located 38 miles south of Brussels. One day she set out in her car to pick up a friend at the Brussels train station, a trip that should have taken under an hour. She programmed her GPS and headed off. Although the GPS sent her south, not north, she apparently thought nothing of it. She dutifully stayed on the prescribed course. Nor was she deterred when she saw road signs in German for Cologne, Aachen, and Frankfurt. “I asked myself no ques- tions,” she later recounted. “I kept my foot down.”1 Hours passed. After crossing through Germany, she entered Austria. Twice she stopped to refuel her car. She was involved in a minor traffic accident. When she tired, —————— 1 For accounts of the journey, see, e.g., Waterfield, GPS Failure Leaves Belgian Woman in Zagreb Two Days Later, The Telegraph (Jan. 13, 2013), online at http://www.telegraph.co.uk/news/worldnews/europe/ belgium/9798779/GPS-failure-leaves-Belgian-woman-in-Zagreb-two-days- later.html (all Internet materials as last visited June 22, 2016); Greno- ble, Sabine Moreau, Belgian Woman, Drives 900 Miles Off 90-Mile Route Because of GPS Error, Huffington Post (Jan. 15, 2013), online at http:// www.huffingtonpost.com/2013/01/15/sabine-moreau-gps-belgium- croatia-900-miles_n_2475220.html; Malm, Belgian Woman Blindly Drove 900 Miles Across Europe As She Followed Broken GPS Instead Of 38-Miles To The Station, Daily Mail, (Jan. 14, 2013), online at http:// www. dailymail.co.uk/news/article-22149 / Belgian-woman-67-picking- friend-railway-station-ends-Zagreb-900-miles-away-satnav-disaster.html. 2 MATHIS v. UNITED STATES ALITO, J., dissenting she pulled over and slept in her car. She crossed the Alps, drove through Slovenia, entered Croatia, and finally ar- rived in Zagreb—two days and 900 miles after leaving her home. Either she had not properly set her GPS or the device had malfunctioned. But Ms. Moreau apparently refused to entertain that thought until she arrived in the Croatian capital. Only then, she told reporters, did she realize that she had gone off course, and she called home, where the police were investigating her disappearance. Twenty-six years ago, in Taylor v. United States, 495 U.S. 575, 602 (1990), this Court set out on a journey like Ms. Moreau’s. Our task in Taylor, like Ms. Moreau’s short trip to the train station, might not seem very difficult— determining when a conviction for burglary counts as a prior conviction for burglary under the Armed Career Criminal Act (ACCA), 18 U.S. C. But things have not worked out that way. Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penal- ties—that is, longer prison sentences—in a fair and uni- form way across States with myriad criminal laws. See v. United States, 570 U. S.
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Justice Alito
| 2,016 | 8 |
second_dissenting
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Mathis v. United States
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https://www.courtlistener.com/opinion/3216494/mathis-v-united-states/
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myriad criminal laws. See v. United States, 570 U. S. – (2013) (ALITO, J., dissenting) (slip op., at 13–14). ACCA calls for an enhanced sentence when a defendant, who has three or more prior convictions for a “violent felony,” is found guilty of possession of a firearm. And ACCA provides that the term “violent felony” means, among other things, “any crime punishable by imprisonment for a term exceed- ing one year that is burglary.” In other words, “burglary” = “violent felony.” While this language might seem straightforward, Taylor introduced two complications. First, Taylor held that “burglary” under ACCA means offenses that have the elements of what the Court called “generic” burglary, defined as unlawfully entering or remaining in a building or structure with the intent to commit a crime. 495 U. S., Cite as: 579 U. S. (2016) 3 ALITO, J., dissenting at 598. This definition is broader than that of the common law but does not include every offense that States have labeled burglary, such as the burglary of a boat or vehicle. Second, Taylor and subsequent cases have limited the ability of sentencing judges to examine the record in prior cases for the purpose of determining whether the convic- tions in those cases were for “generic burglary.” See, e.g., We have called this the “modified categorical approach.” at – (slip op., at 1–2). Programmed in this way, the Court set out on a course that has increasingly led to results that Congress could not have intended.2 And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indis- putably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no bur- glary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a mal- functioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Ele- ments,” see ante, at 8, the Court keeps its foot down and drives on. The Court’s approach calls for sentencing judges to delve into pointless abstract questions. In the —————— 2 In v. United States, 570 U. S. (2013), the decision meant that no California burglary conviction counts under ACCA. See at (ALITO, J., dissenting) (slip op., at 14). In Moncrieffe v. Holder, 569 U. S. (2013), where the Court took a similar approach in interpreting a provision of the immigration
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Justice Alito
| 2,016 | 8 |
second_dissenting
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Mathis v. United States
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https://www.courtlistener.com/opinion/3216494/mathis-v-united-states/
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a similar approach in interpreting a provision of the immigration laws, the Court came to the conclusion that convictions in about half the states for even very large scale marijuana trafficking do not count as “illicit trafficking in a controlled substance” under a provision of the immigration laws. at (ALITO, J., dissenting) (slip op., at 9). 4 MATHIS v. UNITED STATES ALITO, J., dissenting Court gave sentencing judges the assignment of determin- ing whether a state statute is “divisible.” See 570 U. S., at (slip op., at 23). When I warned that this novel in- quiry would prove to be difficult, the opinion of the Court brushed off that concern, see at (slip op., at 8–9, n. 2) (“[W]e can see no real-world reason to worry”). But lower court judges, who must regularly grapple with the modified categorical approach, struggled to understand Compare 1084–1090 (panel opinion), with (CA9 2015) (eight judges dissenting from denial of reh’g en banc), and at 473–474 (Kozinski, J., dis- senting from denial of reh’g en banc). Now the Court tells them they must decide whether entering or remaining in a building is an “element” of committing a crime or merely a “means” of doing so. I wish them good luck. The distinction between an “element” and a “means” is important in a very different context: The requisite num- ber of jurors (all 12 in most jurisdictions) must agree that a defendant committed each element of an offense, but the jurors need not agree on the means by which an element was committed. So if entering or remaining in a building is an element, the jurors must agree that the defendant entered or remained in a building and not, say, a boat. But if the element is entering or remaining within one of a list of places specified in the statute (say, building, boat, vehicle, tent), then entering or remaining in a building is simply a means. Jurors do not need to agree on the means by which an offense is committed, and therefore whether a defendant illegally entered a building or a boat would not matter for purposes of obtaining a conviction. In the real world, there are not many cases in which the state courts are required to decide whether jurors in a burglary case must agree on the building vs. boat issue, so the question whether buildings and boats are elements or means does not often arise. As a result, state-court cases Cite as: 579 U. S. (2016) 5 ALITO, J., dissenting on the question are rare. The Government has surveyed all the
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Justice Alito
| 2,016 | 8 |
second_dissenting
|
Mathis v. United States
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https://www.courtlistener.com/opinion/3216494/mathis-v-united-states/
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the question are rare. The Government has surveyed all the state burglary statutes and has found only one— Iowa, the State in which petitioner was convicted for burglary—in which the status of the places covered as elements or means is revealed. See Brief for United States 43, and n. 13. Petitioner’s attorneys have not cited a similar decision from any other State. How, then, are federal judges sentencing under ACCA to make the element/means determination? The Court writes: “This threshold inquiry—elements or means?—is easy in this case, as it will be in many others.” Ante, at 17. Really?3 The determination is easy in this case only be- cause the fortified legal team that took over petitioner’s representation after this Court granted review found an Iowa case on point, but this discovery does not seem to have been made until the preparation of the brief filed in this Court. Brief for United States 43, and n. 13. “Peti- tioner’s belated identification of a relevant state decision confirms that the task is not an easy one.” And that is not the worst of it. Although many States have bur- glary statutes like Iowa’s that apply to the burglary of places other than a building, neither the Government nor petitioner has found a single case in any of these jurisdic- tions resolving the question whether the place burglarized is an element or a means. The Court assures the federal district judges who must apply ACCA that they do not need such state-court deci- sions, that it will be easy for federal judges to predict how state courts would resolve this question if it was ever presented to them. Ante, at 16–18. But the Court has not shown how this can be done. The Government’s brief cites —————— 3 In (dissent from denial of rehearing), eight circuit judges addressed the question of the difficulty of this determination. They described it as “a notoriously uncertain inquiry” that will lead to “uncertain results.” 6 MATHIS v. UNITED STATES ALITO, J., dissenting numerous state statutes like Iowa’s. Brief for United States 42, n. 12. If this task is so easy, let the Court pick a few of those States and give the lower court judges a demonstration. Picking up an argument tossed off by Judge Kozinski, the Court argues that a federal sentencing judge can get a sense of whether the places covered by a state burglary statute are separate elements or means by examining the charging document. Ante, at 17–18 (citing at 473–474 (Kozinski, J., dissenting from denial of reh’g en banc)). If, for example, the
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Justice Alito
| 2,016 | 8 |
second_dissenting
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Mathis v. United States
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https://www.courtlistener.com/opinion/3216494/mathis-v-united-states/
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from denial of reh’g en banc)). If, for example, the charging document alleges that the defendant burglarized a house, that is a clue, according to the Court, that “house” is an element. See I pointed out the problem with this argument in See 570 U. S., at – (dissenting opinion) (slip op., at 13–14). State rules and practices regarding the wording of charging documents differ, and just be- cause something is specifically alleged in such a document, it does not follow that this item is an element and not just a means. See The present case illustrates my point. Petitioner has five prior burglary convictions in Iowa. In Iowa, the places covered are “means.” See ante, at 13. Yet the charging documents in all these cases set out the specific places that petitioner burglarized—a “house and garage,” a “gar- age,” a “machine shed,” and a “storage shed.” See Brief for Petitioner 9. A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that a building was burglarized, count the conviction. The majority disdains such practicality, and as a result it refuses to allow a burglary conviction to be counted even Cite as: 579 U. S. (2016) 7 ALITO, J., dissenting when the record makes it clear beyond any possible doubt that the defendant committed generic burglary. Consider this hypothetical case. Suppose that a defendant wishes to plead guilty to burglary, and the following occurs in open court on the record at the time of the plea: PROSECUTOR: I am informed that the defendant wishes to plead guilty to the charge set out in the complaint, namely, “on June 27, 2016, he broke into a house at 10 Main Street with the intent to commit larceny.” DEFENSE COUNSEL: That is correct. COURT: Mr. Defendant, what did you do? DEFENDANT: I broke into a house to steal money and jewelry. COURT: Was that the house at 10 Main St.? DEFENDANT: That’s it. COURT: Now, are you sure about that? I mean, are you sure that 10 Main St. is a house? Could it have actually been a boat? DEFENDANT: No, it was a house. I climbed in through a window on the second floor. COURT: Well, there are yachts that have multiple decks. Are you sure it is not a
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Justice Alito
| 2,016 | 8 |
second_dissenting
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Mathis v. United States
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https://www.courtlistener.com/opinion/3216494/mathis-v-united-states/
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have multiple decks. Are you sure it is not a yacht? DEFENDANT: It’s a little house. 8 MATHIS v. UNITED STATES ALITO, J., dissenting PROSECUTOR: Your Honor, here is a photo of the house. COURT: Give the defendant the photo. Mr. Defend- ant, is this the place you burglarized? DEFENDANT: Yes, like I said. COURT: Could it once have been a boat? Maybe it was originally a house boat and was later attached to the ground. What about that? DEFENSE COUNSEL: Your honor, we stipulate that it is not a boat. COURT: Well, could it be a vehicle? DEFENDANT: No, like I said, it’s a house. It doesn’t have any wheels. COURT: There are trailers that aren’t on wheels. DEFENSE COUNSEL: Your Honor, my client wants to plead guilty to burglarizing the house at 10 Main St. PROSECUTOR: Your Honor, if necessary I will call the owners, Mr. and Mrs. Landlubbers-Stationary. They have lived there for 40 years. They will testify that it is a building. I also have the town’s tax rec- ords. The house has been at that location since it was built in 19. It hasn’t moved. COURT: What do you say, defense counsel? Are those records accurate? Cite as: 579 U. S. (2016) 9 ALITO, J., dissenting DEFENSE COUNSEL: Yes, we so stipulate. Again, my client wishes to plead guilty to the burglary of a house. He wants to take responsibility for what he did, and as to sentencing, COURT: We’ll get to that later. Mr. Defendant, what do you say? Is 10 Main St. possibly a vehicle? DEFENDANT: Your Honor, I admit I burglarized a house. It was not a car or truck. COURT: Well, alright. But could it possibly be a tent? DEFENDANT: No, it’s made of brick. I scraped my knee on the brick climbing up. COURT: OK, I just want to be sure. As the Court sees things, none of this would be enough. Real-world facts are irrelevant. For aficionados of point- less formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre.4 Along the way from Taylor to the present case, there have been signs that the Court was off course and oppor- tunities to alter its course. Now the Court has reached the legal equivalent of Ms. Moreau’s Zagreb. But the Court, unlike Ms. Moreau, is determined to stay the course and continue on, traveling even further away from the in- tended destination. Who knows when, if ever, the Court will call home. —————— 4 The Court claims that there are three good reasons for its
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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This case requires us to decide whether the Republic of Argentina's default on certain bonds issued as part of a plan to stabilize its currency was an act taken "in connection with a commercial activity" that had a "direct effect in the United States" so as to subject Argentina to suit in an American court under the Foreign Sovereign Immunities Act of 1976, 28 U.S. C. 1602 et seq. I Since Argentina's currency is not one of the mediums of exchange accepted on the international market, Argentine businesses engaging in foreign transactions must pay in United States dollars or some other internationally accepted currency. In the recent past, it was difficult for Argentine borrowers to obtain such funds, principally because of the instability of the Argentine currency. To address these problems, petitioners, the Republic of Argentina and its central bank, Banco Central (collectively Argentina), in instituted a foreign exchange insurance contract program (FEIC), under which Argentina effectively agreed to assume the risk of currency depreciation in cross-border transactions involving Argentine borrowers. This was accomplished by Argentina's agreeing to sell to domestic borrowers, in exchange for a contractually predetermined amount of local currency, the necessary United States dollars to repay their foreign debts when they matured, irrespective of intervening devaluations. Unfortunately, Argentina did not possess sufficient reserves of United States dollars to cover the FEIC contracts as they became due in The Argentine Government thereupon adopted certain emergency measures, including refinancing of the FEIC-backed debts by issuing to the creditors government bonds. These bonds, called "Bonods," provide for payment of interest and principal in United States dollars; payment may be made through transfer on the London, Frankfurt, Zurich, or New York market, at the election *610 of the creditor. Under this refinancing program, the foreign creditor had the option of either accepting the Bonods in satisfaction of the initial debt, thereby substituting the Argentine Government for the private debtor, or maintaining the debtor/creditor relationship with the private borrower and accepting the Argentine Government as guarantor. When the Bonods began to mature in May 1986, Argentina concluded that it lacked sufficient foreign exchange to retire them. Pursuant to a Presidential Decree, Argentina unilaterally extended the time for payment and offered bondholders substitute instruments as a means of rescheduling the debts. Respondents, two Panamanian corporations and a Swiss bank who hold, collectively, $1.3 million of Bonods, refused to accept the rescheduling and insisted on full payment, specifying New York as the place where payment should be made. Argentina did not pay, and respondents then brought this breach-of-contract action in the United States District
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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then brought this breach-of-contract action in the United States District Court for the Southern District of New York, relying on the Foreign Sovereign Immunities Act of 1976 as the basis for Petitioners moved to dismiss for lack of subject-matter lack of personal and forum non conveniens. The District Court denied these motions, and the Court of Appeals affirmed, We granted Argentina's petition for certiorari, which challenged the Court of Appeals' determination that, under the Act, Argentina was not immune from the of the federal courts in this case. II The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. 1602 et seq., establishes a comprehensive framework for determining whether a court in this country, state or federal, may exercise over a foreign state. Under the Act, a "foreign state shall be immune from the of the courts of the United States and of the *611 States" unless one of several statutorily defined exceptions applies. 1604 (emphasis added). The FSIA thus provides the "sole basis" for obtaining over a foreign sovereign in the United States. See Argentine The most significant of the FSIA's exceptionsand the one at issue in this caseis the "commercial" exception of 1605(a)(2), which provides that a foreign state is not immune from suit in any case "in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." 1605(a)(2). In the proceedings below, respondents relied only on the third clause of 1605(a)(2) to establish and our analysis is therefore limited to considering whether this lawsuit is (1) "based upon an act outside the territory of the United States"; (2) that was taken "in connection with a commercial activity" of Argentina outside this country; and (3) that "cause[d] a direct effect in the United States."[1] The complaint in this case alleges only one cause of action on behalf of each of the respondents, viz., a breach-of-contract claim based on Argentina's attempt to refinance the Bonods rather than to pay them according to their terms. The fact that the cause of action is in compliance with the first of the three requirementsthat it is "based upon an act outside the territory of the United *612 States" (presumably Argentina's unilateral extension)is uncontested. The dispute pertains to whether the
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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Argentina's unilateral extension)is uncontested. The dispute pertains to whether the unilateral refinancing of the Bonods was taken "in connection with a commercial activity" of Argentina, and whether it had a "direct effect in the United States." We address these issues in turn. A Respondents and their amicus, the United States, contend that Argentina's issuance of, and continued liability under, the Bonods constitute a "commercial activity" and that the extension of the payment schedules was taken "in connection with" that activity. The latter point is obvious enough, and Argentina does not contest it; the key question is whether the activity is "commercial" under the FSIA. The FSIA defines "commercial activity" to mean: "[E]ither a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." 28 U.S. C. 1603(d). This definition, however, leaves the critical term "commercial" largely undefined: The first sentence simply establishes that the commercial nature of an activity does not depend upon whether it is a single act or a regular course of conduct; and the second sentence merely specifies what element of the conduct determines commerciality (i. e., nature rather than purpose), but still without saying what "commercial" means. Fortunately, however, the FSIA was not written on a clean slate. As we have noted, see Verlinden B. V. v. Central Bank of Nigeria, the Act (and the commercial exception in particular) largely codifies the so-called "restrictive" theory of foreign sovereign immunity first endorsed by the State Department in 1952. The meaning of "commercial" is the meaning generally attached to that *613 term under the restrictive theory at the time the statute was enacted. See McDermott Int'l, ; ; U.S. 246, This Court did not have occasion to discuss the scope or validity of the restrictive theory of sovereign immunity until our 1976 decision in Alfred Dunhill of London, Although the Court there was evenly divided on the question whether the "commercial" exception that applied in the foreign-sovereignimmunity context also limited the availability of an act-ofstate defense, compare with there was little disagreement over the general scope of the exception. The plurality noted that, after the State Department endorsed the restrictive theory of foreign sovereign immunity in 1952, the lower courts consistently held that foreign sovereigns were not immune from the of American courts in cases "arising out of purely commercial transactions," citing, inter alia, Victory Transport, cert. denied, and Petrol Shipping (CA2), cert. denied, The
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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Transport, cert. denied, and Petrol Shipping (CA2), cert. denied, The plurality further recognized that the distinction between state sovereign acts, on the one hand, and state commercial and private acts, on the other, was not entirely novel to American law. See -696, citing, inter alia, ; Bank of United ; New (tax immunity of States); and South The plurality *614 stated that the restrictive theory of foreign sovereign immunity would not bar a suit based upon a foreign state's participation in the marketplace in the manner of a private citizen or -705. A foreign state engaging in "commercial" activities "do[es] not exercise powers peculiar to sovereigns"; rather, it "exercise[s] only those powers that can also be exercised by private citizens." The dissenters did not disagree with this general description. See Given that the FSIA was enacted less than six months after our decision in Alfred Dunhill was announced, we think the plurality's contemporaneous description of the then-prevailing restrictive theory of sovereign immunity is of significant assistance in construing the scope of the Act. In accord with that description, we conclude that when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are "commercial" within the meaning of the FSIA. Moreover, because the Act provides that the commercial character of an act is to be determined by reference to its "nature" rather than its "purpose," 28 U.S. C. 1603(d), the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in "trade and traffic or commerce," Black's Law Dictionary 270 (6th ed. 1990). See, e. g., Rush-Presbyterian-St. Luke's Medical (CA7), cert. denied, Thus, a foreign government's issuance of regulations limiting foreign currency exchange is a sovereign activity, because such authoritative control of commerce cannot be exercised by a private party; whereas a contract to buy army boots or even bullets is a "commercial" activity, because private companies can similarly use sales contracts *615 to acquire goods, see, e. g., Stato di Rumania v. Trutta, [1926] Foro It. I 584, 585-586, 589 (Corte di Cass. del Regno, Italy), translated and reprinted in part in 26 Am. J. Int'l L. 626-629 (Supp. 1932). The commercial character of the Bonods is confirmed by the fact that they are in almost all respects garden-variety debt instruments: They may
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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are in almost all respects garden-variety debt instruments: They may be held by private parties; they are negotiable and may be traded on the international market (except in Argentina); and they promise a future stream of cash income. We recognize that, prior to the enactment of the FSIA, there was authority suggesting that the issuance of public debt instruments did not constitute a commercial activity. Victory Transport, 336 F. 2d, at 360 (dicta). There is, however, nothing distinctive about the state's assumption of debt (other than perhaps its purpose) that would cause it always to be classified as jure imperii, and in this regard it is significant that Victory Transport expressed confusion as to whether the "nature" or the "purpose" of a transaction was controlling in determining commerciality, Because the FSIA has now clearly established that the "nature" governs, we perceive no basis for concluding that the issuance of debt should be treated as categorically different from other activities of foreign states. Argentina contends that, although the FSIA bars consideration of "purpose," a court must nonetheless fully consider the context of a transaction in order to determine whether it is "commercial." Accordingly, Argentina claims that the Court of Appeals erred by defining the relevant conduct in what Argentina considers an overly generalized, acontextual manner and by essentially adopting a per se rule that all "issuance of debt instruments" is "commercial." See quoting We have no occasion to consider such a per se rule, because it seems to us that even in full context, there *616 is nothing about the issuance of these Bonods (except perhaps its purpose) that is not analogous to a private commercial transaction. Argentina points to the fact that the transactions in which the Bonods were issued did not have the ordinary commercial consequence of raising capital or financing acquisitions. Assuming for the sake of argument that this is not an example of judging the commerciality of a transaction by its purpose, the ready answer is that private parties regularly issue bonds, not just to raise capital or to finance purchases, but also to refinance debt. That is what Argentina did here: By virtue of the earlier FEIC contracts, Argentina was already obligated to supply the United States dollars needed to retire the FEIC-insured debts; the Bonods simply allowed Argentina to restructure its existing obligations. Argentina further asserts (without proof or even elaboration) that it "received consideration [for the Bonods] in no way commensurate with [their] value," Brief for Petitioners 22. Assuming that to be true, it makes no difference. Engaging in a commercial act does not
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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makes no difference. Engaging in a commercial act does not require the receipt of fair value, or even compliance with the common-law requirements of consideration. Argentina argues that the Bonods differ from ordinary debt instruments in that they "were created by the Argentine Government to fulfill its obligations under a foreign exchange program designed to address a domestic credit crisis, and as a component of a program designed to control that nation's critical shortage of foreign exchange." In this regard, Argentina relies heavily on De in which the Fifth Circuit took the view that "[o]ften, the essence of an act is defined by its purpose"; that unless "we can inquire into the purposes of such acts, we cannot determine their nature"; and that, in light of its purpose to control its reserves of foreign currency, Nicaragua's refusal to honor a check it had issued to cover a private bank debt was a *617 sovereign act entitled to immunity. Indeed, Argentina asserts that the line between "nature" and "purpose" rests upon a "formalistic distinction [that] simply is neither useful nor warranted." Reply Brief for Petitioners 8. We think this line of argument is squarely foreclosed by the language of the FSIA. However difficult it may be in some cases to separate "purpose" (i. e., the reason why the foreign state engages in the activity) from "nature" (i. e., the outward form of the conduct that the foreign state performs or agrees to perform), see De the statute unmistakably commands that to be done, 28 U.S. C. 1603(d). We agree with the Court of Appeals, see that it is irrelevant why Argentina participated in the bond market in the manner of a private actor; it matters only that it did so. We conclude that Argentina's issuance of the Bonods was a "commercial activity" under the FSIA. B The remaining question is whether Argentina's unilateral rescheduling of the Bonods had a "direct effect" in the United States, 28 U.S. C. 1605(a)(2). In addressing this issue, the Court of Appeals rejected the suggestion in the legislative history of the FSIA that an effect is not "direct" unless it is both "substantial" and "foreseeable." ; contra, America West Airlines, ; cert. denied, ; Maritime Int'l Nominees cert. denied, ; aff'd, That suggestion is found in the House Report, which states that conduct covered by the third clause of 1605(a)(2) would be subject to the of American courts "consistent with principles set forth in section 18, Restatement of the *618 Law, Second, Foreign Relations Law of the United States" H. R. Rep. No. 94-1487, p. 19
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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the United States" H. R. Rep. No. 94-1487, p. 19 (1976). Section 18 states that American laws are not given extraterritorial application except with respect to conduct that has, as a "direct and foreseeable result," a "substantial" effect within the United States. Since this obviously deals with to legislate rather than to adjudicate, this passage of the House Report has been charitably described as "a bit of a non sequitur, " Texas Trading & Milling cert. denied, Of course the generally applicable principle de minimis non curat lex ensures that may not be predicated on purely trivial effects in the United States. But we reject the suggestion that 1605(a)(2) contains any unexpressed requirement of "substantiality" or "foreseeability." As the Court of Appeals recognized, an effect is "direct" if it follows "as an immediate consequence of the defendant's activity." The Court of Appeals concluded that the rescheduling of the maturity dates obviously had a "direct effect" on respondents. It further concluded that that effect was sufficiently "in the United States" for purposes of the FSIA, in part because "Congress would have wanted an American court to entertain this action" in order to preserve New York City's status as "a preeminent commercial center." The question, however, is not what Congress "would have wanted" but what Congress enacted in the FSIA. Although we are happy to endorse the Second Circuit's recognition of "New York's status as a world financial leader," the effect of Argentina's rescheduling in diminishing that status (assuming it is not too speculative to be considered an effect at all) is too remote and attenuated to satisfy the "direct effect" requirement of the FSIA. We nonetheless have little difficulty concluding that Argentina's unilateral rescheduling of the maturity dates on the *619 Bonods had a "direct effect" in the United States. Respondents had designated their accounts in New York as the place of payment, and Argentina made some interest payments into those accounts before announcing that it was rescheduling the payments. Because New York was thus the place of performance for Argentina's ultimate contractual obligations, the rescheduling of those obligations necessarily had a "direct effect" in the United States: Money that was supposed to have been delivered to a New York bank for deposit was not forthcoming. We reject Argentina's suggestion that the "direct effect" requirement cannot be satisfied where the plaintiffs are all foreign corporations with no other connections to the United States. We expressly stated in Verlinden that the FSIA permits "a foreign plaintiff to sue a foreign sovereign in the courts of the United States, provided the substantive requirements
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Justice Scalia
| 1,992 | 9 |
majority
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Republicof Argentina v. Weltover, Inc.
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https://www.courtlistener.com/opinion/112748/republicof-argentina-v-weltover-inc/
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the courts of the United States, provided the substantive requirements of the Act are satisfied," Finally, Argentina argues that a finding of in this case would violate the Due Process Clause of the Fifth Amendment, and that, in order to avoid this difficulty, we must construe the "direct effect" requirement as embodying the "minimum contacts" test of International Shoe[2] Assuming, without deciding, that a foreign state is a "person" for purposes of the Due Process Clause, cf. South we find that Argentina possessed "minimum contacts" that would satisfy the constitutional test. By issuing negotiable debt instruments denominated in United States dollars and payable in New York and by appointing a financial agent in that *620 city, Argentina "`purposefully avail[ed] itself of the privilege of conducting activities within the [United States].' " Burger King quoting * * * We conclude that Argentina's issuance of the Bonods was a "commercial activity" under the FSIA; that its rescheduling of the maturity dates on those instruments was taken in connection with that commercial activity and had a "direct effect" in the United States; and that the District Court therefore properly asserted under the FSIA, over the breach-of-contract claim based on that rescheduling. Accordingly, the judgment of the Court of Appeals is Affirmed.
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Justice Rehnquist
| 1,990 | 19 |
majority
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Collins v. Youngblood
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https://www.courtlistener.com/opinion/112471/collins-v-youngblood/
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The question presented in this case is whether the application of a Texas statute, which was passed after respondent's crime and which allowed the reformation of an improper jury verdict in respondent's case, violates the Ex Post Facto Clause of Art. I, 10. We hold that it does not. Respondent Carroll Youngblood was convicted in a Texas court of aggravated sexual abuse. The jury imposed punishment of life imprisonment and a fine of $10,000. After his conviction and sentence were affirmed by the Texas Court of Criminal Appeals, Youngblood applied for a writ of habeas corpus in the State District Court. He argued that the Texas Code of Criminal Procedure did not authorize a fine in addition to a term of imprisonment for his offense, and, thus, under the decision of the Court of Criminal Appeals in the judgment and sentence were void, and he was entitled to a new trial.[1] In April 1985, the District Court, feeling bound by Bogany, recommended that the writ be granted. Before the habeas application was considered by the Texas Court of Criminal Appeals, which has the exclusive power under Texas law to grant writs of habeas corpus, see Tex. Code Crim. Proc. Ann., Art. 11.07 a new Texas statute designed to modify the Bogany *40 decision became effective. Article 37.10(b), as of June 11, 1985, allows an appellate court to reform an improper verdict that assesses a punishment not authorized by law. Tex. Code Crim. Proc. Ann., Art. 37.10(b) ; see Ex parte Johnson, Relying on that statute, the Court of Criminal Appeals reformed the verdict in Youngblood's case by ordering deletion of the $10,000 fine and denied his request for a new trial. Youngblood then sought a writ of habeas corpus from the United States District Court for the Eastern District of Texas, arguing that the retroactive application of Art. 37.10(b) violated the Ex Post Facto Clause of Art. I, 10, of the Federal Constitution. The District Court concluded that since Youngblood's "punishment was not increased (but actually decreased), and the elements of the offense or the ultimate facts necessary to establish guilt were not changed," there was no ex post facto violation. App. to Pet. for Cert. C-6. The Court of Appeals reversed. It relied on the statement in this Court's decision in that retroactive procedural statutes violate the Ex Post Facto Clause unless they "`leave untouched all the substantial protections with which existing law surrounds the person accused of crime,'" ( ). It held that Youngblood's right to a new trial under the Bogany decision was such a "substantial protection,"
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Justice Rehnquist
| 1,990 | 19 |
majority
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Collins v. Youngblood
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https://www.courtlistener.com/opinion/112471/collins-v-youngblood/
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trial under the Bogany decision was such a "substantial protection," and therefore ordered that a writ of habeas corpus be issued. We granted certiorari. Because respondent is before us on collateral review, we are faced with a threshold question whether the relief sought by Youngblood would constitute a "new rule," which would not apply retroactively under our decisions in and Generally speaking, "[r]etroactivity is *41 properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated." The State of Texas, however, did not address retroactivity in its petition for certiorari or its briefs on the merits, and when asked about the issue at oral argument, counsel answered that the State had chosen not to rely on Tr. of Oral Arg. 4-5. Although the rule is grounded in important considerations of federal-state relations, we think it is not "jurisdictional" in the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte. Cf. We granted certiorari to consider the merits of respondent's ex post facto claim, and we proceed to do so. Although the Latin phrase "ex post facto" literally encompasses any law passed "after the fact," it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. ; ; See[2] As early opinions in this Court explained, "ex post facto law" was a term of art with an established meaning at the time of the framing of the Constitution. ; Justice Chase's now familiar opinion in expounded those legislative *42 Acts which in his view implicated the core concern of the Ex Post Facto Clause: "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Early opinions of the Court portrayed this as an exclusive definition of ex post facto laws. ; ; ("This exposition of the nature of ex post facto laws
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Justice Rehnquist
| 1,990 | 19 |
majority
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Collins v. Youngblood
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https://www.courtlistener.com/opinion/112471/collins-v-youngblood/
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("This exposition of the nature of ex post facto laws has never been denied, nor has any court or any commentator on the Constitution added to the classes of laws here set forth, as coming within that clause"); So well accepted were these principles that the Court in was able to confidently summarize the meaning of the Clause as follows: "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." *43 See also[3] The formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts. Several early State Constitutions employed this definition of the term, and they appear to have been a basis for the Framers' understanding of the provision. See The Federalist No. 44, p. 301 (J. Cooke ed. 1961) (J. Madison); 2 M. Farrand, Records of the Federal Convention of 1787, p. 376 (1911); -392 ; -397 The Constitutions of Maryland and North for example, declared that "retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made." See Constitution of Maryland, Declaration of Rights, Art. XV (1776); Constitution of North Declaration of Rights, Art. XXIV (1776). Other State Constitutions, though not using the phrase "ex post facto," included similar articles. See Declaration of Rights and Fundamental Rules of the Delaware State 11 (1776); Constitution or Form of Government for the Commonwealth of Massachusetts, Declaration of Rights, Art. XXIV (1780). *44 Another historical reference, Blackstone's Commentaries, which was discussed by the Framers during debates on the Ex Post Facto Clause, see 2 M. Farrand, Records of the Federal Convention of 1787, pp. 448-449 (1911), and deemed an authoritative source of the technical meaning of the term in see ; buttresses this understanding. According to Blackstone, a law is ex post facto "when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it." 1 W. Blackstone,
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Justice Rehnquist
| 1,990 | 19 |
majority
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Collins v. Youngblood
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https://www.courtlistener.com/opinion/112471/collins-v-youngblood/
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upon the person who has committed it." 1 W. Blackstone, Commentaries * 46. Although increased punishments are not mentioned explicitly in the historical sources, the Court has never questioned their prohibition, apparently on the theory that "[t]he enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty." The definition, then, is faithful to the use of the term "ex post facto law" at the time the Constitution was adopted. Respondent concedes that Tex. Code Crim. Proc. Ann., Art. 37.10(b) does not fall within any of the categories and, under that definition, would not constitute an ex post facto law as applied to him. The new statute is a procedural change that allows reformation of improper verdicts. It does not alter the definition of the crime of aggravated sexual abuse, of which Youngblood was convicted, nor does it increase the punishment for which he is eligible as a result of that conviction. Nevertheless, respondent maintains that this Court's decisions have not limited the scope of the Ex Post Facto Clause to the finite categories, but have stated more broadly that retroactive legislation contravenes Art. I, 10, if it deprives an accused of a "substantial protection" under law existing at the time of the crime. He argues that the new trial guaranteed him by former Texas law is such a protection. *45 Several of our cases have described as "procedural" those changes which, even though they work to the disadvantage of the accused, do not violate the Ex Post Facto Clause. at -293, and n. 6; ; While these cases do not explicitly define what they mean by the word "procedural," it is logical to think that the term refers to changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes. Respondent correctly notes, however, that we have said that a procedural change may constitute an ex post facto violation if it "affect[s] matters of substance," by depriving a defendant of "substantial protections with which the existing law surrounds the person accused of crime," 2-3 or arbitrarily infringing upon "substantial personal rights." ; We think this language from the cases cited has imported confusion into the interpretation of the Ex Post Facto Clause. The origin of the rather amorphous phrase, "substantial protections," appears to lie in a 19th-century treatise on constitutional law by Professor Thomas Cooley. T. Cooley, Constitutional Limitations * 272. According to Cooley, who notably assumed the construction of the Ex Post Facto Clause to be correct, Constitutional
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| 1,990 | 19 |
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of the Ex Post Facto Clause to be correct, Constitutional Limitations * 265, a legislature "may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime." This Court's decision in subsequently adopted that phraseology: "[A]n ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then *46 prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offence or its consequences, alters the situation of a party to his disadvantage; but the prescribing of different modes or procedure and the abolition of courts and creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of crime, are not considered within the constitutional inhibition. Cooley Const. Lim. (5th ed.) 329." at 2-3 (emphasis added). Later, in we stated that even with regard to procedural changes, the Ex Post Facto Clause was "intended to secure substantial personal rights against arbitrary and oppressive legislative action." at We repeated that recognition in itself, while also emphasizing that the provision was "not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." We think the best way to make sense out of this discussion in the cases is to say that by simply labeling a law "procedural," a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause. See Subtle ex post facto violations are no more permissible than overt ones. In we said that the constitutional prohibition is addressed to laws, "whatever their form," which make innocent acts criminal, alter the nature of the offense, or increase the punishment. But the prohibition which may not be evaded is the one defined by the categories. See at 2; at -184. The references in and to "substantial protections" and "personal rights" should not be read to adopt without explanation an undefined enlargement of the Ex Post Facto Clause. *47 Two decisions of this Court, relied upon by respondent, do not fit into this analytical framework. In v. the Court said "it is not to be supposed that the opinion in [] undertook to define, by way of exclusion, all the cases to which the constitutional provision would be applicable." It defined an
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Collins v. Youngblood
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which the constitutional provision would be applicable." It defined an ex post facto law, inter alia, as one which, "`in relation to the offence or its consequences, alters the situation of a party to his disadvantage.'" -229 ( United (No. 15,285) (D Pa. 1809)) (emphasis deleted). And in the Court held that a change in Utah law reducing the size of juries in criminal cases from 12 persons to 8 deprived Thompson of "a substantial right involved in his liberty" and violated the Ex Post Facto Clause. Neither of these decisions, in our view, is consistent with the understanding of the term "ex post facto law" at the time the Constitution was adopted. Nor has their reasoning been followed by this Court since Thompson was decided in 1898. These cases have caused confusion in state and lower federal courts about the scope of the Ex Post Facto Clause, as exemplified by the opinions of the District Court and Court of Appeals in this case. See also (noting "the evident confusion among lower courts concerning the application of the Ex Post Facto Clause to changes in rules of evidence and procedure"); United ; L. Tribe, American Constitutional Law 6 (2d ed. 1988) (procedural changes upheld by the Court "can hardly be distinguished in any functional way from those invalidated"). The earlier decision, v. was a capital case with a lengthy procedural history. was charged with first-degree murder, but pursuant to a plea agreement, he *48 pleaded guilty to second-degree murder. The plea was accepted by the prosecutor and the trial court, and he was sentenced to 25 years in prison. He appealed the judgment, however, on the ground that his plea agreement provided for a sentence of no more than 10 years. The State Supreme Court reversed the judgment and remanded for further proceedings. In the trial court, refused to withdraw his guilty plea to second-degree murder and refused to renew his plea of not guilty to first-degree murder, insisting instead that the acceptance of his earlier plea constituted an acquittal on the greater charge. The trial court, over 's objection, directed a general plea of not guilty to be entered, and upon retrial, he was convicted of first-degree murder and sentenced to death. At the time the crime was committed, law provided that a defendant's plea of guilty to second-degree murder, if accepted by the prosecutor and the court, served as an acquittal of the charge of first-degree murder. After the crime, but before made his plea, a new Constitution abrogated that rule. The State was thus free, as a
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| 1,990 | 19 |
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Collins v. Youngblood
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abrogated that rule. The State was thus free, as a matter of law, to retry for first-degree murder after his conviction and the 25-year sentence for second-degree murder were vacated. The Supreme Court of held that the new law did not violate the Ex Post Facto Clause, because it effected only a change in criminal procedure. This Court reversed by a vote of 5 to 4. As support for the view that did not define an exclusive list of legislative Acts falling within the constitutional prohibition, Justice Miller's opinion for the Court quoted a jury charge given by Justice Washington sitting in the District Court: "`[A]n ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed; or which increases the punishment, or, in short, which, in relation to the offence or its consequences, alters the situation of a party to his disadvantage.'" -229 *49 ( United at ) Applying that test, the Court concluded that because the new Constitution denied the benefit of an implied acquittal which the previous law provided, it "altered the situation to his disadvantage," and his conviction for first-degree murder was void. The Court's departure from 's explanation of the original understanding of the Ex Post Facto Clause was, we think, unjustified. The language in the case, heavily relied upon in and repeated in other decisions thereafter, does not support a more expansive definition of ex post facto laws. In a vessel owner was sued by the United States for forfeiture of an embargo bond obliging him to deliver certain cargo to Portland, Me. As a legal excuse, the defendant argued that a severe storm had disabled his vessel and forced him to land in Puerto Rico, where he was forced by the Puerto Rican government to sell the cargo. In dicta, Justice Washington hypothesized that, according to the law in effect at the time forfeited the cargo, an "unavoidable accident" was an affirmative defense to a charge of failing to deliver cargo. His jury instruction then explained that a subsequent law imposing an additional requirement for the affirmative defense that the vessel or cargo actually be lost at sea as a result of the unavoidable accident would deprive of a defense of his actions available at the time he sold the cargo and thus be an invalid ex post facto law. This analysis is consistent with the framework. A law that abolishes an affirmative defense of justification or excuse contravenes Art. I, 10, because it expands the scope of
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Justice Rehnquist
| 1,990 | 19 |
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Collins v. Youngblood
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https://www.courtlistener.com/opinion/112471/collins-v-youngblood/
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contravenes Art. I, 10, because it expands the scope of a criminal prohibition after the act is done. It appears, therefore, that Justice Washington's reference to laws "relat[ing] to the offence or its consequences," was simply shorthand for legal changes altering the definition of an offense or increasing a punishment. His jury charge should not be read to mean that the Constitution prohibits retrospective *50 laws, other than those encompassed by the categories, which "alte[r] the situation of a party to his disadvantage." Nothing in the case supports the broad construction of the ex post facto provision given by the Court in It is possible to reconcile with the numerous cases which have held that "procedural" changes do not result in ex post facto violations by saying that the change in law did take away a "defense" available to the defendant under the old procedure. But this use of the word "defense" carries a meaning quite different from that which appears in the quoted language from where the term was linked to the prohibition on alterations in "the legal definition of the offense" or "the nature or amount of the punishment imposed for its commission." 269 U. S., The "defense" available to under earlier law was not one related to the definition of the crime, but was based on the law regulating the effect of guilty pleas. had not changed any of the elements of the crime of murder, or the matters which might be pleaded as an excuse or justification for the conduct underlying such a charge; it had changed its law respecting the effect of a guilty plea to a lesser included offense. The holding in can only be justified if the Ex Post Facto Clause is thought to include not merely the categories, but any change which "alters the situation of a party to his disadvantage." We think such a reading of the Clause departs from the meaning of the Clause as it was understood at the time of the adoption of the Constitution, and is not supported by later cases. We accordingly overrule The second case, must be viewed in historical context. Thompson was initially charged with his crime grand larceny committed by stealing a calf in 1895, when Utah was a Territory. He was tried by a jury of 12 persons and convicted. A new trial was subsequently granted, however, and in the meantime Utah was admitted *51 into the Union as a State. The Constitution of the State of Utah provided that juries in noncapital cases would consist of 8 persons, not
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| 1,990 | 19 |
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Collins v. Youngblood
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juries in noncapital cases would consist of 8 persons, not 12, and Thompson was retried and convicted by a panel of 8. This Court reversed the conviction. It reasoned first that while Utah was a Territory, the Sixth Amendment applied to actions of the territorial government and guaranteed Thompson a right to a 12-person -350. The Court then held that "the State did not acquire upon its admission into the Union the power to provide, in respect of felonies committed within its limits while it was a Territory, that they should be tried otherwise than by a jury such as is provided by the Constitution of the United States." Because the State Constitution "deprive[d] him of a substantial right involved in his liberty" and "materially alter[ed] the situation to his disadvantage," the Court concluded that Thompson's conviction was prohibited by the Ex Post Facto Clause. -353. The result in foreshadowed our decision in v. Louisiana, which held that the Sixth Amendment right to trial by jury then believed to mean a jury of 12, see, e. g., was incorporated and made applicable by the Fourteenth Amendment against the States. The Court held that since Utah was a Territory when Thompson's crime was committed, and therefore obligated to provide a 12-person jury by the Sixth Amendment, the Ex Post Facto Clause prevented the State from taking away that substantial right from him when it became a State and was no longer bound by the Sixth Amendment as then interpreted. The right to jury trial provided by the Sixth Amendment is obviously a "substantial" one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause. To the extent that *52 rested on the Ex Post Facto Clause and not the Sixth Amendment, we overrule it.[4] The Texas statute allowing reformation of improper verdicts does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed. Its application to respondent therefore is not prohibited by the Ex Post Facto Clause of Art. I, 10. The judgment of the Court of Appeals is Reversed. JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in the judgment.
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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I join Parts I, III, and IV of the Court's opinion and agree with much of what is said in Part II. But I cannot agree, with the Court or with the partial dissent, that we should reach the issue whether a standard of proof different from that applied to disclosure of campaign contributions should be applied to disclosure of campaign disbursements. See ante, at 94, n. 9; post, at 112-113, n. 7.[1] Appellants did not suggest in the District Court that different standards might apply. Nor was the issue raised in appellants' jurisdictional statement or in their brief on the merits in this Court. Consequently, I would merely assume for purposes of our present decision as appellants apparently have assumed throughout this litigation and as the District Court clearly assumed that the flexible proof rule of applies equally to forced disclosure of contributions and to forced disclosure of expenditures. I would leave for another day, when the issue is squarely presented, considered by the courts below, and adequately briefed here, the significant question that now divides the Court. This Court's Rule 15.1(a) states: "Only the questions set forth in the jurisdictional statement or fairly included therein *103 will be considered by the Court." Appellants' jurisdictional statement presented a single question: "Whether, under the standards set forth by this Court in the provisions of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which require that the campaign committee of a candidate for public office file a report disclosing the full names and addresses of persons making contributions to or receiving expenditures from such committee, are consistent with the right of privacy of association guaranteed by the First and Fourteenth Amendments of the Constitution of the United States when applied to the committees of candidates of a minority party which can establish only isolated instances of harassment directed toward the organization or its members within Ohio during recent years." Juris. Statement i. The question assumes the applicability of to the entire case, and asks this Court to decide only whether the evidence presented to and facts found by the District Court were sufficient to support that court's conclusion that the test was satisfied. Absent extraordinary circumstances, this Court does not decide issues beyond those it has agreed to review. ; United ; General Talking Pictures According to the Court, however, the issue whether the flexible standard of proof established in applies to recipients of expenditures is "fairly included' in the question presented." Ante, at 94, n. 9. But appellants' failure to present the issue was not a mere
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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appellants' failure to present the issue was not a mere oversight in phrasing that question. That appellants did not invoke this Court's jurisdiction to review specifically the proper standard for disclosure of campaign expenditures is also apparent from appellants' arguments in their jurisdictional statement and their brief on the merits. In their jurisdictional *104 statement, under the heading "The Question is Substantial," appellants stated: "The standards governing the resolution of actions involving challenges to reporting requirements by minority parties were set forth by this Court in the case of In the Court held that in order to receive relief from reporting requirements such as those at issue in this action a minority party must establish `. a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment or reprisals from either Government officials or private parties.'" Juris. Statement 10. Appellants went on to state that the flexible standard of proof of injury established in applied to "disclosure requirements." Juris. Statement 12-13. Similar assertions are found in appellants' brief on the merits. See Brief for Appellants 12 ("Summary of Argument"); Thus, appellants' exclusive theme in the initial presentation of their case here was that the District Court erred in finding that the standard was satisfied. They did not suggest that the standard was inapplicable, or applied differently, to campaign expenditure requirements. It was not until their reply brief, submitted eight years after this suit was instituted and at a time when appellees had no opportunity to respond in writing, that appellants sought to inject this new issue into the case. See In my view, it simply cannot be said that it was "fairly included" in the jurisdictional statement. Moreover, "[w]here issues are neither raised before nor considered [by the court below], this Court will not ordinarily *105 consider them." ; The District Court did not address the question whether some standard other than that developed in should apply to disclosure of campaign expenditures. The reason for this was that appellants conceded in the District Court, as they concede here, that the "flexibility in the proof of injury" applicable to disclosure of contributors governed the entire case. In their post-trial memorandum, for example, appellants did not even hint that a different standard should govern disclosure of the identities of recipients of expenditures. Instead, they quoted the test and granted that "evidence of past harassment may be presented by plaintiffs in cases such as the instant one." Defendants' Post-Trial Memorandum 4-5. This case presents no extraordinary circumstances justifying deviation from this Court's Rule 15.1(a) and its
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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circumstances justifying deviation from this Court's Rule 15.1(a) and its long-established practice respecting issues not presented below. We have deviated from the Rule when jurisdictional issues have been omitted by the parties and lower courts, see, e. g., United or when the Court has noticed "plain error" not assigned, see Obviously, the issue that divides the Court from the partial dissent is not jurisdictional. Nor, as the Court's opinion persuasively demonstrates, is application of the test to disclosure of campaign disbursements "plain error." Indeed, I consider it quite possible that, after full consideration, the Court would adopt the standard in this context for the reasons stated by the Court. I also consider it quite possible that, after full consideration, the Court might wish to revise the standard as applied to campaign disbursements perhaps to take account of the different types of expenditures covered and their differing impacts on associational rights, or perhaps along the lines suggested in the partial dissent. But this significant constitutional *106 decision should not be made until the question is properly presented so that the record includes data and arguments adequate to inform the Court's judgment. The Court's apparent reliance on (8), does not provide a rationale for deciding this issue at this time. The petitioner there had included in his petition for certiorari all the questions we eventually decided. Notwithstanding the fact that the Court limited its grant of the petition to a single question, the parties fully briefed the questions on which review had been denied. Deciding those questions, therefore, was neither unwise nor unfair. In this case, in contrast, appellants affirmatively excluded the point at issue in their jurisdictional statement and in their brief on the merits. By failing to raise it until their reply brief, appellants prevented appellees from responding to the argument in writing. There can be no question that, as the Court observes, " `our power to decide is not limited by the precise terms of the question presented.' " Ante, at 94, n. 9 (quoting 434 U. S., at ) (emphasis supplied). But Rule 15.1(a) is designed, as a prudential matter, to prevent the possibility that such tactics will result in ill-considered decisions. It is cases like this one that show the wisdom of the Rule. Thus, for purposes of this case, I would assume, as appellants' jurisdictional statement and brief on the merits assume, that the standard applies to campaign expenditures just as it applies to contributions.[2] Appellees *107 presented "specific evidence of past or present harassment of members due to their associational ties, or of harassment
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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of members due to their associational ties, or of harassment directed against the organization itself," sufficient under the rule in to establish a "reasonable probability" that the Ohio law would trigger "threats, harassment, or reprisals" against contributors. On this basis, I would affirm the judgment of the District Court in its entirety. JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, concurring in part and dissenting in part. I concur in the judgment that the Socialist Workers Party (SWP) has sufficiently demonstrated a reasonable probability that disclosure of contributors will subject those persons to threats, harassment, or reprisals, and thus under the State of Ohio cannot constitutionally compel the disclosure. Further, I agree that the broad concerns of apply to the required disclosure of recipients of campaign expenditures. But, as I view the record presented here, the SWP has failed to carry its burden of showing that there is a reasonable probability that disclosure of recipients of expenditures will subject the recipients themselves or the SWP to threats, harassment, or reprisals. Moreover, the strong public interest in fair and honest elections outweighs any damage done to the associational rights of the party and its members by application of the State's expenditure disclosure law. *108 upheld the validity of the Federal Election Campaign Act of 1, which requires the disclosure of names of both contributors to a campaign and recipients of expenditures from the campaign. recognized three major governmental interests in disclosure requirements: deterrence of corruption; enhancement of voters' knowledge about a candidate's possible allegiances and interests; and provision of the data and means necessary to detect violations of any statutory limitations on contributions or expenditures. The precise challenge that the Court faced, however, was the overbreadth of the Act's requirements "insofar as they apply to contributions to minor parties and independent candidates."[1] Since the appellants in did not challenge the application to minor parties of requirements of disclosure of expenditures, the Court had no occasion to consider directly the First Amendment interests of a minor political party in preventing disclosure of expenditures, much less to weigh them against the governmental interests in disclosure. The test adopted by quoted by the majority, ante, at 93, reflects this limitation, for it contemplates only assessing possible harassment of contributors, without a word about considering the harassment of recipients of expenditures if their names are disclosed or any effects this harassment may have on the party. This is not to say that provides no guidance for resolving this claim. I agree with the majority that appellants *109 have overstated their argument in declaring
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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majority that appellants *109 have overstated their argument in declaring that has no application to the disclosure of recipients of expenditures. Certainly, enunciates the general governmental interest in regulating minor parties, who, although unlikely to win, can often affect the outcome of an also emphasizes the sensitive associational rights of minor parties. Nevertheless, there are important differences between disclosure of contributors and disclosure of recipients of campaign expenditures differences that the Court had no occasion to address, but that compel me to conclude that the balance should not necessarily be calibrated identically. First, unlike the government's interest in disclosure of contributions, its interest in disclosure of expenditures does not decrease significantly for small parties. The Court in recognized that knowing the identity of contributors would not significantly increase the voters' ability to determine the political ideology of the minor-party candidate, for the stance of the minor-party candidate is usually well known. [2] Nor would identifying a minor party's contributors further the interest in preventing the "buying" of a candidate, because of the improbability of the minor-party candidate's winning the Thus, these two major government interests in disclosure of contributions are significantly reduced for minor parties.[3] In sharp contrast, however, the governmental interest in disclosure of expenditures remains significant for minor parties. The purpose of requiring parties to disclose expenditures is to deter improper influencing of voters. Corruption *110 of the electoral process can take many forms: the actual buying of votes; the use of "slush funds;" dirty tricks; and bribes of poll watches and other election officials. Certainly, a "persuasive" campaign worker on election day can corral voters for his minor-party candidate with even a modest "slush fund."[4] Even though such improper practices are unlikely to be so successful as to attract enough votes to elect the minor-party candidate, a minor party, whose short-term goal is merely recognition, may be as tempted to resort to impressible methods as are major parties, and the resulting deflection of votes can determine the outcome of the election of other candidates.[5] The requirement of a full and verifiable report of expenditures is important in deterring such practices, for otherwise the party could hide the improper transactions through an accounting sleight of hand.[6] On the other side of the balance, disclosure of recipients of expenditures will have a lesser impact on a minority party's First Amendment interests than will disclosure of contributors. *111 As the majority states, ante, at 91, the First Amendment interest here is "[t]he right to privacy in one's political associations and beliefs." We have never drawn sharp distinctions between members
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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and beliefs." We have never drawn sharp distinctions between members and contributors, As we recognized in the privacy rights of contributors are especially sensitive, since many seek to express their political views privately through their pocketbook rather than publicly through other means. Disclosure of contributors directly implicates the contributors' associational rights. The impact on privacy interests arising from disclosure of expenditures is of a quite different and generally lesser dimension. Many expenditures of the minority party will be for quite mundane purposes to persons not intimately connected with the organization. Payments for such things as office supplies, telephone service, bank charges, printing and photography costs would generally fall in this category. The likelihood that such business transactions would dry up if disclosed is remote at best. Unlike silent contributors, whom disclosure would reveal to the public as supporters of the party's ideological positions, persons providing business services to a minor party are not generally perceived by the public as supporting the party's ideology, and thus are unlikely to be harassed if their names are disclosed. Consequently, the party's associational interests are unlikely to be affected by disclosure of recipients of such expenditures. Other recipients of expenditures may have closer ideological ties to the party. The majority suggests that campaign workers receiving per diem, travel, or room expenses may fit in this category. Ante, at 97, n. 12. It is certainly conceivable that such persons may be harassed or threatened for their conduct. Laws requiring disclosure of recipients of expenditures, however, are not likely to contribute to this harassment. Once an individual has openly shown his close ties to the organization by campaigning for it, disclosure of receipt of expenditures is unlikely to increase the degree of *112 harassment so significantly as to deter the individual from campaigning for the party. Further, in striking the balance, the governmental concerns are greatest precisely for the actions of campaign workers that might improperly influence voters. Thus, whatever marginal deterrence that may arise from disclosure of expenditures is outweighed by the heightened governmental interest. In sum, the heightened governmental interest in disclosure of expenditures and the reduced marginal deterrent effect on associational interests demand a separately focused inquiry into whether there exists a reasonable probability that disclosure will subject recipients or the party itself to threats, harassment, or reprisals.[7] *113 II Turning to the evidence in this case, it is important to remember that, even though proof requirements must be flexible, the minor party carries the burden of production and persuasion to show that its First Amendment interests outweigh the governmental interests.
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Justice Blackmun
| 1,982 | 11 |
concurring
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Brown v. Socialist Workers '74 Campaign Comm. (Ohio)
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https://www.courtlistener.com/opinion/110813/brown-v-socialist-workers-74-campaign-comm-ohio/
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show that its First Amendment interests outweigh the governmental interests. Additionally, the application of the standard to the historical evidence is most properly characterized as a mixed question of law and fact, for which we normally assess the record independently to determine if it supports the conclusion of unconstitutionality as applied.[8] Here, there is no direct evidence of harassment of either contributors or recipients of expenditures. Rather, as the majority accurately represents it, the evidence concerns harassment and reprisals of visible party members, including violence at party headquarters and loss of jobs. I concur in the majority's conclusion that this evidence, viewed in its entirety, supports the conclusion that there will be a reasonable probability of harassment of contributors if their names are disclosed. This evidence is sufficiently linked to disclosure of contributors in large part because any person publicly known to support the SWP's unpopular ideological position may suffer the reprisals that this record shows active party members suffer, and the disclosure of contributors may lead the public to presume these people support the party's ideology. *114 In contrast, the record, read in its entirety, does not suggest that disclosure of recipients of expenditures would lead to harassment of recipients or reprisals to the party or its members. Appellees gave no breakdown of the types of expenditures they thought would lead to harassment if disclosed. The record does contain the expenditure statements of the SWP, which itemize each expenditure with its purpose while usually omitting the name and address of the recipient. The majority of expenditures, both in number and dollar amount, are for business transactions such as office supplies, food, printing, photographs, telephone service, and books. There is virtually no evidence that disclosure of the recipients of these expenditures will impair the SWP's ability to obtain needed services.[9] Even if we assume that a portion *115 of expenditures went to temporary campaign workers or others whom the public might identify as supporting the party's ideology,[10] these persons have already publicly demonstrated their support by their campaign work. There is simply no basis for inferring that such persons would thereafter be harassed or threatened or otherwise deterred from working for the party by virtue of inclusion of their names in later expenditure reports, or that if any such remote danger existed, it would outweigh the concededly important governmental interests in disclosure of recipients of expenditures. It is plain that appellees did not carry their burden of production and persuasion insofar as they challenge the expenditure disclosure provisions. I would therefore uphold the constitutionality of those portions of the Ohio
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Justice O'Connor
| 2,000 | 14 |
majority
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Reeves v. Sanderson Plumbing Products, Inc.
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https://www.courtlistener.com/opinion/1087667/reeves-v-sanderson-plumbing-products-inc/
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This case concerns the kind and amount of evidence necessary to sustain a jury's verdict that an employer unlawfully discriminated on the basis of age. Specifically, we must resolve whether a defendant is entitled to judgment as a matter of law when the plaintiff's case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory explanation for its action. We must also decide whether the employer was entitled to judgment as a matter of law under the particular circumstances presented here. I In October petitioner Roger Reeves was 57 years old and had spent 40 years in the employ of respondent, Sanderson Plumbing Products, a manufacturer of toilet seats and covers. Petitioner worked in a department known as the "Hinge Room," where he supervised the "regular line." Joe Oswalt, in his mid-thirties, supervised the Hinge Room's "special line," and Russell Caldwell, the manager of the Hinge Room and age 45, supervised both petitioner and Oswalt. Petitioner's responsibilities included recording the attendance and hours of those under his supervision, and reviewing a weekly report that listed the hours worked by each employee. 3 Record 38-40. In the summer of Caldwell informed Powe Chesnut, the director of manufacturing and the husband of company president Sandra Sanderson, that "production was down" in *138 the Hinge Room because employees were often absent and were "coming in late and leaving early." 4 Because the monthly attendance reports did not indicate a problem, Chesnut ordered an audit of the Hinge Room's timesheets for July, August, and September of that 197 F. 3d, at According to Chesnut's testimony, that investigation revealed "numerous timekeeping errors and misrepresentations on the part of Caldwell, Reeves, and Oswalt." Following the audit, Chesnut, along with Dana Jester, vice president of human resources, and Tom Whitaker, vice president of operations, recommended to company president Sanderson that petitioner and Caldwell be fired. at -1. In October Sanderson followed the recommendation and discharged both petitioner and Caldwell. In June petitioner filed suit in the United States District Court for the Northern District of Mississippi, contending that he had been fired because of his age in violation of the Age Discrimination in Employment Act of (ADEA), as amended, 29 U.S. C. 621 et seq. At trial, respondent contended that it had fired petitioner due to his failure to maintain accurate attendance records, while petitioner attempted to demonstrate that respondent's explanation was pretext for age -3. Petitioner introduced evidence that he had accurately recorded the attendance and hours of the employees under his supervision,
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Reeves v. Sanderson Plumbing Products, Inc.
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the attendance and hours of the employees under his supervision, and that Chesnut, whom Oswalt described as wielding "absolute power" within the company, 3 Record 80, had demonstrated age-based animus in his dealings with petitioner. During the trial, the District Court twice denied oral motions by respondent for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, and the case went to the jury. 3 Record 183; 4 The court instructed the jury that "[i]f the plaintiff fails to prove age was a determinative or motivating factor in the decision to *139 terminate him, then your verdict shall be for the defendant." Tr. 7 (Jury Charge) So charged, the jury returned a verdict in favor of petitioner, awarding him $35,000 in compensatory damages, and found that respondent's age discrimination had been "willfu[l]." 197 F. 3d, The District Court accordingly entered judgment for petitioner in the amount of $70,000, which included $35,000 in liquidated damages based on the jury's finding of willfulness. Respondent then renewed its motion for judgment as a matter of law and alternatively moved for a new trial, while petitioner moved for front pay. 2 Record, Doc. Nos. 36, 38. The District Court denied respondent's motions and granted petitioner's, awarding him $28,490.80 in front pay for two years' lost income. 2 Doc. Nos. 40, 41. The Court of Appeals for the Fifth Circuit reversed, holding that petitioner had not introduced sufficient evidence to sustain the jury's finding of unlawful After noting respondent's proffered justification for petitioner's discharge, the court acknowledged that petitioner "very well may" have offered sufficient evidence for "a reasonable jury [to] have found that [respondent's] explanation for its employment decision was pretextual." The court explained, however, that this was "not dispositive" of the ultimate issuenamely, "whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision." Addressing this question, the court weighed petitioner's additional evidence of discrimination against other circumstances surrounding his discharge. See -4. Specifically, the court noted that Chesnut's age-based comments "were not made in the direct context of Reeves's termination"; there was no allegation that the two other individuals who had recommended that petitioner be fired (Jester and Whitaker) were motivated by age; two of the decisionmakers involved in petitioner's discharge (Jester and Sanderson) were over the age of 50; all three of the Hinge Room supervisors were *140 accused of inaccurate recordkeeping; and several of respondent's management positions were filled by persons over age 50 when petitioner was fired. On this basis, the court concluded that petitioner had not introduced sufficient evidence for
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Reeves v. Sanderson Plumbing Products, Inc.
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court concluded that petitioner had not introduced sufficient evidence for a rational jury to conclude that he had been discharged because of his age. We granted certiorari, to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination ), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional Compare ; cert. denied, ; cert. denied, ; (CA8) cert. denied, ; ; with (plaintiff's discrediting of employer's explanation is entitled to considerable weight, such that plaintiff should not be routinely required to submit evidence over and above proof of pretext), and with (plaintiff must introduce sufficient evidence for jury to find both that employer's reason was false and that real reason was discrimination), cert. denied, ; ; Theard v. Glaxo, 47 F. 3d *141 676 ; II Under the ADEA, it is "unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S. C. 623(a)(1). When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper That is, the plaintiff's age must have "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Recognizing that "the question facing triers of fact in discrimination cases is both sensitive and difficult," and that "[t]here will seldom be `eyewitness' testimony as to the employer's mental processes," Postal Service Bd. of the Courts of Appeals, including the Fifth Circuit in this case, have employed some variant of the framework articulated in McDonnell Douglas to analyze ADEA claims that are based principally on circumstantial evidence. See, e. g., ; ; ; (CA10), cert. denied, ; ; (CA11), cert. denied, ; ; ; ; Bodenheimer v. PPG Industries, 5 F. 3d *142 955, 957 ; cert. denied, ; This Court has not squarely addressed whether the McDonnell Douglas framework, developed to assess claims brought under 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S. C. e2(a)(1), also applies to ADEA actions. Because the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas framework is fully applicable here. Cf. McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in discriminatorytreatment cases." St.
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order for the presentation of proof in discriminatorytreatment cases." St. Mary's Honor First, the plaintiff must establish a prima facie case of ; Texas Dept. of Community It is undisputed that petitioner satisfied this burden here: (i) at the time he was fired, he was a member of the class protected by the ADEA ("individuals who are at least 40 years of age," 29 U.S. C. 631(a)), (ii) he was otherwise qualified for the position of Hinge Room supervisor, (iii) he was discharged by respondent, and (iv) respondent successively hired three persons in their thirties to fill petitioner's position. See 197 F. 3d, -2. The burden therefore shifted to respondent to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." This burden is one of production, not persuasion; it "can involve no credibility assessment." St. Mary's Honor Respondent met this burden by offering admissible evidence sufficient for the trier of fact to conclude that petitioner was fired because of his failure to maintain accurate attendance records. See Accordingly, "the McDonnell Douglas frameworkwith *143 its presumptions and burdens"disappeared, St. Mary's Honor and the sole remaining issue was "discrimination vel non, " Although intermediate evidentiary burdens shift back and forth under this framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." And in attempting to satisfy this burden, the plaintiffonce the employer produces sufficient evidence to support a nondiscriminatory explanation for its decisionmust be afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for " ; see also St. Mary's Honor That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." Moreover, although the presumption of discrimination "drops out of the picture" once the defendant meets its burden of production, St. Mary's Honor the trier of fact may still consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom on the issue of whether the defendant's explanation is pretextual," In this case, the evidence supporting respondent's explanation for petitioner's discharge consisted primarily of testimony by Chesnut and Sanderson and documentation of petitioner's alleged "shoddy record keeping." Chesnut testified that a audit of Hinge Room operations revealed "a very lax assembly line" where employees were not adhering to general work rules. 4 Record 197-199. As a result of that
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work rules. 4 Record 197-199. As a result of that audit, petitioner was placed on 90 days' probation for unsatisfactory 197 F. 3d, at In Chesnut ordered another investigation *144 of the Hinge Room, which, according to his testimony, revealed that petitioner was not correctly recording the absences and hours of employees. 4 Record 204-205. Respondent introduced summaries of that investigation documenting several attendance violations by 12 employees under petitioner's supervision, and noting that each should have been disciplined in some manner. See App. 21-24, 30-37; 4 Record 206-208. Chesnut testified that this failure to discipline absent and late employees is "extremely important when you are dealing with a union" because uneven enforcement across departments would keep the company "in grievance and arbitration cases, which are costly, all the time." 4 He and Sanderson also stated that petitioner's errors, by failing to adjust for hours not worked, cost the company overpaid wages. 3 ; 4 Sanderson testified that she accepted the recommendation to discharge petitioner because he had "intentionally falsif[ied] company pay records." 3 Petitioner, however, made a substantial showing that respondent's explanation was false. First, petitioner offered evidence that he had properly maintained the attendance records. Most of the timekeeping errors cited by respondent involved employees who were not marked late but who were recorded as having arrived at the plant at 7 a.m. for the 7 a.m. shift. 3 ; 4 Respondent contended that employees arriving at 7 a.m. could not have been at their workstations by 7 a.m., and therefore must have been late. 3 ; 4 But both petitioner and Oswalt testified that the company's automated time clock often failed to scan employees' timecards, so that the timesheets would not record any time of arrival. 3 ; 4 On these occasions, petitioner and Oswalt would visually check the workstations and record whether the employees were present at the start of the shift. 3 -87; *145 4 They stated that if an employee arrived promptly but the timesheet contained no time of arrival, they would reconcile the two by marking "7 a.m." as the employee's arrival time, even if the employee actually arrived at the plant earlier. On cross-examination, Chesnut acknowledged that the time clock sometimes malfunctioned, and that if "people were there at their work station[s]" at the start of the shift, the supervisor "would write in seven o'clock." 4 Petitioner also testified that when employees arrived before or stayed after their shifts, he would assign them additional work so they would not be overpaid. See Petitioner similarly cast doubt on whether he was responsible for
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Petitioner similarly cast doubt on whether he was responsible for any failure to discipline late and absent employees. Petitioner testified that his job only included reviewing the daily and weekly attendance reports, and that disciplinary writeups were based on the monthly reports, which were reviewed by Caldwell. 3 Record 20-22; 4 Sanderson admitted that Caldwell, and not petitioner, was responsible for citing employees for violations of the company's attendance policy. 3 Further, Chesnut conceded that there had never been a union grievance or employee complaint arising from petitioner's recordkeeping, and that the company had never calculated the amount of overpayments allegedly attributable to petitioner's errors. 4 Petitioner also testified that, on the day he was fired, Chesnut said that his discharge was due to his failure to report as absent one employee, Gina Mae Coley, on two days in September 3 ; 4 336. But petitioner explained that he had spent those days in the hospital, and that Caldwell was therefore responsible for any overpayment of Coley. 3 Finally, petitioner stated that on previous occasions that employees were paid for hours they had not worked, the company had simply adjusted those employees' next paychecks to correct the errors. 3 *146 Based on this evidence, the Court of Appeals concluded that petitioner "very well may be correct" that "a reasonable jury could have found that [respondent's] explanation for its employment decision was pretextual." Nonetheless, the court held that this showing, standing alone, was insufficient to sustain the jury's finding of liability: "We must, as an essential final step, determine whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision." And in making this determination, the Court of Appeals ignored the evidence supporting petitioner's prima facie case and challenging respondent's explanation for its decision. See -4. The court confined its review of evidence favoring petitioner to that evidence showing that Chesnut had directed derogatory, age-based comments at petitioner, and that Chesnut had singled out petitioner for harsher treatment than younger employees. See It is therefore apparent that the court believed that only this additional evidence of discrimination was relevant to whether the jury's verdict should stand. That is, the Court of Appeals proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional In so reasoning, the Court of Appeals misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence.
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Reeves v. Sanderson Plumbing Products, Inc.
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plaintiffs who attempt to prove intentional discrimination through indirect evidence. This much is evident from our decision in St. Mary's Honor There we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. 509 U. S., The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered *147 reason is correct." In other words, "[i]t is not enough to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional " In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Specifically, we stated: "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional " Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. See In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." ; see also ; 2 J. Wigmore, Evidence 278(2), p. 133 (J. Chadbourn rev. 1979). Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Constr. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment
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discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. See -1292; see also To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50, and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.' " St. Mary's Honor (quoting 460 U. S., at ). Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie *149 case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law. See infra, at 151-152. For purposes of this case, we need notand could notresolve all of the circumstances in which such factors would entitle an employer to judgment as a matter of law. It suffices to say that, because a prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability, the Court of Appeals erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of III A The remaining question is whether, despite the Court of Appeals' misconception of petitioner's evidentiary burden, respondent was nonetheless entitled to judgment as a matter of law. Under Rule 50, a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. Rule Civ. Proc. 50(a); see also The Courts of Appeals have articulated differing formulations as to what evidence a court is to consider in ruling on a Rule 50 motion. See Venture Technology, v. National Fuel Gas Distribution Corp., decided with Some decisions have stated that review is limited to that evidence favorable to the nonmoving party, see, e. g., ; while most have held that review extends to the entire record, drawing all reasonable inferences in favor of the nonmovant, see, e. g., ; Boeing (CA5 19) On closer examination, this conflict seems more semantic than real. Those decisions holding
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this conflict seems more semantic than real. Those decisions holding that review under Rule 50 should be limited to evidence favorable to the nonmovant appear to have their genesis in See 9A C. Wright & A. Miller, Federal Practice and Procedure 2529, pp. 297-301 (hereinafter Wright & Miller). In Wilkerson, we stated that "in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of" the nonmoving But subsequent decisions have clarified that this passage was referring to the evidence to which the trial court should give credence, not the evidence that the court should review. In the analogous context of summary judgment under Rule 56, we have stated that the court must review the record "taken as a whole." Matsushita Elec. Industrial And the standard for granting summary judgment "mirrors" the standard for judgment as a matter of law, such that "the inquiry under each is the same." ; see also Celotex It therefore follows that, in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. ; Liberty ; Continental Ore 370 U.S. 6, n. 6 "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Liberty *151 Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." B Applying this standard here, it is apparent that respondent was not entitled to judgment as a matter of law. In this case, in addition to establishing a prima facie case of discrimination and creating a jury issue as to the falsity of the employer's explanation, petitioner introduced additional evidence that Chesnut was motivated by age-based animus and was principally responsible for petitioner's firing. Petitioner testified that Chesnut had told him that he "was so old [he] must have come over on the Mayflower" and, on one occasion when petitioner was having difficulty starting
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Reeves v. Sanderson Plumbing Products, Inc.
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and, on one occasion when petitioner was having difficulty starting a machine, that he "was too damn old to do [his] job." 3 Record 26. According to petitioner, Chesnut would regularly "cuss at me and shake his finger in my face." 3 Oswalt, roughly 24 years younger than petitioner, corroborated that there was an "obvious difference" in how Chesnut treated them. 3 He stated that, although he and Chesnut "had [their] differences," "it was nothing compared to the way [Chesnut] treated Roger." Oswalt explained that Chesnut "tolerated quite a bit" from him even though he "defied" Chesnut "quite often," but that Chesnut treated petitioner "[i]n a manner, as you would treat a child when you're angry with [him]." 3 -83. Petitioner also demonstrated that, according to company records, he and Oswalt had nearly identical rates of productivity in 3 ; 4 Yet respondent conducted an efficiency study of only the *152 regular line, supervised by petitioner, and placed only petitioner on probation. 3 ; 4 Chesnut conducted that efficiency study and, after having testified to the contrary on direct examination, acknowledged on cross-examination that he had recommended that petitioner be placed on probation following the study. 4 at 197 199, 237. Further, petitioner introduced evidence that Chesnut was the actual decisionmaker behind his firing. Chesnut was married to Sanderson, who made the formal decision to discharge petitioner. 3 Although Sanderson testified that she fired petitioner because he had "intentionally falsif[ied] company pay records," 3 respondent only introduced evidence concerning the inaccuracy of the records, not their falsification. A letter authored by Chesnut indicated that he berated other company directors, who were supposedly his coequals, about how to do their jobs. Pl. Exh. 7, 3 Record 108-112. Moreover, Oswalt testified that all of respondent's employees feared Chesnut, and that Chesnut had exercised "absolute power" within the company for "[a]s long as [he] can remember." 3 In holding that the record contained insufficient evidence to sustain the jury's verdict, the Court of Appeals misapplied the standard of review dictated by Rule 50. Again, the court disregarded critical evidence favorable to petitioner namely, the evidence supporting petitioner's prima facie case and undermining respondent's nondiscriminatory explanation. See -4. The court also failed to draw all reasonable inferences in favor of petitioner. For instance, while acknowledging "the potentially damning nature" of Chesnut's age-related comments, the court discounted them on the ground that they "were not made in the direct context of Reeves's termination." And the court discredited petitioner's evidence that Chesnut was the actual decisionmaker by giving weight to the fact that *153 there was
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by giving weight to the fact that *153 there was "no evidence to suggest that any of the other decision makers were motivated by age." Moreover, the other evidence on which the court reliedthat Caldwell and Oswalt were also cited for poor recordkeeping, and that respondent employed many managers over age 50 although relevant, is certainly not dispositive. See In concluding that these circumstances so overwhelmed the evidence favoring petitioner that no rational trier of fact could have found that petitioner was fired because of his age, the Court of Appeals impermissibly substituted its judgment concerning the weight of the evidence for the jury's. The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional Given the evidence in the record supporting petitioner, we see no reason to subject the parties to an additional round of litigation before the Court of Appeals rather than to resolve the matter here. The District Court plainly informed the jury that petitioner was required to show "by a preponderance of the evidence that his age was a determining and motivating factor in the decision of [respondent] to terminate him." Tr. 7 (Jury Charge) The court instructed the jury that, to show that respondent's explanation was a pretext for discrimination, petitioner had to demonstrate "1, that the stated reasons were not the real reasons for [petitioner's] discharge; and 2, that age discrimination was the real reason for [petitioner's] discharge." Given that petitioner established a prima facie case of discrimination, introduced enough evidence for the jury to reject respondent's explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that respondent had *154 intentionally discriminated. The District Court was therefore correct to submit the case to the jury, and the Court of Appeals erred in overturning its verdict. For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered.
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Justice Breyer
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concurring
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Roe v. Flores-Ortega
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https://www.courtlistener.com/opinion/118339/roe-v-flores-ortega/
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I write to emphasize that the question presented concerned the filing of a "notice of appeal following a guilty plea. " Pet. for Cert. i (emphasis added). In that context I agree with the Court. I also join its opinion, which, in my view, makes clear that counsel does "almost always" have a constitutional duty to consult with a defendant about an appeal after a trial. Post this page (Souter, J., concurring in part and dissenting in part); cf. ante, at 479-481. Justice Souter, with whom Justice Stevens and Justice Ginsburg join, concurring in part and dissenting in part. I join Part IIB of the Court's opinion, but I respectfully dissent from Part IIA. As the opinion says, the crucial question in this case is whether, after a criminal conviction, a lawyer has a duty to consult with her client about the choice to appeal. The majority's conclusion is sometimes; mine is, almost always in those cases in which a plea of guilty has not obviously waived any claims of error.[1] It is unreasonable for a lawyer with a client like respondent FloresOrtega to walk away from her representation after trial or after sentencing without at the very least acting affirmatively *489 to ensure that the client understands the right to appeal. Where appeal is available as a matter of right, a decision to seek or forgo review is for the convict himself, not his lawyer, who owes a duty of effective assistance at the appellate stage, ; It follows, as the majority notes, that if a defendant requests counsel to file an appeal, a lawyer who fails to do so is, without more, ineffective for constitutional purposes. But, as the Court says, a lesser infidelity than that may fail the test of lawyer competence under which governs this case. I think that the derelict character of counsel's performance in this case is clearer than the majority realizes. In Strickland, we explicitly noted that a lawyer has a duty "to consult with the defendant on important decisions in the course of the prosecution." The decision whether to appeal is one such decision. Since it cannot be made intelligently without appreciating the merits of possible grounds for seeking review, see ; and the potential risks to the appealing defendant, a lay defendant needs help before deciding. If the crime is minor, the issues simple, and the defendant sophisticated, a 5-minute conversation with his lawyer may well suffice; if the charge is serious, the potential claims subtle, and a defendant uneducated, hours of counseling may be in order. But only in the
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Justice Breyer
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concurring
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Roe v. Flores-Ortega
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of counseling may be in order. But only in the extraordinary case will a defendant need no advice or counsel whatever. To the extent that our attention has been directed to statements of "prevailing professional norms," 466 U. S., (Strickland `s touchstone of reasonable representation, see ), they are consistent with common sense in requiring a lawyer to consult with a *490 client before the client makes his decision about appeal. Thus, ABA Standards for Criminal Justice 21-2.2(b) (2d ed. 1980): "Defense counsel should advise a defendant on the meaning of the court's judgment, of defendant's right to appeal, on the possible grounds for appeal, and of the probable outcome of appealing. Counsel should also advise of any posttrial proceedings that might be pursued before or concurrent with an appeal. While counsel should do what is needed to inform and advise defendant, the decision whether to appeal, like the decision whether to plead guilty, must be the defendant's own choice." See also ABA Standards for Criminal Justice, Defense Function2(a) (3d ed. 1993) (stating that trial counsel "should explain to the defendant the meaning and consequences of the court's judgment and defendant's right of appeal" and "should give the defendant his or her professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal");2, Commentary ("[C]ounsel [has the duty] to discuss frankly and objectively with the defendant the matters to be considered in deciding whether to appeal. To make the defendant's ultimate choice a meaningful one, counsel's evaluation of the case must be communicated in a comprehensible manner. [T]rial counsel should always consult promptly with the defendant after making a careful appraisal of the prospects of an appeal"); ABA Standards for Criminal Justice 21-3.2(b)(i). So also the ABA Model Code of Professional Responsibility, EC 2-31 (1991), provides that: "Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal" Likewise ABA Model Rule of Professional Conduct 1.3, Comment (1996): "[I]f a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically *491 instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter." Restatement (Third) of the Law Governing Lawyers 31(3) (Proposed Final Draft No. 1, Mar. 29, 1996) embodies the same standards: "A lawyer must notify a client of decisions to be made by the clientand must explain a matter to the extent reasonably necessary to permit the client to
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Justice Breyer
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concurring
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Roe v. Flores-Ortega
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https://www.courtlistener.com/opinion/118339/roe-v-flores-ortega/
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to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Indeed, California has apparently eliminated any option on a lawyer's part to fail to give advice on the appeal decision (whether the failure be negligent or intentional). California Penal Code Ann. 40.1(a) (West Supp. 2000) provides that trial counsel has a duty to "provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal." California thus appears to have adopted as an unconditional affirmative obligation binding all criminal trial counsel the very standard of reasonable practice expressed through the Restatement and the ABA standards. I understand that under Strickland, "[p]revailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable, but they are only guides," and that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." 466 U.S., 689. But that qualification has no application here. While Strickland `s disclaimer that no particular set of rules should be treated as dispositive respects the need to defer to reasonable "strategic choices" by lawyers, no such strategic concerns arise in this case. Strategic choices are made about the extent of investigation, the risks of a defense requiring defendant's testimony and exposure to cross-examination, the possibility that placing personal *492 background information before a jury will backfire, and so on. It is not, however, an issue of "strategy" to decide whether or not to give a defendant any advice before he loses the chance to appeal a conviction or sentence. The concern about too much judicial second-guessing after the fact is simply not raised by a claim that a lawyer should have counseled her client to make an intelligent decision to invoke or forgo the right of appeal or the opportunity to seek an appeal. The Court's position is even less explicable when one considers the condition of the particular defendant claiming Strickland relief here. Flores-Ortega spoke no English and had no sophistication in the ways of the legal system. The Magistrate Judge found that "[i]t's clear that Mr. Ortega had little or no understanding of what the process was, what the appeal process was, or what appeal meant." App. 133. To condition the duty of a lawyer to such a client on whether, inter alia, "a rational defendant would want to appeal (for example, because there are nonfrivolous grounds
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Justice Breyer
| 2,000 | 2 |
concurring
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Roe v. Flores-Ortega
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https://www.courtlistener.com/opinion/118339/roe-v-flores-ortega/
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want to appeal (for example, because there are nonfrivolous grounds for appeal)," ante, at 480, is not only to substitute a harmless-error rule for a showing of reasonable professional conduct, but to employ a rule that simply ignores the reality that the constitutional norm must address.[2] Most criminal defendants, and certainly this one, will be utterly incapable of making rational judgments about appeal without guidance. They cannot possibly know what a rational decisionmaker must know unless they are given the benefit of a professional assessment of chances of success and risks of trying. And they will often (indeed, usually) be just as bad off if they seek relief on habeas after failing to take a direct appeal, *493 having no right to counsel in state postconviction proceedings. See ; ; cf. ("To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial 28 U.S. C. 2255 motion"). In effect, today's decision erodes the principle that a decision about appeal is validly made only by a defendant with a fair sense of what he is doing. Now the decision may be made inadvertently by a lawyer who never utters the word "appeal" in his client's hearing, so long as that client cannot later demonstrate (probably without counsel) that he unwittingly had "nonfrivolous grounds" for seeking review. This state of the law amounts to just such a breakdown of the adversary system that Strickland warned against. "In every case the court should be concerned with whether the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." ; see also 395 U. S., at ; 488 U. S., at I would hold that in the aftermath of the hearing at which Flores-Ortega was sentenced, his lawyer was obliged to consult with her client about the availability and prudence of an appeal, and that failure to do that violated Strickland `s standard of objective reasonableness. I therefore respectfully dissent from Part IIA of the majority's opinion. Justice Ginsburg, concurring in part and dissenting in part. This case presents the question whether, after a defendant pleads guilty or is convicted, the Sixth Amendment permits defense counsel simply to walk away, leaving the defendant uncounseled about his appeal rights. The Court is not *494 deeply divided on this question. Both the Court and Justice Souter effectively respond: hardly ever. Because the test articulated by Justice Souter provides clearer guidance
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
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https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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In this case we consider whether an action to enjoin the infringement of an incontestable trade or service mark may be defended on the grounds that the mark is merely descriptive. We conclude that neither the language of the relevant statutes nor the legislative history supports such a defense. I Petitioner operates long-term parking lots near airports. After starting business in St. Louis in 167, petitioner subsequently opened facilities in Cleveland, Houston, Boston, Memphis, and San Francisco. Petitioner applied in 16 to the United States Patent and Trademark Office (Patent Office) to register a service mark consisting of the logo of an airplane and the words "Park'N Fly."[1] The registration issued in August 171. Nearly six years later, petitioner filed an affidavit with the Patent Office to establish the incontestable status of the [2] As required by 15 of the Trademark Act of 146 (Lanham Act), as amended, 15 U.S. C. 1065, the affidavit stated that the mark had been registered and in continuous use for five consecutive years, that there had been no final adverse decision to petitioner's claim of ownership or right to registration, and *12 that no proceedings involving such rights were pending. Incontestable status provides, subject to the provisions of 15 and 33(b) of the Lanham Act, "conclusive evidence of the registrant's exclusive right to use the registered mark" 33(b), 15 U.S. C. 1115(b). Respondent also provides long-term airport parking services, but only has operations in Portland, Oregon. Respondent calls its business "Dollar Park and Fly." Petitioner filed this infringement action in 178 in the United States District Court for the District of Oregon and requested the court permanently to enjoin respondent from using the words "Park and Fly" in connection with its business. Respondent counterclaimed and sought cancellation of petitioner's mark on the grounds that it is a generic term. See 14(c), 15 U.S. C. 1064(c). Respondent also argued that petitioner's mark is unenforceable because it is merely descriptive. See 2(e), 15 U.S. C. 1052(e). As two additional defenses, respondent maintained that it is in privity with a Seattle corporation that has used the expression "Park and Fly" since a date prior to the registration of petitioner's mark, see 33(b)(5), 15 U.S. C. 1115(b)(5), and that it has not infringed because there is no likelihood of confusion. See 32(1), 15 U.S. C. 1114(1). After a bench trial, the District Court found that petitioner's mark is not generic and observed that an incontestable mark cannot be challenged on the grounds that it is merely descriptive. App. 75. The District Court also concluded that there was no
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Justice O'Connor
| 1,985 | 14 |
majority
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Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
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https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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75. The District Court also concluded that there was no evidence of privity between respondent and the Seattle corporation. App. 76. Finally, the District Court found sufficient evidence of likelihood of confusion. App. 76. The District Court permanently enjoined respondent from using the words "Park and Fly" and any other mark confusingly similar to "Park'N Fly." App. 77. The Court of Appeals for the Ninth Circuit reversed. The District Court did not err, the Court of Appeals held, in refusing to invalidate petitioner's The Court of Appeals noted, however, that it *13 previously had held that incontestability provides a defense against the cancellation of a mark, but it may not be used offensively to enjoin another's use. Petitioner, under this analysis, could obtain an injunction only if its mark would be entitled to continued registration without regard to its incontestable status. Thus, respondent could defend the infringement action by showing that the mark was merely descriptive. Based on its own examination of the record, the Court of Appeals then determined that petitioner's mark is in fact merely descriptive, and therefore respondent should not be enjoined from using the name "Park and Fly." The decision below is in direct conflict with the decision of the Court of Appeals for the Seventh Circuit in Union Carbide We granted certiorari to resolve this conflict, and we now reverse. II Congress enacted the Lanham Act in 146 in order to provide national protection for trademarks used in interstate and foreign commerce. S. Rep. No. 1333, 7th Cong., 2d Sess., 5 (146). Previous federal legislation, such as the Federal Trademark Act of 105, reflected the view that protection of trademarks was a matter of state concern and that the right to a mark depended solely on the common law. S. Rep. No. 1333, Consequently, rights to trademarks were uncertain and subject to variation in different parts of the country. Because trademarks desirably promote competition and the maintenance of product quality, Congress determined that "a sound public policy requires that trademarks should receive nationally the greatest protection that can be given them." Among the new protections created by the Lanham Act were the statutory provisions that allow a federally registered mark to become incontestable. 15, 33(b), 15 U.S. C. 1065, 1115(b). The provisions of the Lanham Act concerning registration and incontestability distinguish a mark that is "the common *14 descriptive name of an article or substance" from a mark that is "merely descriptive." 2(e), 14(c), 15 U.S. C. 1052(e), 1064(c). Marks that constitute a common descriptive name are referred to as generic. A generic term is
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Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
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https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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name are referred to as generic. A generic term is one that refers to the genus of which the particular product is a species. Abercrombie & Fitch Generic terms are not registrable, and a registered mark may be canceled at any time on the grounds that it has become generic. See 2, 14(c), 15 U.S. C. 1052, 1064(c). A "merely descriptive" mark, in contrast, describes the qualities or characteristics of a good or service, and this type of mark may be registered only if the registrant shows that it has acquired secondary meaning, i. e., it "has become distinctive of the applicant's goods in commerce." 2(e), (f), 15 U.S. C. 1052(e), (f). This case requires us to consider the effect of the incontestability provisions of the Lanham Act in the context of an infringement action defended on the grounds that the mark is merely descriptive. Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. See American Tobacco (182). With respect to incontestable trade or service marks, 33(b) of the Lanham Act states that "registration shall be conclusive evidence of the registrant's exclusive right to use the registered mark" subject to the conditions of 15 and certain enumerated defenses.[3]*15 Section 15 incorporates by reference subsections (c) and (e) of 14, 15 U.S. C. 1064. An incontestable mark that becomes generic may be canceled at any time pursuant to 14(c). That section also allows cancellation of an incontestable mark at any time if it has been abandoned, if it is being used to misrepresent the source of the goods or services in connection with which it is used, or if it was obtained fraudulently or contrary to the provisions of 4, 15 U.S. C. 1054, or 2(a)-(c), 15 U.S. C. 1052(a)-(c).[4] *16 One searches the language of the Lanham Act in vain to find any support for the offensive/defensive distinction applied by the Court of The statute nowhere distinguishes between a registrant's offensive and defensive use of an incontestable On the contrary, 33(b)'s declaration that the registrant has an "exclusive right" to use the mark indicates that incontestable status may be used to enjoin infringement by others. A conclusion that such infringement cannot be enjoined renders meaningless the "exclusive right" recognized by the statute. Moreover, the language in three of the defenses enumerated in 33(b) clearly contemplates the use of incontestability in infringement actions by plaintiffs. See 33(b)(4)-(6), 15 U.S. C. 1115(b)(4)-(6). The language of the Lanham Act also refutes any conclusion that an incontestable mark
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
|
https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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Lanham Act also refutes any conclusion that an incontestable mark may be challenged as merely descriptive. A mark that is merely descriptive of an applicant's goods or services is not registrable unless the mark has secondary meaning. Before a mark achieves incontestable status, registration provides prima facie evidence of the registrant's exclusive right to use the mark in commerce. 33(a), 15 U.S. C. 1115(a). The Lanham Act expressly provides that before a mark becomes incontestable an opposing party may prove any legal or equitable defense which might have been asserted if the mark had not been registered. Thus, 33(a) would have allowed respondent to challenge petitioner's mark as merely descriptive if the mark had not become incontestable. With respect to incontestable marks, however, 33(b) provides that registration is conclusive evidence of the registrant's exclusive right to use the mark, subject to the conditions of 15 and the seven defenses enumerated in 33(b) itself. Mere descriptiveness is not recognized by either 15 or 33(b) as a basis for challenging an incontestable The statutory provisions that prohibit registration of a merely descriptive mark but do not allow an incontestable *17 mark to be challenged on this ground cannot be attributed to inadvertence by Congress. The Conference Committee rejected an amendment that would have denied registration to any descriptive mark, and instead retained the provisions allowing registration of a merely descriptive mark that has acquired secondary meaning. See H. R. Conf. Rep. No. 2322, 7th Cong., 2d Sess., 4 (146) (explanatory statement of House managers). The Conference Committee agreed to an amendment providing that no incontestable right can be acquired in a mark that is a common descriptive, i. e., generic, term. Congress could easily have denied incontestability to merely descriptive marks as well as to generic marks had that been its intention. The Court of Appeals in discussing the offensive/defensive distinction observed that incontestability protects a registrant against cancellation of his 718 F.2d, This observation is incorrect with respect to marks that become generic or which otherwise may be canceled at any time pursuant to 14(c) and (e). Moreover, as applied to marks that are merely descriptive, the approach of the Court of Appeals makes incontestable status superfluous. Without regard to its incontestable status, a mark that has been registered five years is protected from cancellation except on the grounds stated in 14(c) and (e). Pursuant to 14, a mark may be canceled on the grounds that it is merely descriptive only if the petition to cancel is filed within five years of the date of registration. 14(a), 15 U.S. C. 1064(a).
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
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https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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of the date of registration. 14(a), 15 U.S. C. 1064(a). The approach adopted by the Court of Appeals implies that incontestability adds nothing to the protections against cancellation already provided in 14. The decision below not only lacks support in the words of the statute; it effectively emasculates 33(b) under the circumstances of this case. III Nothing in the legislative history of the Lanham Act supports a departure from the plain language of the statutory *18 provisions concerning incontestability. Indeed, a conclusion that incontestable status can provide the basis for enforcement of the registrant's exclusive right to use a trade or service mark promotes the goals of the statute. The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers. See S. Rep. No. 1333, at 3, 5. National protection of trademarks is desirable, Congress concluded, because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation. The incontestability provisions, as the proponents of the Lanham Act emphasized, provide a means for the registrant to quiet title in the ownership of his See Hearings on H. R. 82 before the Subcommittee of the Senate Committee on Patents, 78th Cong., 2d Sess., 21 (144) ; ; Hearings on H. R. 102 et al. before the Subcommittee on Trade-Marks of the House Committee on Patents, 77th Cong., 1st Sess., 73 (141) The opportunity to obtain incontestable status by satisfying the requirements of 15 thus encourages producers to cultivate the goodwill associated with a particular This function of the incontestability provisions would be utterly frustrated if the holder of an incontestable mark could not enjoin infringement by others so long as they established that the mark would not be registrable but for its incontestable status. Respondent argues, however, that enforcing petitioner's mark would conflict with the goals of the Lanham Act because the mark is merely descriptive and should never have been registered in the first place.[5] Representative Lanham, *1 respondent notes, explained that the defenses enumerated in 33(b) were "not intended to enlarge, restrict, amend, or modify the substantive law of trademarks either as set out in other sections of the act or as heretofore applied by the courts under prior laws." 2 Cong. Rec. 7524 (146). Respondent reasons that because the Lanham Act did not alter the substantive law of trademarks, the incontestability provisions cannot protect petitioner's use of the mark if it were not originally registrable. Moreover, inasmuch
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
|
https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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the mark if it were not originally registrable. Moreover, inasmuch as petitioner's mark is merely descriptive, respondent contends that enjoining others from using the mark will not encourage competition by assisting consumers in their ability to distinguish among competing producers. These arguments are unpersuasive. Representative Lanham's remarks, if read in context, clearly refer to the effect of the defenses enumerated in 33(b).[6] There is no question that the Lanham Act altered existing law concerning trademark rights in several respects. For example, 22, *200 15 U.S. C. 1072, provides for constructive notice of registration and modifies the common-law rule that allowed acquisition of concurrent rights by users in distinct geographic areas if the subsequent user adopted the mark without knowledge of prior use. See Hanover Star Milling (116) Similarly, 14 cuts off certain grounds for cancellation five years after registration and thereby modifies the previous rule that the validity of a trademark could be attacked at any time. See White House Milk Products Co. v. Dwinell-Wright Co., 27 Cow. C. P. A. (Pat.) 114, 111 F.2d 40 (140). Most significantly, Representative Lanham himself observed that incontestability was one of "the valuable new rights created by the act." 2 Cong. Rec. 7524 (146). Respondent's argument that enforcing petitioner's mark will not promote the goals of the Lanham Act is misdirected. Arguments similar to those now urged by respondent were in fact considered by Congress in hearings on the Lanham Act. For example, the United States Department of Justice opposed the incontestability provisions and expressly noted that a merely descriptive mark might become incontestable. Hearings on H. R. 82, -60 (statement of the U. S. Dept. of Justice). This result, the Department of Justice observed, would "go beyond existing law in conferring unprecedented rights on trade-mark owners," and would undesirably create an exclusive right to use language that is descriptive of a product. 0; see also Hearings on H. R. 102, at 106-107, 10-110 (testimony of Prof. Milton Handler); These concerns were answered by proponents of the Lanham Act, who noted that a merely descriptive mark cannot be registered unless the Commissioner finds that it has secondary meaning. Moreover, a mark can be challenged for *201 five years prior to its attaining incontestable status. The supporters of the incontestability provisions further observed that a generic mark cannot become incontestable and that 33(b)(4) allows the nontrademark use of descriptive terms used in an incontestable The alternative of refusing to provide incontestable status for descriptive marks with secondary meaning was expressly noted in the hearings on the Lanham Act. 4, 6 ; Hearings on S.
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
|
https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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on the Lanham Act. 4, 6 ; Hearings on S. 85 before the Subcommittee of the Senate Committee on Patents, 77th Cong., 2d Sess., 42 (142) (testimony of Elliot Moyer, Special Assistant to the Attorney General). Also mentioned was the possibility of including as a defense to infringement of an incontestable mark the "fact that a mark is a descriptive, generic, or geographical term or device." 5, 47. Congress, however, did not adopt either of these alternatives. Instead, Congress expressly provided in 33(b) and 15 that an incontestable mark could be challenged on specified grounds, and the grounds identified by Congress do not include mere descriptiveness. The dissent echoes arguments made by opponents of the Lanham Act that the incontestable status of a descriptive mark might take from the public domain language that is merely descriptive. Post, at 214-216. As we have explained, Congress has already addressed concerns to prevent the "commercial monopolization," post, at 214, of descriptive language. The Lanham Act allows a mark to be challenged at any time if it becomes generic, and, under certain circumstances, permits the nontrademark use of descriptive terms contained in an incontestable Finally, if "monopolization" of an incontestable mark threatens economic competition, 33(b)(7), 15 U.S. C. 1115(b)(7), provides a defense on the grounds that the mark is being used to violate federal *202 antitrust laws. At bottom, the dissent simply disagrees with the balance struck by Congress in determining the protection to be given to incontestable marks. IV Respondent argues that the decision by the Court of Appeals should be upheld because trademark registrations are issued by the Patent Office after an ex parte proceeding and generally without inquiry into the merits of an application. This argument also unravels upon close examination. The facts of this case belie the suggestion that registration is virtually automatic. The Patent Office initially denied petitioner's application because the examiner considered the mark to be merely descriptive. Petitioner sought reconsideration and successfully persuaded the Patent Office that its mark was registrable. More generally, respondent is simply wrong to suggest that third parties do not have an opportunity to challenge applications for trademark registration. If the Patent Office examiner determines that an applicant appears to be entitled to registration, the mark is published in the Official Gazette. 12(a), 15 U.S. C. 1062(a). Within 30 days of publication, any person who believes that he would be damaged by registration of the mark may file an opposition. 13, 15 U.S. C. 1063. Registration of a mark provides constructive notice throughout the United States of the registrant's claim to ownership. 22,
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
|
https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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the United States of the registrant's claim to ownership. 22, 15 U.S. C. 1072. Within five years of registration, any person who believes that he is or will be damaged by registration may seek to cancel a 14(a), 15 U.S. C. 1064(a). A mark may be canceled at any time for certain specified grounds, including that it was obtained fraudulently or has become generic. 14(c), 15 U.S. C. 1064(c). The Lanham Act, as the dissent notes, post, at 217, authorizes courts to grant injunctions "according to principles of equity." 34, 15 U.S. C. 1116. Neither respondent nor the opinion of the Court of Appeals relies on this provision *203 to support the holding below. Whatever the precise boundaries of the courts' equitable power, we do not believe that it encompasses a substantive challenge to the validity of an incontestable mark on the grounds that it lacks secondary meaning. To conclude otherwise would expand the meaning of "equity" to the point of vitiating the more specific provisions of the Lanham Act.[7] Similarly, the power of the courts to cancel registrations and "to otherwise rectify the register," 37, 15 U.S. C. 111, must be subject to the specific provisions concerning incontestability. In effect, both respondent and the dissent argue that these provisions offer insufficient protection against improper registration of a merely descriptive mark, and therefore the validity of petitioner's mark may be challenged notwithstanding its incontestable status. Our responsibility, however, is not to evaluate the wisdom of the legislative determinations reflected in the statute, but instead to construe and apply the provisions that Congress enacted. V The Court of Appeals did not attempt to justify its decision by reference to the language or legislative history of the Lanham Act. Instead, the court relied on its previous decision in Tillamook County (CA), cert. denied, 382 U.S. 03 (165), for the proposition that a registrant may not rely on incontestability to enjoin the use of the mark by others. Examination of Tillamook, however, reveals that there is no persuasive justification for the judicially created distinction between offensive and defensive use of an incontestable *204 Tillamook discussed in dicta the offensive/defensive distinction and observed that incontestability protects a registrant against cancellation but cannot be used to obtain relief from an infringing use. Tillamook's authority for this proposition was John Morrell & 25 F.2d 314, (CA7 161), which did reverse a finding of infringement on the grounds that incontestable status confers only defensive rights. The Court of Appeals for the Seventh Circuit based its holding in John Morrell on Rand McNally & Co. v. Christmas Club,
|
Justice O'Connor
| 1,985 | 14 |
majority
|
Park 'N Fly, Inc. v. Dollar Park & Fly, Inc.
|
https://www.courtlistener.com/opinion/111293/park-n-fly-inc-v-dollar-park-fly-inc/
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John Morrell on Rand McNally & Co. v. Christmas Club, 105 U. S. P. Q. 4 (155), aff'd 44 Cow. C. P. A. 861 (Pat.), (157), but the latter case did not in fact involve the use of an incontestable mark in an enforcement action. The Patent Office in Rand McNally denied a petition to cancel a mark challenged as merely descriptive. The petitioner feared that if the mark became incontestable, use of the same mark in connection with a service different from the one specified in the registration could be enjoined. 105 U. S. P. Q., 00. The Assistant Commissioner of Patents answered this concern by observing that an incontestable mark does not provide the registrant "with an `offensive weapon' of any greater magnitude than that which it has had since the registration issued." 01. These comments do not suggest that incontestability may never provide the basis for injunctive relief, but instead indicate that a mark may not be expanded beyond the good or service for which it was originally designated. John Morrell, the judicial authority providing the most direct support for the decision below, was subsequently overruled in Union Carbide (CA7), In Union Carbide the Court of Appeals for the Seventh Circuit acknowledged that its earlier decision in John Morrell was unsupported by the language or legislative history of the Lanham Act and had been based on a misreading of Rand McNally. 531 F. 2d, at 373, 377. A registrant may rely on *205 the incontestable status of the mark in an infringement action, Union Carbide concluded, and a " `[d]efendant faced with an incontestable registered mark cannot defend by claiming that the mark is invalid because it is descriptive.' " (quoting 1 J. McCarthy, Trademarks and Unfair Competition 11.16, p. 377 (1st ed. 173)). Other courts have subsequently followed Union Carbide and concluded that a plaintiff may rely on the incontestable status of a trade or service mark in an infringement action. See, e. g., United States 63 F.2d 134, (CA3 181); Soweco, (CA5 180), cert. denied, 450 U.S. 81 (181). The Patent Office has also rejected any offensive/defensive distinction with respect to the use of an incontestable See Ansul Co. v. Malter International Corp., 1 U. S. P. Q. 56, 5-600 (TTAB 178). Thus, the doctrine relied on by the Court of Appeals in this case is best described as flawed in its origin and subsequently discredited by its progenitors. VI We conclude that the holder of a registered mark may rely on incontestability to enjoin infringement and that such an action may not be defended
|
Justice Stevens
| 1,985 | 16 |
concurring
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Wainwright v. Witt
|
https://www.courtlistener.com/opinion/111303/wainwright-v-witt/
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Because the Court's opinion contains so much discussion that is unnecessary to the resolution of this case, I am unable to join it.[1] Much of that discussion is inconsistent with the standard announced in which the entire Court continues to endorse today.[2] The majority, however, does identify the facts that are critical to a proper disposition of this case.[3] *437 Defense counsel did not object to the exclusion of venireman Colby and made no attempt, either by cross-examination or in colloquy with the court, to demonstrate that she could properly serve as a juror, or that defendant wanted her to serve. The entire examination of Colby, who was the first prospective juror to be specifically questioned about her views on the death penalty, consists of the few lines quoted by the Court. Ante, at 415-416. The contrast between defense counsel's silence when Colby was excused, and his reaction to the prosecutor's motion to excuse venireman Kazmierczak is illuminating. After answering several questions of the prosecutor, juror Kazmierczak stated: "I don't think [my views on the death penalty] would interfere with the guilt or innocence of the person, but the decision of what guilt and what the outcome would be for his destiny, I could not go along with the death penalty." Tr. 273. When the prosecutor later moved to excuse her for cause, defense counsel objected, further questioning ensued, and when the trial court expressed concern "that you have a state of mind that might make you unable to follow the law of this State," Kazmierczak unequivocally responded: "I could not bring back a death penalty." The record thus demonstrates that defense counsel wanted Kazmierczak to serve as a juror, but that she was properly excused. Defense counsel's objection to the excusing of Kazmierczak, notwithstanding her stronger testimony indicating bias, lends credence to the hypothesis that competent trial counsel could well have made a deliberate decision not to object to the exclusion of Colby because he did not want her *438 to serve as a juror.[4] Given the gruesome facts of this case, see ante, at 414, and Colby's somewhat timorous responses, it is entirely possible that her appearance and demeanor persuaded trial counsel that he would prefer a more vigorous or less reluctant juror.[5] In view of that possibility, I am unable to conclude that the State's failure to make the kind of record required by constitutes an error so fundamental that it infects the validity of the death sentence in this case.[6] Accordingly, I concur in the Court's judgment.[
|
Justice Powell
| 1,987 | 17 |
majority
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CTS Corp. v. Dynamics Corp. of America
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https://www.courtlistener.com/opinion/111860/cts-corp-v-dynamics-corp-of-america/
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These cases present the questions whether the Control Share Acquisitions Chapter of the Indiana Business Corporation Law, et seq. is preempted by the Williams Act, as amended, 15 U.S. C. 78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. III), or violates the Commerce Clause of the Federal Constitution, Art. I, 8, cl. 3. I A On March 4, the Governor of Indiana signed a revised Indiana Business Corporation Law, Ind. Code 23-1-17-1 et seq. That law included the Control Share Acquisitions Chapter (Indiana Act or Act). Beginning on August 1, 1987, the Act will apply to any corporation incorporated in Indiana, 23-1-17-3(a), unless the corporation amends its articles of incorporation or bylaws to opt out of the Act, 23-1-42-5. Before that date, any Indiana corporation can opt into the Act by resolution of its board of directors. 23-1-17-3(b). The Act applies only to "issuing *73 public corporations." The term "corporation" includes only businesses incorporated in Indiana. See 23-1-20-5. An "issuing public corporation" is defined as: "a corporation that has: "(1) one hundred (100) or more shareholders; "(2) its principal place of business, its principal office, or substantial assets within Indiana; and "(3) either: "(A) more than ten percent (10%) of its shareholders resident in Indiana; "(B) more than ten percent (10%) of its shares owned by Indiana residents; or "(C) ten thousand (10,000) shareholders resident in Indiana." 23-1-42-4(a).[1] The Act focuses on the acquisition of "control shares" in an issuing public corporation. Under the Act, an entity acquires "control shares" whenever it acquires shares that, but for the operation of the Act, would bring its voting power in the corporation to or above any of three thresholds: 20%, 33 1/3%, or 50%. 23-1-42-1. An entity that acquires control shares does not necessarily acquire voting rights. Rather, it gains those rights only "to the extent granted by resolution approved by the shareholders of the issuing public corporation." 23-1-42-9(a). Section 23-1-42-9(b) requires a majority vote of all disinterested[2] shareholders holding each *74 class of stock for passage of such a resolution. The practical effect of this requirement is to condition acquisition of control of a corporation on approval of a majority of the pre-existing disinterested shareholders.[3] The shareholders decide whether to confer rights on the control shares at the next regularly scheduled meeting of the shareholders, or at a specially scheduled meeting. The *75 acquiror can require management of the corporation to hold such a special meeting within 50 days if it files an "acquiring person statement,"[4] requests the meeting, and agrees to pay the expenses of the meeting. See 23-1-42-7. If the
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CTS Corp. v. Dynamics Corp. of America
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https://www.courtlistener.com/opinion/111860/cts-corp-v-dynamics-corp-of-america/
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pay the expenses of the meeting. See 23-1-42-7. If the shareholders do not vote to restore voting rights to the shares, the corporation may redeem the control shares from the acquiror at fair market value, but it is not required to do so. 23-1-42-10(b). Similarly, if the acquiror does not file an acquiring person statement with the corporation, the corporation may, if its bylaws or articles of incorporation so provide, redeem the shares at any time after 60 days after the acquiror's last acquisition. 23-1-42-10(a). B On March 10, appellee Dynamics Corporation of America (Dynamics) owned 9.6% of the common stock of appellant CTS Corporation, an Indiana corporation. On that day, six days after the Act went into effect, Dynamics announced a tender offer for another million shares in CTS; purchase of those shares would have brought Dynamics' ownership interest in CTS to 27.5%. Also on March 10, Dynamics filed suit in the United States District Court for the Northern District of Illinois, alleging that CTS had violated the federal securities laws in a number of respects no longer relevant to these proceedings. On March 27, the board of directors of CTS, an Indiana corporation, elected to be governed by the provisions of the Act, see 23-1-17-3. Four days later, on March 31, Dynamics moved for leave to amend its complaint to allege that the Act is pre-empted by the Williams Act, 15 U.S. C. 78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. III), and violates the Commerce Clause, Art. I, 8, cl. 3. Dynamics sought a temporary restraining order, a preliminary injunction, and declaratory relief against *76 CTS' use of the Act. On April 9, the District Court ruled that the Williams Act pre-empts the Indiana Act and granted Dynamics' motion for declaratory relief. Relying on JUSTICE WHITE's plurality opinion in the court concluded that the Act "wholly frustrates the purpose and objective of Congress in striking a balance between the investor, management, and the takeover bidder in takeover contests." A week later, on April 17, the District Court issued an opinion accepting Dynamics' claim that the Act violates the Commerce Clause. This holding rested on the court's conclusion that "the substantial interference with interstate commerce created by the [Act] outweighs the articulated local benefits so as to create an impermissible indirect burden on interstate commerce." The District Court certified its decisions on the Williams Act and Commerce Clause claims as final under Federal Rule of Civil Procedure 54(b). CTS appealed the District Court's holdings on these claims to the Court of Appeals for the Seventh Circuit. Because of the
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CTS Corp. v. Dynamics Corp. of America
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Court of Appeals for the Seventh Circuit. Because of the imminence of CTS' annual meeting, the Court of Appeals consolidated and expedited the two appeals. On April 23 23 days after Dynamics first contested application of the Act in the District Court the Court of Appeals issued an order affirming the judgment of the District Court. The opinion followed on May 28. After disposing of a variety of questions not relevant to this appeal, the Court of Appeals examined Dynamics' claim that the Williams Act pre-empts the Indiana Act. The court looked first to the plurality opinion in in which three Justices found that the Williams Act pre-empts state statutes that upset the balance between target management and a tender offeror. The court noted that some commentators had disputed this view of the Williams Act, concluding instead that the Williams Act was "an anti-takeover statute, expressing a view, however benighted, *77 that hostile takeovers are bad." It also noted: "[I]t is a big leap from saying that the Williams Act does not itself exhibit much hostility to tender offers to saying that it implicitly forbids states to adopt more hostile regulations. But whatever doubts of the Williams' Act preemptive intent we might entertain as an original matter are stilled by the weight of precedent." Once the court had decided to apply the analysis of the MITE plurality, it found the case straightforward: "Very few tender offers could run the gauntlet that Indiana has set up. In any event, if the Williams Act is to be taken as a congressional determination that a month (roughly) is enough time to force a tender offer to be kept open, 50 days is too much; and 50 days is the minimum under the Indiana act if the target corporation so chooses." The court next addressed Dynamic's Commerce Clause challenge to the Act. Applying the balancing test articulated in the court found the Act unconstitutional: "Unlike a state's blue sky law the Indiana statute is calculated to impede transactions between residents of other states. For the sake of trivial or even negative benefits to its residents Indiana is depriving nonresidents of the valued opportunity to accept tender offers from other nonresidents. ". Even if a corporation's tangible assets are immovable, the efficiency with which they are employed and the proportions in which the earnings they generate are divided between management and shareholders depends on the market for corporate control an interstate, indeed international, market that the State of Indiana is not authorized to opt out of, as in effect it has done
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CTS Corp. v. Dynamics Corp. of America
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to opt out of, as in effect it has done in this statute." *78 Finally, the court addressed the "internal affairs" doctrine, a "principle of conflict of laws designed to make sure that the law of only one state shall govern the internal affairs of a corporation or other association." It stated: "We may assume without having to decide that Indiana has a broad latitude in regulating those affairs, even when the consequence may be to make it harder to take over an Indiana corporation. But in this case the effect on the interstate market in securities and corporate control is direct, intended, and substantial. [T]hat the mode of regulation involves jiggering with voting rights cannot take it outside the scope of judicial review under the commerce clause." Accordingly, the court affirmed the judgment of the District Court. Both Indiana and CTS filed jurisdictional statements. We noted probable jurisdiction under 28 U.S. C. 1254(2), and now reverse.[5] II The first question in these cases is whether the Williams Act pre-empts the Indiana Act. As we have stated frequently, absent an explicit indication by Congress of an intent to pre-empt state law, a state statute is pre-empted only *79 " `where compliance with both federal and state regulations is a physical impossibility' Florida Lime & Avocado Growers, or where the state `law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Because it is entirely possible for entities to comply with both the Williams Act and the Indiana Act, the state statute can be pre-empted only if it frustrates the purposes of the federal law. A Our discussion begins with a brief summary of the structure and purposes of the Williams Act. Congress passed the Williams Act in 1968 in response to the increasing number of hostile tender offers. Before its passage, these transactions were not covered by the disclosure requirements of the federal securities laws. See The Williams Act, backed by regulations of the SEC, imposes requirements in two basic areas. First, it requires the offeror to file a statement disclosing information about the offer, including: the offeror's background and identity; the source and amount of the funds to be used in making the purchase; the purpose of the purchase, including any plans to liquidate the company or make major changes in its corporate structure; and the extent of the offeror's holdings in the target company. See 15 U.S. C. 78n(d)(1) (incorporating 78m(d)(1) by reference); 17 CFR 240.13d-1, 240.14d-3 Second, the Williams Act, and the regulations that accompany it, establish procedural rules
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Act, and the regulations that accompany it, establish procedural rules to govern tender offers. For example, stockholders who tender their shares may withdraw them while the offer remains open, and, if the offeror has not purchased their shares, any time after 60 days from commencement of the 15 U.S. C. 78n(d)(5); 17 *80 CFR 240.14d-7(a)(1) as amended, The offer must remain open for at least 20 business days. 17 CFR 240.14e-1(a) If more shares are tendered than the offeror sought to purchase, purchases must be made on a pro rata basis from each tendering shareholder. 15 U.S. C. 78n(d)(6); 17 CFR 240.14(8) Finally, the offeror must pay the same price for all purchases; if the offering price is increased before the end of the offer, those who already have tendered must receive the benefit of the increased price. 78n(d)(7). B The Indiana Act differs in major respects from the Illinois statute that the Court considered in After reviewing the legislative history of the Williams Act, JUSTICE WHITE, joined by Chief Justice Burger and JUSTICE BLACKMUN (the plurality), concluded that the Williams Act struck a careful balance between the interests of offerors and target companies, and that any state statute that "upset" this balance was pre-empted. The plurality then identified three offending features of the Illinois statute. JUSTICE WHITE's opinion first noted that the Illinois statute provided for a 20-day precommencement period. During this time, management could disseminate its views on the upcoming offer to shareholders, but offerors could not publish their offers. The plurality found that this provision gave management "a powerful tool to combat tender offers." This contrasted dramatically with the Williams Act; Congress had deleted express precommencement notice provisions from the Williams Act. According to the plurality, Congress had determined that the potentially adverse consequences of such a provision on shareholders should be avoided. Thus, the plurality concluded that the Illinois provision "frustrate[d] the objectives of the Williams Act." The second criticized feature of *81 the Illinois statute was a provision for a hearing on a tender offer that, because it set no deadline, allowed management " `to stymie indefinitely a takeover,' " ). The plurality noted that " `delay can seriously impede a tender offer,' " 457 U.S., ), and that "Congress anticipated that investors and the takeover offeror would be free to go forward without unreasonable delay," Accordingly, the plurality concluded that this provision conflicted with the Williams Act. The third troublesome feature of the Illinois statute was its requirement that the fairness of tender offers would be reviewed by the Illinois Secretary of State. Nothing
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would be reviewed by the Illinois Secretary of State. Nothing that "Congress intended for investors to be free to make their own decisions," the plurality concluded that " `[t]he state thus offers investor protection at the expense of investor autonomy an approach quite in conflict with that adopted by Congress.' " (quoting MITE v. at ). C As the plurality opinion in MITE did not represent the views of a majority of the Court,[6] we are not bound by its reasoning. We need not question that reasoning, however, because we believe the Indiana Act passes muster even under the broad interpretation of the Williams Act articulated by JUSTICE WHITE in MITE. As is apparent from our summary of its reasoning, the overriding concern of the *82 MITE plurality was that the Illinois statute considered in that case operated to favor management against offerors, to the detriment of shareholders. By contrast, the statute now before the Court protects the independent shareholder against the contending parties. Thus, the Act furthers a basic purpose of the Williams Act, " `plac[ing] investors on an equal footing with the takeover bidder,' " (quoting the Senate Report accompanying the Williams Act, S. Rep. No. 550, 90th Cong., 1st Sess., 4 (19)).[7] The Indiana Act operates on the assumption, implicit in the Williams Act, that independent shareholders faced with tender offers often are at a disadvantage. By allowing such *83 shareholders to vote as a group, the Act protects them from the coercive aspects of some tender offers. If, for example, shareholders believe that a successful tender offer will be followed by a purchase of nontendering shares at a depressed price, individual shareholders may tender their shares even if they doubt the tender offer is in the corporation's best interest to protect themselves from being forced to sell their shares at a depressed price. As the SEC explains: "The alternative of not accepting the tender offer is virtual assurance that, if the offer is successful, the shares will have to be sold in the lower priced, second step." Two-Tier Tender Offer Pricing and Non-Tender Offer Purchase Programs, SEC Exchange Act Rel. No. 21079 (June 21, 1984), [1984 Transfer Binder] CCH (footnote omitted) (hereinafter SEC Release No. 21079). See Pruning Deadwood in Hostile Takeovers: A Proposal for Legislation, In such a situation under the Indiana Act, the shareholders as a group, acting in the corporation's best interest, could reject the offer, although individual shareholders might be inclined to accept it. The desire of the Indiana Legislature to protect shareholders of Indiana corporations from this type
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CTS Corp. v. Dynamics Corp. of America
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Legislature to protect shareholders of Indiana corporations from this type of coercive offer does not conflict with the Williams Act. Rather, it furthers the federal policy of investor protection. In implementing its goal, the Indiana Act avoids the problems the plurality discussed in MITE. Unlike the MITE statute, the Indiana Act does not give either management or the offeror an advantage in communicating with the shareholders about the impending The Act also does not impose an indefinite delay on tender offers. Nothing in the Act prohibits an offeror from consummating an offer on the 20th business day, the earliest day permitted under applicable federal regulations, see 17 CFR 240.14e-1(a) Nor does the Act allow the state government to interpose its views of fairness between willing buyers and sellers of shares *84 of the target company. Rather, the Act allows shareholders to evaluate the fairness of the offer collectively. D The Court of Appeals based its finding of pre-emption on its view that the practical effect of the Indiana Act is to delay consummation of tender offers until 50 days after the commencement of the 794 F.2d, As did the Court of Appeals, Dynamics reasons that no rational offeror will purchase shares until it gains assurance that those shares will carry voting rights. Because it is possible that voting rights will not be conferred until a shareholder meeting 50 days after commencement of the offer, Dynamics concludes that the Act imposes a 50-day delay. This, it argues, conflicts with the shorter 20-business-day period established by the SEC as the minimum period for which a tender offer may be held open. 17 CFR 240.14e-1 We find the alleged conflict illusory. The Act does not impose an absolute 50-day delay on tender offers, nor does it preclude an offeror from purchasing shares as soon as federal law permits. If the offeror fears an adverse shareholder vote under the Act, it can make a conditional tender offer, offering to accept shares on the condition that the shares receive voting rights within a certain period of time. The Williams Act permits tender offers to be conditioned on the offeror's subsequently obtaining regulatory approval. E. g., Interpretive Release Relating to Tender Offer Rules, SEC Exchange Act Rel. No. 34-16623 3 CCH284I, p. 17,758, quoted in MacFadden Holdings, v. JB Acquisition[8] There is no reason to doubt that *85 this type of conditional tender offer would be legitimate as well.[9] Even assuming that the Indiana Act imposes some additional delay, nothing in MITE suggested that any delay imposed by state regulation, however short, would create a conflict
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CTS Corp. v. Dynamics Corp. of America
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imposed by state regulation, however short, would create a conflict with the Williams Act. The plurality argued only that the offeror should "be free to go forward without unreasonable delay." In that case, the Court was confronted with the potential for indefinite delay and presented with no persuasive reason why some deadline could not be established. By contrast, the Indiana Act provides that full voting rights will be vested if this eventually is to occur within 50 days after commencement of the This period is within the 60-day period Congress established for reinstitution of withdrawal rights in 15 U.S. C. 78n(d)(5). We cannot say that a delay within that congressionally determined period is unreasonable. Finally, we note that the Williams Act would pre-empt a variety of state corporate laws of hitherto unquestioned validity if it were construed to pre-empt any state statute that may limit or delay the free exercise of power after a successful tender State corporate laws commonly permit corporations to stagger the terms of their directors. See Model Business Act 37 (1969 draft) in 3 Model Business Act Ann. (2d ed. 1971) (hereinafter MBCA); American *86 Bar Foundation, Revised Model Business Act 8.06 (1984 draft) (1985) (hereinafter RMBCA).[10] By staggering the terms of directors, and thus having annual elections for only one class of directors each year, corporations may delay the time when a successful offeror gains control of the board of directors. Similarly, state corporation laws commonly provide for cumulative voting. See 1 MBCA 33, ¶ 4; RMBCA 7.28.[11] By enabling minority shareholders to assure themselves of representation in each class of directors, cumulative voting provisions can delay further the ability of offerors to gain untrammeled authority over the affairs of the target corporation. See Hochman & Folger, Deflecting Takeovers: Charter and By-Law Techniques, 34 Bus. Law. 537, 538-539 (1979). In our view, the possibility that the Indiana Act will delay some tender offers is insufficient to require a conclusion that the Williams Act pre-empts the Act. The longstanding prevalence of state regulation in this area suggests that, if Congress had intended to pre-empt all state laws that delay the acquisition of voting control following a tender offer, it would have said so explicitly. The regulatory conditions that the Act places on tender offers are consistent with the text and the purposes of the Williams Act. Accordingly, we *87 hold that the Williams Act does not pre-empt the Indiana Act. III As an alternative basis for its decision, the Court of Appeals held that the Act violates the Commerce Clause of the Federal Constitution.
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CTS Corp. v. Dynamics Corp. of America
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the Act violates the Commerce Clause of the Federal Constitution. We now address this holding. On its face, the Commerce Clause is nothing more than a grant to Congress of the power "[t]o regulate Commerce among the several States." Art. I, 8, cl. 3. But it has been settled for more than a century that the Clause prohibits States from taking certain actions respecting interstate commerce even absent congressional action. See, e. g., The Court's interpretation of "these great silences of the Constitution," H. P. Hood & Sons, v. Du Mond, has not always been easy to follow. Rather, as the volume and complexity of commerce and regulation have grown in this country, the Court has articulated a variety of tests in an attempt to describe the difference between those regulations that the Commerce Clause permits and those regulations that it prohibits. See, e. g., Raymond Motor Transportation, v. Rice, A The principal objects of dormant Commerce Clause scrutiny are statutes that discriminate against interstate commerce. See, e. g., Lewis v. BT Investment Managers, ; See generally Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, The Indiana Act is not such a statute. It has the same effects on tender offers whether or not the offeror is a domiciliary or resident of Indiana. Thus, it "visits its effects equally upon both interstate and local business," Lewis v. BT Investment Managers, *88 Dynamics nevertheless contends that the statute is discriminatory because it will apply most often to out-of-state entities. This argument rests on the contention that, as a practical matter, most hostile tender offers are launched by offerors outside Indiana. But this argument avails Dynamics little. "The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce." Exxon v. Governor of See ; Commonwealth Edison Because nothing in the Indiana Act imposes a greater burden on out-of-state offerors than it does on similarly situated Indiana offerors, we reject the contention that the Act discriminates against interstate commerce. B This Court's recent Commerce Clause cases also have invalidated statutes that may adversely affect interstate commerce by subjecting activities to inconsistent regulations. E. g., Brown-Forman Distillers v. New York State Liquor Authority, ; ; Kassel v. Consolidated Freightways 1 See Southern Pacific ; The Indiana Act poses no such problem. So long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one State. No principle of corporation law
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