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Justice Ginsburg
| 1,997 | 5 |
dissenting
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McMillian v. Monroe County
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https://www.courtlistener.com/opinion/118118/mcmillian-v-monroe-county/
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are not listed with state office candidates. See Ala. Code 17-85 (1995). *800 Traditionally, Alabama sheriffs have had autonomy to formulate and execute law enforcement policy within the geographic confines of their counties. Under Alabama law, "[i]t shall be the duty of sheriffs in their respective counties to ferret out crime, to apprehend and arrest criminals and. to secure evidence of crimes." Ala. Code 36-22-3(4) ; see also Ala. Code 15-61 (1995) ("The sheriff is the principal conservator of the peace in his county, and it is his duty to suppress riots, unlawful assemblies and affrays. In the execution of such duty, he may summon to his aid as many of the men of his county as he thinks proper." ); 15-10-1 (sheriffs may make arrests "within their respective counties"). Monroe County pays Sheriff Tate's salary, see Ala. Code 36-22-16(a) and the sheriff operates out of an office provided, furnished, and equipped by the county, see 36-22-18. The obligation to fully equip the sheriff is substantial, requiring a county commission to "furnish the sheriff with the necessary quarters, books, stationery, office equipment, supplies, postage and other conveniences and equipment, including automobiles and necessary repairs, maintenance and all expenses incidental thereto." These obligations are of practical importance, for they mean that purse strings can be pulled at the county level; a county is obliged to provide a sheriff only what is "reasonably needed for the proper and efficient conduct of the affairs of the sheriff's office," How generously the sheriff will be equipped is likely to influence that officer's day-to-day conduct to a greater extent than the remote prospect of impeachment. See ; see also Geneva Cty. ; Ala. Code 36-22-16(a) ; 36-22-3(3) (sheriff must render to county treasurer a periodic written statement of moneys collected by sheriff on behalf of county). Sheriff Tate, in short, is in vital respects a county official. Indeed, one would be hard pressed to think of a single official who more completely represents the exercise of significant power within a county. See rev'd on other grounds,[2] The Court observes that it is "most importan[t]" to its holding that Alabama sheriffs "are given complete authority to enforce the state criminal law in their counties." See ante, at 790. If the Court means to suggest that Sheriff Tate should be classified as a state actor because he is enforcing state (as opposed to county or municipal) law, the Court proves far too much. Because most criminal laws are of statewide application, relying on whose law the sheriff enforces yields an all-state categorization of sheriffs, despite the Court's
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Justice Ginsburg
| 1,997 | 5 |
dissenting
|
McMillian v. Monroe County
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https://www.courtlistener.com/opinion/118118/mcmillian-v-monroe-county/
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enforces yields an all-state categorization of sheriffs, despite the Court's recognition that such blanket classification is inappropriate. See ante, at 786. Sheriffs in Arkansas, Texas, and Washington, just like sheriffs in Alabama, enforce *802 the State's law, but that does not make them policymakers for the State rather than the county. See ante, at 795-796, n. 10. In emphasizing that the Monroe County Commission cannot instruct Sheriff Tate how to accomplish his law enforcement mission, see ante, at 790, the Court indirectly endorses the Eleventh Circuit's reasoning: Because under Alabama law a county commission does not possess law enforcement authority, a sheriff's law enforcement activities cannot represent county policy. See There is an irony in this approach: If a county commission lacks law enforcement authority, then the sheriff becomes a state official; but if a county commission possesses such authority and directs the sheriff's activities, then the sheriff presumably would not be a final policymaker in the realm of law enforcement, see St. Moreover, in determining who makes county policy, this Court has never reasoned that all policymaking authority must be vested in a single body that either exercises that power or formally delegates it to another. Few local governments would fit that rigid model. Cf. Nor does Monell support such a constricted view of the exercise of municipal authority; there, we spoke of 1983 liability for acts by "lawmakers or by those whose edicts or acts may fairly be said to represent official policy." 436 U.S., at In this case, Sheriff Tate is "the county's final policymaker in the area of law enforcement, not by virtue of delegation by the county's governing body but, rather, by virtue of the office to which the sheriff has been elected." ; see also ; accord, An Alabama sheriff is a county policymaker because he independently exercises law enforcement authority for the county. In this most crucial respect, the Alabama arrangement resembles the "unique structure of county government" in Texas. See Turner, 915 F. 2d, at -137, cited ante, at 796, n. 10. The Court also suggests that because the Governor can direct a sheriff to investigate a violation of law in the county, an Alabama sheriff must be a state, not a county, official. See ante, at 791 ). It is worth noting that a group of county citizens can likewise trigger an investigation by the sheriff. See 36-22-6(b). The respondent, Monroe County, did not inform us whether the Governor directs county sheriffs to conduct investigations with any regularity. More important, there is no suggestion that Sheriff Tate was proceeding under the
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Justice Ginsburg
| 1,997 | 5 |
dissenting
|
McMillian v. Monroe County
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https://www.courtlistener.com/opinion/118118/mcmillian-v-monroe-county/
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is no suggestion that Sheriff Tate was proceeding under the Governor's direction when Tate pursued the investigation that led to McMillian's Death Row confinement. If Sheriff Tate were acting on instruction from the Governor, this would be a very different case. But the bare possibility that a Governor might sometime direct a sheriff's law enforcement activities does not lessen the sheriff's authority, as the final county policymaker, in the general run of investigations the sheriff undertakes. II The Court's reliance on "the ancient understanding of what it has meant to be a sheriff," ante, at 795, is no more persuasive than its interpretation of Alabama law. This emphasis on the historical understanding of the office of sheriff implies, again, an all-state categorization of sheriffs throughout the Nation; but because the Court expressly disclaims such a "blunderbuss" approach, that cannot be what *804 this history lesson is intended to convey. In England, it is true, the sheriff did perform "the king's business in the county." 1 W. Blackstone, Commentaries *339. But the English sheriff, as Blackstone described him, was far closer to the crown than his contemporary counterpart is to the central state government. While sheriffs were for a time chosen locally, "[t]his election," according to Blackstone, "was in all probability not absolutely vested in the [inhabitants of the counties], but required the royal approbation." Eventually, the king chose the sheriff from a list proposed by the judges and other great officers. See *341. Whatever English history may teach, "[t]hroughout U. S. history, the sheriff has remained the principal law enforcement officer in the county." G. Felkenes, The Criminal Justice System: Its Functions and Personnel 53 (1973); see In the United States, "[i]n order to reserve control over the sheriff's department and its police functions, the people made the sheriff an elective officer." It is this status as the county's law enforcement officer chosen by the county's residents that is at the root of the contemporary understanding of the sheriff as a county officer. * * * A sheriff locally elected, paid, and equipped, who autonomously sets and implements law enforcement policies operative within the geographic confines of a county, is ordinarily just what he seems to be: a county official. Nothing in Alabama law warrants a different conclusion. It makes scant sense to treat sheriffs' activities differently based on the presence or absence of state constitutional provisions of the limited kind Alabama has adopted. The Court's Alabama-specific approach, however, assures that today's immediate holding is of limited reach. The Court does not appear to question that an Alabama sheriff may
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Justice O'Connor
| 1,997 | 14 |
majority
|
Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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Today we clarify the relationship between 2 and 5 of the Voting Rights Act of 1965, 439, as amended, 42 U.S. C. 1973, 1973c. Specifically, we decide two questions: (i) whether preclearance must be denied under 5 whenever a covered jurisdiction's new voting "standard, practice, or procedure" violates 2; and (ii) whether evidence that a new "standard, practice, or procedure" has a dilutive impact is always irrelevant to the inquiry whether the covered jurisdiction acted with "the purpose of denying or abridging the right to vote on account of race or color" under 5. We answer both in the negative. I Appellee Bossier Parish School Board (Board) is a jurisdiction subject to the preclearance requirements of 5 of the Voting Rights Act of 1965, 42 U.S. C. 1973c, and must therefore obtain the approval of either the United States Attorney General or the United States District Court for the District of Columbia before implementing any changes to a voting "qualification, prerequisite, standard, practice, or procedure." The Board has 12 members who are elected from single-member districts by majority vote to serve 4-year terms. When the 1990 census revealed wide population disparities among its districts, see App. to Juris. Statement 93a (Stipulations of Fact and Law ¶ 82), the Board decided to redraw the districts to equalize the population distribution. During this process, the Board considered two redistricting plans. It considered, and initially rejected, the redistricting plan that had been recently adopted by the Bossier Parish Police Jury, the parish's primary governing body (the Jury plan), to govern its own elections. Just months before, the Attorney General had precleared the Jury plan, which contained 12 districts. at 88a (Stipulations ¶ 68). None of the 12 districts in the Board's existing plan or in the Jury plan contained a majority of black residents. at *475 93a (Stipulations ¶ 82) (under 1990 population statistics in the Board's existing districts, the three districts with highest black concentrations contain 46.63%, 43.79%, and 30.13% black residents, respectively); at 85a (Stipulations ¶ 59) (population statistics for the Jury plan, with none of the plan's 12 districts containing a black majority). Because the Board's adoption of the Jury plan would have maintained the status quo regarding the number of black-majority districts, the parties stipulated that the Jury plan was not "retrogressive." a (Stipulations ¶ 252) ("The plan is not retrogressive to minority voting strength compared to the existing benchmark plan"). Appellant George Price, president of the local chapter of the National Association for the Advancement of Colored People (NAACP), presented the Board with a second optiona plan that
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Justice O'Connor
| 1,997 | 14 |
majority
|
Reno v. Bossier Parish School Bd.
|
https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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(NAACP), presented the Board with a second optiona plan that created two districts each containing not only a majority of black residents, but a majority of voting-age black residents. at 98a (Stipulations ¶ 98). Over vocal opposition from local residents, black and white alike, the Board voted to adopt the Jury plan as its own, reasoning that the Jury plan would almost certainly be precleared again and that the NAACP plan would require the Board to split 46 electoral precincts. But the Board's hopes for rapid preclearance were dashed when the Attorney General interposed a formal objection to the Board's plan on the basis of "new information" not available when the Justice Department had precleared the plan for the Police Jurynamely, the NAACP's plan, which demonstrated that "black residents are sufficiently numerous and geographically compact so as to constitute a majority in two single-member districts." at 155a156a (Attorney General's August 30, 1993, objection letter). The objection letter asserted that the Board's plan violated 2 of the Act, 42 U.S. C. 1973, because it "unnecessarily limit[ed] the opportunity for minority voters to elect their candidates of choice," App. to Juris. Statement, at 156a, as compared to the new alternative. Relying on 28 CFR 51.55(b)(2) which *476 provides that the Attorney General shall withhold preclearance where "necessary to prevent a clear violation of amended Section 2 [42 U.S. C. 1973]," the Attorney General concluded that the Board's redistricting plan warranted a denial of preclearance under 5. App. to Juris. Statement 157a. The Attorney General declined to reconsider the decision. The Board then filed this action seeking preclearance under 5 in the District Court for the District of Columbia. Appellant Price and others intervened as defendants. The three-judge panel granted the Board's request for preclearance, over the dissent of one judge. The District Court squarely rejected the appellants' contention that a voting change's alleged failure to satisfy 2 constituted an independent reason to deny preclearance under 5: "We hold, as has every court that has considered the question, that a political subdivision that does not violate either the `effect' or the `purpose' prong of section 5 cannot be denied preclearance because of an alleged section 2 violation." Given this holding, the District Court quite properly expressed no opinion on whether the Jury plan in fact violated 2, and its refusal to reach out and decide the issue in dicta does not require us, as Justice Stevens insists, to "assume that the record discloses a `clear violation' of 2." See post, at 499 (opinion dissenting in part and concurring in part). That issue has
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Justice O'Connor
| 1,997 | 14 |
majority
|
Reno v. Bossier Parish School Bd.
|
https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
|
dissenting in part and concurring in part). That issue has yet to be decided by any court. The District Court did, however, reject appellants' related argument that a court "must still consider evidence of a section 2 violation as evidence of discriminatory purpose under section 5." We noted probable jurisdiction on June 3, 1996. The Voting Rights Act of 1965 (Act), 42 U.S. C. 1973 et seq., was enacted by Congress in 1964 to "attac[k] the blight of voting discrimination" across the Nation. S. Rep. No. 97 *477 417, 2d Sess., p. 4 ; South Two of the weapons in the Federal Government's formidable arsenal are 5 and 2 of the Act. Although we have consistently understood these sections to combat different evils and, accordingly, to impose very different duties upon the States, see (noting how the two sections "differ in structure, purpose, and application"), appellants nevertheless ask us to hold that a violation of 2 is an independent reason to deny preclearance under 5. Unlike Justice Stevens, post, at 502-503, and n. 5 (opinion dissenting in part and concurring in part), we entertain little doubt that the Department of Justice or other litigants would "routinely" attempt to avail themselves of this new reason for denying preclearance, so that recognizing 2 violations as a basis for denying 5 preclearance would inevitably make compliance with 5 contingent upon compliance with 2. Doing so would, for all intents and purposes, replace the standards for 5 with those for 2. Because this would contradict our longstanding interpretation of these two sections of the Act, we reject appellants' position. Section 5, 42 U.S. C. 1973c, was enacted as "a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. Congress therefore decided, as the Supreme Court held it could, `to shift the advantage of time and inertia from the perpetrators of the evil to its victim,' by `freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.' " In light of this limited purpose, 5 applies only to certain States and their political subdivisions. Such a covered jurisdiction *478 may not implement any change in a voting "qualification, prerequisite, standard, practice, or procedure" unless it first obtains either administrative preclearance of that change from the Attorney General or judicial preclearance from the District Court for the District of Columbia. 42 U.S. C. 1973c. To obtain judicial preclearance, the jurisdiction bears the burden of proving that
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
|
https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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judicial preclearance, the jurisdiction bears the burden of proving that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." ; City of Because 5 focuses on "freez[ing] election procedures," a plan has an impermissible "effect" under 5 only if it "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Retrogression, by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan. See at ("Under 5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change"). It necessarily implies that the jurisdiction's existing plan is the benchmark against which the "effect" of voting changes is measured. In for example, we concluded that the city of New Orleans' reapportionment of its council districts, which created one district with a majority of voting-age blacks where before there had been none, had no discriminatory "effect." 425 U.S., -142 ("It is thus apparent that a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the `effect' of diluting or abridging the right to vote on account of race within the meaning of 5"). Likewise, in City of we found that the city's new charter had no retrogressive "effect" even though it maintained *479 the city's prior practice of electing its council members atlarge from numbered posts, and instituted a new practice of electing two of the city's four council members every year (instead of electing all the council members every two years). While each practice could "have a discriminatory effect under some circumstances," the fact remained that "[s]ince the new plan did not increase the degree of discrimination against [the city's Mexican-American population], it was entitled to 5 preclearance [because it was not retrogressive]," Section 2, on the other hand, was designed as a means of eradicating voting practices that "minimize or cancel out the voting strength and political effectiveness of minority groups," S. Rep. No. at 28. Under this broader mandate, 2 bars all States and their political subdivisions from maintaining any voting "standard, practice, or procedure" that "results in a denial or abridgement of the right to vote on account of race or color." 42 U.S. C. 1973(a). A voting practice is impermissibly dilutive within the meaning of 2 "if, based on the totality of the circumstances, it is shown that the political processes
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [members of a class defined by race or color] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S. C. 1973(b). A plaintiff claiming vote dilution under 2 must initially establish that: (i) "[the racial group] is sufficiently large and geographically compact to constitute a majority in a singlemember district"; (ii) the group is "politically cohesive"; and (iii) "the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate." *480 ; The plaintiff must demonstrate that the totality of the circumstances supports a finding that the voting scheme is dilutive. ; see Because the very concept of vote dilution impliesand, indeed, necessitatesthe existence of an "undiluted" practice against which the fact of dilution may be measured, a 2 plaintiff must postulate a reasonable alternative voting practice to serve as the benchmark "undiluted" voting practice. ; Appellants contend that preclearance must be denied under 5 whenever a covered jurisdiction's redistricting plan violates 2. The upshot of this position is to shift the focus of 5 from nonretrogression to vote dilution, and to change the 5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan. But 5, we have held, is designed to combat only those effects that are retrogressive. See To adopt appellants' position, we would have to call into question more than 20 years of precedent interpreting 5. See, e. g., City of This we decline to do. Section 5 already imposes upon a covered jurisdiction the difficult burden of proving the absence of discriminatory purpose and effect. See, e. g., To require a jurisdiction to litigate whether its proposed redistricting plan has a dilutive "result" before it can implement that planeven if the Attorney General bears the burden of proving that "result"is to increase further the serious federalism costs already implicated by 5. See (noting the "federalism costs exacted by 5 preclearance"). *481 Appellants nevertheless contend that we should adopt their reading of 5 because it is supported by our decision in by the Attorney General's regulations, and by considerations of public policy. In we held that 5 prohibited only retrogressive effects and further observed that "an ameliorative new legislative apportionment cannot violate 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution." 425
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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of race or color as to violate the Constitution." 425 U.S., Although there had been no allegation that the redistricting plan in "so discriminate[d] on the basis of race or color as to be unconstitutional," we cited in dicta a few cases to illustrate when a redistricting plan might be found to be constitutionally offensive. Among them was our decision in in which we sustained a vote dilution challenge, brought under the Equal Protection Clause, to the use of multimember election districts in two Texas counties. Appellants argue that "[b]ecause vote dilution standards under the Constitution and Section 2 were generally coextensive at the time was decided, `s discussion meant that practices that violated Section 2 would not be entitled to preclearance under Section 5." Brief for Federal Appellant 36-37. Even assuming, arguendo, that appellants' argument had some support in 1976, it is no longer valid today because the applicable statutory and constitutional standards have changed. Since 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the State or political subdivision acted with a discriminatory purpose. See ("Our decisions have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose"); ; see Arlington When Congress amended 2 in it clearly expressed its desire that 2 not have an intent component, see S. Rep. No. at 2 ("Th[e ] amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2"). Because now the Constitution requires a showing of intent that 2 does not, a violation of 2 is no longer a fortiori a violation of the Constitution. Congress itself has acknowledged this fact. See Justice Stevens argues that the subsequent divergence of constitutional and statutory standards is of no moment because, in his view, we "did not [in ] purport to distinguish between challenges brought under the Constitution and those brought under the [Voting Rights] statute." Post, at 504 (opinion dissenting in part and concurring in part). Our citation to White, he posits, incorporated White `s standard into our exception for nonretrogressive apportionments that violate 5, whether or not that standard continued to coincide with the constitutional standard. In essence, Justice Stevens reads as creating an exception for nonretrogressive apportionments that so discriminate on the basis of race or color as to violate any federal law that happens to coincide with what would have amounted to a constitutional violation in 1976. But this
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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have amounted to a constitutional violation in 1976. But this reading flatly contradicts the plain language of the exception we recognized, which applies solely to apportionments that "so discriminat[e] on the basis of race or color as to violate the Constitution. " We cited White, not for itself, but because it embodied the current *483 constitutional standard for a violation of the Equal Protection Clause. See n. 14 (noting that New Orleans' plan did "not remotely approach a violation of the constitutional standards enunciated in" White and other cited cases ). When White ceased to represent the current understanding of the Constitution, a violation of its standardeven though that standard was later incorporated in 2no longer constituted grounds for denial of preclearance under Appellants' next claim is that we must defer to the Attorney General's regulations interpreting the Act, one of which states: "In those instances in which the Attorney General concludes that, as proposed, the submitted change is free of discriminatory purpose and retrogressive effect, but concludes that a bar to implementation of the change is necessary to prevent a clear violation of amended Section 2, the Attorney General shall withhold Section 5 preclearance." 28 CFR 51.55(b)(2) Although we normally accord the Attorney General's construction of the Act great deference, "we only do so if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable." Given our longstanding interpretation of 5, see 480-482 and this page, which Congress has declined to alter by amending the language of 5, Arkansas Best we believe Congress has made it sufficiently clear that a violation of 2 is not grounds in and of itself for denying preclearance under 5. That there may be some suggestion to the contrary in the Senate Report to the Voting Rights Act amendments, S. Rep. No. does not *484 change our view. With those amendments, Congress, among other things, renewed 5 but did so without changing its applicable standard. We doubt that Congress would depart from the settled interpretation of 5 and impose a demonstrably greater burden on the jurisdictions covered by 5, see by dropping a footnote in a Senate Report instead of amending the statute itself. See See City of Nor does the portion of the House Report cited by Justice Stevens unambiguously call for the incorporation of 2 into 5. That portion of the Report states: "[M]any voting and election practices currently in effect are outside the scope of [ 5] because they were in existence before 1965. Under the Voting Rights Act, whether a
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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existence before 1965. Under the Voting Rights Act, whether a discriminatory practice or procedure is of recent origin affects only the mechanism that triggers relief, i. e., litigation [under 2] or preclearance [under 5]." H. R. Rep. No. 97-227, p. 28 (1981). The obvious thrust of this passage is to establish that pre1965 discriminatory practices are not free from scrutiny under the Act just because they need not be precleared under 5: Such practices might still violate 2. But to say that pre-1965 practices can be reached solely by 2 is not to say that all post-1965 changes that might violate 2 may be reached by both 2 and 5 or that "the substantive standards for 2 and 5 [are] the same," see post, at 506 (opinion dissenting in part and concurring in part). Our ultimate conclusion is not undercut by statements found in the "postenactment legislative record," see post, at 506, n. 9, given that "the views of a subsequent Congress form a hazardous *485 basis for inferring the intent of an earlier one." United We therefore decline to give these sources controlling weight. Appellants' final appeal is to notions of public policy. They assert that if the district court or Attorney General examined whether a covered jurisdiction's redistricting plan violates 2 at the same time as ruling on preclearance under 5, there would be no need for two separate actions and judicial resources would be conserved. Appellants are undoubtedly correct that adopting their interpretation of 5 would serve judicial economy in those cases where a 2 challenge follows a 5 proceeding. But this does not always happen, and the burden on judicial resources might actually increase if appellants' position prevailed because 2 litigation would effectively be incorporated into every 5 proceeding. Appellants lastly argue that preclearance is an equitable remedy, obtained through a declaratory judgment action in district court, see 42 U.S. C. 1973c, or through the exercise of the Attorney General's discretion, see 28 CFR 51.52(a) A finding that a redistricting plan violates 2 of the Act, they contend, is an equitable "defense," on the basis of which a decisionmaker should, in the exercise of its equitable discretion, be free to deny preclearance. This argument, however, is an attempt to obtain through equity that which the lawi. e., the settled interpretation of 5forbids. Because "it is well established that `[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law,' " this argument must fail. Of course, the Attorney General or a private plaintiff remains free to initiate a 2
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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or a private plaintiff remains free to initiate a 2 proceeding if either believes that a jurisdiction's newly enacted voting "qualification, prerequisite, standard, practice, or procedure" may violate that section. All we hold today is that preclearance under 5 may not be denied on that basis alone. *486 I Appellants next contend that evidence showing that a jurisdiction's redistricting plan dilutes the voting power of minorities is at least relevant in a 5 proceeding because it tends to prove that the jurisdiction enacted its plan with a discriminatory "purpose." The District Court, reasoning that "[t]he line [between 2 and 5] cannot be blurred by allowing a defendant to do indirectly what it cannot do directly," 907 F. Supp., rejected this argument and held that it "will not permit section 2 evidence to prove discriminatory purpose under section 5," Because we hold that some of this " 2 evidence" may be relevant to establish a jurisdiction's "intent to retrogress" and cannot say with confidence that the District Court considered the evidence proffered to show that the Board's reapportionment plan was dilutive, we vacate this aspect of the District Court's holding and remand. In light of this conclusion, we leave open for another day the question whether the 5 purpose inquiry ever extends beyond the search for retrogressive intent. See Kentucky Dept. of Reserving this question is particularly appropriate when, as in this suit, it was not squarely addressed by the decision below or in the parties' briefs on appeal. See Brief for Federal Appellant 23; Brief for Appellant Price et al. 31-33, 34-35; Brief for Appellee 42-43. But in doing so, we do not, contrary to Justice Stevens' view, see post, at 499 (opinion dissenting in part and concurring in part), necessarily assume that the Board enacted the Jury plan with some nonretrogressive, but nevertheless discriminatory, "purpose." The existence of such a purpose, and its relevance to 5, are issues to be decided on remand. Although 5 warrants a denial of preclearance if a covered jurisdiction's voting change "ha[s] the purpose [or] the effect of denying or abridging the right to vote on account *487 of race or color," 42 U.S. C. 1973c, we have consistently interpreted this language in light of the purpose underlying 5"to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities." 425 U. S., Accordingly, we have adhered to the view that the only "effect" that violates 5 is a retrogressive one. ; City of 460 U. S., Evidence is "relevant" if it has "any tendency
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Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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U. S., Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. Rule Evid. 1. As we observed in Arlington the impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions. Thus, a jurisdiction that enacts a plan having a dilutive impact is more likely to have acted with a discriminatory intent to dilute minority voting strength than a jurisdiction whose plan has no such impact. A jurisdiction that acts with an intent to dilute minority voting strength is more likely to act with an intent to worsen the position of minority votersi. e., an intent to retrogressthan a jurisdiction acting with no intent to dilute. The fact that a plan has a dilutive impact therefore makes it "more probable" that the jurisdiction adopting that plan acted with an intent to retrogress than "it would be without the evidence." To be sure, the link between dilutive impact and intent to retrogress is far from direct, but "the basic standard of relevance is a liberal one," and one we think is met here. That evidence of a plan's dilutive impact may be relevant to the 5 purpose inquiry does not, of course, mean that such evidence is dispositive of that inquiry. In fact, we have previously observed that a jurisdiction's single decision to choose a redistricting plan that has a dilutive impact does not, without *488 more, suffice to establish that the jurisdiction acted with a discriminatory purpose. ("[W]e doubt that a showing of discriminatory effect under 2, alone, could support a claim of discriminatory purpose under 5"). This is true whether the jurisdiction chose the more dilutive plan because it better comported with its traditional districting principles, see ; or if it chose the plan for no reason at all. Indeed, if a plan's dilutive impact were dispositive, we would effectively incorporate 2 into 5, which is a result we find unsatisfactory no matter how it is packaged. See Part As our discussion illustrates, assessing a jurisdiction's motivation in enacting voting changes is a complex task requiring a "sensitive inquiry into such circumstantial and direct evidence as may be available." Arlington In conducting this inquiry, courts should look to our decision in Arlington for guidance. There, we set forth a framework for analyzing "whether invidious discriminatory purpose was a motivating factor" in a government
|
Justice O'Connor
| 1,997 | 14 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118107/reno-v-bossier-parish-school-bd/
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invidious discriminatory purpose was a motivating factor" in a government body's decisionmaking. In addition to serving as the framework for examining discriminatory purpose in cases brought under the Equal Protection Clause for over two decades, see, e. g., v. Reno, (citing Arlington standard in context of Equal Protection Clause challenge to racial gerrymander of districts); (evaluating vote dilution claim under Equal Protection Clause using Arlington test); -74 the Arlington framework has been used, at least in part, to evaluate purpose in our previous 5 cases. See Pleasant 479 U.S. 4, ; see summarily aff'd, (referring to Arlington test); Port The "important starting point" for assessing discriminatory intent under Arlington is "the impact of the official action whether it `bears more heavily on one race than another.' " ). In a 5 case, "impact" might include a plan's retrogressive effect and, for the reasons discussed above, its dilutive impact. Other considerations relevant to the purpose inquiry include, among other things, "the historical background of the [jurisdiction's] decision"; "[t]he specific sequence of events leading up to the challenged decision"; "[d]epartures from the normal procedural sequence"; and "[t]he legislative or administrative history, especially [any] contemporary statements by members of the decisionmaking body." -268. We are unable to determine from the District Court's opinion in this action whether it deemed irrelevant all evidence of the dilutive impact of the redistricting plan adopted by the Board. At one point, the District Court correctly stated that "the adoption of one nonretrogressive plan rather than another nonretrogressive plan that contains more majorityblack districts cannot by itself give rise to the inference of discriminatory intent." This passage implies that the District Court believed that the existence of less dilutive options was at least relevant to, though not dispositive of, its purpose inquiry. While this language is consistent with our holding today, see the District Court declared that "we will not permit section 2 evidence to prove discriminatory purpose under section 5," With this statement, the District Court appears to endorse the notion that evidence *490 of dilutive impact is irrelevant even to an inquiry into retrogressive intent, a notion we reject. See The Board contends that the District Court actually "presumed that white majority districts had [a dilutive] effect," Brief for Appellee 35, and "cut directly to the dispositive question `started' by the existence of [a dilutive] impact: did the Board have `legitimate, nondiscriminatory motives' for adopting its plan[?]" Even if the Board were correct, the District Court gave no indication that it was assuming the plan's dilutive effect, and we hesitate to attribute to the District Court
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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The United brought this action for injunctive relief against alleged violation by Topco Associates, (Topco), of 1 of the Sherman Act, as amended, 1 U.S. C. 1. Jurisdiction was grounded in 4 of the Act, 1 U.S. C. 4. Following a trial on the merits, the United District Court for the Northern District of Illinois entered judgment for Topco, and the United appealed directly to this Court pursuant to 2 of the Expediting Act, as amended, 1 U.S. C. 29. We noted probable jurisdiction, and we now reverse the judgment of the District Court. *98 I Topco is a cooperative association of approximately 2 small and medium-sized regional supermarket chains that operate stores in some 33[1] Each of the member chains operates independently; there is no pooling of earnings, profits, capital, management, or advertising resources. No grocery business is conducted under the Topco name. Its basic function is to serve as a purchasing agent for its members.[2] In this capacity, it procures and distributes to the members more than 1,000 different food and related nonfood items, most of which are distributed under brand names owned by Topco. The association does not itself own any manufacturing, processing, or warehousing facilities, and the items that it procures for members are usually shipped directly from the packer or manufacturer to the members. Payment is made either to Topco or directly to the manufacturer at a cost that is virtually the same for the members as for Topco itself. All of the stock in Topco is owned by the members, with the common stock, the only stock having voting rights, being equally distributed. The board of directors, which controls the operation of the association, is drawn from the members and is normally composed of high-ranking executive officers of member chains. It is the board that elects the association's officers and appoints *99 committee members, and it is from the board that the principal executive officers of Topco must be drawn. Restrictions on the alienation of stock and the procedure for selecting all important officials of the association from within the ranks of its members give the members complete and unfettered control over the operations of the association. Topco was founded in the 1940's by a group of small, local grocery chains, independently owned and operated, that desired to cooperate to obtain high quality merchandise under private labels in order to compete more effectively with larger national and regional chains.[3] With a line of canned, dairy, and other products, the *600 association began. It added frozen foods in 190, fresh produce in 198, more general
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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frozen foods in 190, fresh produce in 198, more general merchandise equipment and supplies in 1960, and a branded bacon and carcass beef selection program in 1966. By 1964, Topco's members had combined retail sales of more than $2 billion; by 1967, their sales totaled more than $2.3 billion, a figure exceeded by only three national grocery chains.[4] Members of the association vary in the degree of market share that they possess in their respective areas. The range is from 1.% to 16%, with the average being approximately 6%. While it is difficult to compare these figures with the market shares of larger regional and national chains because of the absence in the record of accurate statistics for these chains, there is much evidence in the record that Topco members are frequently in as strong a competitive position in their respective areas as any other chain. The strength of this competitive position is due, in some measure, to the success of Topco-brand products. Although only 10% of the total goods sold by Topco members bear the association's brand names, the profit on these goods is substantial and their very existence has improved the competitive potential of Topco members with respect to other large and powerful chains. It is apparent that from meager beginnings approximately a quarter of a century ago, Topco has developed into a purchasing association wholly owned and operated by member chains, which possess much economic muscle, individually as well as cooperatively. II Section 1 of the Sherman Act provides, in relevant part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of *601 trade or commerce among the several or with foreign nations, is declared to be illegal" The United charged that, beginning at least as early as 1960 and continuing up to the time that the complaint was filed, Topco had combined and conspired with its members to violate 1[] in two respects. First, the Government alleged that there existed: "a continuing agreement, understanding and concert of action among the co-conspirator member firms acting through Topco, the substantial terms of which have been and are that each co-conspirator member firm will sell Topco-controlled brands only within the marketing territory allocated to it, and will refrain from selling Topco-controlled brands outside such marketing territory." The division of marketing territories to which the complaint refers consists of a number of practices by the association. Article IX, 2, of the Topco bylaws establishes three categories of territorial licenses that members may secure from the association: "(a) ExclusiveAn exclusive territory is one in which the
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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association: "(a) ExclusiveAn exclusive territory is one in which the member is licensed to sell all products bearing specified trademarks of the Association, to the exclusion of all other persons. "(b) Non-exclusiveA non-exclusive territory is one in which a member is licensed to sell all products bearing specified trademarks of the Association, but not to the exclusion of others who may also be licensed to sell products bearing the same trademarks of the Association in the same territory. "(c) CoextensiveA coextensive territory is one *602 in which two (2) or more members are licensed to sell all products bearing specified trademarks of the Association to the exclusion of all other persons." When applying for membership, a chain must designate the type of license that it desires. Membership must first be approved by the board of directors, and thereafter by an affirmative vote of 7% of the association's members. If, however, the member whose operations are closest to those of the applicant, or any member whose operations are located within 100 miles of the applicant, votes against approval, an affirmative vote of 8% of the members is required for approval. Bylaws, Art. I, Because, as indicated by the record, members cooperate in accommodating each other's wishes, the procedure for approval provides, in essence, that members have a veto of sorts over actual or potential competition in the territorial areas in which they are concerned. Following approval, each new member signs an agreement with Topco designating the territory in which that member may sell Topco-brand products. No member may sell these products outside the territory in which it is licensed. Most licenses are exclusive, and even those denominated "coextensive" or "non-exclusive" prove to be de facto exclusive. Exclusive territorial areas are often allocated to members who do no actual business in those areas on the theory that they may wish to expand at some indefinite future time and that expansion would likely be in the direction of the allocated territory. When combined with each member's veto power over new members, provisions for exclusivity work effectively to insulate members from competition in Topco-brand goods. Should a member violate its license agreement and sell in areas other than those in which it is licensed, its membership can be terminated under Art. IV, 2 (a) and 2 (b) of the *603 bylaws. Once a territory is classified as exclusive, either formally or de facto, it is extremely unlikely that the classification will ever be changed. See Bylaws, Art. IX. The Government maintains that this scheme of dividing markets violates the Sherman Act because it operates
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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of dividing markets violates the Sherman Act because it operates to prohibit competition in Topco-brand products among grocery chains engaged in retail operations. The Government also makes a subsidiary challenge to Topco's practices regarding licensing members to sell at wholesale. Under the bylaws, members are not permitted to sell any products supplied by the association at wholesale, whether trademarked or not, without first applying for and receiving special permission from the association to do so.[6] Before permission is granted, other licenses (usually retailers), whose interests may potentially be affected by wholesale operations, are consulted as to their wishes in the matter. If permission is obtained, the member must agree to restrict *604 the sale of Topco products to a specific geographic area and to sell under any conditions imposed by the association. Permission to wholesale has often been sought by members, only to be denied by the association. The Government contends that this amounts not only to a territorial restriction violative of the Sherman Act, but also to a restriction on customers that in itself is violative of the Act.[7] From the inception of this lawsuit, Topco accepted as true most of the Government's allegations regarding territorial divisions and restrictions on wholesaling, although it differed greatly with the Government on the conclusions, both factual and legal, to be drawn from these facts. Topco's answer to the complaint is illustrative of its posture in the District Court and before this Court: "Private label merchandising is a way of economic life in the food retailing industry, and exclusivity is the essence of a private label program; without exclusivity, a private label would not be private. Each national and large regional chain has its own exclusive private label products in addition to the nationally advertised brands which all chains sell. Each such chain relies upon the exclusivity of its own private label line to differentiate its private *60 label products from those of its competitors and to attract and retain the repeat business and loyalty of consumers. Smaller retail grocery stores and chains are unable to compete effectively with the national and large regional chains without also offering their own exclusive private label products. "The only feasible method by which Topco can procure private label products and assure the exclusivity thereof is through trademark licenses specifying the territory in which each member may sell such trademarked products." Answer, App. 11. Topco essentially maintains that it needs territorial divisions to compete with larger chains; that the association could not exist if the territorial divisions were anything but exclusive; and that by restricting competition in
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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were anything but exclusive; and that by restricting competition in the sale of Topco-brand goods, the association actually increases competition by enabling its members to compete successfully with larger regional and national chains. The District Court, considering all these things relevant to its decision, agreed with Topco. It recognized that the panoply of restraints that Topco imposed on its members worked to prevent competition in Topco-brand products,[8] but concluded that "[w]hatever anti-competitive effect these practices may have on competition in the sale of Topco private *606 label brands is far outweighed by the increased ability of Topco members to compete both with the national chains and other supermarkets operating in their respective territories." The court held that Topco's practices were procompetitive and, therefore, consistent with the purposes of the antitrust laws. But we conclude that the District Court used an improper analysis in reaching its result. III On its face, 1 of the Sherman Act appears to bar any combination of entrepreneurs so long as it is "in restraint of trade." Theoretically, all manufacturers, distributors, merchants, sellers, and buyers could be considered as potential competitors of each other. Were 1 to be read in the narrowest possible way, any commercial contract could be deemed to violate it. Chicago Board of The history underlying the formulation of the antitrust laws led this Court to conclude, however, that Congress did not intend to prohibit all contracts, nor even all contracts that might in some insignificant degree or attenuated sense restrain trade or competition. In lieu of the narrowest possible reading of 1, the Court adopted a "rule of reason" analysis for determining *607 whether most business combinations or contracts violate the prohibitions of the Sherman Act. Standard Oil An analysis of the reasonableness of particular restraints includes consideration of the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption. Chicago Board of at While the Court has utilized the "rule of reason" in evaluating the legality of most restraints alleged to be violative of the Sherman Act, it has also developed the doctrine that certain business relationships are per se violations of the Act without regard to a consideration of their reasonableness. In Northern Pacific R. Mr. Justice Black explained the appropriateness of, and the need for, per se rules: "[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonablean inquiry so often wholly fruitless when undertaken." It is only after considerable experience with certain business relationships that courts classify them as per se *608 violations of the Sherman Act. See generally Van Cise, The Future of Per Se in Antitrust Law, 0 Va. L. Rev. 116 One of the classic examples of a per se violation of 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a "horizontal" restraint, in contradistinction to combinations of persons at different levels of the market structure, e. g., manufacturers and distributors, which are termed "vertical" restraints. This Court has reiterated time and time again that "[h]orizontal territorial limitations are naked restraints of trade with no purpose except stifling of competition." White Motor 372 U.S. 23, Such limitations are per se violations of the Sherman Act. See Addyston Pipe & Steel 17 U.S. 211 aff'g 8 F. 271 ; United v. National Lead ; Timken Roller Bearing 341 U.S. 93 (191); Northern Pacific R. Citizen Publishing ; United v. Sealy, 388 U.S. 30 ; United v. Arnold, Schwinn & 388 U.S. 36, ; Serta Associates, v. United 393 U.S. 34 aff'g We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of 1. The District Court failed to make any determination as to whether there were per se horizontal territorial restraints in this case and simply applied a rule of reason in reaching its conclusions that the restraints were not illegal. See, e. g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L. Rev. 47, In so doing, the District Court erred. *609 United v. Sealy, is, in fact, on all fours with this case. Sealy licensed manufacturers of mattresses and bedding to make and sell products using the Sealy trademark. Like Topco, Sealy was a corporation owned almost entirely by its
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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Topco, Sealy was a corporation owned almost entirely by its licensees, who elected the Board of Directors and controlled the business. Just as in this case, Sealy agreed with the licensees not to license other manufacturers or sellers to sell Sealy-brand products in a designated territory in exchange for the promise of the licensee who sold in that territory not to expand its sales beyond the area demarcated by Sealy. The Court held that this was a horizontal territorial restraint, which was per se violative of the Sherman Act.[9] Whether or not we would decide this case the same way under the rule of reason used by the District Court is irrelevant to the issue before us. The fact is that courts are of limited utility in examining difficult economic problems.[10] Our inability to weigh, in any meaningful *610 sense, destruction of competition in one sector of the economy against promotion of competition in another sector is one important reason we have formulated per se rules. In applying these rigid rules, the Court has consistently rejected the notion that naked restraints of trade are to be tolerated because they are well intended or because they are allegedly developed to increase competition. E. g., United v. General Motors ; United v. Masonite 316 U.S. 26 ; Fashion Originators' 312 U.S. 47 Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster. Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy. Cf. United v. Philadelphia National Bank, The District Court determined that by limiting the freedom of its individual members to compete with each other, Topco was doing a greater good by fostering competition between members and other large supermarket chains. But, the fallacy in this is that Topco has no authority under the Sherman Act to determine the *611 respective values of competition in various sectors of the economy. On the contrary, the Sherman Act gives to each Topco member and to each prospective member the right to ascertain for itself whether
|
Justice Marshall
| 1,972 | 15 |
majority
|
United States v. Topco Associates, Inc.
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https://www.courtlistener.com/opinion/108495/united-states-v-topco-associates-inc/
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each prospective member the right to ascertain for itself whether or not competition with other supermarket chains is more desirable than competition in the sale of Topco-brand products. Without territorial restrictions, Topco members may indeed "[cut] each other's throats." Cf. White Motor But, we have never found this possibility sufficient to warrant condoning horizontal restraints of trade. The Court has previously noted with respect to price fixing, another per se violation of the Sherman Act, that: "The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed." United v. Trenton A similar observation can be made with regard to territorial limitations. White Motor at 26 n. 2 (BRENNAN, J., concurring). There have been tremendous departures from the notion of a free-enterprise system as it was originally conceived in this country. These departures have been the product of congressional action and the will of the people. If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion, this too is a decision that must be made by Congress and not by private forces or by the courts. Private forces are too keenly aware of their own interests in making such decisions and courts are ill-equipped and ill-situated for such decisionmaking. To analyze, interpret, and evaluate the myriad of competing interests and the endless data that would surely be brought to *612 bear on such decisions, and to make the delicate judgment on the relative values to society of competitive areas of the economy, the judgment of the elected representatives of the people is required. Just as the territorial restrictions on retailing Topco-brand products must fall, so must the territorial restrictions on wholesaling. The considerations are the same, and the Sherman Act requires identical results. We also strike down Topco's other restrictions on the right of its members to wholesale goods. These restrictions amount to regulation of the customers to whom members of Topco may sell Topco-brand goods. Like territorial restrictions, limitations on customers are intended to limit intra-brand competition and to promote inter-brand competition. For the reasons previously discussed, the arena in which Topco members compete must be left to their unfettered choice absent a contrary congressional determination. United v. General Motors cf. United v. Arnold, Schwinn & United v. Masonite United v. Trenton See also, White Motor We reverse the judgment of the District Court and remand the case for
|
Justice Marshall
| 1,988 | 15 |
dissenting
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Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs
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https://www.courtlistener.com/opinion/111971/mullins-coal-co-of-va-v-director-office-of-workers-compensation/
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This case concerns the evidentiary threshold that a claimant of black lung benefits must meet to invoke the interim presumption of total disability due to pneumoconiosis under (a) (1987). The Director of the Office of Workers' Compensation (Director) interprets the regulation to require that a claimant prove by a preponderance of the evidence one of the four medical requirements listed in 727.203(a) to trigger the presumption. The Court of Appeals, en banc, rejected the Director's proffered interpretation and held that the presumption is invoked once the claimant has presented a single item of evidence meeting one of the medical requirements that is, "one positive X-ray, one qualifying set of ventilatory or blood gas studies, or one physician's opinion." The Court chooses to embrace the Director's view. Because I believe that the Director's interpretation of the regulation contravenes its plain language and creates a regulatory scheme that is unnecessarily complex and internally inconsistent, I dissent. I The language and structure of the regulation provide the most compelling evidence for rejecting the Director's interpretation. The regulation sets up two evidentiary stages: *162 part (a), the presumption-invocation stage, and part (b), the rebuttal stage. Part (a) provides that a "miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis" as long as the miner meets any one of four medical requirements. 727.203(a). Part (b) provides that the presumption is rebutted if the Administrative Law Judge (ALJ) determines that the claimant is doing or could do his usual coal mine work or comparable gainful work; that the disability "did not arise in whole or in part out of coal mine employment"; or that the "evidence establishes that the miner does not, or did not, have pneumoconiosis." 727.203(b). Under (a)(1), the presumption is triggered when "[a] chest [X ray], biopsy, or autopsy establishes the existence of pneumoconiosis." Under (a)(4), the presumption is triggered when "[o]ther medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment." The regulation does not refer to "the X-ray evidence taken as a whole," or "the weight of documented opinions of physicians" the inquiry mandated by the Court's interpretation but rather to an X ray, or a physician's opinion. Moreover, the regulation does not provide that a claimant who presents a single qualifying piece of evidence may be presumed to be totally disabled because of pneumoconiosis, but rather provides that such a claimant "will be presumed" totally disabled because of the disease.
|
Justice Marshall
| 1,988 | 15 |
dissenting
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Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs
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https://www.courtlistener.com/opinion/111971/mullins-coal-co-of-va-v-director-office-of-workers-compensation/
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claimant "will be presumed" totally disabled because of the disease. The regulation thus expressly commands that a single qualifying X ray or a single documented physician's opinion will trigger the presumption.[1] *163 The Court attempts to evade the plain meaning of the regulation by placing overriding emphasis on the regulation's use of the word "establishes." The Court interprets "establish" to mean that a claimant must prove each of the medical requirements by a preponderance of the evidence.[2] Under this interpretation, an ALJ must weigh conflicting like-kind evidence before invoking the presumption. A more natural reading of "establish" in the context of the presumption-invocation stage, however, is simply that the ALJ must determine whether a claimant has come forward with an X ray, a set of ventilatory or blood gas studies, or a physician's opinion that meets the requirements and standards of the regulation. In other words, an ALJ determines whether the single item of evidence "establishes the existence of pneumoconiosis" or "establishes the presence of a totally disabling respiratory or pulmonary impairment" by referring to the strict reliability and authenticity requirements of the regulations, see, e. g., 20 CFR 410.428, 727.206 (1987), and, with regard to ventilatory and blood gas studies, to the qualifying standards set out in 727.203(a). The Court argues that (a)(1) cannot have been intended to refer to a single item of evidence because an X ray is probative only when it is interpreted by a qualified expert. The Court reasons that because the presumption is invoked by an X ray, and not by an expert's reading, an ALJ may have to consider different interpretations of the same X ray. From this premise, the Court concludes that "[j]ust as the ALJ must weigh conflicting interpretations of the same X ray. there would seem to be no reason why he must ignore *164 all X rays in a series except one." Ante, at 148-149 (footnote omitted). No reason except the regulatory language. Whatever the merit of the Court's conclusion that conflicting readings of the same X ray must be weighed prior to invoking the presumption (for that question is not before the Court), the regulation's plain language requires that the presumption be invoked when a single X ray is read only as positive. In addition, contrary to the Court's characterization, additional X rays that indicate the absence of pneumoconiosis are not "ignored"; they are fully considered by the ALJ during the rebuttal stage, when all evidence against the presumed existence of pneumoconiosis is brought to bear.[3] The Court of Appeals ruling that a single qualifying test or medical
|
Justice Marshall
| 1,988 | 15 |
dissenting
|
Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs
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https://www.courtlistener.com/opinion/111971/mullins-coal-co-of-va-v-director-office-of-workers-compensation/
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of Appeals ruling that a single qualifying test or medical opinion is sufficient to invoke the presumption is further supported by the comments that the Secretary of Labor issued in connection with the final promulgation of the regulations. In addressing the standard of rebuttal, the Secretary stated: *165 "[T]he Department cannot, as has been requested by some, look for the single item of evidence which would qualify a claimant on the basis of the interim presumption, and ignore other previously obtained evidence. This does not mean that the single item of evidence which establishes the presumption is overcome by a single item of evidence which rebuts the presumption." Notice of Final Rulemaking under the Black Lung Benefits Reform Act of 1977, (1978) (emphasis added). The Director's current position conflicts with this strong evidence of regulatory intent. Another compelling reason to reject the Director's interpretation is that it conflicts with the requirement in part (b), the rebuttal section, that in "adjudicating a claim under this subpart, all relevant medical evidence shall be considered." 727.203(b). The Director's interpretation turns the regulation on its head, requiring that all relevant medical evidence be submitted and weighed at the invocation stage, but severely restricting the consideration of medical evidence during the rebuttal stage. In the Director's view, the presumption is triggered only when the weight of evidence in one of the categories of medical evidence in part (a) proves the fact specified in that category. For instance, the "fact proved" under (a)(1) is the existence of pneumoconiosis, and under (a)(4) it is the presence of a totally disabling respiratory or pulmonary impairment. Because these facts have been proved in the invocation stage, relitigation in the rebuttal stage through like-kind evidence is foreclosed. Brief for Federal Respondent 14-15. Of course, nonmedical evidence could be presented in these instances, but this hardly conforms to the mandate that "all relevant medical evidence" be considered in the rebuttal stage. The Court argues that the placement of the "all relevant medical evidence" requirement was inexact, and that the regulation requires only that all relevant medical evidence be *166 considered at some point in the evaluation of a claim, whether it be during the invocation or rebuttal stage. Yet if the Secretary intended that the "all relevant medical evidence" language apply to both stages of the evaluation process, it is remarkable that he placed the language in the introduction to the rebuttal section. It would have been a simple matter, if such were the Secretary's intent, to place the "all relevant medical evidence" language at the beginning of 727.200. I see
|
Justice Marshall
| 1,988 | 15 |
dissenting
|
Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs
|
https://www.courtlistener.com/opinion/111971/mullins-coal-co-of-va-v-director-office-of-workers-compensation/
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medical evidence" language at the beginning of 727.200. I see no reason to assume such inartful drafting. Moreover, comments by the Secretary accompanying the final promulgation of the regulations conflict with the Court's interpretation. The Secretary stated: "The many comments which urge that all relevant evidence should not be considered in rebutting the interim presumption must also be rejected. [T]he Social Security regulations similarly do not limit the evidence which can be considered in rebutting the interim presumption." Notice of Rulemaking 36826 (emphasis added). These comments demonstrate that the Secretary understood the language to apply directly to the rebuttal section. In addition, the Director's approach renders virtually useless one of four grounds for rebuttal in part (b). Under (b)(4), eligibility for benefits is rebutted if all relevant medical evidence establishes that the miner does not have pneumoconiosis. Yet in the Director's view all relevant medical evidence has already been considered at the presumption-invocation stage. It is only when the evidence presented during the invocation stage is mismatched, as for example when the claimant produces qualifying blood-gas-studies evidence and the mine operator produces negative X rays, that the presumption may be triggered and rebuttal evidence under (b)(4) is available that has not already been weighed. Moreover, as the Director acknowledges, if a claimant invokes the presumption under (a)(1) by a preponderance of X-ray, biopsy, or autopsy evidence, as a practical matter there is no further evidence that the coal mine operator could submit to rebut the presumed existence of pneumoconiosis *167 because such (a)(1) evidence is the most reliable method of diagnosing the disease. See Brief for Federal Respondent 24, n. 22. The Court counters that "[n]othing in the regulation requires each rebuttal subsection to be fully available in each case." Ante, at 150. This is of course true. Yet it is extraordinary that the regulation would intend to make the rebuttal stage an often useless exercise with respect to the central aspect of a valid claim: whether a miner suffers from pneumoconiosis. II In addition to running afoul of the regulatory language and structure, the Director's reading of the regulation creates a needlessly complex regulatory scheme that blurs the distinction between the presumption-invocation and rebuttal stages. Under the Director's interpretation, when the weight of evidence in one of the medical-evidence categories invokes the presumption, then the same evidence cannot be considered during rebuttal to challenge the existence of the fact proved, but it may be considered if relevant to rebut one of the presumed elements of a valid claim for benefits. The Director's approach subjects the ALJ to a mesmerizing
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Justice Marshall
| 1,988 | 15 |
dissenting
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Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs
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https://www.courtlistener.com/opinion/111971/mullins-coal-co-of-va-v-director-office-of-workers-compensation/
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benefits. The Director's approach subjects the ALJ to a mesmerizing swirl of evidentiary rules. If the presumption is invoked under (a)(1), then X-ray evidence may not be considered regarding the existence of pneumoconiosis, but may be considered, if relevant, on the issues whether the miner is totally disabled or whether the disease arose from coal mine employment. Similarly, if the presumption is invoked under (a)(4), then medical evidence, including physicians' opinions, may not be considered on the issue of total disability, although it may be considered on the issues of the existence of pneumoconiosis and causation by coal mine employment. Finally, if the presumption is invoked using blood gas and ventilatory studies evidence under (a)(2) and (a)(3), the same evidence may be considered again regarding each rebuttal category, because the proved facts are not elements of a valid claim for benefits. The Director's interpretation thus *168 creates a procedural morass that could not have been intended by the regulation's two-step inquiry. By contrast, the Court of Appeals interpretation is marked by its simplicity. Under this approach the ALJ first determines whether the claimant has come forward with a qualifying medical test or physician's opinion and, if so, proceeds to the rebuttal stage. At this point all relevant evidence must be considered, and the mine operators may rebut the presumed existence of pneumoconiosis, total disability, and causation by coal mine employment on the basis of all the grounds provided by 727.203(b). III The Court's willingness to accept the Director's interpretation of the regulation is based, I believe, on a misperception of the problem Congress and the Department of Labor were trying to alleviate with the interim presumption. Pneumoconiosis is an elusive and progressive disease. Congress was deeply concerned about the difficulty of diagnosing pneumoconiosis and the dearth of medical-testing facilities available to miners. Testimony before congressional committees and by Members of Congress repeatedly emphasized the unreliability of negative test results. As this Court stated in "Congress was presented with significant evidence demonstrating that X-ray testing that fails to disclose pneumoconiosis cannot be depended upon as a trustworthy indicator of the absence of the disease," whereas there was no "authoritative indications that X-ray evidence of the presence of pneumoconiosis is untrustworthy."[4] Juxtaposed with the difficulties in diagnosing pneumoconiosis was evidence *169 that the disease was rife among long-term coal miners. Congressman Paul Simon noted one study that found that autopsies of 400 coal miners with more than 20 years' experience showed that 90-95% of them had pneumoconiosis. House Committee on Education and Labor, Black Lung Benefits Reform Act and Black Lung Benefits
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Justice Marshall
| 1,988 | 15 |
dissenting
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Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs
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https://www.courtlistener.com/opinion/111971/mullins-coal-co-of-va-v-director-office-of-workers-compensation/
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Labor, Black Lung Benefits Reform Act and Black Lung Benefits Revenue Act of 1977, 96th Cong., 282-283 (Comm. Print 1979). Testimony before the Senate estimated that as many as 50% of all coal miners will eventually become disabled from pneumoconiosis. See Hearings on S. 355 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 91st Cong., 1st Sess., pt. 2, pp. 641, 856 (1969) (statements of Dr. I. E. Buff and Dr. Leon Cander). The Court recognizes that Congress was especially concerned with the difficulties miners face in showing they suffer from pneumoconiosis. The Court reasons, however, that "Congress intended that those long-term miners who can show that they are truly diseased should have to prove no more. But if a miner is not actually suffering from the type of ailment with which Congress was concerned, there is no justification for presuming that that miner is entitled to benefits." Ante, at 158 (footnote omitted). Yet it is the difficulty in showing whether a miner is "truly diseased" that Congress found so troubling. No one disputes that the case file of a miner suffering from pneumoconiosis may include negative X rays, negative ventilatory studies, negative blood gas studies, and negative opinions by physicians. The interim presumption was designed to shift some of the risk of faulty test results from the miner to the employer. The evidence of high incidence of pneumoconiosis among long-term coal miners, coupled with the difficulties encountered in diagnosing the disease, gave the Department of Labor good reason for shifting this burden by presuming total disability due to pneumoconiosis based on findings of a single positive medical test or physician's opinion. The Director's current *170 interpretation, which the Court today accepts, undermines that policy decision. IV The Court is correct that the agency's interpretation of its own regulations is entitled to deference. See, e. g., But deference has its bounds. It is not a license for an agency effectively to rewrite a regulation through interpretation. An agency must abide by its regulations as written until it rescinds or amends them. See United The Director's interpretation of the interim presumption is contrary to the plain language of the regulation, conflicts with comments of the Secretary accompanying the final promulgation of the regulation, and creates an unnecessarily complex regulatory scheme. Because I view the agency's interpretation as plainly inconsistent with the regulatory language and history, I would not defer. I accordingly dissent, and would affirm the judgment of the Court of Appeals.
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Justice Stevens
| 2,004 | 16 |
dissenting
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Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.
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https://www.courtlistener.com/opinion/136990/hiibel-v-sixth-judicial-dist-court-of-nev-humboldt-cty/
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The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a *192 crime"[1] persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not "at the public at large," but rather "at a highly selective group inherently suspect of criminal activities." Under the Nevada law, a member of the targeted class "may not be compelled to answer" any inquiry except a command that he "identify himself."[2] Refusal to identify oneself upon request is punishable as a crime.[3] Presumably the statute does not require the detainee to answer any other question because the Nevada Legislature realized that the Fifth Amendment prohibits compelling the target of a criminal investigation to make any other statement. In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment's guarantee that "[n]o person shall be compelled in any criminal case to be a witness against himself,"[4] is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute. "[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." It is a "settled principle" that "the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes," but *193 "they have no right to compel them to answer." The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government's investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. See The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. See So does an arrested suspect during custodial interrogation in a police station. 384 U. S., at There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment's protections apply with equal force in the context of stops, see where an officer's inquiry "must be `reasonably related in scope to the justification for [the
|
Justice Stevens
| 2,004 | 16 |
dissenting
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Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.
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https://www.courtlistener.com/opinion/136990/hiibel-v-sixth-judicial-dist-court-of-nev-humboldt-cty/
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be `reasonably related in scope to the justification for [the stop's] initiation.'" "Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." See also ("Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation"). Given our statements to the effect that citizens are not required to respond to police officers' questions during a stop, it is no surprise that petitioner assumed, as have we, that he had a right not to disclose his identity. The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. *194 Although the Court declines to resolve this question, ante, at 189, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a "difficult question," we have stated generally that "[i]t is the `extortion of information from the accused,' the attempt to force him `to disclose the contents of his own mind,' that implicates the Self-Incrimination Clause," While "[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege," certain acts and physical evidence fall outside the privilege.[5] In all instances, we have afforded Fifth Amendment protection if the disclosure in question was being admitted because of its content rather than some other aspect of the communication.[6] Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response *195 to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment's Confrontation Clause, "[w]hatever else the term [`testimonial'] covers, it applies at a minimum to police interrogations." Surely police questioning during a stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature. Rather than determining whether the communication at issue is testimonial, the Court instead concludes that the State can compel the disclosure of one's identity because it is not "incriminating." Ante, at 189. But our cases have afforded Fifth Amendment protection to statements that are "incriminating" in a much broader sense than the Court suggests. It has "long been settled that [the Fifth Amendment's] protection encompasses compelled statements
|
Justice Stevens
| 2,004 | 16 |
dissenting
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Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.
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https://www.courtlistener.com/opinion/136990/hiibel-v-sixth-judicial-dist-court-of-nev-humboldt-cty/
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been settled that [the Fifth Amendment's] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence." United By "incriminating" we have meant disclosures that "could be used in a criminal prosecution or could lead to other evidence that might be so used," communications, in other words, that "would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime," 341 U.S. 4, Thus, "[c]ompelled testimony that communicates information that may `lead to incriminating evidence' is privileged even if the information itself is not inculpatory." (quoting n. 6). Given a proper understanding of the category of "incriminating" communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner's identity is protected. The Court reasons that we should not assume that the disclosure of petitioner's "name would be used to incriminate him, or that it would furnish a link in [a] *196 chain of evidence needed to prosecute him." Ante, at 190 (internal quotation marks omitted). But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances "reasonably indicate that the person has committed, is committing or is about to commit a crime"?[7] If the Court is correct, then petitioner's refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court's holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands. A person's identity obviously bears informational and incriminating worth, "even if the [name] itself is not inculpatory." A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person's identity provides a link in the chain to incriminating evidence "only in unusual circumstances." Ante, at 191. The officer in this case told petitioner, in the Court's words, that "he was conducting an investigation and needed to see some identification." Ante, at 181. As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute.
|
Justice White
| 1,986 | 6 |
majority
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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1 In New York Times we held that, in a libel suit brought by a public official, the First Amendment requires the plaintiff to show that in publishing the defamatory statement the defendant acted with actual malice—"with knowledge that it was false or with reckless disregard of whether it was false or not." We held further that such actual malice must be shown with "convincing clarity." -729. See also These New York Times requirements we have since extended to libel suits brought by public figures as well. See, e.g., Curtis Publishing 2 This case presents the question whether the clear-and-convincing-evidence requirement must be considered by a court ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in a case to which New York Times applies. The United States Court of Appeals for the District of Columbia Circuit held that that requirement need not be considered at the summary judgment stage. 241 U.S.App.D.C. 246, We granted certiorari, because that holding was in conflict with decisions of several other Courts of Appeals, which had held that the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment.1 We now reverse. 3 * Respondent Liberty Lobby, Inc., is a not-for-profit corporation and self-described "citizens' lobby." Respondent Willis Carto is its founder and treasurer. In October 1981, The Investigator magazine published two articles: "The Private World of Willis Carto" and "Yockey: Profile of an American Hitler." These articles were introduced by a third, shorter article entitled "America's Neo-Nazi Underground: Did Mein Kampf Spawn Yockey's Imperium, a Book Revived by Carto's Liberty Lobby?" These articles portrayed respondents as neo-Nazi, anti-Semitic, racist, and Fascist. 4 Respondents filed this diversity libel action in the United States District Court for the District of Columbia, alleging that some 28 statements and 2 illustrations in the 3 articles were false and derogatory. Named as defendants in the action were petitioner Jack Anderson, the publisher of The Investigator, petitioner Bill Adkins, president and chief executive officer of the Investigator Publishing Co., and petitioner Investigator Publishing Co. itself. 5 Following discovery, petitioners moved for summary judgment pursuant to Rule 56. In their motion, petitioners asserted that because respondents are public figures they were required to prove their case under the standards set forth in New York Times. Petitioners also asserted that summary judgment was proper because actual malice was absent as a matter of law. In support of this latter assertion, petitioners submitted the affidavit of Charles Bermant, an employee of petitioners and the author of
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Justice White
| 1,986 | 6 |
majority
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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Charles Bermant, an employee of petitioners and the author of the two longer articles.2 In this affidavit, Bermant stated that he had spent a substantial amount of time researching and writing the articles and that his facts were obtained from a wide variety of sources. He also stated that he had at all times believed and still believed that the facts contained in the articles were truthful and accurate. Attached to this affidavit was an appendix in which Bermant detailed the sources for each of the statements alleged by respondents to be libelous. 6 Respondents opposed the motion for summary judgment, asserting that there were numerous inaccuracies in the articles and claiming that an issue of actual malice was presented by virtue of the fact that in preparing the articles Bermant had relied on several sources that respondents asserted were patently unreliable. Generally, respondents charged that petitioners had failed adequately to verify their information before publishing. Respondents also presented evidence that William McGaw, an editor of The Investigator, had told petitioner Adkins before publication that the articles were "terrible" and "ridiculous." 7 In ruling on the motion for summary judgment, the District Court first held that respondents were limited-purpose public figures and that New York Times therefore applied.3 The District Court then held that Bermant's thorough investigation and research and his reliance on numerous sources precluded a finding of actual malice. Thus, the District Court granted the motion and entered judgment in favor of petitioners. 8 On appeal, the Court of Appeals affirmed as to 21 and reversed as to 9 of the allegedly defamatory statements. Although it noted that respondents did not challenge the District Court's ruling that they were limited-purpose public figures and that they were thus required to prove their case under New York Times, the Court of Appeals nevertheless held that for the purposes of summary judgment the requirement that actual malice be proved by clear and convincing evidence, rather than by a preponderance of the evidence, was irrelevant: To defeat summary judgment respondents did not have to show that a jury could find actual malice with "convincing clarity." The court based this conclusion on a perception that to impose the greater evidentiary burden at summary judgment "would change the threshold summary judgment inquiry from a search for a minimum of facts supporting the plaintiff's case to an evaluation of the weight of those facts and (it would seem) of the weight of at least the defendant's uncontroverted facts as well." 241 U.S.App.D.C., at 253, The court then held, with respect to nine of the statements,
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Justice White
| 1,986 | 6 |
majority
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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court then held, with respect to nine of the statements, that summary judgment had been improperly granted because "a jury could reasonably conclude that the allegations were defamatory, false, and made with actual malice." II A. 9 Our inquiry is whether the Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. 10 As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2725, pp. 93-95 This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes. 11 More important for present purposes, summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. In First National Bank of we affirmed a grant of summary judgment for an antitrust defendant where the issue was whether there was a genuine factual dispute as to the existence of a conspiracy. We noted Rule 56(e)'s provision that a party opposing a
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Justice White
| 1,986 | 6 |
majority
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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We noted Rule 56(e)'s provision that a party opposing a properly supported motion for summary judgment " 'may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.' " We observed further that 12 "[i]t is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." 13 We went on to hold that, in the face of the defendant's properly supported motion for summary judgment, the plaintiff could not rest on his allegations of a conspiracy to get to a jury without "any significant probative evidence tending to support the complaint." 14 Again, in the Court emphasized that the availability of summary judgment turned on whether a proper jury question was presented. There, one of the issues was whether there was a conspiracy between private persons and law enforcement officers. The District Court granted summary judgment for the defendants, stating that there was no evidence from which reasonably minded jurors might draw an inference of conspiracy. We reversed, pointing out that the moving parties' submissions had not foreclosed the possibility of the existence of certain facts from which "it would be open to a jury to infer from the circumstances" that there had been a meeting of the minds. 1609. 15 Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. As and Cities indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities If the evidence is merely colorable, or is not significantly probative, Cities summary judgment may be granted. 16 That this is the proper focus of the inquiry is strongly suggested by the Rule itself. Rule 56(e) provides that, when a properly supported motion for summary judgment is made,4 the adverse party "must set forth specific facts showing that there is a
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Justice White
| 1,986 | 6 |
majority
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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"must set forth specific facts showing that there is a genuine issue for trial."5 And, as we noted above, Rule 56(c) provides that the trial judge shall then grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. There is no requirement that the trial judge make findings of fact.6 The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. 17 Petitioners suggest, and we agree, that this standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed. As the Court long ago said in Improvement and has several times repeated: 18 "Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case the judge was bound to leave it to the jury, but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." (Footnotes omitted.) 19 See also ; ; Pennsylvania R. 20 The Court has said that summary judgment should be granted where the evidence is such that it "would require a directed verdict for the moving party." 321 U.S. 0, 4, And we have noted that the "genuine issue" summary judgment standard is "very close" to the "reasonable jury" directed verdict standard: "The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence,
|
Justice White
| 1,986 | 6 |
majority
|
Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
|
are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." Bill Johnson's Restaurants, In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. B 21 Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict—"whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Munson, 14 Wall., at 22 In terms of the nature of the inquiry, this is no different from the consideration of a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies and where the trial judge asks whether a reasonable jury could find guilt beyond a reasonable doubt. See 443 U.S. Similarly, where the First Amendment mandates a "clear and convincing" standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity. 23 The case for the proposition that a higher burden of proof should have a corresponding effect on the judge when deciding whether to send the case to the jury was well made by the Court of Appeals for the Second Circuit in United (2d Cir.1972), which overruled United a case holding that the standard of evidence necessary for a judge to send a case to the jury is the same in both civil
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Justice White
| 1,986 | 6 |
majority
|
Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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case to the jury is the same in both civil and criminal cases even though the standard that the jury must apply in a criminal case is more demanding than in civil proceedings. Speaking through Judge Friendly, the Second Circuit said: "It would seem at first blush—and we think also at second—that more 'facts in evidence' are needed for the judge to allow [reasonable jurors to pass on a claim] when the proponent is required to establish [the claim] not merely by a preponderance of the evidence but beyond a reasonable doubt." The court could not find a "satisfying explanation in the Feinberg opinion why the judge should not place this higher burden on the prosecution in criminal proceedings before sending the case to the jury." The Taylor court also pointed out that almost all the Circuits had adopted something like Judge Prettyman's formulation in (D.C.Cir.1947): 24 "The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter." 25 This view is equally applicable to a civil case to which the "clear and convincing" standard applies. Indeed, the Taylor court thought that it was implicit in this Court's adoption of the clear-and-convincing-evidence standard for certain kinds of cases that there was a "concomitant duty on the judge to consider the applicable burden when deciding whether to send a case to the jury." Although the court thought that this higher standard would not produce different results in many cases, it could not say that it would never do so. 26 Just as the "convincing clarity" requirement is relevant in ruling on a motion for directed verdict, it is relevant in ruling on a motion for summary judgment. When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum
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Justice White
| 1,986 | 6 |
majority
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. 27 Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards. 28 Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. 398 U.S., -1609. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. 29 In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages. Consequently, where the New York Times "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence
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Justice White
| 1,986 | 6 |
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Anderson v. Liberty Lobby
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https://www.courtlistener.com/opinion/111719/anderson-v-liberty-lobby/
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whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.7 III 30 Respondents argue, however, that whatever may be true of the applicability of the "clear and convincing" standard at the summary judgment or directed verdict stage, the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue. They rely on (19), for this proposition. We do not understand Poller, however, to hold that a plaintiff may defeat a defendant's properly supported motion for summary judgment in a conspiracy or libel case, for example, without offering any concrete evidence from which a reasonable juror could return a verdict in his favor and by merely asserting that the jury might, and legally could, disbelieve the defendant's denial of a conspiracy or of legal malice. The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Based on that Rule, Cities 391 U.S., held that the plaintiff could not defeat the properly supported summary judgment motion of a defendant charged with a conspiracy without offering "any significant probative evidence tending to support the complaint." As we have recently said, "discredited testimony is not [normally] considered a sufficient basis for drawing a contrary conclusion." Bose 104 S. Ct. Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery. We repeat, however, that the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in
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Justice Stevens
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majority
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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The Taft-Hartley Act, enacted in 1947, increased the size of the National Labor Relations Board (Board) from three members to five. See 29 U.S. C. Concur rent with that change, the Taft-Hartley Act amended of the National Labor Relations Act (NLRA) to increase the quorum requirement for the Board from two members to three, and to allow the Board to delegate its authority to groups of at least three members. See The ques tion in this case is whether, following a delegation of the Board’s powers to a three-member group, two members may continue to exercise that delegated authority once the group’s (and the Board’s) membership falls to two. We hold that two remaining Board members cannot exercise such authority. I As 2007 came to a close, the Board found itself with four members and one vacancy. It anticipated two more vacan cies at the end of the year, when the recess appointments of Members Kirsanow and Walsh were set to expire, which would leave the Board with only two members—too few to 2 NEW PROCESS STEEL, L. Opinion of the Court meet the Board’s quorum requirement, The four sitting members decided to take action in an effort to preserve the Board’s authority to function. On December 20, 2007, the Board made two delegations of its authority, effective as of midnight December 28, 2007. First, the Board delegated to the general counsel continuing author ity to initiate and conduct litigation that would normally require case-by-case approval of the Board. See Minute of Board Action (Dec. 20, 2007), App. to Brief for Petitioner 4a–a (hereinafter Board Minutes). Second, the Board delegated “to Members Liebman, Schaumber and Kir sanow, as a three-member group, all of the Board’s pow ers, in anticipation of the adjournment of the 1st Session of the 110th Congress.” at a. The Board expressed the opinion that its action would permit the remaining two members to exercise the powers of the Board “after [the] departure of Members Kirsanow and Walsh, because the remaining Members will constitute a quorum of the three member group.” The Board’s minutes explain that it relied on “the statu tory language” of as well as an opinion issued by the Office of Legal Counsel (OLC), for the proposition that the Board may use this delegation procedure to “issue deci sions during periods when three or more of the five seats on the Board are vacant.” at 6a. The OLC had con cluded in 2003 that “if the Board delegated all of its pow ers to a group of three members, that group could continue to
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Justice Stevens
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” Dept. of Justice, OLC, Quorum Requirements, App. to Brief for Respondent 3a. In seek ing the OLC’s advice, the Board agreed to accept the OLC’s answer regarding its ability to operate with only two members, at 1a, n. 1, and the Board in its minutes therefore “acknowledged that it is bound” by the OLC opinion. Board Minutes 6a. The Board noted, however, that it was not bound to make this delegation; rather, it Cite as: 60 U. S. (2010) 3 Opinion of the Court had “decided to exercise its discretion” to do so. On December 28, 2007, the Board’s delegation to the three-member group of Members Liebman, Schaumber, and Kirsanow became effective. On December 31, 2007, Member Kirsanow’s recess appointment expired. Thus, starting on January 1, 2008, Members Liebman and Schaumber became the only members of the Board. They proceeded to issue decisions for the Board as a two member quorum of a three-member group. The delegation automatically terminated on March 27, 2010, when the President made two recess appointments to the Board, because the terms of the delegation specified that it would be revoked when the Board’s membership returned to at least three members, at 7a. During the 27-month period in which the Board had only two members, it decided almost 600 cases. See Letter from Elena Kagan, Solicitor General, to William K. Suter, Clerk of Court (Apr. 26, 2010). One of those cases involved petitioner New Process Steel. In September 2008, the two member Board issued decisions sustaining two unfair labor practice complaints against petitioner. See New Process Steel, LP, 33 N. L. R. B. No. 2 (2008); New Proc ess Steel, LP, 33 N. L. R. B. No. 13 (2008). Petitioner sought review of both orders in the Court of Appeals for the Seventh Circuit, and challenged the authority of the two-member Board to issue the orders. The court ruled in favor of the Government. After a review of the text and legislative history of and the sequence of events surrounding the delegation of authority in December 2007, the court concluded that the then sitting two members constituted a valid quorum of a three-member group to which the Board had legitimately delegated all its powers. 84–847 On the same day that the Seventh Circuit issued its decision in this case, the Court of Appeals for the Dis trict of Columbia announced a decision coming to the 4 NEW PROCESS STEEL, L. Opinion of the
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Justice Stevens
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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to the 4 NEW PROCESS STEEL, L. Opinion of the Court opposite conclusion. Laurel Baye Healthcare of Lake Lanier, We granted certiorari to resolve the conflict.1 8 U. S. II The Board’s quorum requirements and delegation pro cedure are set forth in of the NLRA, as amended by which provides: “The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.” 29 U.S. C. It is undisputed that the first sentence of this provision authorized the Board to delegate its powers to the three member group effective on December 28, 2007, and the last sentence authorized two members of that group to act as a quorum of the group during the next three days if, for example, the third member had to recuse himself from a particular matter. The question we face is whether those two members could continue to act for the Board as a quorum of the delegee group after December 31, 2007, when the Board’s membership fell to two and the desig nated three-member group of “Members Liebman, Schaumber, and Kirsanow” ceased to exist due to the —————— 1 Several other Courts of Appeals reached the same conclusion as the Seventh Circuit, although not always following the same reasoning. See Northeastern Land Servs., ; Snell Island SNF 68 F.3d 0, ; Narricot Industries, L. ; Teamsters Local Union No. Cite as: 60 U. S. (2010) Opinion of the Court expiration of Member Kirsanow’s term. Construing as a whole and in light of the Board’s longstanding prac tice, we are persuaded that they could not. The first sentence of which we will call the delega tion clause, provides that the Board may delegate its powers only to a “group of three or more members.” 61 Stat. 139. There are two different ways to interpret that language. One interpretation, put forward by the Gov ernment, would read the clause to require only that a delegee group contain three members at the precise time the Board delegates its powers, and to have no continuing relevance after the moment of the initial delegation. Under that reading, two members alone may exercise the full power of the Board so long as
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Justice Stevens
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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exercise the full power of the Board so long as they were part of a delegee group that, at the time of its creation, included three members. The other interpretation, by contrast, would read the clause as requiring that the delegee group maintain a membership of three in order for the delega tion to remain valid. Three main reasons support the latter reading. First, and most fundamentally, reading the delegation clause to require that the Board’s delegated power be vested continuously in a group of three members is the only way to harmonize and give meaningful effect to all of the provisions in See Duncan v. Walker, 33 U.S. 167, 174 (2001) (declining to adopt a “construction of the statute, [that] would render [a term] insignificant”); Mar ket (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be insignificant” (internal quotation marks omitted)). Those provisions are: (1) the delegation clause; (2) the vacancy clause, which provides that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board”; (3) the Board quorum requirement, which mandates that “three members of the 6 NEW PROCESS STEEL, L. Opinion of the Court Board shall, at all times, constitute a quorum of the Board”; and (4) the group quorum provision, which pro vides that “two members shall constitute a quorum” of any delegee group. See Interpreting the statute to require the Board’s powers to be vested at all times in a group of at least three members is consonant with the Board quorum requirement, which requires three participating members “at all times” for the Board to act. The interpretation likewise gives material effect to the three-member requirement in the delegation clause. The vacancy clause still operates to provide that vacancies do not impair the ability of the Board to take action, so long as the quorum is satisfied. And the inter pretation does not render inoperative the group quorum provision, which still operates to authorize a three member delegee group to issue a decision with only two members participating, so long as the delegee group was properly constituted. Reading in this manner, the statute’s various pieces hang together—a critical clue that this reading is a sound one. The contrary reading, on the other hand, allows two members to act as the Board ad infinitum, which dramati cally undercuts the significance of the Board quorum requirement by allowing its permanent circumvention. That reading also makes the three-member requirement in the
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Justice Stevens
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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circumvention. That reading also makes the three-member requirement in the delegation clause of vanishing significance, because it allows a de facto delegation to a two-member group, as happened in this case. Under the Government’s approach, it would satisfy the statute for the Board to include a third member in the group for only one minute before her term expires; the approach gives no meaningful effect to the command implicit in both the delegation clause and in the Board quorum requirement that the Board’s full power be vested in no fewer than three members. Hence, while the Government’s reading of the delegation clause is textually permissible in a narrow sense, it is structurally implausi Cite as: 60 U. S. (2010) 7 Opinion of the Court ble, as it would render two of ’s provisions function ally void. Second, and relatedly, if Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language. Congress instead imposed the requirement that the Board delegate authority to no fewer than three mem bers, and that it have three participating members to constitute a quorum. Those provisions are at best an unlikely way of conveying congressional approval of a two member Board. Indeed, had Congress wanted to provide for two members alone to act as the Board, it could have maintained the NLRA’s original two-member Board quo rum provision, see 29 U.S. C. (1946 ed.), or pro vided for a delegation of the Board’s authority to groups of two. The Rube Goldberg-style delegation mechanism employed by the Board in 2007—delegating to a group of three, allowing a term to expire, and then continuing with a two-member quorum of a phantom delegee group—is surely a bizarre way for the Board to achieve the authority to decide cases with only two members. To conclude that Congress intended to authorize such a procedure to con travene the three-member Board quorum, we would need some evidence of that intent. The Government has not adduced any convincing evi dence on this front, and to the contrary, our interpretation is consistent with the longstanding practice of the Board. This is the third factor driving our decision. Although the Board has throughout its history allowed two members of a three-member group to issue decisions when one mem ber of a group was disqualified from a case, see Brief for Respondent 20; Board Minutes 6a, the Board has not (until recently) allowed two members to act as a quorum of a defunct three-member group.2 Instead, the Board con —————— 2
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Justice Stevens
| 2,010 | 16 |
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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a defunct three-member group.2 Instead, the Board con —————— 2 When one member of a group is disqualified, only two members 8 NEW PROCESS STEEL, L. Opinion of the Court cedes that its practice was to reconstitute a delegee group when one group member’s term expired. Brief for Respon dent 39, n. 27.3 That our interpretation of the delegation provision is consistent with the Board’s longstanding practice is persuasive evidence that it is the correct one, notwithstanding the Board’s more recent view. See Bowen v. Georgetown Univ. Hospital, In sum, a straightforward understanding of the text, which requires that no fewer than three members be vested with the Board’s full authority, coupled with the Board’s longstanding practice, points us toward an inter pretation of the delegation clause that requires a delegee group to maintain a membership of three. III Against these points, the Government makes several arguments that we find unconvincing. It first argues that authorizes the Board’s action by its plain terms, notwithstanding the somewhat fictional nature of the delegation to a three-member group with the expectation that within days it would become a two-member group. In —————— actually participate in the decision. That circumstance thus also presents the problem of the possible inferiority of two-member deci sionmaking. That the Board found it necessary to reconstitute groups only when there was a vacancy, and not when there was a disqualifica tion, suggests that its practice was driven by more than its belief in the “superiority of three-member groups,” post, at 10 (KENNEDY, J., dissenting). 3 It also has not been the Board’s practice to issue decisions when the Board’s membership has fallen to two. For about a 2-month period in 1993–1994, and a 1-month period in 2001–2002, the Board had only two members and did not issue decisions. Brief for Respondent n. 4. In 200, the Board did delegate its authority to a three-member group, of which two members issued a few orders as a quorum during a 3-day period in which the Board’s (and the group’s) membership fell below three. But the two-member Board at issue in this case, extending over two years, is unprecedented in the history of the post-Taft-Hartley Board. Cite as: 60 U. S. (2010) 9 Opinion of the Court particular, the Government contends the group quorum requirement and the vacancy clause together make clear that when the Board has delegated its power to a three member group, “any two members of that group constitute a quorum that may continue to exercise the delegated powers, regardless whether the third group member continues to sit on
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Justice Stevens
| 2,010 | 16 |
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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regardless whether the third group member continues to sit on the Board” and regardless “whether a quorum remains in the full Board.” Brief for Respondent 17; see also at 20–23. Although the group quorum provision clearly authorizes two members to act as a quorum of a “group designated pursuant to the first sentence”—i.e., a group of at least three members—it does not, by its plain terms, authorize two members to constitute a valid delegee group. A quo rum is the number of members of a larger body that must participate for the valid transaction of business. See Black’s Law Dictionary 1370 (defining “quorum” as the “minimum number of members who must be present for a deliberative assembly to legally transact business”); 13 Oxford English Dictionary 1 (2d ed. 1989) (“A fixed number of members of any body whose presence is necessary for the proper or valid trans action of business”); Webster’s New International Diction ary 2046 (2d ed. 194) (“Such a number of the officers or members of any body as is, when duly assembled, legally competent to transact business”). But the fact that there are sufficient members participating to constitute a quo rum does not necessarily establish that the larger body is properly constituted or can validly exercise authority.4 In —————— 4 Nor does failure to meet a quorum requirement necessarily establish that an entity’s power is suspended so that it can be exercised by no delegee. The requisite membership of an organization, and the number of members who must participate for it to take an action, are two separate (albeit related) characteristics. Thus, although we reach the same result, we do not adopt the District of Columbia Circuit’s equation of a quorum requirement with a membership requirement that must be 10 NEW PROCESS STEEL, L. Opinion of the Court other words, that only two members must participate to transact business in the name of the group, does not estab lish that the group itself can exercise the Board’s author ity when the group’s membership falls below three. The Government nonetheless contends that quorum rules “ordinarily” define the number of members that is both necessary and sufficient for an entity to take an action. Brief for Respondent 20. Therefore, because of the quorum provision, if “at least two members of a delegee group actually participate in a decision that should be the end of the matter,” regardless of vacancies in the group or on the Board. But even if quorum provi sions ordinarily provide the rule for dealing with vacan cies—i.e., even if they ordinarily make irrelevant any vacancies
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Justice Stevens
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New Process Steel, L. P. v. NLRB
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https://www.courtlistener.com/opinion/148799/new-process-steel-l-p-v-nlrb/
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vacan cies—i.e., even if they ordinarily make irrelevant any vacancies in the remainder of the larger body—the quo rum provisions in do no such thing. Rather, there is a separate clause addressing vacancies. The vacancy clause, recall, provides that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” (2006 ed.). We thus understand the quorum provisions merely to define the number of members who must participate in a deci —————— satisfied or else the power of any entity to which the Board has dele gated authority is suspended. See Laurel Baye Healthcare of Lake Lanier, (“[T]he Board quorum provision establishes that the power of the Board to act exists [only] when the Board consists of three members. The delegee group’s dele gated power to act ceases when the Board’s membership dips below the Board quorum of three members” (citation omitted)). The Board may not, of course, itself take any action absent sufficient membership to muster a quorum (three), and in that sense a quorum requirement establishes a minimum membership level. Our conclusion that the delegee group ceases to exist once there are no longer three Board members to constitute the group does not cast doubt on the prior delegations of authority to nongroup members, such as the regional directors or the general counsel. The latter implicates a separate question that our decision does not address. Cite as: 60 U. S. (2010) 11 Opinion of the Court sion, and look to the vacancy clause to determine whether vacancies in excess of that number have any effect on an entity’s authority to act. The Government argues that the vacancy clause estab lishes that a vacancy in the group has no effect. But the clause speaks to the effect of a vacancy in the Board on the authority to exercise the powers of the Board; it does not provide a delegee group authority to act when there is a vacancy in the group. It is true that any vacancy in the group is necessarily also a vacancy in the Board (although the converse is not true), and that a group exercises the (delegated) “powers of the Board.” But explicitly distinguishes between a group and the Board throughout, and in light of that distinction we do not think “Board” should be read to include “group” when doing so would negate for all practical purposes the command that a delegation must be made to a group of at least three members. Some courts have nonetheless interpreted the quorum and vacancy provisions
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Justice Stevens
| 2,010 | 16 |
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New Process Steel, L. P. v. NLRB
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Some courts have nonetheless interpreted the quorum and vacancy provisions of by analogizing to an appel late panel, which may decide a case even though only two of the three initially assigned judges remain on the panel. See Photo-Sonics, 122–123 (CA9 19). The governing statute provides that a case may be decided “by separate panels, each consisting of three judges,” 28 U.S. C. but that a “majority of the number of judges authorized to constitute a court or panel thereof shall constitute a quorum,” We have interpreted that statute to “requir[e] the inclusion of at least three judges in the first instance,” but to allow a two-judge “quorum to proceed to judgment when one member of the panel dies or is disqualified.” v. United States, But which addresses the assignment of particular cases to panels, is a world apart from this statute, which authorizes the standing delegation of all the Board’s powers to a small 12 NEW PROCESS STEEL, L. Opinion of the Court group. Given the difference between a panel constituted to decide particular cases and the creation of a standing panel plenipotentiary, which will decide many cases aris ing long after the third member departs, there is no basis for reading the statutes similarly. Moreover, our reading of the court of appeals quorum provision was informed by the longstanding practice of allowing two judges from the initial panel to proceed to judgment in the case of a va cancy, see ib and as we have already explained, the Board’s practice has been precisely the opposite. Finally, we are not persuaded by the Government’s argument that we should read the statute to authorize the Board to act with only two members in order to advance the congressional objective of Board efficiency. Brief for Respondent 26. In the Government’s view, Congress’ establishment of the two-member quorum for a delegee group reflected its comfort with pre-Taft-Hartley practice, when the then-three-member Board regularly issued decisions with only two members. But it is unsurprising that two members regularly issued Board decisions prior to Taft-Hartley, because the statute then provided for a Board quorum of two. See 29 U.S. C. (1946 ed.). Congress changed that requirement to a three-member quorum for the Board. As we noted above, if Congress had wanted to allow the Board to con tinue to operate with only two members, it could have kept the Board quorum requirement at two.6 —————— In any event, if the analogy to the appellate courts were correct, then one might have to examine each Board decision individually. Petitioner’s case was not initially assigned to
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Justice Stevens
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New Process Steel, L. P. v. NLRB
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Board decision individually. Petitioner’s case was not initially assigned to a three-member panel and thereafter decided by two members after one member had retired. Instead, by the time petitioner’s case came before the Board, Member Kirsanow had long departed. In practical terms, petitioner’s case was both assigned to and decided by a two-member delegee group. 6 We have no doubt that Congress intended “to preserve the ability of two members of the Board to exercise the Board’s full powers, in limited circumstances,” post, at 12, as when a two-member quorum of a prop Cite as: 60 U. S. (2010) 13 Opinion of the Court Furthermore, if Congress had intended to allow for a two-member Board, it is hard to imagine why it would have limited the Board’s power to delegate its authority by requiring a delegee group of at least three members. Nor do we have any reason to surmise that Congress’ overrid ing objective in amending was to keep the Board operating at all costs; the inclusion of the three-member quorum and delegation provisions indicate otherwise. Cf. Robert’s Rules of Order p. 20 (10th ed. 2001) (“The requirement of a quorum is a protection against totally unrepresentative action in the name of the body by an unduly small number of persons”). IV In sum, we find that the Board quorum requirement and the three-member delegation clause should not be read as easily surmounted technical obstacles of little to no im port. Our reading of the statute gives effect to those pro visions without rendering any other provision of the stat ute superfluous: The delegation clause still operates to allow the Board to act in panels of three, and the group quorum provision still operates to allow any panel to issue a decision by only two members if one member is disquali fied. Our construction is also consistent with the Board’s longstanding practice with respect to delegee groups. We thus hold that the delegation clause requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board. We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies.7 Nor are —————— erly constituted delegee group issues a decision for the Board in a particular case. But we doubt “Congress intended to preserve” the pre- Taft-Hartley practice of two members acting for the Board when the third seat was vacant, post, at 11, because it declined to preserve the pre-Taft-Hartley two-member Board quorum. 7 Former Board members have identified turnover and vacancies as a 14 NEW PROCESS STEEL,
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New Process Steel, L. P. v. NLRB
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identified turnover and vacancies as a 14 NEW PROCESS STEEL, L. Opinion of the Court we unaware of the costs that delay imposes on the liti gants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than swept aside in the face of admittedly difficult circumstances. Section 3(b), as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— significant impediment to the operations of the Board. See Truesdale, Battling Case Backlogs at the NLRB, (“[I]t is clear that turnover and vacancies have a major impact on Board productivity”); Higgins, Labor Czars—Commissars—Keeping Women in the Kitchen—the Purpose and Effects of the Administrative Changes Made by Taft-Hartley, 47 Cath. U. L. Rev. 9, 93 (“Taft- Hartley’s Achilles heel is the appointment process. In the past twenty years Board member turnover and delays in appointments and in the confirmation process have kept the Board from reaching its true potential”). Cite as: 60 U. S. (2010) 1 KENNEDY, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–147 NEW PROCESS STEEL, L. P., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 17, 2010] JUSTICE KENNEDY, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissent ing. As of the day this case was argued before the Court, the National Labor Relations Board (Board), constituted as a five-member board, had operated with but two members for more than 26 months. That state of affairs, to say the least, was not ideal. This may be an underlying reason for the Court’s conclusion. Despite the fact that the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders, the Court holds that the two-member quorum lost all authority to act once the third member left the Board. Under the Court’s holding, the Board was unauthorized to resolve the more than 00 cases it addressed during those 26 months in the course of carrying out its responsibility “to remove obstructions to the free flow of commerce” through “the promotion of industrial
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New Process Steel, L. P. v. NLRB
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the free flow of commerce” through “the promotion of industrial peace.” 27 This result is removed even farther from the ideal and from congres sional intent, as revealed in the statutory design. So it is hard to make the case that the Court’s interpretation of the statute either furthers its most evident purposes or leads to the more sensible outcome. Indeed, in my view, the objectives of the statute, which 2 NEW PROCESS STEEL, L. KENNEDY, J., dissenting must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court. And in all events, the outcome of the case is but a check on the accuracy of the textual analysis; and here the text of the statute, which must control, does not support the holding of the Court. These reasons, and those to be further discussed, inform this respectful dissent. I The Board, by statute, consists of five members. 29 U.S. C. Section 13(b) provides a mechanism in which the Board can delegate all of its powers to a three member group. As relevant here, the statute consists of three parts. First, a delegation clause: “The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.” Then, a vacancy clause: “A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board” And finally, immediately following the vacancy clause, are the Board and group quorum provisions: “[A]nd three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group des ignated pursuant to the first sentence hereof.” As the Court acknowledges, ante, at 4, the three member group of Members Liebman, Schaumber, and Kirsanow were a “group designated pursuant to the first sentence” of As such, a two-member quorum of that group had statutory authorization to issue orders; Cite as: 60 U. S. (2010) 3 KENNEDY, J., dissenting and that is precisely what Members Liebman and Schaumber did. Because the group was properly desig nated under and a two-member quorum of the group was authorized to act under the statute’s plain terms, its actions were lawful. See Connecticut Nat. Bank v. Germain, 03 U.S. 249, 23–24 (“[I]n interpret ing a statute a court should always turn first to one, car dinal canon
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court should always turn first to one, car dinal canon before all others. [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says”). Nothing in the statute suggests that a delegation to a three-member group expires when one member’s seat becomes vacant, as the Court holds today. In other con texts, it is settled law that a vacancy in a delegee group does not void the initial delegation. See (concerning vacancies in three-member panels of the courts of appeals). Any doubt on that point should be resolved by this specific statutory instruction: “A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” Members Liebman and Schaumber were exercising the powers of the Board as its remaining members; yet the Court today holds that the vacancy impaired their right to exercise those powers in hundreds of cases. That conclusion is contrary to the statutory mandate. By its holding, the Court rejects a straightforward read ing that it acknowledges is “textually permissible.” Ante, at 6. It does so because, in its view, it is “structurally implausible.” Ante, at 6−7. But the only textually permis sible reading of authorizes a two-member quorum of a delegee group to issue orders, as was done here; and in any event there is no structural implausibility in read ing the statute according to its plain terms. 4 NEW PROCESS STEEL, L. KENNEDY, J., dissenting II The Court reads the statute to require a delegee group to maintain three members. Unable to find this require ment in the statute’s text, the Court gives three reasons for its interpretation. Those reasons do not withstand scrutiny. A The first reason the Court gives for its interpretation is that reading the statute to require a delegee group to maintain three members “is the only way to harmonize and give meaningful effect to all of the provisions in” Ante, at This is not so. But it should be fur ther noted that the argument advanced by the Court is not that the Government’s interpretation of the statute ren ders any provision superfluous or without a role to play in the statutory scheme. Instead, the Court surmises that certain provisions would not have “meaningful,” “mate rial,” or “practical” effect, ante, at 6, 14. But that is just to say that the Court has determined, in its own judgment, that some provisions should have a greater role than provided by the text of the statute. The Government’s reading of the
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the text of the statute. The Government’s reading of the statute does not render any clause meaningless. The full Board must have three or more members in order to conduct any business, includ ing delegating its authority to a three-member group, as required under the Board quorum provision. This provi sion applies “at all times” to the Board acting as a whole. Two members of the Board could not conduct any business unless they were previously designated by the full Board as members of a delegee group with such authority. Any delegation of the Board’s authority must be to at least three members, as required by the delegation clause. Any group to which the Board has properly delegated its au thority must have two members present to act, as required by the group quorum provision. This reading gives the Cite as: 60 U. S. (2010) KENNEDY, J., dissenting delegation clause and each of the quorum provisions inde pendent meaning. Where two members act as a quorum of a group, the statute (unlike the Court) is indifferent to the reason for the third member’s absence, be it illness, recusal, or va cancy. The Court would hold that two members of a group can act as a quorum so long as the third’s absence is not due to a vacancy; yet the vacancy clause makes it clear that the authority of Board “members” to act shall not be impaired by vacancies. The clause includes all members, including those acting as part of three-member groups. The Court in effect would rewrite the group quorum provision to say, “two members shall constitute a quorum of any group [unless the third member’s absence is due to a vacancy].” Even if the statute said nothing about vacan cies, this would be a misreading of the quorum provision. A “quorum” is the “minimum number of members who must be present for a deliberative assembly to legally transact business.” See Black’s Law Dictionary 1370 (hereinafter Black’s). As the Court has made clear in the past, quorum requirements are generally indifferent to the reasons underlying any particular mem ber’s absence. See 39 U.S., at For instance, the Court has previously discussed a statute governing the delegation of power to three-member panels of the federal courts of appeals. That statute provides: “A majority of the number of judges authorized to constitute a court or panel thereof shall constitute a quorum.” 28 U.S. C. While the statute makes no mention of vacancies, the Court had little trouble conclud ing that the statute “permits a quorum to proceed to judgment when one
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statute “permits a quorum to proceed to judgment when one member of the panel dies or is dis qualified.” at The Court today offers to distinguish as being “informed by the long standing practice of allowing two judges from the initial panel to proceed to judgment in the case of a vacancy.” 6 NEW PROCESS STEEL, L. KENNEDY, J., dissenting Ante, at 12. But there was little if any reliance on any such practice in In noting that its conclusion was a matter of “settled law,” the Court relied on the text of the statute and a single case that itself looked directly to the statutory text of at (citing United 2 F.2d 92, 927 (CA2 197) (L. Hand, J.)). If the group quorum provision leaves any room for doubt that it applies in cases of vacancy, its application is made clearer by the vacancy clause itself. That clause states in unequivocal terms that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” The Court makes much of the fact that the statute refers to a vacancy in the “Board” rather than in a “group.” But the former category subsumes the latter. That is, the phrase “[a] vacancy in the Board” covers the entire universe of instances in which there may be a vacancy in a group, because all group members are Board members. The Court counters that the vacancy clause “speaks to the effect of a vacancy in the Board on the authority to exercise the powers of the Board,” ante, at 11, as opposed to a vacancy in a group. But the Court’s abridged re statement of the vacancy clause suffers from a critical imprecision. The Court’s point would be well taken if the vacancy clause stated that “a vacancy in the Board shall not affect the power of the Board to operate.” But the clause instead states that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” Delegee groups consist of members exercising the powers of the Board. This clause thus instructs that a vacancy in the Board shall not im pair the right of members to exercise the Board’s powers, an authority that members of delegee groups possess. But under the Court’s reading, vacancies in the Board will often impair the right of the remaining members to exer Cite as: 60 U. S. (2010) 7 KENNEDY, J., dissenting cise the powers of the Board, notwithstanding the explicit statutory
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cise the powers of the Board, notwithstanding the explicit statutory command to the contrary. In an effort to avoid the mandates of the group quorum provision, as buttressed by the vacancy clause, the Court relies on the delegation clause. The Court reads the clause as requiring a delegee group to maintain three members in order for its authority to remain intact. In my respectful submission, this reading of the statute, in which any vacancy in a delegee group somehow invalidates the delegation itself, has no textual basis. Contrary to the Court’s and petitioner’s assertions, the delegation clause is not rendered unimportant under the Government’s inter pretation. The delegation clause establishes what is re quired for delegation in the first instance, while the va cancy clause and the group quorum provision allow the delegee group to proceed in the event that a member’s term expires or a member resigns. Congress could have required a delegee group to main tain three members, but it did not do so; instead, it in cluded a vacancy clause that is an explicit rejection of such a requirement. That is no doubt why the Court’s reading has not been adopted by the five Courts of Appeals to have rejected its result. See Teamsters Local Union No. 23 v. NLRB, ; Narricot Indus., L. P. v. NLRB, ; Snell Island SNF 68 F.3d 0 ; ; Northeastern Land Servs., 60 F.3d 36 While one court of appeals reached the same result as the Court, it too did not adopt the Court’s reasoning that a delegee group must maintain three members. Laurel Baye Healthcare of Lake Lanier, (“[T]his delegee group may act with two members so long as the Board quorum requirement is, ‘at all times,’ satisfied”). The Court’s reasons for nonetheless reading this re 8 NEW PROCESS STEEL, L. KENNEDY, J., dissenting quirement into the statutory text bring me to its second point. B The Court’s textual arguments in the end reduce to a single objection: The Government’s reading of allows two Board members to act as the full Board, thereby eviscerating the requirement that the Board only operate with a three-member quorum (or as three-member panels). This animates the Court’s second reason for departing from the statutory text, as the Court suggests that had Congress “intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language.” Ante, at 7. But Congress undoubtedly permitted two members to act for the Board: Even under the Court’s interpretation, two members are authorized to exercise the full powers
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interpretation, two members are authorized to exercise the full powers of the Board so long as they are part of a delegee group that has fallen to two members due to any reason other than va cancy. Ante, at 13 (“[T]he group quorum provision still operates to allow any panel to issue a decision by only two members if one member is disqualified”). The Court’s complaint, then, cannot be that Congress did not intend two members to exercise the powers of the Board; it must be that Congress did not intend to allow two members to do so for protracted periods of time. The Court is likely correct that Congress did not expect a two member quorum to operate as the Board for extended periods, but unintended consequences are typically the result of unforeseen circumstances. And it should be even more evident that Congress did not intend the Board to cease operating entirely for an extended period of time, as the Court’s interpretation of now ordains. Mem bers Liebman and Schaumber issued more than 00 opin ions when they operated as a two-member quorum of a properly designated group: Cite as: 60 U. S. (2010) 9 KENNEDY, J., dissenting “Those decisions resolved a wide variety of disputes over union representation and allegations of unfair labor practices, including cases involving employers’ discharges of employees for exercising their statutory rights; disputes over secret ballot elections in which employees voted to select a union representative; pro tests over employers’ withdrawal of recognition from union representatives designated by employees; re fusals by employers or unions to honor their obliga tion to bargain in good faith; and challenges to the re quirement that employees pay union dues as a condition of employment.” Brief for Respondent 6−7 (footnotes omitted). The Court’s objection, that Congress could have been more explicit if it wanted two members to operate as the Board, is misplaced. There is nothing inconsistent about Congress preferring Board decisions to be made by three members and advancing that preference through statutory requirements, while at the same time providing exceptions for suboptimal circumstances, such as those presented here. Quorum provisions do not express the legislature’s judgment about the optimal number of members that should be present to transact business; they set a floor that, while less than ideal, provides a minimum number of participants necessary to protect “against totally unrepre sentative action.” Robert’s Rules of Order p. 16 (rev. ed. 1970). One likely reason Congress did not permit the Board to delegate its authority to two-member groups in the first instance is that Congress wanted to
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groups in the first instance is that Congress wanted to avoid two-member groups in the mine run of cases. Congress’ statutory scheme achieved that goal, as the Court’s review of the Board’s historical practices aptly demonstrates. Ante, at 7−8. Congress nonetheless provided for two-member quorums to operate in extraordinary circumstances, where 10 NEW PROCESS STEEL, L. KENNEDY, J., dissenting the Board has exercised its discretion to delegate its au thority to a particular three-member group, and one mem ber of such a group is unavailable for whatever reason. The Board’s delegation to a three-member group that ultimately dwindled to two was a thoughtful and consid erate exercise of its reasonable discretion when it was confronted with two imperfect alternatives. During the past two years, events have turned what Congress had undoubtedly thought would be an extraordi nary circumstance into an ordinary one, through no fault of the Board. That is no reason to dispense with the statu tory regime that is prescribed when these circumstances arise, even when they unexpectedly persist. C The Court’s final reason for its interpretation is the Board’s longstanding practice of reconstituting panels whenever they drop below three members due to a va cancy. But see Photo-Sonics, 122−123 (CA9 19) (upholding decision from a two member delegee group after third member retired). The commonsense conclusion from this practice, however, is that the Board respects the superiority of three-member groups to two-member quorums of those groups. That the Board reconstitutes its panels to include three members does not demonstrate that a two-member group lacks the authority to act when recomposition is not an option. The Court is mistaken, then, when it suggests that, if two-member quorums were permissible, the Board would have a practice of allowing two-member quorums to per sist without reconstituting panels. Persuasive authority shows the contrary to be true. In 2003, the Office of Legal Counsel advised that two members can operate as a quo rum of a properly designated group, even if the other seats on the Board are vacant. The Board agreed to be bound by that opinion. See Dept. of Justice, Office of Legal Counsel, Cite as: 60 U. S. (2010) 11 KENNEDY, J., dissenting Quorum Requirements, App. to Brief for Respondent 1a−3a. Six months later, Board Member Acosta resigned. See NLRB Bulletin, Ronald Meisburg Receives Recess Appointment From President Bush to be NLRB Member Despite OLC’s opinion and the Board’s position that two-member quorums could exercise the full powers of the Board, the Board prudently reconstituted each three-member panel on which Member Acosta served before his departure because there were
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which Member Acosta served before his departure because there were enough members of the Board to do so. Its own prudent actions should not be used as a reason to strip the Board of a statutory power. And a further instructive history comes from the prac tices of the original Board, before the 1947 Taft-Hartley Act. The Wagner Act of 193, provided for a three-member Board and contained a vacancy provision similar to the one found in : “A vacancy in the Board shall not impair the right of the remaining mem bers to exercise all the powers of the Board, and two mem bers of the Board shall, at all times, constitute a quorum.” Under this statutory grant of author ity, from 193 to 1947 a two-member quorum of the Board operated during three separate periods when the third seat was vacant, issuing nearly 00 two-member decisions during such times. Those two-member Boards issued 3 published decisions in 1936 (reported at 2 N. L. R. B. 198−240); 237 published decisions in 1940 (reported at 27 N. L. R. B. 1−139 and 28 N. L. R. B. 1−11); and 22 published decisions in 19 (reported at 3 N. L. R. B. 24−1360 and 36 N. L. R. B. 1−4); see also Brief for Re spondent 3, n. 1. Congress intended to preserve this practice when it enacted the Taft-Hartley Act in 1947. The purpose of the Taft-Hartley amendment was to increase the Board’s efficiency by permitting multiple three-member groups to exercise the full powers of the Board. See S. Rep. No. 10, 12 NEW PROCESS STEEL, L. KENNEDY, J., dissenting 80th Cong., 1st Sess., 8 (1947) (“The expansion of the Board would permit it to operate in panels of three, thereby increasing by 100 percent its ability to dispose of cases expeditiously”). In furtherance of that objective, the new statutory language in complements the con gressional intent to preserve the ability of two members of the Board to exercise the Board’s full powers, in limited circumstances, by permitting the Board to delegate “any or all” of its powers “to any group of three or more members,” two members of which would constitute a quorum. D The petitioner, but not the Court, advances an alterna tive interpretation of adopted by the United States Court of Appeals for the District of Columbia Circuit. See Brief for Petitioner 16−27; Laurel Baye, In the petitioner’s view, requires the Board to have a quorum of three members “at all times,” and when the Board’s quorum fell to two members any powers that it had delegated
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fell to two members any powers that it had delegated automatically ceased. This is a misreading of the statute that the Court rightly declines to adopt. Ante, at 9−10, n. 4. As ex plained above, that the Board must meet a three-member quorum requirement at all times when it wishes to oper ate as the full Board does not mean it must maintain three members in order for delegee groups to act. It just means that the quorum requirement for the full Board, operating independently of any delegee group, is fixed at three, as opposed to the various dynamic quorum requirements found elsewhere in the United States Code. See, e.g., 28 U.S. C. (setting the quorum requirements for courts of appeals at “[a] majority of the number of judges authorized to constitute a court or panel thereof”); see also Black’s 1370 (defining “proportional quorum” as: “A quo rum calculated with reference to some defined or assumed set, usu. either the number of seats (including vacancies) Cite as: 60 U. S. (2010) 13 KENNEDY, J., dissenting or the number of sitting members (excluding vacancies)”). Petitioner’s reading ignores the operation of the word “except” in the statute: “[T]hree members of the Board shall, at all times, constitute a quorum of the Board, ex cept that two members shall constitute a quorum of any group.” While the Court does not adopt petitioner’s flawed reading, it should be noted that its failure to decisively reject it calls into question various delegations of authority the Board has made beyond three-member groups. For instance, §13(d) permits the Board to delegate various powers to its general counsel, but under petitioner’s view the general counsel would have lost all authority the moment the Board fell to two members. See also (permitting Board to delegate certain powers to its re gional directors). The Court’s assurances that its opinion “does not cast doubt on the prior delegations of authority to non-group members,” ante, at 10, n. 4, are cold comfort when it fails to reject petitioner’s view outright. * * * It is not optimal for a two-member quorum to exercise the full powers of the Board for an extended period of time. But the desire to avoid that situation cannot justify the Court’s significant revisions to : (1) It writes language into the delegation clause, requiring delegee groups to maintain a membership of three, despite the conspicuous absence of this requirement and the statutory rejection of it in the group quorum provision; (2) it excises the word “not” from the vacancy clause, so that a Board vacancy does “impair
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United States v. Nixon
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This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United in the of United v. Mitchell (D. C. Crim. No. 74-110), to quash a third-party subpoena duces tecum issued by the United District Court for the District of Columbia, pursuant to Fed. Rule Crim. Proc. 17 (c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17 (c). The President appealed to the Court of Appeals. We granted both the United ' petition for certiorari before judgment (No. 73-1766),[1] and also the President's cross-petition for certiorari *687 before judgment (No. 73-18),[2] because of the public importance of the issues presented and the need for their prompt resolution. On March 1, 1974, a grand jury of the United District Court for the District of Columbia returned an indictment charging seven named individuals[3] with various offenses, including conspiracy to defraud the United and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator.[4] On April 18, 1974, upon motion of the Special *6 Prosecutor, see n. 8, infra, a subpoena duces tecum was issued pursuant to Rule 17 (c) to the President by the United District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others.[5] The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. On April the President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to subpoena in the present were included. On May 1, 1974, the President's counsel filed a "special appearance" and a motion to quash the subpoena under Rule 17 (c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing,[6] further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President. On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for
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motion to quash and the motions to expunge and for protective orders. It further ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or *689 objects subpoenaed," to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence "intra-executive" in character; it also rejected the contention that the Judiciary was without authority to review an assertion of executive privilege by the President. The court's rejection of the first challenge was based on the authority and powers vested in the Special Prosecutor by the regulation promulgated by the Attorney General; the court concluded that a justiciable controversy was presented. The second challenge was held to be foreclosed by the decision in The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that, under the circumstances of this the presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examination in chambers" The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17 (c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p. m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record. On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court was docketed in the United *690 Court of Appeals for the District of Columbia Circuit. On the same day, the President also filed a petition for writ of mandamus in the Court of Appeals seeking review of the District Court order. Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. On May 31, the petition was granted with an expedited briefing schedule. On June 6, the President filed, under seal, a cross-petition for writ of certiorari before judgment. This cross-petition was granted June 15, 1974, and the was set for argument on July 8, 1974. I JURISDICTION The
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United States v. Nixon
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set for argument on July 8, 1974. I JURISDICTION The threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this was properly "in" the Court of Appeals when the petition for certiorari was filed in this Court. 28 U.S. C. 1254. The Court of Appeals' jurisdiction under 28 U.S. C. 1291 encompasses only "final decisions of the district courts." Since the appeal was timely filed and all other procedural requirements were met, the petition is properly before this Court for consideration if the District Court order was final. 28 U.S. C. 1254 (1), 2101 (e). The finality requirements of 28 U.S. C. 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. See, e. g., This requirement ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant *691 to a subpoena duces tecum, it has been repeatedly held that the order is not final and hence not appealable. United ; Alexander v. United This Court has "consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal." United The requirement of submitting to contempt, however, is not without exception and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. That fell within the "limited class of s where denial of immediate review would render impossible any review whatsoever of an individual's claims." United Here too, the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting in which the question arises. To require a President of the United to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of
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court merely to trigger the procedural mechanism for review of the ruling would be *692 unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conclude that the order of the District Court was an appealable order. The appeal from that order was therefore properly "in" the Court of Appeals, and the is now properly before this Court on the writ of certiorari before judgment. 28 U.S. C. 1254; 28 U.S. C. 2101 (e).[7] II JUSTICIABILITY In the District Court, the President's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch and hence not subject to judicial resolution. That argument has been renewed in this Court with emphasis on the contention that the dispute does not present a "" or "controversy" which can be adjudicated in the federal courts. The President's counsel argues that the federal courts should not intrude into areas committed to the other branches of Government. *693 He views the present dispute as essentially a "jurisdictional" dispute within the Executive Branch which he analogizes to a dispute between two congressional committees. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a Confiscation Cases, ; United v. Cox, (CA5), cert. denied sub nom. it is contended that a President's decision is final in determining what evidence is to be used in a given criminal Although his counsel concedes that the President has delegated certain specific powers to the Special Prosecutor, he has not "waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials which fall within the President's inherent authority to refuse to disclose to any executive officer." Brief for the President 42. The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under since it involves a "textually demonstrable" grant of power under Art. II. The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not
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United States v. Nixon
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has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United v. the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable or controversy is presented." at 4. See also ; ; United ex rel. ; Secretary of Agriculture v. United ; ; United v. Marine Bancorporation, ante, p. 602; and United v. Connecticut National Bank, ante, p. 656. *694 Our starting point is the nature of the proceeding for which the evidence is soughthere a pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws and is brought in the name of the United as sovereign. Berger v. United Under the authority of Art. II, 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United Government. 28 U.S. C. 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S. C. 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United in these particular matters to a Special Prosecutor with unique authority and tenure.[8] The regulation gives the *695 Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.[9] 38 Fed. Reg. 739, as amended by So long as this regulation is extant it has the force of law. In United ex rel. regulations of the Attorney General delegated certain of his discretionary powers to the Board *696 of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation s. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. 3 and reaffirmed the basic holding of Accardi. Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so.[10] So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United as the sovereign composed of the three branches is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this is not an ordinary delegation by the Attorney General to
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is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress. N. 8, The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here *697 at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United v. 337 U. S., at 4. The independent Special Prosecutor with his asserted need for the subpoenaed material in the underlying criminal prosecution is opposed by the President with his steadfast assertion of privilege against disclosure of the material. This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this to conclude other than that the Special Prosecutor has standing to bring this action and that a justiciable controversy is presented for decision. III RULE 17 (c) The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed. Rule Crim. Proc. 17 (c), which governs *698 the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus we turn to the question whether the requirements of Rule 17 (c) have been satisfied. See Arkansas Louisiana Gas 4 U.S. 61,
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have been satisfied. See Arkansas Louisiana Gas 4 U.S. 61, ; 297 U.S. 2, Rule 17 (c) provides: "A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys." A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. The leading in this Court interpreting this standard is Bowman Dairy Co. v. United This recognized certain fundamental characteristics of the subpoena duces tecum in criminal s: (1) it was not intended to provide a means of discovery for criminal s, ; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of *699 subpoenaed materials,[11]ibid. As both parties agree, s decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United v. Iozia, 13 F. R. D. 335, 338 as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary[12] and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that *700 the application is made in good faith and is not intended as a general "fishing expedition." Against this background, the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record necessarily affords a less comprehensive view of the total situation than was available to the trial judge and we are unwilling to conclude that the District Court erred in the evaluation of the Special Prosecutor's showing under Rule 17 (c). Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be
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of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. United v. Gross, 24 F. R. D. 138 With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time. As for the remainder of the tapes, the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment. We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations *701 to which one or more of the defendants named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal[13] Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence,[14] of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the on trial. Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who testifies or any other coconspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. See, e. g., United v. Carter, 15 F. R. D. 367, *702 371 Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum. Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness
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United States v. Nixon
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a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17 (c). See, e. g., ; In a such as this, however, where a subpoena is directed to a President of the United appellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17 (c) have been correctly applied. United v. 25 F. Cas. (No. 14,692d) (CC Va. 1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17 (c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United ; United v. Iozia, 13 F. R. D. 335 *703 IV THE CLAIM OF PRIVILEGE A Having determined that the requirements of Rule 17 (c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum. In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of that "[i]t is emphatically the province and duty of the judicial department to say what the law is." No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power
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United States v. Nixon
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use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. ; Youngstown Sheet & Tube 3 U.S. 579 In a *704 series of s, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U. S. Const. Art. I, 6. 412 U.S. 6 ; Gravel v. United ; United v. Brewster, ; United v. Johnson, Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers. Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." And in the Court stated: "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Notwithstanding the deference each branch must accord the others, the "judicial Power of the United " vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 We therefore reaffirm that it is the province and duty of this Court "to say what the law is" with respect to the claim of privilege presented in this B In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well
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United States v. Nixon
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those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.[15] Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers;[16] the protection of the confidentiality of *706 Presidential communications has similar constitutional underpinnings. The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United 629-6 ; (11), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications. However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. *707 The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube 3 U. S., at 635 To read the Art. II powers of the President as providing an absolute privilege as
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United States v. Nixon
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powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III. C Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United v. (No. 14,694) (CC Va. 1807). *708 The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.[17] In the Court of Appeals held that such Presidential communications are "presumptively privileged," and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no of this kind would a court be required to proceed against the president as against an ordinary individual." United v. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This *709 is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United 295 U. S., at We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the
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be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial, "that `the public has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United v. Bryan, 339 U. S. [323, 331 (1950)]; Blackmer v. United" 6 The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal to be a witness against himself." And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges *710 against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.[18] In this the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities. In C. & S. Air dealing with Presidential authority involving foreign policy considerations, the Court said: "The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret." In United v. Reynolds, 5 U.S. 1 dealing *711 with a claimant's demand for evidence in a Tort Claims Act against the Government, the Court said: "It may be possible to satisfy the court, from all the circumstances of
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possible to satisfy the court, from all the circumstances of the that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers." No of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based. The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair *712 administration of criminal justice.[19] The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.[20] On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality *713 in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be
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United States v. Nixon
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President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal s. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. D We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was "essential to the justice of the [pending criminal]" United v. Here the District Court treated the material as presumptively privileged, proceeded to find that the Special *714 Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record we are unable to conclude that the District Court erred in ordering the inspection. Accordingly we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum. E Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. "[T]he guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued." United v. 25 F. Cas., at Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the
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United States v. Nixon
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the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has *715 a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United Mr. Chief Justice Marshall, sitting as a trial judge in the was extraordinarily careful to point out that "[i]n no of this kind would a court be required to proceed against the president as against an ordinary individual." Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any "ordinary individual." It is therefore necessary[21] in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United v. and will discharge his responsibility to see to *716 it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian. Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith. Affirmed. MR. JUSTICE REHNQUIST took no part in the consideration or decision of these s.
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Preiser v. Newkirk
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https://www.courtlistener.com/opinion/109298/preiser-v-newkirk/
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Respondent Newkirk has been an inmate of the New York prison system since his conviction for murder in the second degree in 1962. He had initially been confined at the Ossining Correctional Facility and, subsequently, at the Attica Correctional Facility, the Green Haven Correctional Facility, and the Auburn Correctional Facility. These facilities were maximum security institutions[1] at the time respondent was confined in them and are located in different parts of New York. In April 1971, nine years after his initial confinement, he was transferred to the Wallkill Correctional Facility, a medium security institution. The District Court and *7 the Court of Appeals found, and it is not seriously disputed here, that the Wallkill facility is "unique," and has advantages over other correctional institutions in the New York system in that there are fewer restrictions and physical restraints as well as a more comprehensive rehabilitation program. Early in 1972, a petition aimed at the formation of a prisoners' "union" was circulated at Wallkill. This event produced some vociferous controversy among the prisoners. Tension among the inmates, according to the District Court, stemmed in part from the hostility of an existing prisoner representative committee toward the "union" movement. The prison administration, however, did not forbid or actively discourage the circulation of the petition. The administrators did, however, monitor the level of unrest within the prison brought on by the clash of opinions on the petition. On June 2, 1972, there was a general meeting of the inmates at which the petition was discussed loudly by the contending factions; the meeting dispersed peacefully, however, without incidents of violence. Respondent did not attend this meeting, but he had previously signed a proposed "union" constitution and, immediately prior to the meeting, had received a petition from a fellow inmate, signed it, and passed it along. A report prepared by the assistant deputy superintendent identified Newkirk as one of the inmates who had been canvassing for the "union" but did not charge him with any violation of regulations or misconduct. This reportincluding its naming of Newkirkwas apparently based on information other officers had given the assistant deputy superintendent. Newkirk was not afforded an opportunity to give his account. The following day, on June 6, 1972, the superintendent called the central office of the Department of Corrections and *8 arranged for transfer of several inmates, including Newkirk, to other facilities within the state corrections system. The transfer of Newkirk was effected on June 8. He was summoned to the infirmary and informed that he was being transferred. Newkirk was transferred to the Clinton Correctional Facility, a
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Preiser v. Newkirk
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https://www.courtlistener.com/opinion/109298/preiser-v-newkirk/
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transferred. Newkirk was transferred to the Clinton Correctional Facility, a maximum security institution. The conditions for the general prison population at Clinton were substantially different from those at Wallkill. At Clinton, the cells are locked, access to the library and recreational facilities is more limited, and the rehabilitation programs are less extensive. Newkirk requested a truck-driving assignment when he arrived at Clinton and understood he was on a waiting list. He was then assigned to the residence of the superintendent of Clinton at the same wage he earned at Wallkill. Since Newkirk's family lived in New York City, 80 miles from Wallkill but 300 miles from Clinton, his transfer to Clinton made visits by his family more difficult. Newkirk and three of the other four prisoners transferred from Wallkill brought suit in the United States District Court for the Southern District of New York, pursuant to 28 U.S. C. 1343 (3) and (4), and 42 U.S. C. 1983, against the superintendent of Wallkill and the State Commissioner of Correctional Services. They requested a declaratory judgment that the transfers were in violation of the Constitution and laws of the United States and an injunction ordering their return to Wallkill, expunging all record of their transfer, and prohibiting future transfers without a hearing. The District Court denied a preliminary injunction but set the case for trial on an accelerated basis. Prior to the commencement of the trial, two of the plaintiffs were released and the complaint was dismissed insofar *9 as it related to them. During the trial another plaintiff was released, and the action was dismissed as to him as well; subsequently Newkirk was returned to Wallkill. The superintendent of that institution also had a memorandum placed in respondent's file which explained the nature of the transfer, that the transfer was not for disciplinary reasons, and was not to have any bearing on eligibility for parole or the decisions of the time-allowance committee. The District Court held that the transfer violated the Due Process Clause of the Fourteenth Amendment since it had been made without any explanation to Newkirk or opportunity to be heard. The court entered a declaratory judgment which required that Newkirk be given such an explanation and an opportunity to be heard in connection with any future transfer, and further declared that no adverse parole action could be taken against Newkirk or punishment administered because of the transfer. It held that Newkirk should be informed of the scope of permissible behavior at Wallkill and the circumstances which would warrant his transfer to another prison in the future. At
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Preiser v. Newkirk
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https://www.courtlistener.com/opinion/109298/preiser-v-newkirk/
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warrant his transfer to another prison in the future. At the same time, however, the court refused the prayer for an injunction against future summary transfers because it was "not persuaded that the threat of transfer is sufficiently great at this time" ; the court concluded that "in the present posture of the case there is not a sufficiently delineated controversy to merit its adjudication," Nothing that "an explanatory note has been included with the record of transfer, and that no action adverse to plaintiff, whether with reference to parole or discipline, will be based on this information" at the court also denied a request that all record of the transfer be expunged from his file. *400 The Court of Appeals affirmed the judgment with some modification. It held that, when a prisoner suffers a "substantial loss" as a result of the transfer, "he is entitled to the basic elements of rudimentary due process, i. e., notice and an opportunity to be heard," whether or not his transfer is part of a formal disciplinary proceeding and whether or not it has any adverse parole consequences. Nothing that there were no formal disciplinary proceedings in this case, the Court of Appeals relied on the fact that the transfer changed Newkirk's living conditions, his job assignment, and training opportunities. However, although agreeing that advance publication of "rules," violation of which might result in transfer, "would serve the salutary function of avoiding misunderstanding and resentment" the Court of Appeals concluded that requiring prison officials to draw up such rules would place officials in "an unnecessary straight jacket [sic]." It, therefore, modified the judgment of the District Court to remove this requirement from its order. Although specifically noting that Newkirk had been returned to Wallkill from Clinton, the Court of Appeals held that the suit was not moot since "[e]ven after his return he remained subject to a new transfer at any time" Furthermore, despite the District Court's reliance on the goodfaith assurances of prison officials that the transfer would not have an adverse effect on Newkirk's parole possibility, the Court of Appeals concluded he was "entitled to a judicial decree to that effect." We granted petitioners' petition for writ of certiorari which presented the following question: "Whether a prison inmate who is transferred within a state from a medium security institution to a maximum security institution, *401 without the imposition of disciplinary punishment, is entitled under the Due Process Clause of the Fourteenth Amendment to notice of the reasons for the transfer and an opportunity to be heard"?[2] In granting the petition, however,
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Justice Burger
| 1,975 | 12 |
majority
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Preiser v. Newkirk
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https://www.courtlistener.com/opinion/109298/preiser-v-newkirk/
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an opportunity to be heard"?[2] In granting the petition, however, the Court directed that the parties brief and argue the question of mootness. All of the developments since the original challenged transfer must be read in light of not only Newkirk's transfer to Wallkill but also his later transfer, after the decision of the Court of Appeals, to the Edgecombe Correctional Facility, a minimum security institution in New York City. Newkirk will be eligible for parole in July 1975.[3] The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy. As the Court in North a federal court has neither the power to render advisory opinions nor "to decide questions that cannot affect the rights of litigants in the case before them." Its judgments must resolve " `a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' " Ib quoting Aetna Life Ins. As the Court last Term, in an opinion by MR. JUSTICE BRENNAN, : "The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. See, e. g., 410 U. S. [113,] []; *402 ; United" In Maryland Casualty this Court, noting the difficulty in fashioning a precise test of universal application for determining whether a request for declaratory relief had become moot, held that, basically, "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." This is not a class action and Newkirk has not sought damages. As before the ruling of the District Court, Newkirk had been transferred back to Wallkill and had been there for 10 months. No adverse action was taken against him during that period. A notation had been made in his file expressly stating that the transfer "should have no bearing in any future determinations made by the Board of Parole or the time allowance committee." Newkirk has now been transferred, as above, to a minimum security facility in New York City. It is therefore clear that correction authorities harbor no animosity toward Newkirk. We have before us more than a "[m]ere voluntary cessation of allegedly illegal conduct," United where we would leave "[t]he defendant free to return to his old ways." United As
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Justice Burger
| 1,975 | 12 |
majority
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Preiser v. Newkirk
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https://www.courtlistener.com/opinion/109298/preiser-v-newkirk/
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defendant free to return to his old ways." United As to Newkirk's original complaint, there is now " `no reasonable expectation that the wrong will be repeated,' " quoting United *403 Any subjective fear Newkirk might entertain of being again transferred, under circumstances similar to those alleged in the complaint, or of suffering adverse consequences as a result of the 1972 transfer, is indeed remote and speculative and hardly casts that "continuing and brooding presence" over him that concerned the Court in Super Tire Engineering As the Court in United "pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action." Similarly, while there is always the possibility that New York authorities might disregard the specific record notation that the transfer should have no effect on good time or parole decisions in regard to Newkirk, "such speculative contingencies afford no basis for our passing on the substantive issues [Newkirk] would have us decide" The record of events since the challenged transfer hardly bears out a genuine claim of an injury or possible injury "of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty 312 U. S., Newkirk, as above, will be eligible for parole within a matter of days. See We conclude that the question presented does not fall within that category of harm "capable of repetition, yet evading review," Southern Pacific Terminal v. ICC, 219 U.S. 8, ; Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court *404 with directions that the complaint be dismissed by the District Court. United It is so ordered. MR. JUSTICE DOUGLAS dissents from the holding of mootness and would affirm the judgment below. MR.
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per_curiam
| 1,980 | 200 |
per_curiam
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Hanrahan v. Hampton
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https://www.courtlistener.com/opinion/110275/hanrahan-v-hampton/
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In the Civil Rights Attorney's Fees Awards Act of 1976, Congress amended 42 U.S. C. 1988 to permit the award of a reasonable attorney's fee to the "prevailing party" as part of the taxable costs in a suit brought under any of several specified civil rights statutes. The respondents brought suit *755 under three of those statutes in the United States District Court for the Northern District of Illinois, alleging that their constitutional rights had been violated by the petitioners, and seeking money damages from them.[1] The District Court directed verdicts for the petitioners, but the Court of Appeals reversed and remanded the case to the District Court for a new trial, The Court of Appeals also awarded to the respondents their costs on appeal, including attorney's fees which it believed to be authorized by 1988.[2] The final sentence of 1988, as amended, provides as follows: "In any action or proceeding to enforce a provision of *756 sections 1981, 1982, 1983, 1985, and 1986 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S. C. 1988. The statute by its terms thus permits the award of attorney's fees only to a "prevailing party." Accordingly, in the present cases, the Court of Appeals was authorized to award to the respondents the attorney's fees attributable to their appeal only if, by reason of obtaining a partial reversal of the trial court's judgment, they "prevailed" within the meaning of 1988. The Court of Appeals believed that they had prevailed with respect to the appeal in this case,[3] resting its conclusion upon the following appellate rulings favorable to the respondents: (1) the reversal of the District Court's judgment directing verdicts against them, save with respect to certain of the defendants; (2) the reversal of the District Court's denial of their motion to discover the identity of an informant; and (3) the direction to the District Court on remand to consider allowing further discovery, and to conduct a hearing on the respondents' contention that the conduct of some of the petitioners in response to the trial court's discovery orders warranted the imposition of sanctions under Federal Rule of Civil Procedure 37 (b) (2). While the respondents did prevail on these matters in the sense that the Court of Appeals overturned several rulings against them by the District Court, they were not, we have concluded, "prevailing" parties in the sense intended by 42 U.S. C. 1988, as amended. The legislative history of the Civil Rights Attorney's Fees
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Hanrahan v. Hampton
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amended. The legislative history of the Civil Rights Attorney's Fees Awards Act of 1976 indicates that a person may in some circumstances be a "prevailing party" without having obtained a *757 favorable "final judgment following a full trial on the merits," H. R. Rep. No. p. 7 (1976). See also S. Rep. No. p. 5 (1976). Thus for example, "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief," See also H. R. Rep. No. and cases cited; ; (CA1 19). It is evident also that Congress contemplated the award of fees pendente lite in some cases. S. Rep. No. ; H. R. Rep. No. -8. But it seems clearly to have been the intent of Congress to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal. The congressional Committee Reports described what were considered to be appropriate circumstances for such an award by reference to two cases and S. Rep. No. ; H. R. Rep. No. In each of those cases the party to whom fees were awarded had established the liability of the opposing party, although final remedial orders had not been entered. The House Committee Report, moreover, approved the standard suggested by this Court in Bradley, that "`the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees.'" H. R. Rep. No. quoting 23, n. 28. Similarly, the Senate Committee Report explained that the award of counsel fees pendente lite would be "especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues." S. Rep. No. It seems apparent from these passages *758 that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the "substantial rights of the parties," which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.[4] The respondents have of course not prevailed on the merits of any of their claims. The Court of Appeals held only that the respondents were entitled to a trial of their cause.[5] As a practical matter they
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per_curiam
| 1,980 | 200 |
per_curiam
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Hanrahan v. Hampton
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a trial of their cause.[5] As a practical matter they are in a position no different from that *759 they would have occupied if they had simply defeated the defendants' motion for a directed verdict in the trial court. The jury may or may not decide some or all of the issues in favor of the respondents. If the jury should not do so on remand in these cases, it could not seriously be contended that the respondents had prevailed. See Nor may they fairly be said to have "prevailed" by reason of the Court of Appeals' other interlocutory dispositions, which affected only the extent of discovery. As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could "prevail" for purposes of shifting his counsel fees to the opposing party under 1988. See 605 F.2d 1, The motion of Fraternal Order of Police of the State of Illinois in case No. 79-912 for leave to file a brief, as amicus curiae, is granted. The respondents' motions for leave to proceed in forma pauperis are granted, the petitions for certiorari are granted, limited to the question of the propriety of the award of attorney's fees by the Court of Appeals, and the judgment is reversed insofar as it awarded attorney's fees to the respondents. In all other respects, the petitions for certiorari are denied. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of these cases. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in part and dissenting in part. I join the Court's opinion insofar as it reverses the award of attorney's fees entered by the Court of Appeals for the Seventh Circuit. As I would grant the petition filed by the *760 federal defendants in its entirety, I dissent from the denial of certiorari in No. 79-914.[1] I This civil litigation arose in the aftermath of a 1969 police raid on a Chicago apartment occupied by nine members of the Black Panther Party, two of whom were killed. The surviving occupants of the apartment and the legal representatives of the deceased Black Panthers filed four actions for damages, now consolidated, against 28 state and federal law enforcement officials. The complaints allege numerous violations of constitutional rights. In particular, the plaintiffs claim that three agents assigned to the Federal Bureau of Investigation's Chicago office and an informant working with them (the federal defendants) conspired with state officers to carry out the
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per_curiam
| 1,980 | 200 |
per_curiam
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Hanrahan v. Hampton
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federal defendants) conspired with state officers to carry out the operation, to conceal its allegedly sinister nature, and to harass the plaintiffs with unfounded prosecutions. The jury trial lasted 18 months, generating a 37,000-page transcript and masses of documentary evidence. At the close of the plaintiffs' case, some 16 months after trial began, the District Court granted directed verdicts in favor of the federal and most of the state defendants. Trial continued as to the police officers who actually participated in the apartment incident. Ultimately, the jury deadlocked and the District Court entered a final judgment directing verdicts in favor of all of the defendants. A divided panel of the Court of Appeals vacated the judgment and ordered a new trial as to all but four of the defendants. I have not reviewed the entire record of what is said to have been "the longest case tried to a jury in the history of the United States judiciary." Memorandum of District Court, App. to Pet. for Cert. in No. 79-914. p. 175a. I have, however, *761 read with care the three separate opinions filed in the Court of Appeals as well as the District Court's extensive memorandum. Each judge agreed that the case against the federal defendants turns upon the sufficiency of the evidence regarding the alleged conspiracy. At the close of the plaintiffs' case in chief, the District Court "reviewed all of the evidence with all reasonable inferences that could be drawn therefrom, in the light most favorable to the plaintiffs." at 186a. The court found the record "devoid of proof of participation [by the federal defendants] in a conspiratorial plan among themselves or with the state defendants. Thus no liability on their part existed and their motions for directed verdicts were granted." at 193a-194a. More specifically, the court explained: "Each of the Federal defendants was called by plaintiffs as adverse witnesses. Each testified extensively and denied knowledge or [sic], or participation in, a plan, or an agreement, or a conspiracy between themselves, or between them or any of them, and any and all of the State defendants to violate plaintiffs' constitutional and statutory rights through conduct of the search of the apartment, or prior thereto, or after the occurrence, or otherwise. Their denials were uncontradicted and unimpeached by any testimony whatsover." at 189a-190a. Despite the explicit findings of the judge who presided over this 18-month trial, a majority of the Court of Appeals drew its own inferences and concluded that the evidence was sufficient to "warrant a jury determination of whether a conspiracy existed." The majority's lengthy opinion
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per_curiam
| 1,980 | 200 |
per_curiam
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Hanrahan v. Hampton
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https://www.courtlistener.com/opinion/110275/hanrahan-v-hampton/
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determination of whether a conspiracy existed." The majority's lengthy opinion indicates that the court relied primarily, if not entirely, upon extensive testimony describing an FBI counterintelligence program directed against a number of organizations including the Black Panther Party. There is no question that the FBI viewed that organization, which openly advocated armed resistance to authority and *762 had a documented record of violence,[2] as a serious threat to public safety and to the lives of law enforcement officers. But the issue at trial was not whether the FBI had a program designed to discredit the Black Panthers, or even whether the program had produced excesses. The only issue was whether these federal defendants conspired with state officers to conduct an unlawful search in which excessive force would be used or, subsequently, to harass the plaintiffs with malicious prosecutions. See No one contends that any of the federal defendants took part in the raid itself. They did supply information to state officers about illegal firearms stored in the apartment. But each federal defendant testified that he did not know of and did not participate in any planning or joint activity regarding the operation at any time. This uncontradicted testimony was fully corroborated by the state defendants. In these circumstances, inferences drawn from a program not shown to have been related to the events in question are of dubious value. Judge Pell, dissenting in part in the Court of Appeals, viewed the matter as follows: "Going next to the remaining state defendants and the federal defendants, I cannot agree that there was a basis for reasonable inferences that there was any kind of an agreement among them, express or implicit, to *763 cause a raid to be made with the object of killing or wounding various Black Panther Party members. It is true that at the time in question, the federal authorities thought it would be in the public good to neutralize the Black Panther Party so that it could not carry out its avowed purpose, among others, of killing policemen. Indeed, the idea perhaps could have been entertained by some, if not all, of those defendants who were engaged in law enforcement work that the community would be a safer place for law-abiding citizens to live and work in if Fred Hampton and his cohorts were not on the scene. This human feeling is far removed from a basis for an inference that they deliberately set a course to accomplish that by violence. "In our jurisprudence a person cannot be convicted of a traffic offense unless proven guilty beyond a reasonable
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per_curiam
| 1,980 | 200 |
per_curiam
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Hanrahan v. Hampton
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https://www.courtlistener.com/opinion/110275/hanrahan-v-hampton/
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of a traffic offense unless proven guilty beyond a reasonable doubt. Even though the present case is of the civil variety, I cannot believe that the law should permit a determination that any person has deliberately planned a homicide on nothing more than speculative conjecture or mere suspicion. The hard basic reasonable inference-creating facts just did not exist in this case." In the absence of positive evidence or "reasonable inference-creating facts," there was no reason to include the federal defendants in the remand for a second trial. II This Court ordinarily leaves questions as to the sufficiency of evidence in a particular case to the courts below. But this is nor ordinary litigation. Although it may appear on the surface to be an unexceptional civil rights suit for damages, the extraordinary magnitude of the litigation and the nature and scope of the evidence demonstrate that this lawsuit differs *764 from the civil damages actions to which our courts are accustomed. Judge Pell observed that "this case has important overtones of unbridled denigrating attacks on governmental officials." The allegations of unconstitutional conduct by the state defendants are serious indeed, and I express no view on the merits of these claims. But the plaintiffs have a larger target: the Federal Bureau of Investigation. It is apparent that a basic trial strategy was to attack the FBI broadly. If there were sufficient relevant evidence to support the plaintiffs' claims, the law would require that they go to the jury regardless of underlying motive. Yet the presence of this collateral objective, related only tangentially if at all to the recovery of damages, imposed a special duty on the courts to bear in mind the admonition of 438 U.S. 4, (19), that "federal officials [not be] harassed by frivolous lawsuits." Butz rejected a claim that all highly placed federal officials should be absolutely immune from liability for civil rights violations. But federal officials, like state officials used under 42 U.S. C. 1983, have qualified immunity from suit. They therefore are liable only when they "discharge their duties in a way that is known to them to violate a clearly established constitutional rule." 438 U.S., 07. In Butz, we emphasized that absolute immunity is unnecessary to protect the public interest in "encouraging the vigorous exercise of official authority," 06, because qualified immunity shields officials from liability for good-faith mistakes. We predicted that such immunity would prove "workable," because "firm application of the Federal Rules of Civil Procedure" would permit "[i]nsubstantial lawsuits [to] be quickly terminated." In particular, "damages suits concerning constitutional violations need not proceed to
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per_curiam
| 1,980 | 200 |
per_curiam
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Hanrahan v. Hampton
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https://www.courtlistener.com/opinion/110275/hanrahan-v-hampton/
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particular, "damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment." 07-. The District Court heeded this admonition. *765 In reversing that court, the Court of Appeals misappreciated the premises on which this Court rested its ruling in Butz. In Butz, we endeavored to accommodate two important societal objectives: to compensate persons injured by civil rights violations, and to do so without discouraging vigorous enforcement of the laws. The first objective impelled the Court to reject absolute in favor of qualified immunity for most officials. We recognized, however, that our decision would invite litigation in which constitutional claims easily are asserted. We therefore cautioned the judiciary to exercise their authority under the rules of procedure in order to protect official defendants from groundless claims. 07. Our concern in Butz was that extravagant charges might force officials to trial on claims that lacked a substantial basis in fact. In this case, there can be little speculation as to what evidence may be marshaled in support of the complaint. After 16 months of trial devoted exclusively to the plaintiffs' evidence, the trial court found the record wholly "devoid of proof of participation" by the federal defendants in the conspiracy alleged. App. to Pet. for Cert. in No. 79-914, p. 193a. These defendants continue to assert that their conduct was a routine and good-faith effort at cooperative law enforcement. Neither the parties nor the courts below have identified concrete evidence to the contrary. If a new trial may be ordered in this case, similar allegations could survive properly supported motions for summary judgment on the basis of speculative inferences from unrelated evidence. The prospect of defending such lawsuits can hardly fail to "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." III The Court of Appeals' remand for a second trial as to the federal defendants in this case vitiates the protection we *766 sought to insure in Butz. The effect on legitimate law enforcement efforts could be serious. At the least, these officers' experience is likely to discourage other federal officials from cooperating with state law enforcement agencies over which they have no control. I would grant the petition for certiorari. MR.
|
Justice Douglas
| 1,972 | 10 |
dissenting
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Murel v. Baltimore City Criminal Court
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https://www.courtlistener.com/opinion/108583/murel-v-baltimore-city-criminal-court/
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Patuxent Institution is a special prison used by the State of for the incarceration of "defective delinquents." Individuals who have demonstrated "persistent aggravated anti-social or criminal behavior," who have "a propensity toward criminal activity," and who have "either such intellectual deficiency or emotional unbalance" as to present "an actual danger to society" may be confined at Patuxent. Md. Ann. Code, Art 31B, 5 The initial determination that one is a defective delinquent is made judicially and, for those confined to Patuxent after such a determination, there is the right to seek judicial redetermination of their status at three-year intervals. 6 et seq. One of the objectives of Patuxent supposedly is to provide treatment for the inmates so that they may be returned to society. Should a defective delinquent not receive treatment, or should the treatment prove inadequate to return him to society, the inmate might *359 well remain in Patuxent for the remainder of his life. See McNeil v. Director, Patuxent Institution, ante, p. 245. Petitioners brought this action in the District Court challenging various aspects of their confinement at Patuxent. The District Court denied relief, ; the Court of Appeals affirmed, ; and we granted the petition for a writ of certiorari. Because I base my decision on narrow grounds, I do not reach the broader issues tendered by petitioners. When a State moves to deprive an individual of his liberty, to incarcerate him indefinitely, or to place him behind bars for what may be the rest of his life, the Federal Constitution requires that it meet a more rigorous burden of proof than that employed by to commit defective delinquents. The Defective Delinquency Law does not specify the burden of proof necessary to commit an individual to Patuxent, but the Court of Appeals has determined that the State need only prove its case by the "fair preponderance of the evidence." E. g., ; ; ; ; ; and see ; Petitioners have thus been taken from their families and deprived of their constitutionally protected liberty under the same standard of proof applicable to run-of-the-mill automobile negligence actions.[1] *360 The Court of Appeals disapproved this standard but, because it felt it insignificant, nonetheless held it to be consistent with the requirements of the Due Process Clause: "We might all be happier had [the burden of persuasion] been stated in terms of clear and convincing proof rather than in terms of a preponderance of the evidence. However meaningful the distinction may be to us as judges, however, it is greatly to be doubted that a jury's verdict would ever be
|
Justice Douglas
| 1,972 | 10 |
dissenting
|
Murel v. Baltimore City Criminal Court
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https://www.courtlistener.com/opinion/108583/murel-v-baltimore-city-criminal-court/
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to be doubted that a jury's verdict would ever be influenced by the choice of one standard or the other. We all know that juries apply the preponderance standard quite flexibly, depending upon the nature of the case. In any event, in the present state of our knowledge, choice of the standard *361 of proof should be left to the state. A legislative [sic] choice of the preponderance standard, the same standard governing civil commitments of mentally ill persons who have no history of criminality, ought not to be held in violation of due process requirements when we have no firm foundation for an evaluation of the practical effects of the choice." Judge Sobeloff dissented in part and would have held the State to a more stringent burden: "The reasonable doubt standard is indispensable in both criminal and juvenile proceedings for `it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' "The objections to the preponderance standard apply with equal force in defective delinquency hearingsindeed they are even more compelling in the latter class of cases, since indefinite incarceration is at stake. Due process commands that the jury must be satisfied beyond a reasonable doubt as to all objective facts in dispute, including the truth of any alleged incidents relied upon by the psychiatrists in reaching their recommendation." In considering the constitutionally mandated burdens of proof applicable to particular types of cases, our decisions have attached greater significance to the varying standards than did the Court of Appeals below. In we said: "To experienced lawyers it is commonplace that the outcome of a lawsuitand hence the vindication of legal rightsdepends more often on how the factfinder appraises the facts than on a disputed *362 construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights." And see In re The reason for our continued concern over the applicable burden of proof is that a lawsuitlike any other factfinding processis necessarily susceptible of error in the making of factual determinations. The nature of the rights implicated in the lawsuit thus determines the allocation and degree of the burden of proof and consequently the party upon whom the risk of errors in the factfinding process will be placed. We applied this reasoning
|
Justice Douglas
| 1,972 | 10 |
dissenting
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Murel v. Baltimore City Criminal Court
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https://www.courtlistener.com/opinion/108583/murel-v-baltimore-city-criminal-court/
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the factfinding process will be placed. We applied this reasoning in where First Amendment rights were implicated: "In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending valueas a criminal defendant his libertythis margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt." -526 *363 In MR. JUSTICE BRENNAN, in an opinion joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, again applied these principles and reasoned that the important First Amendment interests present in defamation actions required plaintiffs to meet an extraordinary burden of proof. JUSTICE BRENNAN said, "In libel cases an erroneous verdict for the plaintiff [is] most serious. [T]he possibility of such error would create a strong impetus toward self-censorship which the First Amendment cannot tolerate." MR. JUSTICE BRENNAN thus concluded that a more rigorous burden of proof was necessary to safeguard the important First Amendment rights involved: "We hold that a libel action by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not." In re dealt with an individual's personal liberty which we had characterized as "an interest of transcending value" in 357 U. S., 5. There, we determined that "proof beyond a reasonable doubt" was constitutionally required "because of the possibility that [an individual might] lose his liberty" and because of the stigma of a criminal And see In the present case, petitioners were deprived of their most basic righttheir personal libertyunder a burden of proof which was constitutionally inadequate. The *364 right to liberty is one of transcendent value. Without it, other constitutionally protected rights such as the right of free expression and the right of privacy become largely meaningless. Yet has deprived petitioners of this right, using
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Justice Douglas
| 1,972 | 10 |
dissenting
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Murel v. Baltimore City Criminal Court
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https://www.courtlistener.com/opinion/108583/murel-v-baltimore-city-criminal-court/
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largely meaningless. Yet has deprived petitioners of this right, using a burden of proof which fails to give sufficient weight to the interests involved. It is no answer to say that petitioners' commitments were in "civil" proceedings and that the requirement for proof beyond a reasonable doubt is required only in "criminal" cases. In re Gault, and In re specifically rejected this distinction and looked instead at the interests involved and the actual nature of the proceedings. See also ; Nor would it be persuasive to argue that the difficulty in proving one's state of mind requires that the State be afforded the benefit of a lesser burden of proof. Proving a state of mind is no more difficult than many other issues with which courts and juries grapple each day.[2] An individual who is confronted with *365 the possibility of commitment, moreover, runs the risk of losing his most important righthis liberty. and indicate that an individual's personal liberty is an interest of transcending value for the deprivation of which the State must prove its case beyond a reasonable doubt. I would follow established precedent and hold that a State may not subject individuals to lengthyif not indefiniteincarceration under a lesser burden of proof. Accordingly, I would reverse the judgment below.
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Justice Burger
| 1,975 | 12 |
concurring
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O'Connor v. Donaldson
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https://www.courtlistener.com/opinion/109303/oconnor-v-donaldson/
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Although I join the Court's opinion and judgment in this case, it seems to me that several factors merit more emphasis than it gives them. I therefore add the following remarks. I With respect to the remand to the Court of Appeals on the issue of official immunity from liability for monetary damages,[1] it seems to me not entirely irrelevant that there was substantial evidence that Donaldson consistently refused treatment that was offered to him, claiming that he was not mentally ill and needed no treatment.[2]*579 The Court appropriately takes notice of the uncertainties of psychiatric diagnosis and therapy, and the reported cases are replete with evidence of the divergence of medical opinion in this vexing area. E. g., See also Nonetheless, one of the few areas of agreement among behavioral specialists is that an uncooperative patient cannot benefit from therapy and that the first step in effective treatment is acknowledgment by the patient that he is suffering from an abnormal condition. See, e. g., The Right to TreatmentAn Enchanting Legal Fiction? Donaldson's adamant refusal to do so should be taken into account in considering petitioner's good-faith defense. Perhaps more important to the issue of immunity is a factor referred to only obliquely in the Court's opinion. On numerous occasions during the period of his confinement Donaldson unsuccessfully sought release in the Florida courts; indeed, the last of these proceedings was terminated only a few months prior to the bringing of this action. See cert. denied, Whatever the reasons for the state court's repeated denials of relief, and regardless of whether they correctly resolved the issue tendered to them, petitioner and the other members of the medical staff at Florida State Hospital would surely have been justified in considering each such judicial decision as an approval of continued confinement and an independent intervening reason for continuing Donaldson's custody. Thus, this fact is inescapably related to the issue of immunity and must be considered by the Court of Appeals on remand and, if a new trial on this issue is ordered, by the District Court.[3] *580 II As the Court points out, ante, at 570 n. 6, the District Court instructed the jury in part that "a person who is involuntarily civilly committed to a mental hospital does have a constitutional right to receive such treatment as will give him a realistic opportunity to be cured" (emphasis added), and the Court of Appeals unequivocally approved this phrase, standing alone, as a correct statement of the law. The Court's opinion plainly gives no approval to that holding and makes clear that it
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Justice Burger
| 1,975 | 12 |
concurring
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O'Connor v. Donaldson
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https://www.courtlistener.com/opinion/109303/oconnor-v-donaldson/
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no approval to that holding and makes clear that it binds neither the parties to this case nor the courts of the Fifth Circuit. See ante, at 577-578, n. 12. Moreover, in light of its importance for future litigation in this area, it should be emphasized that the Court of Appeals' analysis has no basis in the decisions of this Court. A There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Cf. In re Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease when those reasons no longer exist. See ; The Court of Appeals purported to be applying these principles in developing the first of its theories supporting *581 a constitutional right to treatment. It first identified what it perceived to be the traditional bases for civil commitmentphysical dangerousness to oneself or others, or a need for treatmentand stated: "[W]here, as in Donaldson's case, the rationale for confinement is the `parens patriae' rationale that the patient is in need of treatment, the due process clause requires that minimally adequate treatment be in fact provided. `To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.' " The Court of Appeals did not explain its conclusion that the rationale for respondent's commitment was that he needed treatment. The Florida statutes in effect during the period of his confinement did not require that a person who had been adjudicated incompetent and ordered committed either be provided with psychiatric treatment or released, and there was no such condition in respondent's order of commitment. Cf. More important, the instructions which the Court of Appeals read as establishing an absolute constitutional right to treatment did not require the jury to make any findings regarding the specific reasons for respondent's confinement or to focus upon any rights he may have had under state law. Thus, the premise of the Court of Appeals' first theory must have been that, at least with respect to persons who are not physically dangerous, a State has no power to confine the mentally ill except for the purpose of providing them with treatment. That proposition is surely not descriptive of the power traditionally exercised by the
|
Justice Burger
| 1,975 | 12 |
concurring
|
O'Connor v. Donaldson
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https://www.courtlistener.com/opinion/109303/oconnor-v-donaldson/
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surely not descriptive of the power traditionally exercised by the in this area. *582 Historically, and for a considerable period of time, subsidized custodial care in private foster homes or boarding houses was the most benign form of care provided incompetent or mentally ill persons for whom the assumed responsibility. Until well into the 19th century the vast majority of such persons were simply restrained in poorhouses, almshouses, or jails. See A. Deutsch, The Mentally Ill in America 38-54, 114-131 (2d ed. 1949). The few that established institutions for the mentally ill during this early period were concerned primarily with providing a more humane place of confinement and only secondarily with "curing" the persons sent there. See As the trend toward state care of the mentally ill expanded, eventually leading to the present statutory schemes for protecting such persons, the dual functions of institutionalization continued to be recognized. While one of the goals of this movement was to provide medical treatment to those who could benefit from it, it was acknowledged that this could not be done in all cases and that there was a large range of mental illness for which no known "cure" existed. In time, providing places for the custodial confinement of the so-called "dependent insane" again emerged as the major goal of the ' programs in this area and remained so well into this century. See ; D. Rothman, The Discovery of the Asylum 264-295 In short, the idea that may not confine the mentally ill except for the purpose of providing them with treatment is of very recent origin,[4] and there is no historical basis for imposing such a limitation on state power. Analysis of the sources of the civil commitment power likewise lends no support to that notion. There can be little doubt that in the exercise of its police power *583 a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease. Cf. Minnesota ex rel. ; Additionally, the are vested with the historic parens patriae power, including the duty to protect "persons under legal disabilities to act for themselves." See also Mormon The classic example of this role is when a State undertakes to act as " `the general guardian of all infants, idiots, and lunatics.' " at quoting 3 W. Blackstone, Commentaries *47. Of course, an inevitable consequence of exercising the parens patriae power is that the ward's personal freedom will be substantially restrained, whether a guardian is appointed to control his property, he is placed in the custody of a private third
|
Justice Burger
| 1,975 | 12 |
concurring
|
O'Connor v. Donaldson
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https://www.courtlistener.com/opinion/109303/oconnor-v-donaldson/
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he is placed in the custody of a private third party, or committed to an institution. Thus, however the power is implemented, due process requires that it not be invoked indiscriminately. At a minimum, a particular scheme for protection of the mentally ill must rest upon a legislative determination that it is compatible with the best interests of the affected class and that its members are unable to act for themselves. Cf. Mormon Moreover, the use of alternative forms of protection may be motivated by different considerations, and the justifications for one may not be invoked to rationalize another. Cf. -. See also American Bar Foundation, The Mentally Disabled and the Law 254-255 However, the existence of some due process limitations on the parens patriae power does not justify the further conclusion that it may be exercised to confine a mentally *584 ill person only if the purpose of the confinement is treatment. Despite many recent advances in medical knowledge, it remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of "cure" are generally low. See Schwitzgebel, The Right to Effective Mental Treatment, There can be little responsible debate regarding "the uncertainty of diagnosis in this field and the tentativeness of professional judgment." 350 U. S., at See also Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,[5] Similarly, as previously observed, it is universally recognized as fundamental to effective therapy that the patient acknowledge his illness and cooperate with those attempting to give treatment; yet the failure of a large proportion of mentally ill persons to do so is a common phenomenon. See 36 U. Chi. L. Rev., at It may be that some persons in either of these categories,[6] and there may be others, are unable to function in society and will suffer real harm to themselves unless provided with care in a sheltered environment. See, e. g., At the very least, I am not able to say that a state legislature is powerless to make that kind of judgment. See B Alternatively, it has been argued that a Fourteenth Amendment right to treatment for involuntarily confined mental patients derives from the fact that many of the safeguards of the criminal process are not present in civil commitment. The Court of Appeals described this theory as follows: "[A] due process right to treatment is based on the principle that when the three central limitations on the
|
Justice Burger
| 1,975 | 12 |
concurring
|
O'Connor v. Donaldson
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https://www.courtlistener.com/opinion/109303/oconnor-v-donaldson/
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the principle that when the three central limitations on the government's power to detainthat detention be in retribution for a specific offense; that it be limited to a fixed term; and that it be permitted after a proceeding where the fundamental procedural safeguards are observedare absent, there must be a quid pro quo extended by the government to justify confinement. And the quid pro quo most commonly recognized is the provision of rehabilitative treatment." To the extent that this theory may be read to permit a State to confine an individual simply because it is willing to provide treatment, regardless of the subject's ability to function in society, it raises the gravest of constitutional problems, and I have no doubt the Court of Appeals would agree on this score. As a justification for a constitutional right to such treatment, the quid pro quo theory suffers from equally serious defects. It is too well established to require extended discussion that due process is not an inflexible concept. Rather, its requirements are determined in particular instances by identifying and accommodating the interests *586 of the individual and society. See, e. g., ; 407 U. S., at ; Where claims that the State is acting in the best interests of an individual are said to justify reduced procedural and substantive safeguards, this Court's decisions require that they be "candidly appraised." In re 27-29. However, in so doing judges are not free to read their private notions of public policy or public health into the Constitution. The quid pro quo theory is a sharp departure from, and cannot coexist with, due process principles. As an initial matter, the theory presupposes that essentially the same interests are involved in every situation where a State seeks to confine an individual; that assumption, however, is incorrect. It is elementary that the justification for the criminal process and the unique deprivation of liberty which it can impose requires that it be invoked only for commission of a specific offense prohibited by legislative enactment. See[7] But it would be incongruous, for example, to apply the same limitation when quarantine is imposed by the State to protect the public from a highly communicable disease. See -30. *587 A more troublesome feature of the quid pro quo theory is that it would elevate a concern for essentially procedural safeguards into a new substantive constitutional right.[8] Rather than inquiring whether strict standards of proof or periodic redetermination of a patient's condition are required in civil confinement, the theory accepts the absence of such safeguards but insists that the State provide benefits which,
|
Justice Burger
| 1,975 | 12 |
concurring
|
O'Connor v. Donaldson
|
https://www.courtlistener.com/opinion/109303/oconnor-v-donaldson/
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such safeguards but insists that the State provide benefits which, in the view of a court, are adequate "compensation" for confinement. In light of the wide divergence of medical opinion regarding the diagnosis of and proper therapy for mental abnormalities, that prospect is especially troubling in this area and cannot be squared with the principle that "courts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected." In re Of course, questions regarding the adequacy of procedure and the power of a State to continue particular confinements are ultimately for the courts, aided by expert opinion to the extent that is found helpful. But I am not persuaded that we should abandon the traditional limitations on the scope of judicial review. C In sum, I cannot accept the reasoning of the Court of Appeals and can discern no basis for equating an involuntarily committed mental patient's unquestioned constitutional right not to be confined without due process *588 of law with a constitutional right to treatment.[9] Given the present state of medical knowledge regarding abnormal human behavior and its treatment, few things would be more fraught with peril than to irrevocably condition a State's power to protect the mentally ill upon the providing of "such treatment as will give [them] a *589 realistic opportunity to be cured." Nor can I accept the theory that a State may lawfully confine an individual thought to need treatment and justify that deprivation of liberty solely by providing some treatment. Our concepts of due process would not tolerate such a "trade-off." Because the Court of Appeals' analysis could be read as authorizing those results, it should not be followed.
|
Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
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https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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The principal question in dispute between the parties is whether the Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S. C. 1001 et seq. (1976 ed. and Supp. V), permits state tax authorities *4 to collect unpaid state income taxes by levying on funds in trust for the taxpayers under an ERISA-covered vacation benefit plan. The issue is an important one, which affects thousands of federally regulated trusts and all nonfederal tax collection systems, and it must eventually receive a definitive, uniform resolution. Nevertheless, for reasons involving perhaps more history than logic, we hold that the lower federal courts had no jurisdiction to decide the question in the case before us, and we vacate the judgment and remand the case with instructions to remand it to the state court from which it was removed. I None of the relevant facts is in dispute. Appellee Construction Laborers Vacation Trust for southern California (CLVT)[1] is a trust established by an agreement between four associations of employers active in the construction industry in southern California and the Southern California District Council of Laborers, an arm of the District Council and affiliated locals of the Laborers' International Union of North America. The purpose of the agreement and trust was to establish a mechanism for administering the provisions of a collective-bargaining agreement that grants construction workers a yearly paid vacation.[2] The trust agreement expressly proscribes any assignment, pledge, or encumbrance of *5 funds in trust by CLVT.[3] The Plan that CLVT administers is unquestionably an "employee welfare benefit plan" within the meaning of 3 of ERISA, 29 U.S. C. 1002(1), and CLVT and its individual trustees are thereby subject to extensive regulation under Titles I and III of ERISA. Appellant Franchise Tax Board is a California agency charged with enforcement of that State's personal income tax law. California law authorizes appellant to require any person in possession of "credits or other personal property or other things of value, belonging to a taxpayer" "to withhold. the amount of any tax, interest, or penalties due from the taxpayer and to transmit the amount with to the Franchise Tax Board." Cal. Rev. & Tax. Code Ann. 18817 (West Supp. 1983). Any person who, upon notice by the Franchise Tax Board, fails to comply with its request to withhold and to transmit funds becomes personally liable for the amounts identified in the notice. 18818. In June 1980, the Franchise Tax Board filed a complaint in state court against CLVT and its trustees. Under the heading "First Cause of Action," appellant alleged that CLVT had failed to
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Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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Cause of Action," appellant alleged that CLVT had failed to comply with three levies issued under 18817,[4] concluding *6 with the allegation that it had been "damaged in a sum not to exceed $380.56 plus interest from June 1, 1980." App. 3-8. Under the heading "Second Cause of Action," appellant incorporated its previous allegations and added: "There was at the time of the levies alleged above and continues to be an actual controversy between the parties concerning their respective legal rights and duties. The Board [appellant] contends that defendants [CLVT] are obligated and required by law to pay over to the Board all amounts in favor of the Board's delinquent taxpayers. On the other hand, defendants contend that section 514 of ERISA preempts state law and that the trustees lack the power to honor the levies made upon them by the State of California. *7 "[D]efendants will continue to refuse to honor the Board's levies in this regard. Accordingly, a declaration by this court of the parties' respective rights is required to fully and finally resolve this controversy." In a prayer for relief, appellant requested damages for defendants' failure to honor the levies and a declaration that defendants are "legally obligated to honor all future levies by the Board."[5] CLVT removed the case to the United States District Court for the Central District of California, and the court denied the Franchise Tax Board's motion for remand to the state court. On the merits, the District Court ruled that ERISA did not pre-empt the State's power to levy on funds in trust by CLVT. CLVT appealed, and the court of Appeals reversed. On petition for rehearing, the Franchise Tax Board renewed its argument that the District Court lacked jurisdiction over the complaint in this case. The petition for rehearing was denied, and an appeal was taken to this Court. We postponed consideration of our jurisdiction pending argument on the merits. We now hold that this case was not within the removal jurisdiction conferred by 28 U.S. C. 1441, and therefore we do not reach the merits of the preemption question.[6] II The jurisdictional structure at issue in this case has remained basically unchanged for the past century. With exceptions not relevant here, "any civil action brought in a *8 State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." If it appears before final judgment that a
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