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Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
the House and Senate bills, was the task of a Conference Committee. See 9 Cong. Rec. 30174-30175, 383 The Conference Report, H. R. Conf. Rep. No. 93-740 basically adopted the Senate bill, S. 1983; but the conferees rejected the Senate version of 7 and adopted the stringent, mandatory language in H. R. 37. While the Conference Report made no specific reference to this choice of provisions, the House manager of the bill, Representative Dingell, provided an interpretation of what the Conference bill would require, making it clear that the mandatory provisions of 7 were not casually or inadvertently included: "[Section 7] substantially amplifie[s] the obligation of [federal agencies] to take steps within their power to carry out the purposes of this act. A recent article illustrates the problem which might occur absent this new language in the bill. It appears that the whooping cranes of this country, perhaps the best known of our endangered species, are being threatened by Air Force bombing activities along the gulf coast of Texas. Under existing law, the Secretary of Defense has some discretion as to whether or not he will take the necessary action to see that this threat disappears [O]nce the bill is enacted, [the Secretary of Defense] would be required to take the proper steps. "Another example [has] to do with the continental population of grizzly bears which may or may not be endangered, but which is surely threatened. Once this *184 bill is enacted, the appropriate Secretary, whether of Interior, Agriculture or whatever, will have to take action to see that this situation is not permitted to worsen, and that these bears are not driven to extinction. The purposes of the bill included the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. [T]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear." 9 Cong. Rec. 42913 It is against this legislative background[29] that we must measure TVA's claim that the Act was not intended to stop operation of a project which, like Tellico Dam, was near completion when an endangered species was discovered in its path. While there is no discussion in the legislative history of precisely this problem, the totality of congressional action makes it abundantly clear that the result we reach today is wholly in accord with both the words of the statute and the intent of Congress. The plain intent of Congress in enacting this
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Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
of Congress. The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to "take" endangered species, meaning that no one is "to harass, harm,[30] pursue, hunt, shoot, *185 wound, kill, trap, capture, or collect" such life forms. 16 U.S. C. 1532 (14), 1538 (a) (1) (B) (1976 ed.). Agencies in particular are directed by 2 (c) and 3 (2) of the Act to "use all methods and procedures which are necessary" to preserve endangered species. 16 U.S. C. 1531 (c), 1532 (2) (1976 ed.) In addition, the legislative history undergirding 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies. It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated. In any event, we discern no hint in the deliberations of Congress relating to the Act that would compel a different result than we reach here.[31]*186 Indeed, the repeated expressions of congressional concern over what it saw as the potentially enormous danger presented by the eradication of any endangered species suggest how the balance would have been struck had the issue been presented to Congress in Furthermore, it is clear Congress foresaw that 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.[32] Congressman Dingell's discussion of Air Force practice bombing, for instance, obviously pinpoints a particular activityintimately related to *187 the national defensewhich a major federal department would be obliged to alter in deference to the strictures of 7. A similar example is provided by the House Committee Report: "Under the authority of [ 7], the Director of the Park Service would be required to conform the practices of his agency to the need for protecting the rapidly dwindling stock of grizzly bears within Yellowstone Park. These bears, which may be endangered, and are undeniably threatened, should at least be protected by supplying them with carcasses from excess elk within the park, by curtailing the destruction of habitat by clearcutting National Forests surrounding the Park, and by
|
Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
habitat by clearcutting National Forests surrounding the Park, and by preventing hunting until their numbers have recovered sufficiently to withstand these pressures." H. R. Rep. No. 93-412, p. 14 One might dispute the applicability of these examples to the Tellico Dam by saying that in this case the burden on the public through the loss of millions of unrecoverable dollars would greatly outweigh the loss of the snail darter.[33] But neither the Endangered Species Act nor Art. III of the Constitution provides federal courts with authority to make such fine utilitarian calculations. On the contrary, the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as "incalculable." Quite obviously, it would be difficult for *188 a court to balance the loss of a sum certaineven $100 millionagainst a congressionally declared "incalculable" value, even assuming we had the power to engage in such a weighing process, which we emphatically do not. In passing the Endangered Species Act of Congress was also aware of certain instances in which exceptions to the statute's broad sweep would be necessary. Thus, 10, 16 U.S. C. 1539 (1976 ed.), creates a number of limited "hardship exemptions," none of which would even remotely apply to the Tellico Project. In fact, there are no exemptions in the Endangered Species Act for federal agencies, meaning that under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases" Congress intended to exempt. Cf. National Railroad Passenger[34] *189 Notwithstanding Congress' expression of intent in we are urged to find that the continuing appropriations for Tellico Dam constitute an implied repeal of the Act, at least insofar as it applies to the Tellico Project. In support of this view, TVA points to the statements found in various House and Senate Appropriations Committees' Reports; as described in Part those Reports generally reflected the attitude of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the provisions of the Act. Since we are unwilling to assume that these latter Committee statements constituted advice to ignore the provisions of a duly enacted law, we assume that these Committees believed that the Act simply was not applicable in this situation. But even under this interpretation of the Committees' actions, we are unable to conclude that the Act has been in any respect amended or repealed. There is nothing in the appropriations measures, as passed, which states that the Tellico Project was to be completed irrespective of the
|
Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
the Tellico Project was to be completed irrespective of the requirements of the Endangered Species Act. These appropriations, in fact, represented relatively minor components of the lump-sum amounts for the entire TVA budget.[35] To find a repeal of the Endangered Species Act under these circumstances would surely do violence to the "`cardinal rule that repeals by implication are not favored.'" quoting In Posadas this Court held, in no uncertain terms, that "the intention of the legislature to repeal must be clear and manifest." See ; United ; In practical terms, this "cardinal rule" means that "[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." The doctrine disfavoring repeals by implication "applies with full vigor when the subsequent legislation is an appropriations measure." Committee for Nuclear ; Environmental Defense This is perhaps an understatement since it would be more accurate to say that the policy applies with even greater force when the claimed repeal rests solely on an Appropriations Act. We recognize that both substantive enactments and appropriations measures are "Acts of Congress," but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid *191 this need. House Rule XXI (2), for instance, specifically provides: "No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order." See also Standing Rules of the Senate, Rule 16.4. Thus, to sustain petitioner's position, we would be obliged to assume that Congress meant to repeal pro tanto 7 of the Act by means of a procedure expressly prohibited under the rules of Congress. Perhaps mindful of the fact that it is "swimming upstream" against a strong current of well-established
|
Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
it is "swimming upstream" against a strong current of well-established precedent, TVA argues for an exception to the rule against implied repealers in a circumstance where, as here, Appropriations Committees have expressly stated their "understanding" that the earlier legislation would not prohibit the proposed expenditure. We cannot accept such a proposition. Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress, particularly not in the circumstances presented by this case. First, the Appropriations Committees had no jurisdiction over the subject of endangered species, much less did they conduct the type of extensive hearings which preceded passage of the earlier Endangered Species Acts, especially the Act. We venture to suggest that the House Committee on Merchant Marine and Fisheries and the Senate Committee on Commerce would be somewhat surprised to learn that their careful work on the substantive legislation had been undone by the simpleand brief insertion of some inconsistent language in Appropriations Committees' Reports. *192 Second, there is no indication that Congress as a whole was aware of TVA's position, although the Appropriations Committees apparently agreed with petitioner's views. Only recently, in we declined to presume general congressional acquiescence in a 34-year-old practice of the Securities and Exchange Commission, despite the fact that the Senate Committee having jurisdiction over the Commission's activities had long expressed approval of the practice. MR. JUSTICE REHNQUIST, speaking for the Court, observed that we should be "extremely hesitant to presume general congressional awareness of the Commission's construction based only upon a few isolated statements in the thousands of pages of legislative documents." A fortiori, we should not assume that petitioner's viewsand the Appropriations Committees' acceptance of themwere any better known, especially when the TVA is not the agency with primary responsibility for administering the Endangered Species Act. Quite apart from the foregoing factors, we would still be unable to find that in this case "the earlier and later statutes are irreconcilable," 417 U. S., ; here it is entirely possible "to regard each as effective." The starting point in this analysis must be the legislative proceedings leading to the appropriations since the earlier funding of the dam occurred prior to the listing of the snail darter as an endangered species. In all successive years, TVA confidently reported to the Appropriations Committees that efforts to transplant the snail darter appeared to be successful; this surely gave those Committees some basis for the impression that there was no direct conflict between the Tellico Project and the Endangered Species Act. Indeed, the special appropriation for 1978 of $2 million for transplantation of
|
Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
special appropriation for 1978 of $2 million for transplantation of endangered species supports the view that the Committees saw such relocation as the means whereby collision between Tellico and the Endangered Species Act could be avoided. It should also *193 be noted that the Reports issued by the Senate and House Appropriations Committees in 1976 came within a month of the District Court's decision in this case, which hardly could have given the Members cause for concern over the possible applicability of the Act. This leaves only the 1978 appropriations, the Reports for which issued after the Court of Appeals' decision now before us. At that point very little remained to be accomplished on the project; the Committees understandably advised TVA to cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." H. R. Rep. No. 95-379, p. It is true that the Committees repeated their earlier expressed "view" that the Act did not prevent completion of the Tellico Project. Considering these statements in context, however, it is evident that they "`represent only the personal views of these legislators,'" and "however explicit, [they] cannot serve to change the legislative intent of Congress expressed before the Act's passage." Regional Rail Reorganization Act Cases, (B) Having determined that there is an irreconcilable conflict between operation of the Tellico Dam and the explicit provisions of 7 of the Endangered Species Act, we must now consider what remedy, if any, is appropriate. It is correct, of course, that a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of law. This Court made plain in Hecht that "[a] grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances." As a general matter it may be said that "[s]ince all or almost all equitable remedies are discretionary, the balancing of equities and hardships is appropriate in almost any case as a guide to the chancellor's discretion." D. Dobbs, Remedies 52 Thus, in Hecht *194 Co. the Court refused to grant an injunction when it appeared from the District Court findings that "the issuance of an injunction would have `no effect by way of insuring better compliance in the future' and would [have been] `unjust' to [the] petitioner and not `in the public interest.' " But these principles take a court only so far. Our system of government is, after all, a tripartite one, with each branch having certain defined
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Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
|
https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While "[i]t is emphatically the province and duty of the judicial department to say what the law is," it is equallyand emphatically the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought. Here we are urged to view the Endangered Species Act "reasonably," and hence shape a remedy "that accords with some modicum of common sense and the public weal." Post, at 196. But is that our function? We have no expert knowledge on the subject of endangered species, much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as "institutionalized caution." Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not *195 sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here: "The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. What would you do? Cut a great road through the law to get after the Devil? And when the last law was down, and the Devil turned round on youwhere would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coastMan's laws, not God'sand if you cut them down d'you really think you could stand upright in the winds that would blow them? Yes, I'd give the Devil benefit of law, for my own safety's sake." R. Bolt,
|
Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
|
https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
|
A number of investors purchased certificates of deposit (CDs) in the Stanford International (SIB). For pur- poses of this litigation all accept the premise that Allen Stanford and SIB induced the investors to purchase the CDs by fraudulent representations. In various state and federal courts the investors filed state-law suits against persons and entities, including attorneys, accountants, brokers, and investment advisers, alleging that they par- ticipated in or enabled the fraud. The defendants in the state-court suits removed the actions to federal court, where they were consolidated with the federal-court suits. 2 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting The defendants contended that the state-law suits are precluded under the terms of the Securities Litigation Uniform Standards Act of 1998 (SLUSA or Act), 15 U.S. C. As the investors prevailed in the Court of Appeals, they are the respondents here. The persons and entities who were defendants in the state-law actions are the petitioners. The investors contend the state-law suits are not precluded by SLUSA, and the petitioners contend the suits are precluded. For purposes of determining SLUSA’s reach, all can agree that the CD purchases would not have been, without more, transactions regulated by that Act; for the CDs were not themselves covered As a result, in deter- mining whether the Act must be invoked, a further cir- cumstance must be considered: The investors purchased the CDs based on the misrepresentations that the CDs were, or would be, backed by investments in, among other assets, covered What must be resolved, to determine whether the Act precludes the state-law suits at issue, is whether the misrepresentations regarding covered securities and the ensuing failure to invest in those securities were so related to the purchase of the CDs that the misrepresentations were “misrepresentation[s] or omission[s] of a material fact in connection with the purchase or sale of a covered security.” 15 U.S. C. The opinion for the Court, it seems fair to say, adopts this beginning framework, and it is quite correct to do so. The Court is further correct to view this litigation as in- volving a fraud of a type, scale, and perhaps sophistica- tion that has not yet been addressed in its precedents with respect to the applicability of the federal securities laws. It is the premise of this dissent that the more simple frauds addressed in this Court’s precedents, where the Court did find fraud “in connection with the purchase or sale,” are applicable here. In those cases, as here, the Cite as: 571 U. S. (2014) 3 KENNEDY, J., dissenting immediate cause of loss
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Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
|
https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
|
S. (2014) 3 KENNEDY, J., dissenting immediate cause of loss to the victim of the fraud was not simply a purchase or sale but rather a fraud that depended on the purchase or sale of securities or the promise to do so. It is submitted that this litigation should not come out differently simply because the fraud here was so wide- spread that many investors were misled by misrepresenta- tions respecting investments, or promised investments, in regulated securities in the markets. And it is necessary to caution that, in holding otherwise, the Court adopts a new approach, an approach which departs from the rules es- tablished in the earlier, albeit simpler, cases. And, as a consequence, today’s decision, to a serious degree, narrows and constricts essential protection for our national securi- ties markets, protection vital for their strength and in- tegrity. The result will be a lessened confidence in the market, a force for instability that should otherwise be countered by the proper interpretation of federal securities laws and regulations. Though the reasons supporting the Court’s opinion are set forth with care and clarity, this respectful dissent submits that established principles do not support its holding. I It must be determined whether the misrepresentations to the investors—misrepresentations that led them to buy CDs in the belief they could rely on the expertise and sophistication of Stanford and SIB in the national securi- ties markets—were “misrepresentation[s] or omission[s] of material fact[s] in connection with the purchase or sale of a covered security.” 15 U.S. C. This is the central provision of SLUSA for purposes of this litigation. The Court’s precedents instruct that this language has broad application and must be construed flexibly in order to encompass new and ever more ingenious fraudulent schemes. Merrill Lynch, Pierce, Fenner & Smith Inc. v. ; SEC v. 535 U.S. 4 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting 813, 819 (2002). The Court has held that a material mis- representation is made “in connection with the purchase or sale” of a security when the “fraud coincided with the sales [or purchases] themselves.” This significant language must apply here in order to implement two of Congress’ purposes in passing SLUSA. First, SLUSA seeks to preclude a broad range of state- law securities claims in order to protect those who advise, counsel, and otherwise assist investors from abusive and multiplicitous class actions designed to extract settlements from defendants vulnerable to litigation costs. This, in turn, protects the integrity of the markets. Second, even as the Act cuts back on the availability of state-law securities claims,
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Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
|
https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
|
Act cuts back on the availability of state-law securities claims, a fair interpretation of its language ensures robust federal regulation of the national securities markets. That is because, in designing SLUSA, Congress “imported the key phrase” from of the Securities Exchange Act of 1934 and Securities and Exchange Com- mission (SEC) Rule 10b–5, which provide a private cause of action, as well as SEC enforcement authority, for secu- rities fraud. As a result, that language must be “ ‘presumed to have the same meaning’ ” in SLUSA as it does in those contexts. The Court’s narrow interpretation of the Act’s language will inhibit the SEC and litigants from using federal law to police frauds and abuses that undermine confidence in the national securities markets. Throughout the country, then, it will subject many persons and entities whose profession it is to give advice, counsel, and assistance in investing in the securities markets to complex and costly state-law litigation based on allegations of aiding or par- ticipating in transactions that are in fact regulated by the federal securities laws. A Congress enacted SLUSA and its predecessor, the Pri- Cite as: 571 U. S. (2014) 5 KENNEDY, J., dissenting vate Securities Litigation Reform Act of 1995, to reform “perceived abuses of the class-action vehicle in litigation involving nationally traded ” 547 U.S., at 81. Congress found that these abuses were being used “to injure ‘the entire U. S. economy.’ ” The Act and its predecessor together addressed these problems by limiting damages, imposing heightened pleading stand- ards, and, as most relevant here, precluding state-law claims involving nationally traded 112 Stat. 3227; see S. Rep. No. 104–98, pp. 19–20 (1995); H. R. Rep. No. 105–640, p. 10 (1998); S. Rep. No. 105–182, pp. 3–4 (1998). In light of the Act’s objectives, the Act must be given a “broad construction,” because a “narrow reading of the statute would undercut the effectiveness” of Congress’ reforms. Today’s decision does not heed that principle. The Court’s narrow reading of the statute will permit proliferation of state-law class actions, forcing defendants to defend against multiple suits in various state fora. This state-law litigation will drive up legal costs for market participants and the secondary actors, such as lawyers, accountants, brokers, and advis- ers, who seek to rely on the stability that results from a national securities market regulated by federal law. See Central of Denver, N. This is a serious burden to put on attorneys, accountants, brokers, and investment advisers nationwide; and that burden itself will make the national securities markets more costly and difficult to enter. The purpose
|
Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
|
https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
|
securities markets more costly and difficult to enter. The purpose of the Act is to preclude just these suits. By permitting the very state-law claims Congress intended to prohibit, the Court will undermine the primacy of federal law in policing abuses in the securi- ties markets. The Court casts its rule as allowing victims to recover against secondary actors under state law when they would 6 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting not be able to recover under federal law due to Central Ante, at 12, 17. But in a unanimous Court rejected that conception of SLUSA. A federal-law claim was not available to the plaintiffs in because Blue Chip limited the Rule 10b–5 private right of action to purchas- ers and sellers, not holders. “[T]he Second Circuit held that SLUSA only pre-empts state-law class action claims brought by plaintiffs who have a private remedy under federal law.” The Court held the oppo- site, “concluding that SLUSA pre-empts state-law holder class-action claims.” “It would be odd, to say the least,” the Court reasoned, “if SLUSA exempted that particularly troublesome subset of class actions from its pre-emptive sweep.” The Court in also noted that SLUSA preclusion does not leave victims with “no” ability to “recover damages under state law.” Ante, at 2. Rather, “[i]t simply denies plaintiffs the right to use the class-action device to vindicate certain claims.” 547 U.S., The Court in precluded the suit at issue in order to effect the purpose of Blue Chip. By following the opposite course today, the Court revisits ’s logic and undermines Central B Congress intended to make “federal law, not state law, the principal vehicle for asserting class-action securi- ties fraud claims.” And a broad con- struction of the “in connection with” language found in both SLUSA and Rule 10b–5 ensures an efficient and effective federal regulatory regime, one equal to the task of deterring and punishing fraud and providing compensa- tion for victims. In undertaking regulation of the national markets during the Great Depression, Congress sought to elimi- nate the “abuses which were found to have contributed to Cite as: 571 U. S. (2014) 7 KENNEDY, J., dissenting the stock market crash of 1929 and the depression of the 1930’s.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 “ ‘It requires but little appreciation of what happened in this country during the 1920’s and 1930’s to realize how essential it is that the highest ethical standards prevail’ in every facet of the securities industry.” at 186–187 ). In the Securi- ties Exchange Act, Congress sought
|
Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
|
https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
|
186–187 ). In the Securi- ties Exchange Act, Congress sought “ ‘to achieve a high standard of business ethics in the securities industry’ ” by “ ‘substitut[ing] a philosophy of full disclosure for the philosophy of caveat emptor.’ ” Affiliated Ute Citizens of To that end, Congress enacted “to insure honest securities markets and thereby promote investor confidence.” United Investor confidence indicates fair dealing and integrity in the markets. See ; O’, at ; see also Central It also is critical to achieving an efficient market. The corollary to the principle that insider trading and other frauds have an “inhibiting impact on market participation” is that inves- tor confidence in strong federal regulation to prevent these abuses inspires participation in the market. See O’, Widespread market participation in turn facilitates efficient allocation of capital to the Nation’s companies. See also Central C Mindful of the ends of both SLUSA and Rule 10b–5, the Court’s precedents interpret the key phrase in both laws to mean that a “misrepresentation or omission of a mate- rial fact” is made “in connection with the purchase or sale” of a security when the “fraud coincided with the sales [or purchases] themselves.” 535 U.S., ; see also at 8 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting This litigation is very similar to and satisfies the coincides test it sets forth, and for similar reasons. In the SEC brought a civil action against a broker, who, over a period of time, gained control of an investment account, sold its securities, and then pocketed the pro- –816. The broker argued that “the sales themselves were perfectly lawful and that the sub- equent misappropriation of the proceeds, though fraud- lent, is not properly viewed as having the requisite connection with the sales.” The Court rejected that argument. Although the transactions were lawful and separate from the misappropriations, the two were “not independent events.” Rather, the fraud “coin- cided with the sales,” in part because the sales “fur- ther[ed]” the fraud. The Court likened the broker’s fraud to that in Superin- tendent of Ins. of N. Y. v. ers & Casualty Co., 404 U.S. 6, 10 (1971), where the fraud victims were misled to believe that they “would receive the proceeds of the sale” of Like the victims in ers the victims in “were injured as investors through [the broker]’s deceptions” because “[t]hey were duped into believing that [the broker] would ‘conservatively invest’ their assets in the stock market and that any transactions made on their behalf would be for their ” Both suffered losses because they were
|
Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
|
https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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be for their ” Both suffered losses because they were victims of dishonest intermediar- ies or fiduciaries. See also In re Richard J. Line, 62 S.E.C. Docket 2879 (1996) (broker who induced parents to transfer funds to him to invest in securities so as to tem- porarily hide them during the college financial aid applica- tion process, but then failed to return the money, violated Rule 10b–5). Here, just as in the victims parted with their money based on a fraudster’s promise to invest it on their behalf by purchases and sales in the securities markets. Cite as: 571 U. S. (2014) 9 KENNEDY, J., dissenting The investors had—or were led to believe they could have—the advantages of Stanford’s and SIB’s expertise in investments in the national market. So here, as in the success of the fraud turned on the promise to trade in regulated According to the com- plaints, SIB represented that it would “ ‘re-inves[t]’ ” the plaintiffs’ money on their behalf in “a well-diversified portfolio of highly marketable securities issued by stable national governments, strong multinational companies, and major international banks” to ensure a “safe, liquid,” and above-market return. See App. 244, 249, 250, 253, 336, 342, 345, 444, 470, 480, 628. The misrepresentation was about nationally traded securities and lent credence to SIB’s promise that the CDs were a liquid investment that “could be redeemed with just a few days’ notice.” See The CDs, SIB explained, would be backed by nationally traded As a result, according to the complaints, the misrepresentation was “material.” at 244–245, 336–338, 480, 715. The fraud could not have succeeded without the misrepresentation: The investors gave SIB money because they expected it to be invested in the national securities markets. The con- nection between the promised purchases and the misrep- resentation is more direct than in because the misrepresentation was essential to the fraud. Here, and again just as in the fraud was not complete until the representation about securities transac- tions became untrue, just as Stanford intended all along. Instead of purchasing covered securities, SIB purchased some but fewer covered securities than it promised—only 10% of its portfolio, according to an affidavit attached to a complaint—and primarily speculated in Caribbean real estate. Brief for Respondents 37; App. 594; but see Tr. of Oral Arg. 43–44 (suggesting SIB did not purchase securi- ties). It was not until SIB rendered the CDs illiquid by failing to make substantial investments in the nationally 10 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting traded securities it promised that the fraud was consum- mated. At
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Justice Kennedy
| 2,014 | 4 |
dissenting
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Chadbourne & Parke LLP v. Troice
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https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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securities it promised that the fraud was consum- mated. At that point, SIB blocked the plaintiffs’ access to the market. The fraud and SIB’s failure to purchase all that it promised were not independent events. Rather, the false promises to invest in covered securities enabled and furthered the CD fraud. Without the false promise, there would have been no money to purchase the covered securi- ties. On these facts, this Court’s controlling precedents instruct that these misrepresentations were made “in con- nection with the purchase or sale” of regulated securi- ties; and, as a result, state-law claims concerning them should be precluded. provides further support for this conclusion. There, the Court held that an investment bank that de- ceived brokers into advising their clients to hold covered securities made misrepresentations “in connection with the purchase or sale of a covered security.” “Under our precedents,” the Court explained, “it is enough that the fraud alleged ‘coincide’ with a securities transaction— whether by the plaintiff or by someone else.” 547 U.S., at It did not matter that the plaintiffs did not purchase or sell securities, because they were participants in the national markets: “The requisite showing, in other words,” is “ ‘deception “in connection with the purchase or sale of any security,” not deception of an identifiable purchaser or seller.’ ” (quoting O’, 521 U. S., at ). Here, for like reasons, it does not matter that the fraud victims, as opposed to Stanford and SIB, were not the ones to fail to invest in the market. The very essence of the fraud was to induce purchase of the CDs on the (false) promise that investors should rely on SIB’s special skills and expertise in making market investments in covered securities on their behalf. If promises related to covered securities are integral to the fraud in this direct way, federal regula- tion is necessary if confidence in the market is to be maintained. Cite as: 571 U. S. (2014) 11 KENNEDY, J., dissenting That interest is at stake here. Because confidence in the ability to act as an investor without diversion of funds by intermediaries and insiders is critical, it does not matter if the victim of a fraud does not purchase or sell a security, at ; or if the sale or purchase does not occur at the same time as the deception, ers 404 U.S., at 12–13; or if no party to the actual transaction is deceived by the fraud, O’, ; or if the misrepresentation has nothing to do with the value of a covered security, 535 U.S., An
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Justice Kennedy
| 2,014 | 4 |
dissenting
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Chadbourne & Parke LLP v. Troice
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https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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with the value of a covered security, 535 U.S., An inves- tor’s confidence in the market, and willingness to partici- pate in it, may be severely undermined if frauds like the one here are not within the reach of federal regulation. Frauds like this one undermine investor confidence in attorneys, accountants, brokers, and investment advisers, the intermediaries on whom investors depend to gain access to the market. And when frauds are as widespread as this one, the market as a whole is weakened because investors, including sophisticated ones, are misled as to the amount of funds committed to the market and its consequent stability and resilience. The rule that SLUSA applies when a misrepresentation about the market is coincident to the fraud is, then, essen- tial to the framework of the Act and to federal securities regulation. Fraudulent practices “ ‘constantly vary,’ ” and “ ‘practices legitimate for some purposes may be turned to illegitimate and fraudulent means.’ ” ers at 12. That is why the key language “should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks omitted); see Affiliated Ute, 406 U.S., at The language merits a “broad interpretation” be- cause it is part of a residuary provision that must be able to accommodate evolving methods of fraud by intermediar- ies and insiders in ever more complicated securities mar- kets. Central Its interpretation 12 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting should not privilege fraudsters who devise ever more devious methods of committing fraud involving covered At the same time, the submitted interpretation is not so broad as to “convert every common-law fraud that hap- pens to involve securities into a violation of ” or preclude all state tort claims that involve securities in a tangential way. So, for example, the statutory language does not extend to cover a thief who steals money from a store to buy securities or to a fraudster who defrauds a bank for a loan that he uses to buy See O’, The victims in those cases are not concerned about their ability to act as investors but rather about their duties as a store clerk or a loan officer. Those frauds involve securities transac- tions only as happenstance. As a result, the interpretation submitted in this dissent strikes the balance that Con- gress intended between forbidding frauds by intermediar- ies in the market without reaching frauds that touch the markets in only tangential ways. The key question is whether the misrepresentation coincides with the purchase or sale of a covered security or the
|
Justice Kennedy
| 2,014 | 4 |
dissenting
|
Chadbourne & Parke LLP v. Troice
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https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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the purchase or sale of a covered security or the purchase or sale of the securities is what enables the fraud. Stanford’s misrepresentation did so. Stanford promised to purchase covered securities for investors, using his special expertise, thus allowing investors to rely on his skill to participate in the national securities mar- kets. The entire scheme rested on investors falling for the trick. When covered securities are so integral to the fraud, the false promise is incident to the purchase or sale of regulated securities because it coincides with it, and the misrepresentation respecting national securities enabled the fraud. D The Court interprets the phrase “misrepresentation or Cite as: 571 U. S. (2014) 13 KENNEDY, J., dissenting omission of a material fact in connection with the pur- chase or sale of a covered security”—the key phrase in SLUSA and Rule 10b–5—in a different manner. The result, it is submitted, is inconsistent with the statutory scheme Congress enacted and casts doubt on the applica- bility of federal securities law to cases of serious securities fraud. The Court construes the text of SLUSA and Rule 10b–5 to require a misrepresentation that “is material to a deci- sion by one or more individuals (other than the fraudster) to buy or sell a ‘covered security.’ ” Ante, at 8. The Act simply does not say that the purchase or sale—or the promise to make a purchase or sale—must be by one other than the fraudster. Rather the Act states that there must be “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered secu- rity.” 15 U.S. C. See10b–5 (2013) (requiring an “untrue statement of a material fact” “in connection with the purchase or sale of any security”). The Court narrows the statute Congress wrote in two ways. It excises the important “in connection with” lan- guage, resulting in a confined reading inconsistent with the Act’s purpose, structure, and operation. And, by re- quiring the purchase or sale be made by someone “other than the fraudster,” the Court inserts a limiting phrase that nowhere appears in the language of the provisions. In litigation like this, this new rule has it upside down. When the violation that adversely affects the securities market is done by the fraudster himself, that is all the more reason for applying federal law. This is not a case where Congress has limited its coverage to a certain sub- set of purchasers. Congress enacted such a limit two subsections later in SLUSA when detailing which ac- tions are not precluded. See 15 U.S.
|
Justice Kennedy
| 2,014 | 4 |
dissenting
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Chadbourne & Parke LLP v. Troice
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https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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detailing which ac- tions are not precluded. See 15 U.S. C. (“the purchase or sale of securities by the issuer or an affiliate of the issuer exclusively from or to holders of 14 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting equity securities of the issuer”). But it did not do so in the provision at issue. The Court’s reconstruction of the language of the provi- sions also casts doubt on the applicability of federal securi- ties law to three established instances of federal securities fraud and one instance of preclusion under the Act as adjudged by the Court and the SEC in earlier cases. First, the Court’s interpretation necessarily suggests that is incorrect and that dishonest brokers need not fear Rule 10b–5 liability. The deceit in was that the broker would act as the victim’s fiduciary when in fact he planned on selling (and did sell) the investor’s securities for his own 535 U.S., ; see also Line, (broker’s deceit was false promise to buy). The Court’s rule that liability must rest on a finding that someone other than the fraudster pur- chased or sold securities is inconsistent with where the recipient of the misrepresentation did not buy or sell. The Court’s opinion disregards the hazards to the market when the fraudster is the one acting in the market and frustrates the investment objectives of his victims. Second, the Court’s interpretation is difficult to reconcile with liability for insider trading. In O’, the Court held that the “in connection with” element “is satisfied because the fiduciary’s fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the infor- mation to purchase or sell securities,” “even though the person or entity defrauded is not the other party to the trade.” 521 U.S., The Court’s requirement that someone other than the fraudster purchase or sell a secu- rity is hard to square with O’. Third, the Court’s interpretation is difficult to square with the SEC’s position in In re Orlando Joseph Jett, 82 S.E.C. Docket 1211 (2004). There, the SEC held liable a trader who fabricated complex trades to supplement the Cite as: 571 U. S. (2014) 15 KENNEDY, J., dissenting returns of his real trades, so as to increase his standing in his company. The SEC likened Jett to “garden-variety securities fraud cases in which a broker-dealer or invest- ment adviser engages in unsuccessful securities trades for a client and then hides the losses or inflates the profits by sending out false account statements.” The decision of the Court
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Justice Kennedy
| 2,014 | 4 |
dissenting
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Chadbourne & Parke LLP v. Troice
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https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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sending out false account statements.” The decision of the Court today would require that Jett’s mis- representation led to the purchase or sale of securities by someone other than Jett. But the SEC found Jett’s own purchases and sales to be sufficient to come within the securities laws. Finally, the Court’s analysis is inconsistent with the unanimous opinion in which interpreted the same statutory language at issue in this litigation. squarely rejected the view that “an alleged fraud is ‘in connection with’ a purchase or sale of securities only when the plaintiff himself was defrauded into purchasing or selling particular ” 547 U.S., at Instead, it approved the SEC’s interpretation that a broker who “ ‘sells customer securities with intent to misappropriate the proceeds’ ” satisfies the “in connection with the pur- chase or sale” requirement. n. 10. cannot be reconciled with today’s decision to require someone other than the fraudster buy or sell a security. It is correct that there is no case precisely standing for the proposition that a victim does not have to take an ownership position. However, O’ supports that view. O’ clearly states that in insider trading cases “the person or entity defrauded is not the other party to the trade.” 521 U.S., And in a fraudster told customers he would invest “their money” in securities and then sold those Here the fraudster told plaintiffs that he would “re-invest” “their” money in securities and then bought different App. 250, 470, 715. The only difference is that there the fraudster sold and here he bought. Federal regulation 16 CHADBOURNE & PARKE LLP v. TROICE KENNEDY, J., dissenting should not turn on whether a fraudster arrives before or after an investor makes his first purchase. II The Court’s interpretation also introduces confusion into securities law by not defining what it means for someone “other than the fraudster to buy or sell” a security, a rule that it derives from its view that the precedents all involve victims who had an ownership interest in Ante, at 8–10. The precedents the Court cites involve what the parties have called direct ownership, where the victim buys or sells an entire equity. By using the term owner- ship interest instead of ownership, the Court also appears to accept the respondents’ concession that indirect owner- ship, where the victim buys or sells shares in a defendant fund that itself owns equities, is sufficient in certain cir- cumstances, such as when a victim has “some interest in the defendant’s supposed portfolio.” Brief for Respondents 16. An ownership rule distinguishing between different types of
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Justice Kennedy
| 2,014 | 4 |
dissenting
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Chadbourne & Parke LLP v. Troice
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https://www.courtlistener.com/opinion/2672210/chadbourne-parke-llp-v-troice/
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Respondents 16. An ownership rule distinguishing between different types of indirect ownership is unworkable. Indirect own- ership is a common type of investment. See M. Fink, The Rise of Mutual Funds 1 (2008) (U. S. mutual funds have over 88 million American shareholders and over $11 tril- lion in assets). Yet whether indirect ownership involves an interest in the underlying equities is a complex ques- tion of corporation, LLC, or partnership law. See In re Bernard L. Madoff Inv. Securities LLC, (CA2 2013). Congress likely did not intend preclusion of state-law suits to depend on the complexities of the Dela- ware Code. The Court’s ownership approach also casts doubt on the scope of Rule 10b–5. Under the Court’s interpretation, applies to fraudulent mutual or hedge funds not because those funds invest in securities but because in- vestments in the funds are But not all such Cite as: 571 U. S. (2014) 17 KENNEDY, J., dissenting investments are 2 L. Ribstein & R. Limited Liability Companies (2010) (discussing test for a security from (1946)); 1 H. Bloomenthal & S. Wolff, Securities Law Handbook to 2:4 (2010). For those that are not, the Court seems to envision liability only when the investment confers an ownership interest in the fund’s And the general rule for investments in funds organized as LLPs and LLCs is that they do not convey such claims. 1 Ribstein & see In re Herald, 730 F.3d 112 (CA2 2013). As a result, in important instances Rule 10b–5 may not extend to mutual and hedge funds under the Court’s interpretation. It is true that the SEC pursued the fraudster with suc- cess here. But that is because the CDs are See Order Denying Motion to Dismiss in SEC v. Stanford International No. 3–09–CV–0298–N (ND Tex., Nov. 30, 2011), pp. 5–10. This aspect of Stanford’s fraud is not a necessary feature of all frauds involving funds similar to SIB. III The fraudster in this litigation misrepresented that he would purchase nationally traded That mis- representation was made “in connection with the purchase or sale” of the promised securities because it coincided with them. The fraud turned on the misrepresentation. The Court’s contrary interpretation excises the phrase “in connection with” from the Act, a phrase that the Court in earlier cases held to require a broad and flexible meaning. At the same time, by holding that the purchase or sale of securities be made by someone other than the fraudster, the Court engrafts a limitation that does not appear in the text. The result is to constrict the application of federal securities
|
Justice Brennan
| 1,980 | 13 |
dissenting
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NLRB v. Yeshiva Univ.
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https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
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In holding that the full-time faculty members of Yeshiva University are not covered employees under the National Labor Relations Act, but instead fall within the exclusion for *692 supervisors and managerial employees, the Court disagrees with the determination of the National Labor Relations Board. Because I believe that the Board's decision was neither irrational nor inconsistent with the Act, I respectfully dissent. I Ten years ago the Board first asserted jurisdiction over private nonprofit institutions of higher education. Cornell University, 183 N. L. R. B. 329 (1970). Since then, the Board has often struggled with the Procrustean task of attempting to implement in the altogether different environment of the academic community the broad directives of a statutory scheme designed for the bureaucratic industrial workplace. See, e. g., Adelphi University, 195 N. L. R. B. 639, 648 (1972). Resolution of the particular issue presented in this casewhether full-time faculty members are covered "employees" under the Actis but one of several challenges confronting the Board in this "unchartered area." C. W. Post Center, 189 N. L. R. B. 904, 905 (1971). Because at the time of the Act's passage Congress did not contemplate its application to private universities, it is not surprising that the terms of the Act itself provide no answer to the question before us. Indeed, the statute evidences significant tension as to congressional intent in this respect by its explicit inclusion, on the one hand, of "professional employees" under 2 (12), 29 U.S. C. 152 (12), and its exclusion, on the other, of "supervisors" under 2 (11), 29 U.S. C. 152 (11). Similarly, when transplanted to the academic arena, the Act's extension of coverage to professionals under 2 (12) cannot easily be squared with the Board-created exclusion of "managerial employees" in the industrial context. See generally Primary authority to resolve these conflicts and to adapt the Act to the changing patterns of industrial relations was *693 entrusted to the Board, not to the judiciary. The Court has often admonished that "[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." Accord, Beth Israel ; (13). Through its cumulative experience in dealing with labor-management relations in a variety of industrial and nonindustrial settings, it is the Board that has developed the expertise to determine whether coverage of a particular category of employees would further the objectives of the Act.[1] And through its continuous oversight of
|
Justice Brennan
| 1,980 | 13 |
dissenting
|
NLRB v. Yeshiva Univ.
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https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
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objectives of the Act.[1] And through its continuous oversight of industrial conditions, it is the Board that is best able to formulate and adjust national labor policy to conform to the realities of industrial life. Accordingly, the judicial role is limited; a court may not substitute its own judgment for that of the Board. The Board's decision may be reviewed for its rationality and its consistency with the *694 Act, but once these criteria are satisfied, the order must be enforced. See Beth Israel at II In any event, I believe the Board reached the correct result in determining that Yeshiva's full-time faculty is covered under the NLRA. The Court does not dispute that the faculty members are "professional employees" for the purposes of collective bargaining under 2 (12), but nevertheless finds them excluded from coverage under the implied exclusion for "managerial employees."[2] The Court explains that "[t]he controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be managerial." Ante, at 686. But the academic community is simply not "any other context." The Court purports to recognize that there are fundamental differences between the authority structures of the typical industrial and academic institutions which preclude the blind transplanting of principles developed in one arena onto the other; yet it nevertheless ignores those very differences in concluding that Yeshiva's faculty is excluded from the Act's coverage. As reflected in the legislative history of the Taft-Hartley Amendments of 1947, the concern behind the exclusion of supervisors under 2 (11) of the Act is twofold. On the one hand, Congress sought to protect the rank-and-file employees from being unduly influenced in their selection of leaders by the presence of management representatives in their union. "If supervisors were members of and active in the union which represented the employees they supervised it could be possible *695 for the supervisors to obtain and retain positions of power in the union by reason of their authority over their fellow union members while working on the job." v. Metropolitan Life Ins. (CA2 18). In addition, Congress wanted to ensure that employers would not be deprived of the undivided loyalty of their supervisory foremen. Congress was concerned that if supervisors were allowed to affiliate with labor organizations that represented the rank and file, they might become accountable to the workers, thus interfering with the supervisors' ability to discipline and control the employees in the interest of the employer.[3] Identical considerations underlie the exclusion of managerial employees. See ante, at 682. Although a variety of verbal formulations
|
Justice Brennan
| 1,980 | 13 |
dissenting
|
NLRB v. Yeshiva Univ.
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https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
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See ante, at 682. Although a variety of verbal formulations have received judicial approval over the years, see Retail Clerks International Assn. v. 125 U. S. App. D. C. 63, 65-66, (16), this Court has recently sanctioned a definition of "managerial employee" that comprises those who "`formulate and effectuate management policies by expressing and making operative the decisions of their employer.'" See The touchstone of managerial status is thus an alliance with management, and the pivotal inquiry is whether the employee in performing his *6 duties represents his own interests or those of his employer.[4] If his actions are undertaken for the purpose of implementing the employer's policies, then he is accountable to management and may be subject to conflicting loyalties. But if the employee is acting only on his own behalf and in his own interest, he is covered under the Act and is entitled to the benefits of collective bargaining. After examining the voluminous record in this case,[5] the Board determined that the faculty at Yeshiva exercised its decisionmaking authority in its own interest rather than "in the interest of the employer." 221 N. L. R. B. 1053, 1054 The Court, in contrast, can perceive "no justification for this distinction" and concludes that the faculty's interests "cannot be separated from those of the institution." Ante, at 688.[6] But the Court's vision is clouded by its failure fully to discern and comprehend the nature of the faculty's role in university governance. Unlike the purely hierarchical decisionmaking structure that prevails in the typical industrial organization, the bureaucratic foundation of most "mature" universities is characterized by dual authority systems. The primary decisional *697 network is hierarchical in nature: Authority is lodged in the administration, and a formal chain of command runs from a lay governing board down through university officers to individual faculty members and students. At the same time, there exists a parallel professional network, in which formal mechanisms have been created to bring the expertise of the faculty into the decisionmaking process. See J. Baldridge, Power and Conflict in the University 114 (1971); Finkin, The in Higher Education, 5 U. Toledo L. Rev. 608, 614-618 What the Board realizedand what the Court fails to apprehend is that whatever influence the faculty wields in university decisionmaking is attributable solely to its collective expertise as professional educators, and not to any managerial or supervisory prerogatives. Although the administration may look to the faculty for advice on matters of professional and academic concern, the faculty offers its recommendations in order to serve its own independent interest in creating the most effective environment
|
Justice Brennan
| 1,980 | 13 |
dissenting
|
NLRB v. Yeshiva Univ.
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https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
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its own independent interest in creating the most effective environment for learning, teaching, and scholarship.[7] And while the administration may attempt to defer to the faculty's competence whenever possible, it must and does apply its own distinct perspective to those recommendations, a perspective that is based on fiscal *698 and other managerial policies which the faculty has no part in developing. The University always retains the ultimate decisionmaking authority, see ante, at 675-676, and the administration gives what weight and import to the faculty's collective judgment as it chooses and deems consistent with its own perception of the institution's needs and objectives.[8] The premise of a finding of managerial status is a determination that the excluded employee is acting on behalf of management and is answerable to a higher authority in the exercise of his responsibilities. The Board has consistently implemented this requirementboth for professional and non-professional employeesby conferring managerial status only upon those employees "whose interests are closely aligned with management as true representatives of management." (Emphasis added.) E. g., Sutter Community Hospitals of Sacramento, 227 N. L. R. B. 181, 193 (1976); Bell Aerospace, *699 219 N. L. R. B. 384, 385 ; General Dynamics Corp., 213 N. L. R. B. 851, 857[9] Only if the employee is expected to conform to management policies and is judged by his effectiveness in executing those policies does the danger of divided loyalties exist. Yeshiva's faculty, however, is not accountable to the administration in its governance function, nor is any individual faculty member subject to personal sanction or control based on the administration's assessment of the worth of his recommendations. When the faculty, through the schools' advisory committees, participates in university decisionmaking on subjects of academic policy, it does not serve as the "representative of management."[10] Unlike industrial supervisors *700 and managers, university professors are not hired to "make operative" the policies and decisions of their employer. Nor are they retained on the condition that their interests will correspond to those of the university administration. Indeed, the notion that a faculty member's professional competence could depend on his undivided loyalty to management is antithetical to the whole concept of academic freedom. Faculty members are judged by their employer on the quality of their teaching and scholarship, not on the compatibility of their advice with administration policy. Board Member Kennedy aptly concluded in his concurring opinion in Northeastern University, 218 N. L. R. B. 247, 257 (footnote omitted): "[T]he influence which the faculty exercises in many areas of academic governance is insufficient to make them `managerial' employees. Such influence is not exercised
|
Justice Brennan
| 1,980 | 13 |
dissenting
|
NLRB v. Yeshiva Univ.
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https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
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to make them `managerial' employees. Such influence is not exercised `for management' or `in the interest of the employer,' but rather is exercised in their own professional interest. The best evidence of this fact is that faculty members are generally not held accountable by or to the administration for their faculty governance functions. Faculty criticism of administration policies, for example, is viewed not as a breach of loyalty, but as an exercise in academic freedom. So, too, intervention by the university administration in faculty deliberations would most likely be considered an infringement upon academic freedoms. Conversely, university administrations rarely consider themselves bound by faculty recommendations." It is no answer to say, as does the Court, that Yeshiva's faculty and administration are one and the same because their interests tend to coincide. In the first place, the National Labor Relations Act does not condition its coverage on an antagonism of interests between the employer and the employee.[11]*701 The mere coincidence of interests on many issues has never been thought to abrogate the right to collective bargaining on those topics as to which that coincidence is absent. Ultimately, the performance of an employee's duties will always further the interests of the employer, for in no institution do the interests of labor and management totally diverge. Both desire to maintain stable and profitable operations, and both are committed to creating the best possible product within existing financial constraints. Differences of opinion and emphasis may develop, however, on exactly how to devote the institution's resources to achieve those goals. When these disagreements surface, the national labor laws contemplate their resolution through the peaceful process of collective bargaining. And in this regard, Yeshiva University stands on the same footing as any other employer. Moreover, the congruence of interests in this case ought not to be exaggerated. The university administration has certain economic and fiduciary responsibilities that are not shared by the faculty, whose primary concerns are academic and relate solely to its own professional reputation. The record evinces numerous instances in which the faculty's recommendations have been rejected by the administration on account of fiscal constraints or other managerial policies. Disputes have arisen between Yeshiva's faculty and administration on such fundamental issues as the hiring, tenure, promotion, retirement, and dismissal of faculty members, *702 academic standards and credits, departmental budgets, and even the faculty's choice of its own departmental representative.[12] The very fact that Yeshiva's faculty has voted for the Union to serve as its representative in future negotiations with the administration indicates that the faculty does not perceive its interests to be aligned with
|
Justice Brennan
| 1,980 | 13 |
dissenting
|
NLRB v. Yeshiva Univ.
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https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
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faculty does not perceive its interests to be aligned with those of management. Indeed, on the precise topics which are specified as mandatory subjects of collective bargainingwages, hours, and other terms and conditions of employment[13]the interests of teacher and administrator are often diametrically opposed. Finally, the Court's perception of the Yeshiva faculty's status is distorted by the rose-colored lens through which it views the governance structure of the modern-day university. The Court's conclusion that the faculty's professional interests are indistinguishable from those of the administration is bottomed on an idealized model of collegial decisionmaking that is a vestige of the great medieval university. But the university of today bears little resemblance to the "community of scholars" of yesteryear.[14] Education has become *703 "big business," and the task of operating the university enterprise has been transferred from the faculty to an autonomous administration, which faces the same pressures to cut costs and increase efficiencies that confront any large industrial organization.[15] The past decade of budgetary cutbacks, declining enrollments, reductions in faculty appointments, curtailment of academic programs, and increasing calls for accountability to alumni and other special interest groups has only added to the erosion of the faculty's role in the institution's decisionmaking process.[16] *704 These economic exigencies have also exacerbated the tensions in university labor relations, as the faculty and administration more and more frequently find themselves advocating conflicting positions not only on issues of compensation, job security, and working conditions, but even on subjects formerly thought to be the faculty's prerogative. In response to this friction, and in an attempt to avoid the strikes and work stoppages that have disrupted several major universities in recent years, many faculties have entered into collective-bargaining relationships with their administrations and governing boards.[17] An even greater number of schoolsYeshiva among themhave endeavored to negotiate and compromise their differences informally, by establishing avenues for faculty input into university decisions on matters of professional concern. *705 Today's decision, however, threatens to eliminate much of the administration's incentive to resolve its disputes with the faculty through open discussion and mutual agreement. By its overbroad and unwarranted interpretation of the managerial exclusion, the Court denies the faculty the protections of the NLRA and, in so doing, removes whatever deterrent value the Act's availability may offer against unreasonable administrative conduct.[18] Rather than promoting the Act's objective of funneling dissension between employers and employees into collective bargaining, the Court's decision undermines that goal and contributes to the possibility that "recurring disputes [will] fester outside the negotiation process until strikes or other forms of economic warfare occur." Ford Motor v. III
|
Justice Brennan
| 1,980 | 13 |
dissenting
|
NLRB v. Yeshiva Univ.
|
https://www.courtlistener.com/opinion/110190/nlrb-v-yeshiva-univ/
|
other forms of economic warfare occur." Ford Motor v. III In sum, the Board analyzed both the essential purposes underlying the supervisory and managerial exclusions and the nature of the governance structure at Yeshiva University. Relying on three factors that attempt to encapsulate the fine distinction between those professional employees who are entitled to the NLRA's protections and those whose managerial responsibilities require their exclusion,[19] the Board concluded *706 that Yeshiva's full-time faculty qualify as the former rather than the latter. I believe the Board made the correct determination. But even were I to have reservations about the specific result reached by the Board on the facts of this case, I would certainly have to conclude that the Board applied a proper mode of analysis to arrive at a decision well within the zone of reasonableness. Accordingly, in light of the deference due the Board's determination in this complex area, I would reverse the judgment of the Court of Appeals.
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
Ultimately, enforcement of the laws is what really counts. It was with this in mind that Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. 1988 (Act or Fees Act). Congress authorized fee shifting to improve enforcement of civil rights legislation by making it easier for victims of civil rights violations to find lawyers willing to take their cases. Because today's decision will make it more difficult for civil rights plaintiffs to obtain legal assistance, a result plainly contrary to Congress' purpose, I dissent. I The Court begins its analysis by emphasizing that neither the language nor the legislative history of the Fees Act supports "the proposition that Congress intended to ban all fee waivers offered in connection with substantial relief on the merits." Ante, at 730. I agree. There is no evidence that *744 Congress gave the question of fee waivers any thought at all. However, the Court mistakenly assumes that this omission somehow supports the conclusion that fee waivers are permissible. On the contrary, that Congress did not specifically consider the issue of fee waivers tells us absolutely nothing about whether such waivers ought to be permitted. It is black letter law that "[i]n the absence of specific evidence of Congressional intent, it becomes necessary to resort to a broader consideration of the legislative policy behind th[e] provision" Brooklyn Savings ; see also 2A C. Sutherland on Statutory Construction 54.01-54.03 We must interpret the statute in the way that is most consistent with Congress' broader purpose; a result which is "plainly at variance with the policy of the legislation as a whole," cannot be correct. ; 2A 46.07; see also United 3 How. 5, 5 ; ; United (8); ; ( United (0)); United Accordingly, the first and most important question to be asked is what Congress' purpose was in enacting the Fees Act. We must then determine whether conditional fee waivers are consistent with this purpose. II The Court asserts that Congress authorized fee awards "to further the same general purpose promotion of respect for civil rights that led it to provide damages and injunctive *745 relief." Ante, at 731. The attorney's fee made available by the Act, we are told, is simply an addition to "the arsenal of remedies available to combat violations of civil rights." Ante, at 732. Obviously, the Fees Act is intended to "promote respect for civil rights." Congress would hardly have authorized fee awards in civil rights cases to promote respect for the securities laws. But discourse at such a level of generality is deceptive.
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
But discourse at such a level of generality is deceptive. The question is how did Congress envision that awarding attorney's fees would promote respect for civil rights? Without a clear understanding of the way in which Congress intended for the Fees Act to operate, we cannot even begin responsibly to go about the task of interpreting it. In theory, Congress might have awarded attorney's fees as simply an additional form of make-whole relief, the threat of which would "promote respect for civil rights" by deterring potential civil rights violators. If this were the case, the Court's equation of attorney's fees with damages would not be wholly inaccurate. However, the legislative history of the Fees Act discloses that this is not the case. Rather, Congress provided fee awards to ensure that there would be lawyers available to plaintiffs who could not otherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcement scheme as "private attorneys general," vindicating the public interest.[1] *746 Before the late 1960's, the concept of fee shifting in public interest litigation was virtually nonexistent. In this Court was called upon to interpret the attorney's fee provision of Title II of the then recently enacted Civil Rights Act of 1964, 42 U.S. C. 2000a-3(b). We held that a prevailing plaintiff should ordinarily recover fees unless special circumstances rendered such an award unjust. Noting that "[w]hen the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law," we recognized that "[a] Title II suit is thus private in form only." Newman, If a plaintiff obtains relief, he "does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest priority." We recognized further that the right to recover attorney's fees was conferred by Congress to ensure that this private public-enforcement mechanism would operate effectively: "If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination *747 to seek judicial relief under Title II." Newman interpreted the fee provision of Title II as intended to bridge the gap between the desire of
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
as intended to bridge the gap between the desire of an individual who has been deprived of a federal right to see that right vindicated and the financial ability of that individual to do More importantly, Newman recognized that Congress did not erect this bridge solely, or even primarily, to confer a benefit on such aggrieved individuals. Rather, Congress sought to capitalize on the happy coincidence that encouraging private actions would, in the long run, provide effective public enforcement of Title II. By ensuring that lawyers would be willing to take Title II cases, Congress made the threat of a lawsuit for violating Title II real, thereby deterring potential violators. After Newman, lower courts invoking their equitable powers to award attorney's fees adopted a similar rationale to award fees in cases brought under civil rights statutes that did not contain express provisions for attorney's fees. See, e. g., ; cert. denied, ; See generally Derfner, One Giant Step: The Civil Rights Attorney's Fees Awards Act of 1976, 21 St. Louis U. L. J. 441, 443, and nn. 9-22 (1977) (citing cases). In May 1975, this Court in Pipeline Service ruled that the equitable powers of the federal courts did not authorize fee awards on the ground that a case served the public interest. Although recognizing that "Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation," the Court held that "congressional utilization of the private-attorney-general concept can in no sense be construed as a grant of authority to the *748 Judiciary to award attorney's fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award." Instead, the Court ruled, only Congress could authorize awarding fees as a means of encouraging private actions in the name of public policy. In the wake of Congress acted to correct "anomalous gaps" in the availability of attorney's fees to enforce civil rights laws, S. Rep. No. 94-11, p. 1 (1976) (hereafter S. Rep.).[2] See H. R. Rep. No. 94-1558, p. 2 (1976) (hereafter H. R. Rep.); 122 Cong. 32 (1976) (remarks of Sen. Kennedy). Testimony at hearings on the proposed legislation disclosed that civil rights plaintiffs, "a vast majority of [whom] cannot afford legal counsel," H. R. Rep. 1, were suffering "very severe hardships because of the decision," The unavailability of fee shifting made it impossible for legal aid services, "already short of resources," to bring many lawsuits, and, without much possibility of compensation, private attorneys were refusing to take
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
much possibility of compensation, private attorneys were refusing to take civil rights cases. See generally Hearings on the Effect of Legal Fees on the Adequacy of Representation before the Subcommittee on Representation of Citizen Interests of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., pts. 1-4 Congress found that had a "devastating" impact on civil rights litigation, and it concluded that the need for corrective legislation was "compelling." H. R. Rep. 3; see also, 122 Cong. 1 32 (remarks of Sen. Kennedy). Accepting this Court's invitation, see Congress passed the Fees Act in order to reestablish the Newman regime under which attorney's fees were awarded as a means of securing enforcement of civil rights laws by ensuring that lawyers would be willing to *749 take civil rights cases. The legislative history manifests this purpose with monotonous clarity. For instance, the Report of the House Judiciary Committee notes "The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens. Although some agencies of the United States have civil rights responsibilities, their authority and resources are limited." H. R. Rep. 1. The Report explains, from Newman, that a plaintiff who obtains relief in a private lawsuit " `does so not for himself alone but also as a "private attorney general," vindicating a policy that Congress considered of the highest' importance." ( 390 U.S., ). The Report then describes the intended scope and operation of the Fees Act, before concluding: "The application of these standards will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys. The effect of [the Fees Act] will be to promote the enforcement of the Federal civil rights acts, as Congress intended, and to achieve uniformity in those statutes and justice for all citizens." H. R. Rep. 9. These same themes are prominent in the Senate Report: "The purpose and effect of [the Fees Act] are simple it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866. All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain." S. Rep. 2. The Senate Report quotes the same language from Newman as the House Report, explaining that "fees are an integral *750 part of the remedy necessary to achieve compliance
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
integral *750 part of the remedy necessary to achieve compliance with our statutory policies." After citing existing fee-shifting provisions, the Report sets out the Committee's finding that "[t]hese fee shifting provisions have been successful in enabling vigorous enforcement of modern civil rights legislation, while at the same time limiting the growth of the enforcement bureaucracy." The Report then concludes: "If our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases." The floor debates, which were extensive, also are replete with similar expressions; I set out but a few examples. Senator Tunney, who sponsored the original version of the Fees Act, stated to the Senate: "The problem of unequal access to the courts in order to vindicate congressional policies and enforce the law is not simply a problem for lawyers and courts. Encouraging adequate representation is essential if the laws of this Nation are to be enforced. Congress passes a great deal of lofty legislation promising equal rights to all. "Although some of these laws can be enforced by the Justice Department or other Federal agencies, most of the responsibility for enforcement has to rest upon private citizens, who must go to court to prove a violation of the law. But without the availability of counsel fees, these rights exist only on paper. Private citizens must be given not only the rights to go to court, but also the legal resources. If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers." 122 Cong. 33313 (1976). Senator Kennedy, who sponsored the amended version of the Fees Act that was actually passed, made the same point somewhat more succinctly: *751 "Long experience has demonstrated that Government enforcement alone cannot accomplish [compliance with the civil rights laws]. Private enforcement of these laws by those most directly affected must continue to receive full congressional support. Fee shifting provides a mechanism which can give full effect to our civil rights laws, at no added cost to the Government." 2. But perhaps it was Representative Anderson, responding to a question from an opponent of the Fees Act, who summed up the reason for the legislation most effectively. He said: "We are talking here about major civil rights laws. We have an obligation, it seems to me, as the representatives of the people, to make sure that those laws are enforced and we
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
to make sure that those laws are enforced and we discharge that obligation when we make available a reasonable award of attorneys' fees at the discretion of the court. Those of us who are interested in making sure that those laws are enforced are simply abetting and aiding that process of law enforcement when we agree to the provisions of this bill." 5116. See also, e. g., 1 ("Congress should encourage citizens to go to court in private suits to vindicate its policies and protect their rights"), 35128 (remarks of Rep. Seiberling). III As this review of the legislative history makes clear, then, by awarding attorney's fees Congress sought to attract competent counsel to represent victims of civil rights violations.[3] Congress' primary purpose was to enable "private attorneys *752 general" to protect the public interest by creating economic incentives for lawyers to represent them. The Court's assertion that the Fees Act was intended to do nothing more than give individual victims of civil rights violations another remedy is thus at odds with the whole thrust of the legislation. Congress determined that the public as a whole has an interest in the vindication of the rights conferred by the civil rights statutes over and above the value of a civil rights remedy to a particular plaintiff.[4] I have gone to great lengths to show how the Court mischaracterizes the purpose of the Fees Act because the Court's error leads it to ask the wrong question. Having concluded that the Fees Act merely creates another remedy to vindicate the rights of individual plaintiffs, the Court asks whether negotiated waivers of statutory attorney's fees are "invariably inconsistent" with the availability of such fees as a remedy for individual plaintiffs. Ante, at 732. Not surprisingly, the Court has little difficulty knocking down this frail straw man.[5] But the proper question is whether permitting negotiated *753 fee waivers is consistent with Congress' goal of attracting competent counsel. It is therefore necessary to consider the effect on this goal of allowing individual plaintiffs to negotiate fee waivers. A Permitting plaintiffs to negotiate fee waivers in exchange for relief on the merits actually raises two related but distinct questions. First, is it permissible under the Fees Act to negotiate a settlement of attorney's fees simultaneously with the merits? Second, can the "reasonable attorney's fee" guaranteed in the Act be waived? As a matter of logic, either of these practices may be permitted without also permitting the other. For instance, one could require bifurcated settlement negotiations of merits and fees but allow plaintiffs to waive their fee claims
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
and fees but allow plaintiffs to waive their fee claims during that phase of the negotiations. Alternatively, one could permit simultaneous negotiation of fees and merits but prohibit the plaintiff from waiving statutory fees. This latter possibility exists because there is a range of "reasonable attorney's fees" consistent with the Fees Act in any given case. Cf. ; ; H. R. Rep. 8-9; S. Rep. 6; see generally[6] More importantly, since simultaneous negotiation and waiver may have different effects on the congressional policy of encouraging counsel to accept civil rights cases, each practice must be analyzed independently to determine whether or *754 not it is consistent with the Fees Act. Unfortunately, the Court overlooks the logical independence of simultaneous negotiation and waiver and assumes that there cannot be one without the other. See ante, at 734-738, and n. 28. As a result, the Court's discussion conflates the different effects of these practices, and its opinion is of little use in coming to a fair resolution of this case. An independent examination leads me to conclude: (1) that plaintiffs should not be permitted to waive the "reasonable fee" provided by the Fees Act; but (2) that parties may undertake to negotiate their fee claims simultaneously with the merits so long as whatever fee the parties agree to is found by the court to be a "reasonable" one under the Fees Act. B 1 It seems obvious that allowing defendants in civil rights cases to condition settlement of the merits on a waiver of statutory attorney's fees will diminish lawyers' expectations of receiving fees and decrease the willingness of lawyers to accept civil rights cases. Even the Court acknowledges "the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and in the long run, diminish lawyers' expectations of statutory fees in civil rights cases." Ante, at 741-742, n. 34. The Court tells us, however, that "[c]omment on this issue" is "premature at this juncture" because there is not yet supporting "documentation." The Court then goes on anyway to observe that "as a practical matter the likelihood of this circumstance arising is remote." I must say that I find the Court's assertions somewhat difficult to understand. To be sure, the impact of conditional fee waivers on the availability of attorneys will be less severe than was the restriction on fee awards created in However, that experience surely provides an indication of the immediate hardship suffered by civil rights claimants *755 whenever there is a reduction in the availability of attorney's fee awards.[7] Moreover, numerous courts and commentators
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
availability of attorney's fee awards.[7] Moreover, numerous courts and commentators have recognized that permitting fee waivers creates disincentives for lawyers to take civil rights cases and thus makes it more difficult for civil rights plaintiffs to obtain legal assistance. See, e. g., Moore v. National Assn. of Securities Dealers, Inc., 246 U. S. App. D. C. 114, 133-134, (Wald, J., concurring in judgment) ; (CA3), cert. denied sub nom. ; 29 Vill. L. Rev., 25, 633-638; Comment, Settlement Offers Conditioned Upon Waiver of Attorneys' Fees: Policy, Legal, and Ethical Considerations, ; Committee on Professional and Judicial Ethics of the New York City Bar Association, Op. No. 80-94, reprinted in 36 Record of N. Y. C. B. A. 507, 508-509 But it does not require a sociological study to see that permitting fee waivers will make it more difficult for civil rights plaintiffs to obtain legal assistance. It requires only common sense. Assume that a civil rights defendant makes a settlement offer that includes a demand for waiver of statutory attorney's fees. The decision whether to accept or reject the *7 offer is the plaintiff's alone, and the lawyer must abide by the plaintiff's decision. See, e. g., ABA, Model Rules of Professional Conduct 1.2(a) ; ABA, Model Code of Professional Responsibility EC 7-7 to EC 7-9[8] As a formal matter, of course, the statutory fee belongs to the plaintiff, ante, at 730, and n. 19, and thus technically the decision to waive entails a sacrifice only by the plaintiff. As a practical matter, however, waiver affects only the lawyer. Because "a vast majority of the victims of civil rights violations" have no resources to pay attorney's fees, H. R. Rep. 1,[9] lawyers cannot hope to recover fees from the plaintiff and must depend entirely on the Fees Act for compensation.[] The plaintiff *757 thus has no real stake in the statutory fee and is unaffected by its waiver. See Consequently, plaintiffs will readily agree to waive fees if this will help them to obtain other relief they desire.[11] As summed up by the Legal Ethics Committee of the District of Columbia Bar: "Defense counsel are in a uniquely favorable position when they condition settlement on the waiver of the statutory fee: They make a demand for a benefit that the plaintiff's lawyer cannot resist as a matter of ethics and one in which the plaintiff has no interest and therefore will not resist." Op. No. reprinted in 113 Daily Washington 94. Of course, from the lawyer's standpoint, things could scarcely have turned out worse. He or she invested considerable *758
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
have turned out worse. He or she invested considerable *758 time and effort in the case, won, and has exactly nothing to show for it. Is the Court really serious in suggesting that it takes a study to prove that this lawyer will be reluctant when, the following week, another civil rights plaintiff enters his office and asks for representation? Does it truly require that somebody conduct a test to see that legal aid services, having invested scarce resources on a case, will feel the pinch when they do not recover a statutory fee? And, of course, once fee waivers are permitted, defendants will seek them as a matter of course, since this is a logical way to minimize liability. Indeed, defense counsel would be remiss not to demand that the plaintiff waive statutory attorney's fees. A lawyer who proposes to have his client pay more than is necessary to end litigation has failed to fulfill his fundamental duty zealously to represent the best interests of his client. Because waiver of fees does not affect the plaintiff, a settlement offer is not made less attractive to the plaintiff if it includes a demand that statutory fees be waived. Thus, in the future, we must expect settlement offers routinely to contain demands for waivers of statutory fees.[12] The cumulative effect this practice will have on the civil rights bar is evident. It does not denigrate the high ideals that motivate many civil rights practitioners to recognize that lawyers are in the business of practicing law, and that, like other business people, they are and must be concerned with earning a living.[13] The conclusion that permitting fee *759 waivers will seriously impair the ability of civil rights plaintiffs to obtain legal assistance is embarrassingly obvious. Because making it more difficult for civil rights plaintiffs to obtain legal assistance is precisely the opposite of what Congress sought to achieve by enacting the Fees Act, fee waivers should be prohibited. We have on numerous prior occasions held that "a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy." Brooklyn Savings See also, e. g., (9) ; ; cf. This is simply straightforward application of the well-established principle that an agreement which is contrary to public policy is void and unenforceable. See Restatement (Second) of Contracts 178 ; see also, Brooklyn Savings at ; Crites, (4); ; Woodstock Iron[14] *760 2 This all seems so obvious that it is puzzling that the Court reaches a different result.
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
it is puzzling that the Court reaches a different result. The Court's rationale is that, unless fee waivers are permitted, "parties to a significant number of civil rights cases will refuse to settle" Ante, at 736. This is a wholly inadequate justification for the Court's result. First, the effect of prohibiting fee waivers on settlement offers is just not an important concern in the context of the Fees Act. I agree with the Court that encouraging settlements is desirable policy. But it is judicially created policy, applicable to litigation of any kind and having no special force in the context of civil rights cases.[15] The congressional policy underlying the Fees Act is, as I have argued throughout, to create incentives for lawyers to devote time to civil rights cases by making it economically feasible for them to do[16] As explained above, permitting fee *761 waivers significantly undercuts this policy. Thus, even if prohibiting fee waivers does discourage some settlements, a judicial policy favoring settlement cannot possibly take precedence over this express congressional policy. We must implement Congress' agenda, not our own. In an attempt to justify its decision to elevate settlement concerns, the Court argues that settlement "provides benefits for civil rights plaintiffs as well as defendants and is consistent with the purposes of the Fees Act" because " `[s]ome plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered.' " Ante, at 732-733 ); see also ante, at 731 (legislative history does not show that Congress intended to bar "even [waivers] insisted upon by a civil rights plaintiff in exchange for some other relief to which he is indisputably not entitled") As previously noted, by framing the purpose of the Fees Act in very general terms, the Court merely obscures the proper focus of discussion. The Fees Act was designed to help civil rights plaintiffs in a particular way by ensuring that there will be lawyers willing to represent them. The fact that fee waivers may produce some settlement offers that are beneficial to a few individual plaintiffs is hardly "consistent with the purposes of the Fees Act," ante, at 733, if permitting fee waivers fundamentally undermines what Congress sought to achieve. Each individual plaintiff who waives his right to statutory fees in order to obtain additional relief for himself makes it that much more difficult for the next victim of a civil rights violation to find a lawyer willing or able to bring his case. As obtaining legal assistance becomes more difficult, the "benefit"
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
case. As obtaining legal assistance becomes more difficult, the "benefit" the Court so magnanimously *762 preserves for civil rights plaintiffs becomes available to fewer and fewer individuals, exactly the opposite result from that intended by Congress. Moreover, I find particularly unpersuasive the Court's apparent belief that Congress enacted the Fees Act to help plaintiffs coerce relief to which they are "indisputably not entitled." See ante, at 731, 732. It may be that, in particular cases, some defendants' fears of incurring liability for plaintiff's attorney's fees will give plaintiffs leverage to coerce relief they do not deserve. If so, this is an unfortunate cost of a statute intended to ensure that plaintiffs can obtain the relief to which they are entitled. And it certainly is not a result we must preserve at the expense of the central purpose of the Fees Act. Second, even assuming that settlement practices are relevant, the Court greatly exaggerates the effect that prohibiting fee waivers will have on defendants' willingness to make settlement offers. This is largely due to the Court's failure to distinguish the fee waiver issue from the issue of simultaneous negotiation of fees and merits claims. The Court's discussion mixes concerns over a defendant's reluctance to settle because total liability remains uncertain with reluctance to settle because the cost of settling is too high. See ante, at 734-737. However, it is a prohibition on simultaneous negotiation, not a prohibition on fee waivers, that makes it difficult for the defendant to ascertain his total liability at the time he agrees to settle the merits. Thus, while prohibiting fee waivers may deter settlement offers simply because requiring the defendant to pay a "reasonable attorney's fee" increases the total cost of settlement, this is a separate issue altogether, and the Court's numerous arguments about why defendants will not settle unless they can determine their total liability at the time of settlement, ante, at 734, 735, 736, are simply beside the point.[17] With respect *763 to a prohibition on fee waivers (and again merely assuming that effects on settlement are relevant), the sole question to be asked is whether the increased cost of settlement packages will prevent enough settlement offers to be a dispositive factor in this case. The Court asserts, without factual support,[18] that requiring defendants to pay statutory fee awards will prevent a "significant number" of settlements. Ante, at 734-735. It is, of course, ironic that the same absence of "documentation" which makes comment on the effects of permitting fee waivers "premature at this juncture," ante, at 742, n. 34, does not similarly affect the
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
ante, at 742, n. 34, does not similarly affect the Court's willingness to speculate about what to expect if fee waivers are prohibited. Be that as it may, I believe that the Court overstates the extent to which prohibiting fee waivers will deter defendants from making settlement offers. Because the parties can negotiate a fee (or a range of fees) that is not unduly high and condition their settlement on the court's approval of this fee, the magnitude *764 of a defendant's liability for fees in the settlement context need be neither uncertain nor particularly great.[19] Against this, the defendant must weigh the risk of a nonnegotiated fee to be fixed by the court after a trial; as the Court reminds us, fee awards in this context may be very uncertain and, potentially, of very great magnitude. See ante, at 734-735, nn. 23, 24. Thus, powerful incentives remain for defendants to seek settlement. Moreover, the Court's decision last Term in provides an additional incentive for defendants to make settlement offers, namely, the opportunity to limit liability for attorney's fees if the plaintiff refuses the offer and proceeds to trial. All of which is not to deny that prohibiting fee waivers will deter some settlements; any increase in the costs of settling will have this effect. However, by exaggerating the size and the importance of fee awards, and by ignoring the options available to the parties in settlement negotiations, the Court makes predictions that are inflated. An actual disincentive to settling exists only where three things are true: (1) the defendant feels he is likely to win if he goes to trial, in which case the plaintiff will recover no fees; (2) the plaintiff will agree to relief on the merits that is less costly to the defendant than litigating the case; and (3) adding the cost of a negotiated attorney's fee makes it less costly for the defendant to litigate. I believe that this describes a very small class of cases although, like the Court, I cannot "document" the assertion. C I would, on the other hand, permit simultaneous negotiation of fees and merits claims, since this would not contravene *765 the purposes of the Fees Act. Congress determined that awarding prevailing parties a "reasonable" fee would create necessary and sufficient incentives for attorneys to work on civil rights cases. Prohibiting plaintiffs from waiving statutory fees ensures that lawyers will receive this "reasonable" statutory fee. Thus, if fee waivers are prohibited, permitting simultaneous fees and merits negotiations will not interfere with the Act; the lawyer will still
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Evans v. Jeff D.
|
https://www.courtlistener.com/opinion/111627/evans-v-jeff-d/
|
will not interfere with the Act; the lawyer will still be entitled to and will still receive a reasonable attorney's fee. Indeed, permitting simultaneous negotiations in such circumstances may even enhance the effectiveness of the Fees Act by making it easier for a lawyer to dispose of his cases more quickly. This frees up the lawyer's time to take other cases and may enhance his reputation as an effective advocate who quickly obtains relief for clients. IV Although today's decision will undoubtedly impair the effectiveness of the private enforcement scheme Congress established for civil rights legislation, I do not believe that it will bring about the total disappearance of "private attorneys general." It is to be hoped that Congress will repair this Court's mistake. In the meantime, other avenues of relief are available. The Court's decision in no way limits the power of state and local bar associations to regulate the ethical conduct of lawyers. Indeed, several Bar Associations have already declared it unethical for defense counsel to seek fee waivers. See Committee on Professional Ethics of the Association of the Bar of the City of New York, Op. No. 82-80 ; District of Columbia Legal Ethics Committee, Op. No. 113 Daily Washington Law 89. Such efforts are to be commended and, it is to be hoped, will be followed by other state and local organizations concerned with respecting the intent of Congress and with protecting civil rights. *766 In addition, it may be that civil rights attorneys can obtain agreements from their clients not to waive attorney's fees.[20] Such agreements simply replicate the private market for legal services (in which attorneys are not ordinarily required to contribute to their client's recovery[21]), and thus will enable civil rights practitioners to make it economically feasible as Congress hoped to expend time and effort litigating civil rights claims. During the floor debates over passage of the Fees Act, Senator Hugh Scott reminded the Congress in terms that might well have been addressed to the Court today that "we must bear in mind at all times that rights that cannot be enforced through the legal process are valueless; such a situation breeds cynicism about the basic fairness of our judicial system. [We] must be vigilant to insure that our legal rights are not hollow ones." 122 Cong. 31 (1976).
|
Justice Stevens
| 1,998 | 16 |
dissenting
|
Gebser v. Lago Vista Independent School Dist.
|
https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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The question that the petition for certiorari asks us to address is whether the Lago Vista Independent School District (respondent) is liable in damages for a violation of IX of the Education Amendments of 1972, 20 U.S. C. 1681 et seq. ( IX). The Court provides us with a negative answer to that question because respondent did not have actual notice of, and was not deliberately indifferent to, the odious misconduct of one of its teachers. As a basis for its decision, the majority relies heavily on the notion that because the private cause of action under IX is "judicially implied," the Court has "a measure of latitude" to use its own judgment in shaping a remedial scheme. See ante, at 284. This assertion of lawmaking authority is not faithful either to our precedents or to our duty to interpret, rather than to revise, congressional commands. Moreover, the majority's policy judgment about the appropriate remedy in this case thwarts the purposes of IX. I It is important to emphasize that in the Court confronted a question of statutory construction. The decision represented our considered judgment about the intent of the Congress that enacted IX in 1972. After noting that IX had been patterned after VI of the Civil Rights Act of 19, which had been interpreted to include a private right of action, we concluded that Congress intended to authorize the same private enforcement of IX. 698; see also ("We have no doubt that Congress intended to create IX remedies comparable to those available under VI and that it understood VI as *294 authorizing an implied private cause of action for victims of the prohibited discrimination").[1] As long as the intent of Congress is clear, an implicit command has the same legal force as one that is explicit. The fact that a statute does not authorize a particular remedy "in so many words is no more significant than the fact that it does not in terms authorize execution to issue on a judgment recovered under [the statute]."[2] In we unanimously concluded that IX authorized *295 a high school student who had been sexually harassed by a sports coach/teacher to recover damages from the school district. That conclusion was supported by two considerations. In his opinion for the Court, Justice White first relied on the presumption that Congress intends to authorize "all appropriate remedies" unless it expressly indicates otherwise.[3] He then noted that two amendments[4] to IX enacted after the decision in had validated `s holding and supported the conclusion that "Congress did not intend to limit the remedies available
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Justice Stevens
| 1,998 | 16 |
dissenting
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Gebser v. Lago Vista Independent School Dist.
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https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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that "Congress did not intend to limit the remedies available in a suit brought under IX." Justice Scalia, concurring in the judgment, agreed that Congress' amendment of IX to eliminate the States' Eleventh Amendment immunity, see 42 U.S. C. 2000d7(a)(1), must be read "not only `as a validation of `s holding,' ante, but also as an implicit acknowledgment that damages are available." *296 Because these constructions of the statute have been accepted by Congress and are unchallenged here, they have the same legal effect as if the private cause of action seeking damages had been explicitly, rather than implicitly, authorized by Congress. We should therefore seek guidance from the text of the statute and settled legal principles rather than from our views about sound policy. II We have already noted that the text of IX should be accorded "`a sweep as broad as its language.' " North Haven Bd. of That sweep is broad indeed. "No person shall, on the basis of sex, be subjected to discrimination under any education program or activity receiving Federal financial assistance" 20 U.S. C. 1681(a). As Judge Rovner has correctly observed, the use of passive verbs in IX, focusing on the victim of the discrimination rather than the particular wrongdoer, gives this statute broader coverage than VII. See[5]*297 Moreover, because respondent assumed the statutory duty set out in IX as part of its consideration for the receipt of federal funds, that duty constitutes an affirmative undertaking that is more significant than a mere promise to obey the law. Both of these considerations are reflected in our decision in Explaining why IX is violated when a teacher sexually abuses a student, we wrote: "Unquestionably, IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and `when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex.' Meritor Sav. Bank, We believe the same rule should apply when a teacher sexually harasses and abuses a student. Con- gress surely did not intend for federal moneys to be ex- pended to support the intentional actions it sought by statute to proscribe. " therefore stands for the proposition that sexual harassment of a student by a teacher violates the duty assumed by the school district in exchange for federal fundsnot to discriminate on the basis of sex, and that a student may recover damages from a school district for such a violation. Although the opinion the Court announces today is not entirely clear, it does not purport to overrule See ante,
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Justice Stevens
| 1,998 | 16 |
dissenting
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Gebser v. Lago Vista Independent School Dist.
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https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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entirely clear, it does not purport to overrule See ante, at 281 (" thereby establishes that a school district can be held liable in damages in cases involving a teacher's sexual harassment of a student"). Moreover, I do not understand the Court to question the conclusion that an intentional violation of IX, of the type we recognized in *298[6] has been alleged in this case.[7] During her freshman and sophomore years of high school, petitioner Alida Star Gebser was repeatedly subjected to sexual abuse by her teacher, Frank Waldrop, whom she had met in the eighth grade when she joined his high school book discussion group. Waldrop's conduct was surely intentional, and it occurred during, and as a part of, a curriculum activity in which he wielded authority over Gebser that had been delegated to him by respondent. Moreover, it is undisputed that the activity was subsidized, in part, with federal moneys. The Court nevertheless holds that the law does not provide a damages remedy for the IX violation alleged in this case because no official of the school district with "authority to institute corrective measures on the district's behalf" had actual notice of Waldrop's misconduct. Ante, at 277. That holding is at odds with settled principles of *299 agency law,[8] under which the district is responsible for Waldrop's misconduct because "he was aided in accomplishing the tort by the existence of the agency relation." Restatement (Second) of Agency 219(2)(d) (1957).[9] This case presents a paradigmatic example of a tort that was made possible, that was effected, and that was repeated over a prolonged period because of the powerful influence that Waldrop had over Gebser by reason of the authority that his employer, the school district, had delegated to him. As a secondary school teacher, Waldrop exercised even greater authority and control over his students than employers and supervisors exercise over their employees. His gross misuse of that authority allowed him to abuse his young student's trust.[10] *300 Reliance on the principle set out in 219(2)(b) of the Restatement comports with the relevant agency's interpretation of IX. The United States Department of Education, through its Office for Civil Rights, recently issued a policy "Guidance" stating that a school district is liable under IX if one of its teachers "was aided in carrying out the sexual harassment of students by his or her position of authority with the institution." Sexual Harassment Policy Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 12039 As the agency charged with administering and enforcing IX, see 20 U.S. C. 1682, the Department
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Justice Stevens
| 1,998 | 16 |
dissenting
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Gebser v. Lago Vista Independent School Dist.
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https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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and enforcing IX, see 20 U.S. C. 1682, the Department of Education has a special interest in ensuring that federal funds are not used in contravention of IX's mandate. It is therefore significant that the Department's interpretation of the statute wholly supports the conclusion that respondent is liable in damages for Waldrop's sexual abuse of his student, which was made possible only by Waldrop's affirmative misuse of his authority as her teacher. The reason why the common law imposes liability on the principal in such circumstances is the same as the reason why Congress included the prohibition against discrimination on the basis of sex in IX: to induce school boards to adopt and enforce practices that will minimize the danger that vulnerable students will be exposed to such odious behavior. The rule that the Court has crafted creates the opposite incentive. As long as school boards can insulate themselves from knowledge about this sort of conduct, they *301 can claim immunity from damages liability.[11] Indeed, the rule that the Court adopts would preclude a damages remedy even if every teacher at the school knew about the harassment but did not have "authority to institute corrective measures on the district's behalf." Ante, at 277. It is not my function to determine whether this newly fashioned rule is wiser than the established common-law rule. It is proper, however, to suggest that the Court bears the burden of justifying its rather dramatic departure from settled law, and to explain why its opinion fails to shoulder that burden. III The Court advances several reasons why it would "frustrate the purposes" of IX to allow recovery against a school district that does not have actual notice of a teacher's sexual harassment of a student. Ante, at 285 (internal quotation marks omitted). As the Court acknowledges, however, the two principal purposes that motivated the enactment of IX were: (1) "`to avoid the use of federal resources to support discriminatory practices' "; and (2) "`to provide individual citizens effective protection against those practices.' " Ante, at 286 (quoting ). It seems quite obvious that both of those purposes would be servednot frustratedby providing a damages remedy in a case of this kind. To the extent that the Court's reasons for its policy choice have any merit, they suggest that no damages should ever be awarded in a IX case in other words, that our unanimous holding in should be repudiated. *302 First, the Court observes that at the time IX was enacted, "the principal civil rights statutes containing an express right of action did not provide for
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Justice Stevens
| 1,998 | 16 |
dissenting
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Gebser v. Lago Vista Independent School Dist.
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https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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containing an express right of action did not provide for recovery of monetary damages at all." Ante, at 285. however, forecloses this reevaluation of legislative intent; in that case, we "evaluate[d] the state of the law when the Legislature passed IX," and concluded that "the same contextual approach used to justify an implied right of action more than amply demonstrates the lack of any legislative intent to abandon the traditional presumption in favor of all available remedies," The Court also suggests that the fact that Congress has imposed a ceiling on the amount of damages that may be recovered in VII cases, see 42 U.S. C. 1981a, is somehow relevant to the question whether any damages at all may be awarded in a IX case. Ante, at 286. The short answer to this creative argument is that the VII ceiling does not have any bearing on when damages may be recovered from a defendant in a IX case. Moreover, this case does not present any issue concerning the amount of any possible damages award.[12] Second, the Court suggests that the school district did not have fair notice when it accepted federal funding that it might be held liable "`for a monetary award' " under IX. Ante, at 287 (quoting ). The Court cannot mean, however, that respondent was not *303 on notice that sexual harassment of a student by a teacher constitutes an "intentional" violation of IX for which damages are available, because we so held shortly before Waldrop began abusing Gebser. See Given the fact that our holding in was unanimous, it is not unreasonable to assume that it could have been foreseen by counsel for the recipients of IX funds. Moreover, the nondiscrimination requirement set out in IX is clear, and this Court held that sexual harassment constitutes intentional sex discrimination long before the sexual abuse in this case began. See Meritor Savings Bank, Normally, of course, we presume that the citizen has knowledge of the law. The majority nevertheless takes the position that a school district that accepts federal funds under IX should not be held liable in damages for an intentional violation of that statute if the district itself "was unaware of the discrimination." Ante, at 287. The Court reasons that because administrative proceedings to terminate funding cannot be commenced until after the grant recipient has received notice of its noncompliance and the agency determines that voluntary compliance is not possible, see 20 U.S. C. 1682, there should be no damages liability unless the grant recipient has actual notice of the violation (and thus an opportunity
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Justice Stevens
| 1,998 | 16 |
dissenting
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Gebser v. Lago Vista Independent School Dist.
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https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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has actual notice of the violation (and thus an opportunity to end the harassment). See ante, at -290. The fact that Congress has specified a particular administrative procedure to be followed when a subsidy is to be terminated, however, does not illuminate the question of what the victim of discrimination on the basis of sex must prove in order to recover damages in an implied private right of action. Indeed, in 503 U. S., at n. 3, we noted that the Department of Education's Office of Civil Rights had declined to terminate federal funding of the school district at issuedespite its finding that a IX violation had occurredbecause the "district [had come] into compliance" with IX after the harassment at issue. See ante, at *304 289. That fact did not affect the Court's analysis, much less persuade the Court that a damages remedy was unavailable. Cf. The majority's inappropriate reliance on IX's administrative enforcement scheme to limit the availability of a damages remedy leads the Court to require not only actual knowledge on the part of "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf," but also that official's "refus[al] to take action," or "deliberate indifference" toward the harassment. Ante, at 290.[13] Presumably, few IX plaintiffs who have been victims of intentional discrimination will be able to recover damages under this exceedingly high standard. The Court fails to recognize that its holding will virtually "render inutile causes of action authorized by Congress through a decision that no remedy is available." IV We are not presented with any question concerning the affirmative defenses that might eliminate or mitigate the recovery of damages for a IX violation. It has been argued, for example, that a school district that has adopted and vigorously enforced a policy that is designed to prevent sexual harassment and redress the harms that such conduct may produce should be exonerated from damages liability.[14]*305 The Secretary of Education has promulgated regulations directing grant recipients to adopt such policies and disseminate them to students.[15] A rule providing an affirmative defense for districts that adopt and publish such policies pursuant to the regulations would not likely be helpful to respondent, however, because it is not at all clear whether respondent adopted any such policy,[16] and there is no evidence that such a policy was made available to students, as required by regulation.[17] A theme that seems to underlie the Court's opinion is a concern that holding a school district liable in damages might deprive it of the benefit
|
Justice Stevens
| 1,998 | 16 |
dissenting
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Gebser v. Lago Vista Independent School Dist.
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https://www.courtlistener.com/opinion/118232/gebser-v-lago-vista-independent-school-dist/
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district liable in damages might deprive it of the benefit of the federal subsidythat the damages remedy is somehow more onerous than a possible termination of the federal grant. See, e. g., ante, at 290 (stating that "an award of damages in a particular case might well exceed a recipient's level of federal funding"). It is possible, of course, that in some cases the recoverable damages, in either a IX action or a state-law tort action, would *306 exceed the amount of a federal grant.[18] That is surely not relevant to the question whether the school district or the injured student should bear the risk of harma risk against which the district, but not the student, can insure. It is not clear to me why the well-settled rules of law that impose responsibility on the principal for the misconduct of its agents should not apply in this case. As a matter of policy, the Court ranks protection of the school district's purse above the protection of immature high school students that those rules would provide. Because those students are members of the class for whose special benefit Congress enacted IX, that policy choice is not faithful to the intent of the policymaking branch of our Government. I respectfully dissent.
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Justice Souter
| 2,004 | 20 |
dissenting
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United States v. Patane
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https://www.courtlistener.com/opinion/137003/united-states-v-patane/
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The plurality repeatedly says that the Fifth Amendment does not address the admissibility of nontestimonial evidence, an overstatement that is beside the point. The issue actually presented today is whether courts should apply the fruit of the poisonous tree doctrine lest we create an incentive for the police to omit Miranda warnings, see before custodial interrogation.[1]*646 In closing their eyes to the consequences of giving an evidentiary advantage to those who ignore Miranda, the plurality adds an important inducement for interrogators to ignore the rule in that case. Miranda rested on insight into the inherently coercive character of custodial interrogation and the inherently difficult exercise of assessing the voluntariness of any confession resulting from it. Unless the police give the prescribed warnings meant to counter the coercive atmosphere, a custodial confession is inadmissible, there being no need for the previous time-consuming and difficult enquiry into voluntariness. That inducement to forestall involuntary statements and troublesome issues of fact can only atrophy if we turn around and recognize an evidentiary benefit when an unwarned statement leads investigators to tangible evidence. There is, of course, a price for excluding evidence, but the Fifth Amendment is worth a price, and in the absence of a very good reason, the logic of Miranda should be followed: a Miranda violation raises a presumption of coercion, and the Fifth Amendment privilege against compelled self-incrimination extends to the exclusion of derivative evidence, see United ; That should be the end of this case. The fact that the books contain some exceptions to the Miranda exclusionary rule carries no weight here. In it was respect for the integrity of the judicial process that justified the admission *647 of unwarned statements as impeachment evidence. But Patane's suppression motion can hardly be described as seeking to "perver[t]" Miranda "into a license to use perjury" or otherwise handicap the "traditional truth-testing devices of the adversary process." -226. Nor is there any suggestion that the officers' failure to warn Patane was justified or mitigated by a public emergency or other exigent circumstance, as in New And of course the premise of is not on point; although a failure to give Miranda warnings before one individual statement does not necessarily bar the admission of a subsequent statement given after adequate warnings, ; cf. Missouri v. Seibert, ante, at 614-615 (plurality opinion), that rule obviously does not apply to physical evidence seized once and for all.[2] There is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained.
|
Justice Scalia
| 1,998 | 9 |
dissenting
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Federal Election Comm'n v. Akins
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https://www.courtlistener.com/opinion/118217/federal-election-commn-v-akins/
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The provision of law at issue in this case is an extraordinary one, conferring upon a private person the ability to bring an Executive agency into court to compel its enforcement *30 of the law against a third party. Despite its liberality, the Administrative Procedure Act does not allow such suits, since enforcement action is traditionally deemed "committed to agency discretion by law." 5 U.S. C. 701(a)(2); If provisions such as the present one were commonplace, the role of the Executive Branch in our system of separated and equilibrated powers would be greatly reduced, and that of the Judiciary greatly expanded. Because this provision is so extraordinary, we should be particularly careful not to expand it beyond its fair meaning. In my view the Court's opinion does that. Indeed, it expands the meaning beyond what the Constitution permits. I It is clear that the Federal Election Campaign Act of 1971 (FECA or Act) does not intend that all persons filing complaints with the Federal Election Commission have the right to seek judicial review of the rejection of their complaints. This is evident from the fact that the Act permits a complaint to be filed by "[a]ny person who believes a violation of this Act has occurred," 2 U.S. C. 437g(a)(1) (emphasis added), but accords a right to judicial relief only to "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party," 437g(a)(8)(A) (emphasis added). The interpretation that the Court gives the latter provision deprives it of almost all its limiting force. Any voter can sue to compel the agency to require registration of an entity as a political committee, even though the "aggrievement" consists of nothing more than the deprivation of access to information whose public availability would have been one of the consequences of registration. This seems to me too much of a stretch. It should be borne in mind that the agency action complained of here is not the refusal to make available information in its possession that the Act requires to be disclosed. A person demanding *31 provision of information that the law requires the agency to furnishone demanding compliance with the Freedom of Information Act or the Federal Advisory Committee Act, for examplecan reasonably be described as being "aggrieved" by the agency's refusal to provide it. What the respondents complain of in this suit, however, is not the refusal to provide information, but the refusal (for an allegedly improper reason) to commence an agency enforcement action against a third person. That refusal itself plainly does not render respondents "aggrieved" within
|
Justice Scalia
| 1,998 | 9 |
dissenting
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Federal Election Comm'n v. Akins
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https://www.courtlistener.com/opinion/118217/federal-election-commn-v-akins/
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That refusal itself plainly does not render respondents "aggrieved" within the meaning of the Act, for in that case there would have been no reason for the Act to differentiate between "person" in subsection (a)(1) and "party aggrieved" in subsection (a)(8). Respondents claim that each of them is elevated to the special status of a "party aggrieved" by the fact that the requested enforcement action (if it was successful) would have had the effect, among others, of placing certain information in the agency's possession, where respondents, along with everyone else in the world, would have had access to it. It seems to me most unlikely that the failure to produce that effectboth a secondary consequence of what respondents immediately seek, and a consequence that affects respondents no more and with no greater particularity than it affects virtually the entire populationwould have been meant to set apart each respondent as a "party aggrieved" (as opposed to just a rejected complainant) within the meaning of the statute. This conclusion is strengthened by the fact that this citizen-suit provision was enacted two years after this Court's decision in United which, as I shall discuss at greater length below, gave Congress every reason to believe that a voter's interest in information helpful to his exercise of the franchise was constitutionally inadequate to confer standing. had said that a plaintiff's complaint that the Government was unlawfully depriving him of information he needed to *32 "properly fulfill his obligations as a member of the electorate in voting" was "surely the kind of a generalized grievance" that does not state an Article III case or controversy. And finally, a narrower reading of "party aggrieved" is supported by the doctrine of constitutional doubt, which counsels us to interpret statutes, if possible, in such fashion as to avoid grave constitutional questions. See United States ex rel. Attorney ; Edward J. DeBartolo As I proceed to discuss, it is my view that the Court's entertainment of the present suit violates Article III. Even if one disagrees with that judgment, however, it is clear from that the question is a close one, so that the statute ought not be interpreted to present it. II In we dismissed for lack of standing a suit whose "aggrievement" was precisely the "aggrievement" respondents assert here: the Government's unlawful refusal to place information within the public domain. The only difference, in fact, is that the aggrievement there was more direct, since the Government already had the information within its possession, whereas here respondents seek enforcement action that will bring information within the Government's possession and
|
Justice Scalia
| 1,998 | 9 |
dissenting
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Federal Election Comm'n v. Akins
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https://www.courtlistener.com/opinion/118217/federal-election-commn-v-akins/
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action that will bring information within the Government's possession and then require the information to be made public. The plaintiff in challenged the Government's failure to disclose the expenditures of the Central Intelligence Agency (CIA), in alleged violation of the constitutional requirement, Art. I, 9, cl. 7, that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held that such a claim was a nonjusticiable "generalized grievance" because "the impact on [plaintiff] is plainly undifferentiated *33 and common to all members of the public." 418 U.S., -177 It was alleged in that the Government had denied a right conferred by the Constitution, whereas respondents here assert a right conferred by statutebut of course "there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right." The Court today distinguishes on a different basis a basis that reduces it from a landmark constitutional holding to a curio. According to the Court, " focused upon taxpayer standing, not voter standing." Ante, at 22. In addition to being a silly distinction, given the weighty governmental purpose underlying the "generalized grievance" prohibitionviz., to avoid "something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts," this is also a distinction that the Court in went out of its way explicitly to eliminate. It is true enough that the narrow question presented in was "`[w]hether a federal taxpayer has standing,' " But the Court did not hold only, as the Court today suggests, that the plaintiff failed to qualify for the exception to the rule of no taxpayer standing established by the "logical nexus" test of[*] The plaintiff's complaint in had also alleged that he was "`a member of the electorate,' " 418 U.S., and he asserted injury in that capacity as well. *34 The opinion treated that as fairly included within the taxpayer-standing question, or at least as plainly indistinguishable from it: "The respondent's claim is that without detailed information on CIA expendituresand hence its activities he cannot intelligently follow the actions of Congress or the Executive, nor can he properly fulfill his obliga- tions as a member of the electorate in voting for candi- dates seeking national office "This is surely the kind of a generalized grievance described in both Frothingham and Flast since the impact on him is plainly undifferentiated and common to all members of the public." -177 (emphasis added). If left
|
Justice Scalia
| 1,998 | 9 |
dissenting
|
Federal Election Comm'n v. Akins
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https://www.courtlistener.com/opinion/118217/federal-election-commn-v-akins/
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all members of the public." -177 (emphasis added). If left voter standing unaffected, one must marvel at the unaccustomed ineptitude of the American Civil Liberties Union Foundation, which litigated in not immediately refiling with an explicit voter-standing allegation. Fairly read, and applying a fair understanding of its important purposes, is indistinguishable from the present case. The Court's opinion asserts that our language disapproving generalized grievances "invariably appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature." Ante, at 23. "Often," the Court says, "the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found `injury in fact.' " Ante, at 24. If that is soif concrete generalized grievances (like concrete particularized grievances) are OK, and abstract generalized grievances (like abstract particularized grievances) are badone must wonder why we ever developed the superfluous distinction between generalized and particularized grievances at all. But of course the Court is *35 wrong to think that generalized grievances have only concerned us when they are abstract. One need go no further than to prove thatunless the Court believes that deprivation of information is an abstract injury, in which event this case could be disposed of on that much broader ground. What is noticeably lacking in the Court's discussion of our generalized-grievance jurisprudence is all reference to two words that have figured in it prominently: "particularized" and "undifferentiated." See ; and n. 1. "Particularized" means that "the injury must affect the plaintiff in a personal and individual way." If the effect is "undifferentiated and common to all members of the public," the plaintiff has a "generalized grievance" that must be pursued by political, rather than judicial, means. These terms explain why it is a gross oversimplification to reduce the concept of a generalized grievance to nothing more than "the fact that [the grievance] is widely shared," ante, at 25, thereby enabling the concept to be dismissed as a standing principle by such examples as "large numbers of individuals suffer[ing] the same common-law injury (say, a widespread mass tort), or large numbers of voters suffer[ing] interference with voting rights conferred by law," ante, at 24. The exemplified injuries are widely shared, to be sure, but each individual suffers a particularized and differentiated harm. One tort victim suffers a burnt leg, another a burnt armor even if both suffer burnt arms they are different arms. One voter suffers the
|
Justice Scalia
| 1,998 | 9 |
dissenting
|
Federal Election Comm'n v. Akins
|
https://www.courtlistener.com/opinion/118217/federal-election-commn-v-akins/
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burnt arms they are different arms. One voter suffers the deprivation of his franchise, another the deprivation of hers. With the generalized grievance, on the other hand, the injury or deprivation is not only widely shared but it is undifferentiated. The harm caused to Mr. by the alleged disregard of the Statement-of-Accounts Clause was precisely the same as the harm caused to everyone else: unavailability of a description *36 of CIA expenditures. Just as the (more indirect) harm caused to Mr. Akins by the allegedly unlawful failure to enforce FECA is precisely the same as the harm caused to everyone else: unavailability of a description of AIPAC's activities. The Constitution's line of demarcation between the Executive power and the judicial power presupposes a common understanding of the type of interest needed to sustain a "case or controversy" against the Executive in the courts. A system in which the citizenry at large could sue to compel Executive compliance with the law would be a system in which the courts, rather than the President, are given the primary responsibility to "take Care that the Laws be faithfully executed," Art. II, 3. We do not have such a system because the common understanding of the interest necessary to sustain suit has included the requirement, affirmed in that the complained-of injury be particularized and differentiated, rather than common to all the electorate. When the Executive can be directed by the courts, at the instance of any voter, to remedy a deprivation that affects the entire electorate in precisely the same wayand particularly when that deprivation (here, the unavailability of information) is one inseverable part of a larger enforcement schemethere has occurred a shift of political responsibility to a branch designed not to protect the public at large but to protect individual rights. "To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an `individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty" If today's decision is correct, it is within the power of Congress to authorize any interested person to manage (through the courts) the Executive's enforcement of any law that includes a requirement for the filing and public availability of a piece of paper. *37 This is not the system we have had, and is not the system we should desire. * * * Because this statute should not be interpreted to confer upon the entire electorate the power to invoke judicial direction of prosecutions, and because if it is
|
Justice Douglas
| 1,974 | 10 |
dissenting
|
United States v. Matlock
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https://www.courtlistener.com/opinion/108967/united-states-v-matlock/
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Respondent William Matlock has been indicated for robbing a federally insured bank in violation of 18 U.S. C. 2113. The issue in this case involves the suppression of money found in a closet in Matlock's bedroom during a warrantless search of the home in which he lived. The search of the home, and of the bedroom, was authorized by one Gayle Graff, and the Court now remands this case for the District Court to determine, in the light of evidence which that court had previously excluded, whether Mrs. Graff was in fact a joint occupant of the bedroom with sufficient authority to consent to the search. Because I believe that the absence of a search warrant in this case, where the authorities had opportunity to obtain one, is fatal, I dissent from that disposition of this case. The home which was searched was rented by one William Marshall, and was occupied by members of his *179 family, including his wife and his 21-year-old daughter Gayle Graff. Respondent Matlock paid the Marshalls for the use of a bedroom in the home, which he apparently occupied with Gayle Graff. Respondent was arrested in the yard of the home on the morning of November 12, 1970. He offered no resistance, and was restrained in a squad car a distance from the home. Immediately thereafter, officers walked to the home, where Mrs. Graff was present. The officers told her they were searching for guns and money, and asked her whether Matlock lived in the home. After being asked by the officers whether they could search the house, and without being told that she could withhold her consent, Mrs. Graff permitted a police search. During this first search, three officers entered the house. One of the officers testified that they walked through the kitchen, pantry area, front porch, and living room. The officers asked which bedroom was Matlock's. After Mrs. Graff had indicated the second-floor bedroom which she and Matlock occupied and permitted its search, the officers found a diaper bag half full of money in the bedroom closet. The admissibility of this evidence is involved in the instant case. The officers left the home, but returned a few minutes later for a second search. This time, they found certain other incriminating items in the pantry area. A third search was made in the afternoon. Again, the officers did not secure a warrant to search the home, but waited for an officer to bring Mrs. Marshall home, at which point they secured her consent to a search. Four officers participated in this search, which discovered
|
Justice Douglas
| 1,974 | 10 |
dissenting
|
United States v. Matlock
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https://www.courtlistener.com/opinion/108967/united-states-v-matlock/
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a search. Four officers participated in this search, which discovered further evidence downstairs and in a dresser in Matlock's bedroom. At no time did the officers participating in any of the three searches, including the first search involved in this case, attempt to procure a search warrant from a judicial officer. The District Court, in a finding which the Government *180 does not challenge, found that there was no exigent circumstance or emergency which could provide an excuse for the Government officers' failure to secure a warrant to invade the security of the Marshall home: "At no time on November 12, 1970, was a search warrant obtained by any law enforcement officers for the purpose of conducting a search of the Marshall home. There was adequate time to obtain one or more warrants. There was no emergency, nor danger to any police officer or other persons which required that the search proceed without awaiting the time at which a search warrant could be applied for. The search of the house was not incidental to the arrest of the defendant." This, I believe, is the crucial finding in the case, rather than the ultimate resolution of the question of Gayle Graff's "authority" to consent to the search. This search is impermissible because of the failure of the officers to secure a search warrant when they had the opportunity to do so. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The judicial scrutiny provided by the second clause of the Amendment is essential to effectuating the Amendment, and if, under that clause a warrant could have been obtained but was not, the ensuing search is "unreasonable" under the Amendment.[1] The intervention of a judicial *181 officer gives the Amendment vitality by restraining unnecessary and unjustified searches and invasions of privacy before they occur. At the same time, a written *182 warrant helps ensure that a search will be limited in scope to the areas and objects necessary to the search because both the "place to be searched" and the "things to be seized" must be described with particularity. We have *183 therefore held that only the gravest of circumstances could excuse the failure to secure a properly issued search warrant. Up to now, a police officer had a duty to secure
|
Justice Douglas
| 1,974 | 10 |
dissenting
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United States v. Matlock
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https://www.courtlistener.com/opinion/108967/united-states-v-matlock/
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to now, a police officer had a duty to secure a warrant when he had the opportunity to do so, even if substantial probable cause existed to justify a search. In decided in 1948, police officers smelled the unmistakable odor of opium outside a hotel room. They knocked on the door, identified themselves, and told the occupant that they wanted to talk to her. The occupant stepped back acquiescently and admitted the officers. We found that the entry was granted in submission to authority, and *184 that the odors alone would not justify the search without a warrant, despite the fact that they would have provided probable cause for a warrant. Since, as in the instant case, no "exceptional circumstances"[2] were cited which might have justified the warrantless search, but only "the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate," we found the warrantless search unconstitutional. Mr. Justice Jackson explained for the Court the need for judicial intervention as a restraint of police conduct before a search was made; and what he said is applicable today: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, *185 not by a policeman or government enforcement agent." In also decided in 1948, there was a search of an illegal distillery made without a warrant, even though the agents who conducted the search had ample information and time within which to secure a search warrant. Since there was no reason but the convenience of the police which could justify the warrantless search, we found it unreasonable. The police, when not constrained by the limitations of a warrant, are free to rummage about in the course of their search.
|
Justice Douglas
| 1,974 | 10 |
dissenting
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United States v. Matlock
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https://www.courtlistener.com/opinion/108967/united-states-v-matlock/
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free to rummage about in the course of their search. "[T]hey did precisely what the Fourth Amendment was designed to outlaw. Nothing circumscribed their activities on that raid except their own good senses, which the authors of the Amendment deemed insufficient to justify a search or seizure except in exceptional circumstances not here present." Speaking through Mr. Justice Murphy we explained again the reasons for our insistence on adherence to constitutional processes: "This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. In their understandable zeal to ferret out crime and in the excitement of the capture of a suspected person, officers are less likely to possess the detachment and neutrality with which the constitutional rights of the suspect must be viewed. To provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement." *186 Likewise, in also decided in 1948, officers with probable cause to engage in a search failed to secure a warrant, and we found the search illegal. Officers had heard an adding machine, frequently used in numbers operations, when outside a rooming house. Entering the house through a window, they looked over the transom of McDonald's room and saw gambling paraphernalia. They shouted to McDonald to open his room, and he did so. Again, there was no grave emergency which alone could justify the failure to secure a warrant, and again we patiently reiterated the reasons for our insistence that the police submit proposed searches to prior judicial scrutiny whenever feasible: "We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home."
|
Justice Douglas
| 1,974 | 10 |
dissenting
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United States v. Matlock
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https://www.courtlistener.com/opinion/108967/united-states-v-matlock/
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the police before they violate the privacy of the home." -456. decided in 1958, provides yet another instance of our recognition of the importance of adherence to judicial processes. Federal alcohol agents had secured a warrant to search a home during the daytime, having observed substantial evidence *187 that illegal liquor was being produced. Rather than executing the warrant, they waited until the evening, when they entered and searched the home. We held, specifically through Mr. Justice Harlan, that probable cause to believe that the house contained contraband was not sufficient to legitimize a warrantless search: "Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified." And, indeed, the provisions of the Fourth Amendment carefully and explicitly restricting the circumstances in which warrants can issue and the breadth of searches have become "empty phrases," when the Court sanctions this search conducted without any effort by the police to secure a valid search warrant. This was not a case where a grave emergency, such as the imminent loss of evidence or danger to human life, might excuse the failure to secure a warrant. Mrs. Graff's permission to the police to invade the house, simultaneously violating the privacy of Matlock and the Marshalls, provides a sorry and wholly inadequate substitute for the protections which inhere in a judicially granted warrant. It is inconceivable that a search conducted without a warrant can give more authority than a search conducted with a warrant. See United But here the police procured without a warrant all the authority which they had under the feared general warrants, hatred of which led to the passage of the Fourth Amendment. Government agents are now free to rummage about the house, unconstrained by anything except their own desires.[3] Even after finding items *188 which they may have expected to find and which doubtless would have been specified in a valid warrant, see they prolonged their exploratory search in pursuit of additional evidence. The judgment of whether the intrusion into the Marshalls' and Matlock's privacy was to be permitted was not made by an objective judicial officer respectful of the exacting demands of the Fourth Amendment; nor were the police limited by the need to make an initial showing of probable cause to invade the Marshall home. Since the Framers of the Amendment did not abolish the hated general warrants only to impose another oppressive regime on the people, I dissent. MR.
|
Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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https://www.courtlistener.com/opinion/109883/agosto-v-ins/
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The question for decision is whether petitioner has made a sufficient showing in support of his claim to United States citizenship to entitle him to a de novo judicial determination *750 of that claim under 106 (a) (5) (B) of the Immigration and Nationality Act, 8 U.S. C. 1105a (a) (5) (B) (1976 ed.). I In 1967, the Immigration and Naturalization Service began deportation proceedings against petitioner, Joseph Agosto, by issuance of a show-cause order charging that he was deportable as an alien who had unlawfully entered the United States. App. 4-6. Petitioner opposed deportation, claiming that he was born in this country and therefore is a citizen of the United States not subject to deportation. Over the course of several years, a series of hearings were held before an Immigration Judge,[1] at which the Service presented documentary evidence in an effort to show that petitioner was born in Italy in 1927 of unknown parents, placed in a foundling home there, and ultimately adopted by an Italian couple. Petitioner presented testimony from himself and several other witnesses to show that he was born in Ohio of an Italian mother and sent to Italy at an early age to reside with the aforementioned couple. In April 1973, the Immigration Judge issued the deportation *751 order challenged here, rejecting the evidence tendered by petitioner and his witnesses that he was born in the United States. App. 23-. The Board of Immigration Appeals affirmed. It noted that, "[i]f believed, the testimony of [petitioner's witnesses] clearly refutes the Service's otherwise strong documentary demonstration of [petitioner's] alienage" and that "[i]t is not beyond the realm of possibility that [petitioner's] claim to United States citizenship is legitimate." Pet. for Cert. viii. The Board nevertheless accepted the Immigration Judge's credibility determinations and found that the "Service's case as to alienage is clear, convincing and unequivocal." at xi. Agosto petitioned for review of the Board's decision in the United States Court of Appeals for the Ninth Circuit pursuant to 106 of the Act, and claimed that, pursuant to 106 (a) (5), he was entitled to a de novo hearing in District Court to determine whether he was a United States citizen. Section 106 (a) (5) provides that, whenever a petitioner " to be a national of the United States and makes a showing that his claim is not frivolous," the court of appeals is to transfer the proceedings to the district court for a hearing on that claim if "a genuine issue of material fact as to the petitioner's nationality is presented." When no genuine issue of material
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Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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petitioner's nationality is presented." When no genuine issue of material fact is presented, the court of appeals has authority to "pass upon the issues presented."[2] *752 The Court of Appeals, with one judge dissenting, refused to transfer the case to the District Court for a de novo hearing on petitioner's citizenship claim, and affirmed the deportation order. Pet. for Cert. i; affirmance order, It held that "[t]he evidence presented to the immigration judge does not disclose a colorable claim to United States nationality." Pet. for Cert. ii. Further, the Court of Appeals apparently concluded that in order to obtain a de novo hearing petitioner was required to present "substantial evidence" in support of his citizenship claim and that he had failed to do so. The dissenting judge, while acknowledging that as a factfinder she would not have credited petitioner's testimony, stated that "I do not believe our legally assigned role includes a decision on credibility, and, on that basis, I am unable to say that petitioner's evidence, if believed, would not present a colorable claim to American citizenship." We granted certiorari, to consider the proper construction of 106 (a) (5) (B), and we now reverse. II In 1961, Congress enacted 106 of the Immigration and Nationality Act, 8 U.S. C. 1105a (1976 ed.), in order "to create a single, separate, statutory form of judicial review of administrative orders for the deportation of aliens from the United States." H. R. Rep. No. 87th Cong., 1st Sess., 22 (1961).[3] This statutory provision eliminated district court *753 review of deportation orders under 10 of the Administrative Procedure Act, 5 U.S. C. 702 (1976 ed.), and replaced it with direct review in the courts of appeals based on the administrative record. Congress carved out one class of cases, however, where de novo review in district court would be available: cases in which the person subject to deportation to be a United States citizen. In carving out this class of cases, Congress was aware of our past decisions holding that the Constitution requires that there be some provision for de novo judicial determination of to American citizenship in deportation proceedings. See H. R. Rep. No. ; H. R. Rep. No. 87th Cong., 1st Sess., 15 (1961). In Ng Fung the Court observed: "Jurisdiction in the executive to order deportation exists only if the person arrested is an alien. To deport one who to be a citizen, obviously deprives him of liberty, [and] may result also in loss of both property and life; or of all that makes life worth living." We therefore held that a
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Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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that makes life worth living." We therefore held that a resident of this country has a right to de novo judicial determination of a claim to United States citizenship which is supported "by evidence sufficient, if believed, to entitle [him] to a finding of citizenship." See also United States ex rel. In we reaffirmed that holding and indicated in dictum that judicial determination of citizenship is required where "substantial evidence" is presented to support the citizenship claim. In the instant case, the court below stated that petitioner failed to satisfy the standard of the court thus implicitly held that the standard of "substantial evidence" had been incorporated into 106 (a) (5) (B). Pet. for Cert. ii. We disagree. Although Congress intended 106 *754 (a) (5) to satisfy any constitutional requirements relating to de novo judicial determination of citizenship the statute clearly does not restrict de novo review to cases in which the "substantial evidence" test is met. Rather than incorporating the specific language of Kessler into the statute, as it easily could have done, Congress chose instead to require hearings where there is "a genuine issue of material fact"a standard that is different from but as familiar as the substantial-evidence standard.[4] This statutory language is virtually identical to that embodied in Fed. Rule Civ. Proc. 56, which governs summary judgment motions. Under Rule 56, district court litigants opposing summary judgment have a right to a trial whenever there exists a "genuine issue as to any material fact." We may reasonably assume that, in using the language from Rule 56 as the standard for granting de novo district court hearings on citizenship Congress intended the language to be interpreted similarly to that in Rule 56. "`[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.'" quoting Standard The Court of Appeals decision in this case, to the extent that it holds de novo review to be required only where the petitioner presents substantial evidence in support of his *755 claim to citizenship,[5] is thus contrary to the plain language and clear meaning of the statute.[6] Nor does anything in the legislative history indicate that Congress intended to require de novo judicial determination of citizenship only when such determinations would be compelled by the Kessler "substantial evidence" standard. Although there are references in the legislative history suggesting that a claim to citizenship must itself be "substantial," these statements are not
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Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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to citizenship must itself be "substantial," these statements are not amenable to the interpretation that substantial evidence is required in support of the claim before a judicial hearing would be provided. See, e. g., H. R. Rep. No. ; H. R. Rep. No. While Congress in enacting 106 sought to "expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts," this concern hardly justifies the assumption that Congress intended to impose a steep hurdle to judicial determination of citizenship None of the abuses of judicial *756 review catalogued by Congress in the Committee Reports related to citizenship See H. R. Rep. No. Rather, Congress was primarily concerned with the filing of repetitive petitions for review and with frivolous of impropriety in the deportation proceedings.[7] See, e. g., H. R. Rep. No. ; 107 Cong. Rec. 0 (1961) (remarks of Sen. Eastland); 105 Cong. Rec. 12724 (19) (remarks of Rep. Walter). Since summary judgment principles are controlling here, it follows that a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the evidence presented in support of the claim would be sufficient to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment. More specifically, just as a district court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented, see ; 6 J. Moore, Federal Practice ¶ 56.02 [10], p. 56-45 (2d ed. 1976), so too a court of appeals is not at liberty to deny an individual a de novo hearing on his claim of citizenship because of the court's assessment of the credibility of the evidence, see Particularly where the evidence consists of the testimony of live witnesses concerning material factual issues, it will seldom if ever be appropriate to deny a de novo hearing, since "[i]t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised." III Applying the appropriate standard to the record in this case, it is apparent that the Court of Appeals erred when it failed to transfer the case to the District Court for a de novo hearing. The Service's proof that petitioner is not a United States citizen would certainly be sufficient, if uncontradicted, to establish his birth in Agrigento, Italy, in July 1927. However, the evidence adduced by petitioner to support his claim of American citizenship creates "genuine issue[s] of material fact" that can only be resolved in a de novo
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Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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https://www.courtlistener.com/opinion/109883/agosto-v-ins/
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fact" that can only be resolved in a de novo hearing in the District Court. Petitioner acknowledges that the Service's documentary proof pertains to him. This proof includes an entry from the city of Agrigento registry of births for 1927 relating that a 75-year-old handywoman appeared before the registrar and declared that "at 4:00 a. m. on the 17th day of [July] in a house situated in Via Oblati, of a woman who does not want to be named, a male child was born, which she presents to me and to whom she gives the first name of Vincenzo and the surname of Di Paola." Record 667. The city registry also indicates that the child was sent to a foundling home. In addition, the foundling home's registry indicates that a Vincenzo Di Paola was born on July 16, 1927, and was consigned to Crocifissa Porello, petitioner's adoptive mother and wife of Pietro Pianetti, petitioner's adoptive father, on August 26, 1927. The last piece of documentary evidence is a translation from the foundling home record showing that Vincenzo Di Paola was baptized on July 18, 1927. *758 Petitioner however, that the records regarding Vincenzo Di Paola were made at the request of his maternal grandfather to hide the true facts of his illegitimate birth in the United States. Petitioner's evidence in support of his claim to United States citizenship consisted of his own testimony and that of his adoptive parents, Crocifissa and Pietro Pianetti, and his alleged half brother, Carmen Ripolino. According to the testimony of the Pianettis, petitioner was the illegitimate son of Crocifissa Pianetti's sister, Angela Porello, who left her Italian husband and two daughters in 1921 to move to the United States with her cousin Giacomo Ripolino. Through correspondence with Angela, the Pianettis learned in about 1925 that petitioner had been born, that his father was Salvatore Agosto, and that Angela had at least two other children, including Carmen Ripolino. According to the Pianettis, petitioner was sent to live with them and with Angela's parents because Angela could not care for petitioner in Ohio. The Pianettis testified that petitioner was never in the foundling home, but that the documents presented by the Service concerning petitioner's birth in Italy were created by Angela's father to hide the fact that petitioner was his illegitimate grandson.[8] Carmen Ripolino corroborated the testimony of the Pianettis in important respects. He testified that his mother was Angela Porello, and that she told him when he was a child that he had two half sisters in Italy and a half brother whom she had sent
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Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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https://www.courtlistener.com/opinion/109883/agosto-v-ins/
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in Italy and a half brother whom she had sent there to live with her mother. Although Carmen Ripolino admitted having no independent knowledge that petitioner was the brother who had been sent to Italy, his testimony corroborated that of the Pianettis that Angela Porello gave birth to a son in this country whom she sent to Italy to live with relatives. Petitioner's testimony was only partially consistent with *7 that of his witnesses. Because he possessed a birth certificate belonging to one Joseph Agosto, born in Cleveland in 1921, which had allegedly been sent to petitioner in Italy by another American relative between 1948 and 1950, petitioner maintained for a time that he was that Joseph Agosto, the son of Salvatore Agosto and his wife Carmela Todaro.[9] The birth certificate had not actually been issued, however, until sometime after petitioner claimed to have received it. At the same time petitioner also testified that he had been told that his mother's name was Angela Porello and that he lived with his grandfather and the Pianettis after coming to Italy as a small boy. Petitioner acknowledged that he had been known by different names at different times. There is no doubt that petitioner has not told one story consistently throughout his deportation hearings and has attempted to establish his citizenship by relying on any possible shred of evidence. Nor is there any doubt that petitioner has told different stories about his past to different courts.[10] But it is noteworthy that, starting in his first deportation hearing, petitioner has acknowledged that he is not certain of his true parental origins, and that he-had been told that his mother was Angela Porello. And, given the obvious confusion and uncertainty surrounding the circumstances of petitioner's birth (under either the Service's theory or that of petitioner), *760 it is hardly surprising that petitioner cannot say with any degree of certainty who his true parents might have been. We need not decide whether petitioner's testimony, standing alone, is so inherently incredible in light of its internal inconsistencies as to justify denial of de novo judicial review of the citizenship claim. In this case, the citizenship claim is supported by the testimony of three witnesses whose story, while highly unusual, certainly cannot be rejected as a matter of law. Their disputed testimony concerning petitioner's birth in this country and subsequent upbringing in Italy is in most respects no more unusual than their unchallenged testimony concerning other aspects of this family's relations.[11] To accept the present claim to United States citizenship, the District Court would need only to
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Justice Marshall
| 1,978 | 15 |
majority
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Agosto v. INS
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https://www.courtlistener.com/opinion/109883/agosto-v-ins/
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United States citizenship, the District Court would need only to believe that petitioner was born to Angela Porello in Ohio in the mid-1920's; that he was sent by her to live with the Pianettis in Italy; and that Angela's father had the birth records in his native town falsified to prevent public knowledge of the birth of an illegitimate child to his daughter while still permitting him and other members of his family to raise the child.[12] These events, while out of *761 the ordinary, are not so extraordinary as to compel disbelief in their occurrence. Even the Board of Immigration Appeals, which rejected petitioner's claim of citizenship, stated that "[i]t is not beyond the realm of possibility that [petitioner's] claim to United States citizenship is legitimate." Pet. for Cert. viii. Since the documentary evidence submitted by the Service would be refuted by the testimony of petitioner's witnesses if that testimony were accepted by the trier of fact, ibid., there is plainly a genuine issue of material fact for the District Court on the question of petitioner's citizenship. Although as the trier of fact the District Court might reject the testimony of these witnesses because of their interest in the outcome, that determination has been committed by Congress to the district courts by 106 (a) (5) (B) of the Act and not to the courts of appeals. The decision of the Court of Appeals must therefore be reversed and the case remanded for proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE POWELL, with whom MR.
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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https://www.courtlistener.com/opinion/109095/taylor-v-hayes/
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The question in this case concerns the validity of a criminal contempt judgment entered against petitioner by reason of certain events occurring in the course of a criminal trial in the courts of the Commonwealth of Kentucky. Petitioner was retained counsel for Narvel Tinsley, a Negro, who along with his brother Michael was *490 charged with the murders of two police officers. According to the Kentucky Court of Appeals, the "murders created some considerable sensation in Louisville and newspaper coverage was overly abundant." Trial before respondent trial judge began on October 18, 1971, and was completed on October 29. On nine different occasions during this turbulent trial, respondent, out of the hearing of the jury and most often in chambers, informed petitioner that he was in contempt of court. The first charge was immediately reduced to a warning and no sentence was imposed at the time of charge in that or any other instance. Petitioner was permitted to respond to most, but not all, of the charges.[1] At the conclusion of the trial on October 29 and after a guilty verdict had been returned, respondent, in the presence of the jury, made a statement concerning petitioner's trial conduct. Refusing petitioner's request to respond and declaring that "I have you" on nine counts, respondent proceeded to impose a jail term on each count totaling almost four and one-half years: days on the first count, 60 days on the second, 90 days on the third, six months on counts four, five, six, and seven, and one year each on counts eight and nine, "all *491 to run consecutive."[2] A few days later, petitioner was also barred from practicing law by respondent in his division of the Criminal Branch of the Jefferson Circuit Court. *492 While petitioner's appeal was pending, on March 2 1972, respondent entered a corrected judgment containing a "certificate" which described the nine charges of contempt[3] but eliminated the first charge as having been *493 reduced to a warning and reduced the sentence on each of the last two counts to six months in jail. The corrected judgment was silent as to whether the sentences were to run concurrently or consecutively. *494 The Kentucky Court of Appeals affirmed, holding that petitioner was guilty of each and every contempt charged. In its view, petitioner's actions "were deliberate, delaying, or planned disruptive tactics which did in fact create such an atmosphere in the court that he, if permitted to continue, would have appeared to be the star performer in the center ring of a three-ring circus." Petitioner had committed "innumerable acts which
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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https://www.courtlistener.com/opinion/109095/taylor-v-hayes/
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of a three-ring circus." Petitioner had committed "innumerable acts which clearly reflected his contempt for the court as well as the judicial system of this Commonwealth" and had been "overbearing, contemptuous, and obnoxiously persistent in his questions and objections" The Court of Appeals also concluded that petitioner had not launched any "personal attack" on the trial judge and that the judge had neither conducted himself as an " `activist seeking combat' " nor had become so personally embroiled that he was disqualified to sit in judgment on the charges of contempt, although his remarks prior to entering judgment of contempt at the conclusion of the trial were "inappropriate." The Court of Appeals further ruled that because the amended judgment did not "direct that the sentences, as amended, be served consecutively they must be served concurrently." Thus, "[t]he penalty actually imposed on Daniel Taylor [was] six months in jail," and his conviction and sentence without a jury trial *495 were deemed constitutionally permissible. The Kentucky Court of Appeals ruled, however, that it had exclusive authority to discipline or disbar attorneys and that, in any event, the rule in Kentucky since 1917 had been that suspension from practice was not a permissible punishment for criminal contempt. The order prohibiting petitioner from practicing in the Jefferson Circuit Court, Criminal Branch, Second Division, was therefore reversed. We granted certiorari limited to specified issues, I Petitioner contends that any charge of contempt of court, without exception, must be tried to a jury. Quite to the contrary, however, our cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. ; ; ; ; Hence, although petitioner was ultimately found guilty and sentenced separately on eight counts of contempt, the sentences were to run concurrently and were, as the Kentucky Court of Appeals held, equivalent to a single sentence of six months. Cf. Codispoti v. post, p. 506. The original sentences imposed on the separate counts were to run consecutively and totaled almost four and one-half years, with two individual counts each carrying a year's sentence. But the trial court itself entered an amended judgment which was understood by the Kentucky Court of Appeals to impose no more than a six-month *496 sentence. The eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required. It is argued that a State should not be
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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required. It is argued that a State should not be permitted, after conviction, to reduce the sentence to less than six months and thereby obviate a jury trial. The thrust of our decisions, however, is to the contrary: in the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months. We discern no material difference between this choice and permitting the State, after conviction, to reduce a sentence to six months or less rather than to retry the contempt with a jury. Cf. In either case, the State itself has determined that the contempt is not so serious as to warrant more than a six-month sentence. We remain firmly committed to the proposition that "criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved." ; cf. II We are more persuaded by petitioner's contention that he was entitled to more of a hearing and notice than he received prior to final conviction and sentence. In each instance during the trial when respondent considered petitioner to be in contempt, petitioner was informed of that fact and, in most instances, had opportunity to respond to the charge at that time. It is quite true, as the Kentucky Court of Appeals held, that "[t]he contempt citations and the sentences coming at the end of the trial were not and could not have been a surprise to Taylor, because upon each occasion and immediately following the charged act of contempt the court informed *497 Taylor that he was at that time in contempt of court." 494 S.W.2d, -742. But no sentence was imposed during the trial, and it does not appear to us that any final adjudication of contempt was entered until after the verdict was returned. It was then that the court proceeded to describe and characterize petitioner's various acts during trial as contemptuous, to find him guilty of nine acts of contempt, and to sentence him immediately for each of those acts. It is also plain from the record that when petitioner sought to respond to what the Kentucky Court of Appeals referred to as the trial court's "declaration of a charge against Taylor based upon the judge's observations" during trial,[4] respondent informed him that "[y]ou're not responding to me on anything" and even indicated that petitioner might be gagged if he insisted on defending himself.[5] The trial court then proceeded without further formality to impose consecutive sentences totaling
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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https://www.courtlistener.com/opinion/109095/taylor-v-hayes/
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then proceeded without further formality to impose consecutive sentences totaling almost four and one-half years in the county jail and to bar petitioner forever from practicing before the court in which the case at issue had been tried. This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge's power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, The usual justification of necessity, see is not nearly so cogent when final adjudication and sentence are postponed until after trial.[6] Our decisions *498 establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. ; cf. But Sacher noted that "[s]ummary punishment always, and rightly, is regarded with disfavor" "[W]e have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are `basic in our system of jurisprudence.' " quoting In re Oliver, Even where summary punishment for contempt is imposed during trial, "the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocation."[7] On the other hand, where conviction and punishment are delayed, "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business." As we noted in Groppi, the contemnors in the Sacher case were "given an opportunity to speak" and the "trial judge would, no doubt[,] have modified his action had their statements proved persuasive." and n. 11. Groppi counsels that before an attorney is finally adjudicated in contempt and sentenced *499 after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a full-scale trial is appropriate. Usually, the events have occurred before the judge's own eyes, and a reporter's transcript is available. But the contemnor might at least urge, for example, that the behavior at issue was not contempt but the acceptable conduct of an attorney representing his client; or, he might present matters in mitigation or otherwise attempt to make amends with the court. Cf. 506
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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https://www.courtlistener.com/opinion/109095/taylor-v-hayes/
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otherwise attempt to make amends with the court. Cf. 506 n. 11.[8] *500 These procedures are essential in view of the heightened potential for abuse posed by the contempt power. ; The provision of fundamental due process protections for contemnors accords with our historic notions of elementary fairness. While we have no desire "to imprison the discretion of judges within rigid mechanical rules," we remain unpersuaded that "the additional time and expense possibly involved will seriously handicap the effective functioning of the courts." Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his "liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." Because these minimum requirements of due process of law were not extended to petitioner in this case, the contempt judgment must be set aside.[9] *501 III We are also convinced that if petitioner is to be tried again, he should not be tried by respondent. We agree with the Kentucky Court of Appeals that petitioner's conduct did not constitute the kind of personal attack on respondent that, regardless of his reaction or lack of it, he would be "[un]likely to maintain that calm detachment necessary for fair adjudication." But contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot "hold the balance nice, clear and true between the State and the accused" U.S. 510, In making this ultimate judgment, the inquiry must be not only whether there was actual bias on respondent's part, but also whether there was "such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties," but due process of law requires no less. In re Murchison, With these considerations in mind, we have examined the record in this case, and it appears to us that respondent did become embroiled in a running controversy with petitioner. Moreover, as the trial progressed, there was a mounting display of an unfavorable personal attitude toward petitioner, his ability, and his motives, sufficiently * so that the contempt issue should have been finally adjudicated by another judge. Early in the trial respondent cautioned petitioner against "putting on
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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https://www.courtlistener.com/opinion/109095/taylor-v-hayes/
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Early in the trial respondent cautioned petitioner against "putting on a show" and added that "if you give him an inch, he'll take a mile. I might as well sit on him now." App. 31, 40. On another occasion when petitioner asserted that his purpose was to defend his case, respondent replied, "I'm not sure." When petitioner remarked that he had five months wrapped up in the case, respondent retorted that "[b]efore it's over, you might have a lot more than that." On the other hand, petitioner complained of respondent's "overbearing contentiousness in regard to me, both by phrase and by its utterances," and asserted that the court was prejudicing the trial of his case. Respondent was likewise said to be "using [the] brute power of your office" in saying that petitioner was damaging his client. On another occasion, respondent understood petitioner to be asserting that he, respondent, had rigged the jury. That respondent had reacted strongly to petitioner's conduct throughout the 10-day trial clearly emerged in the statement which he made prior to sentencing petitioner and which the Court of Appeals characterized as "inappropriate." There he said petitioner had put on "the worst display" he had seen in many years at the bar"[a]s far as a lawyer is concerned, you're not." Furthermore, respondent denied petitioner the opportunity to make any statement at that time, threatened to gag him and forthwith sentenced him to almost four and one-half years in jail, not to mention later disbarring him from further practice in his court. He also refused to grant him bail pending appeal. We assume for the purposes of this case that each of the charged acts was contemptuous; nevertheless, a sentence of this magnitude reflects the extent to which the respondent became personally *503 involved. Cf. From our own reading of the record, we have concluded that "marked personal feelings were present on both sides" and that the marks of "unseemly conduct [had] left personal stings," A fellow judge should have been substituted for the purpose of finally disposing of the charges of contempt made by respondent against petitioner. Respondent relies on but we were impressed there with the fact that the judge "did not purport to proceed summarily during or at the conclusion of the trial, but gave notice and afforded an opportunity for a hearing which was conducted dispassionately and with a decorum befitting a judicial proceeding." 376 U.S., at[10] Nothing we have said here should be construed to condone the type of conduct described in the opinion of the Kentucky Court of Appeals and found by that
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Justice White
| 1,974 | 6 |
majority
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Taylor v. Hayes
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https://www.courtlistener.com/opinion/109095/taylor-v-hayes/
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of the Kentucky Court of Appeals and found by that court to have been engaged in by petitioner. Behavior of this nature has no place in the courtroom which, in a free society, is a forum for the courteous and reasoned pursuit of truth and justice. *504 The judgment of the Kentucky Court of Appeals is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion. So ordered. MR. JUSTICE DOUGLAS joins Parts II and III of the Court's opinion. [For dissenting opinion of MR. JUSTICE REHNQUIST, see post, p. 523.] MR. JUSTICE MARSHALL, dissenting in part. I join Parts II and III of the opinion of the Court, but I cannot join the holding in Part I that petitioner was not entitled to a jury trial. Petitioner was summarily convicted of contempt and sentenced to almost four and one-half years in prison. In my view, this sentence marked the contempt charges against petitioner as "serious" rather than "petty" and called into play petitioner's Sixth Amendment right to a jury trial. The Court, however, relies on the fact that the trial judge subsequently realized his error and reduced the sentence to six months. The Court characterizes this as a determination by the State that "the contempt is not so serious as to warrant more than a six-month sentence." Ante, at 496. In my view, the trial judge's reduction of petitioner's sentence was a transparent effort to circumvent this Court's Sixth Amendment decisions and to save his summary conviction of petitioner without the necessity of airing the charges before an impartial jury. It is hardly coincidence that petitioner's sentence was reduced to the maximum that our decisions would permit. Today's decision represents an extraordinarily rigid and wooden application of the six-month rule that the Court has fashioned to determine when the Sixth Amendment *505 right is applicable. In permitting this obvious device to succeed, I think that the Court changes the nature of the six-month rule from a reasonable effort to distinguish between "serious" and "petty" contempts into an arbitrary barrier behind which judges who wish to protect their summary contempt convictions without exposing their charges to the harsh light of a jury may safely hide. The very fact that such a substantial contempt sentence was imposed, and then reduced to the six-month maximum, should be a warning to us that the fairness of the process which petitioner has received is suspect, and that the contempt charges involved here especially require the scrutiny of a jury trial. Statements in the plurality opinion in to
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Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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Qualified lawyers admitted to practice in other States may be admitted to the Virginia Bar "on motion," that is, without taking the bar examination which Virginia otherwise requires. The State conditions such admission on a showing, among other matters, that the applicant is a permanent resident of Virginia. The question for decision is whether this residency requirement violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, 2, cl. 1. We hold that it does. I Myrna E. Friedman was admitted to the Illinois Bar by examination in 1977 and to the District of Columbia Bar by reciprocity in 1980. From 1977 to 1981, she was employed by the Department of the Navy in Arlington, Virginia, as a civilian attorney, and from 1982 until 1986, she was an attorney in private practice in Washington, D. C. In January 1986, she became associate general counsel for ERC International, Inc., a Delaware corporation. Friedman practices and maintains her offices at the company's principal place of business in Vienna, Virginia. Her duties at ERC International include drafting contracts and advising her employer and its subsidiaries on matters of Virginia law. From 1977 to early 1986, Friedman lived in Virginia. In February 1986, however, she married and moved to her husband's home in Cheverly, Maryland. In June 1986, Friedman applied for admission to the Virginia Bar on motion. The applicable rule, promulgated by the Supreme Court of Virginia pursuant to statute, is Rule 1A:1. The Rule permits admission on motion of attorneys who are licensed *62 to practice in another jurisdiction, provided the other jurisdiction admits Virginia attorneys without examination. The applicant must have been licensed for at least five years and the Virginia Supreme Court must determine that the applicant: "(a) Is a proper person to practice law. "(b) Has made such progress in the practice of law that it would be unreasonable to require him to take an examination. "(c) Has become a permanent resident of the Commonwealth. "(d) Intends to practice full time as a member of the Virginia bar." In a letter accompanying her application, Friedman alerted the Clerk of the Virginia Supreme Court to her change of residence, but argued that her application should nevertheless be granted. Friedman gave assurance that she would be engaged full-time in the practice of law in Virginia, that she would be available for service of process and court appearances, and that she would keep informed of local rules. She also asserted that "there appears to be no reason to discriminate against my petition as a nonresident for admission to the
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Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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against my petition as a nonresident for admission to the Bar on motion," that her circumstances fit within the purview of this Court's decision in Supreme Court of New and that accordingly she was entitled to admission under the Privileges and Immunities Clause of the Constitution, Art. IV, 2, cl. 1. See App. 34-35. The Clerk wrote Friedman that her request had been denied. He explained that because Friedman was no longer a permanent resident of the Commonwealth of Virginia, she was not eligible for admission to the Virginia Bar pursuant to Rule 1A:1. He added that the court had concluded that our decision in which invalidated a residency requirement imposed on lawyers who had passed a State's bar examination, was "not applicable" to the "discretionary requirement *63 in Rule 1A:1 of residence as a condition of admission by reciprocity." App. 51-52. Friedman then commenced this action, against the Supreme Court of Virginia and its Clerk, in the United States District Court for the Eastern District of Virginia. She alleged that the residency requirement of Rule 1A:1 violated the Privileges and Immunities Clause. The District Court entered summary judgment in Friedman's favor, holding that the requirement of residency for admission without examination violates the Clause.[*] The Court of Appeals for the Fourth Circuit unanimously affirmed. The court first rejected appellants' threshold contention that the Privileges and Immunities Clause was not implicated by the residency requirement of Rule 1A:1 because the Rule did not absolutely prohibit the practice of law in Virginia by nonresidents. Turning to the justifications offered for the Rule, the court rejected, as foreclosed by the theory that the different treatment accorded to nonresidents could be justified by the State's interest in enhancing the quality of legal practitioners. The court was also unpersuaded by appellant's contention that the residency requirement promoted compliance with the Rule's full-time practice requirement, an argument the court characterized as an unsupported assertion that "residents are more likely to honor their commitments to practice full-time in Virginia than are nonresidents." Thus, the court concluded that there was no substantial reason for the Rule's discrimination against nonresidents, and that the discrimination did not bear *64 a substantial relation to the objectives proffered by appellants. The Supreme Court of Virginia and its Clerk filed a timely notice of appeal. We noted probable jurisdiction, and we now affirm. II Article IV, 2, cl. 1, of the Constitution provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The provision was designed "to place the citizens of
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Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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States." The provision was designed "to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned." See also The Clause "thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment." While the Privileges and Immunities Clause cites the term "Citizens," for analytic purposes citizenship and residency are essentially interchangeable. See United Building & Construction Trades When examining claims that a citizenship or residency classification offends privileges and immunities protections, we undertake a two-step inquiry. First, the activity in question must be " `sufficiently basic to the livelihood of the Nation' as to fall within the purview of the Privileges and Immunities Clause" quoting For it is " `[o]nly with respect to those "privileges" and "immunities" bearing on the vitality of the Nation as a single entity' that a State must accord *65 residents and nonresidents equal treatment." Supreme Court of New quoting Second, if the challenged restriction deprives nonresidents of a protected privilege, we will invalidate it only if we conclude that the restriction is not closely related to the advancement of a substantial state interest. Appellants assert that the residency requirement offends neither part of this test. We disagree. A Appellants concede, as they must, that our decision in establishes that a nonresident who takes and passes an examination prescribed by the State, and who otherwise is qualified for the practice of law, has an interest in practicing law that is protected by the Privileges and Immunities Clause. Appellants contend, however, that the discretionary admission provided for by Rule 1A:1 is not a privilege protected by the Clause for two reasons. First, appellants argue that the bar examination "serves as an adequate, alternative means of gaining admission to the bar." Brief for Appellants 20. In appellants' view, "[s]o long as any applicant may gain admission to a State's bar, without regard to residence, by passing the bar examination," the State cannot be said to have discriminated against nonresidents "as a matter of fundamental concern." Second, appellants argue that the right to admission on motion is not within the purview of the Clause because, without offense to the Constitution, the State could require all bar applicants to pass an examination. Neither argument is persuasive. We cannot accept appellants' first theory because it is quite inconsistent with our precedents. We reaffirmed in the well-settled principle that " `one of the privileges which the Clause
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Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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principle that " `one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that ' " quoting See also *66 United Building & Construction Trades 9 After reviewing our precedents, we explicitly held that the practice of law, like other occupations considered in those cases, is sufficiently basic to the national economy to be deemed a privilege protected by the Clause. See -281. The clear import of is that the Clause is implicated whenever, as is the case here, a State does not permit qualified nonresidents to practice law within its borders on terms of substantial equality with its own residents. Nothing in our precedents, moreover, supports the contention that the Privileges and Immunities Clause does not reach a State's discrimination against nonresidents when such discrimination does not result in their total exclusion from the In for example, the Court invalidated a statute under which residents paid an annual fee of $12 to $150 for a license to trade foreign goods, while nonresidents were required to pay $300. Similarly, in the Court held that nonresident fishermen could not be required to pay a license fee 100 times the fee charged to residents. In the Court invalidated a statute requiring that residents be hired in preference to nonresidents for all positions related to the development of the State's oil and gas resources. Indeed, as the Court of Appeals correctly noted, the New Hampshire rule struck down in did not result in the total exclusion of nonresidents from the practice of law in that (citing ). Further, we find appellants' second theory that Virginia could constitutionally require that all applicants to its bar take and pass an examination quite irrelevant to the question whether the Clause is applicable in the circumstances of this case. A State's abstract authority to require from *67 resident and nonresident alike that which it has chosen to demand from the nonresident alone has never been held to shield the discriminatory distinction from the reach of the Privileges and Immunities Clause. Thus, the applicability of the Clause to the present case no more turns on the legality vel non of an examination requirement than it turned on the inherent reasonableness of the fees charged to nonresidents in and Ward. The issue instead is whether the State has burdened the right to practice law, a privilege protected by the Privileges and Immunities Clause, by discriminating among otherwise equally qualified applicants solely on the basis of citizenship or
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Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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equally qualified applicants solely on the basis of citizenship or residency. We conclude it has. B Our conclusion that the residence requirement burdens a privilege protected by the Privileges and Immunities Clause does not conclude the matter, of course; for we repeatedly have recognized that the Clause, like other constitutional provisions, is not an absolute. See, e. g., ; United Building & Construction Trades ; 334 U. S., The Clause does not preclude disparity in treatment where substantial reasons exist for the discrimination and the degree of discrimination bears a close relation to such reasons. See United Building & Construction Trades In deciding whether the degree of discrimination bears a sufficiently close relation to the reasons proffered by the State, the Court has considered whether, within the full panoply of legislative choices otherwise available to the State, there exist alternative means of furthering the State's purpose without implicating constitutional concerns. See Appellants offer two principal justifications for the Rule's requirement that applicants seeking admission on motion reside within the Commonwealth of Virginia. First, they contend that the residence requirement assures, in tandem with *68 the full-time practice requirement, that attorneys admitted on motion will have the same commitment to service and familiarity with Virginia law that is possessed by applicants securing admission upon examination. Attorneys admitted on motion, appellants argue, have "no personal investment" in the jurisdiction; consequently, they "are entitled to no presumption that they will willingly and actively participate in bar activities and obligations, or fulfill their public service responsibilities to the State's client community." Brief for Appellants 26-27. Second, appellants argue that the residency requirement facilitates enforcement of the full-time practice requirement of Rule 1A:1. We find each of these justifications insufficient to meet the State's burden of showing that the discrimination is warranted by a substantial state objective and closely drawn to its achievement. We acknowledge that a bar examination is one method of assuring that the admitted attorney has a stake in his or her professional licensure and a concomitant interest in the integrity and standards of the bar. A bar examination, as we know judicially and from our own experience, is not a casual or lighthearted exercise. The question, however, is whether lawyers who are admitted in other States and seek admission in Virginia are less likely to respect the bar and further its interests solely because they are nonresidents. We cannot say this is the case. While relied on an examination requirement as an indicium of the nonresident's commitment to the bar and to the State's legal profession, see it does not follow
|
Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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to the State's legal profession, see it does not follow that when the State waives the examination it may make a distinction between residents and nonresidents. Friedman's case proves the point. She earns her living working as an attorney in Virginia, and it is of scant relevance that her residence is located in the neighboring State of Maryland. It is indisputable that she has a substantial stake in the practice of law in Virginia. Indeed, despite appellants' suggestion at oral argument that Friedman's case is *69 "atypical," Tr. of Oral Arg. 51, the same will likely be true of all nonresident attorneys who are admitted on motion to the Virginia Bar, in light of the State's requirement that attorneys so admitted show their intention to maintain an office and a regular practice in the See Application of Brown, This requirement goes a long way toward ensuring that such attorneys will have an interest in the practice of law in Virginia that is at least comparable to the interest we ascribed in to applicants admitted upon examination. Accordingly, we see no reason to assume that nonresident attorneys who, like Friedman, seek admission to the Virginia bar on motion will lack adequate incentives to remain abreast of changes in the law or to fulfill their civic duties. Further, to the extent that the State is justifiably concerned with ensuring that its attorneys keep abreast of legal developments, it can protect these interests through other equally or more effective means that do not themselves infringe constitutional protections. While this Court is not well positioned to dictate specific legislative choices to the State, it is sufficient to note that such alternatives exist and that the State, in the exercise of its legislative prerogatives, is free to implement them. The Supreme Court of Virginia could, for example, require mandatory attendance at periodic continuing legal education courses. See The same is true with respect to the State's interest that the nonresident bar member does his or her share of volunteer and pro bono work. A "nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work." We also reject appellants' attempt to justify the residency restriction as a necessary aid to the enforcement of the full-time practice requirement of Rule 1A:1. Virginia already requires, pursuant to the full-time practice restriction of Rule *70 1A:1, that attorneys admitted on motion maintain an office for the practice of law in Virginia. As the Court of Appeals noted, the requirement that applicants maintain an office in Virginia facilitates compliance
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Justice Kennedy
| 1,988 | 4 |
majority
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Supreme Court of Va. v. Friedman
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https://www.courtlistener.com/opinion/112117/supreme-court-of-va-v-friedman/
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requirement that applicants maintain an office in Virginia facilitates compliance with the full-time practice requirement in nearly the identical manner that the residency restriction does, rendering the latter restriction largely redundant. 822 F.2d, The office requirement furnishes an alternative to the residency requirement that is not only less restrictive, but also is fully adequate to protect whatever interest the State might have in the full-time practice restriction. III We hold that Virginia's residency requirement for admission to the State's bar without examination violates the Privileges and Immunities Clause. The nonresident's interest in practicing law on terms of substantial equality with those enjoyed by residents is a privilege protected by the Clause. A State may not discriminate against nonresidents unless it shows that such discrimination bears a close relation to the achievement of substantial state objectives. Virginia has failed to make this showing. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.
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Justice Scalia
| 2,007 | 9 |
dissenting
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Osborn v. Haley
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https://www.courtlistener.com/opinion/145762/osborn-v-haley/
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Few statutes read more clearly than (d): "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise"[] That bar to appellate review is a venerable one, dating back to 7, see Thermtron It is, moreover, not just hortatory; it is jurisdictional. Things Yet beginning in this Court has repeatedly eroded 447(d)'s mandate and expanded the Court's jurisdiction. Today's opinion eviscerates *907 what little remained of Congress's Courtlimiting command. I The first narrowing of 447(d) occurred in Thermtron over the dissent of Justice Rehnquist joined by Chief Justice Burger and Justice Stewart (only eight Justices sat in the case). Thermtron held that remand orders are reviewable if they are based on any grounds other than the mandatory ground for remand set forth in 447(c) namely, that "`the case was removed improvidently and without jurisdiction.'"[2] That result followed, the Court said, because subsections (c) and (d) are "in pari materia" and "must be construed together." Thus, the unlimited phrase "[a]n order remanding a case" magically became "an order remanding a case under this section"changing prior law, under which the Court had held that the predecessors of 447(d) prohibited review of all remand orders. See (Rehnquist, J., dissenting). Since, in Thermtron the District Court had remanded solely because of its crowded docket, we accepted review and issued a writ of mandamus compelling reconsideration of the order. See also[3] The next phase in 447(d)'s erosion came just last Term, in There, as here, the District Court had remanded to state court "on the ground that [it] lacked subject matter jurisdiction on removal." at That should have been the end of the matter, but it was The majority embarked on a searching inquiry into whether the District Court's real reason for remand was lack of jurisdiction. See at 25. In my concurrence, I warned that "[r]eview of the sort engaged in threatens to defeat the purpose of 447(d)," which was "`to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues.'" at (quoting Thermtron ). "Such delay can be created just as easily by asking whether the district court correctly characterized the basis for its order as it can by asking whether that basis was correct Whether the District Court was right or wrongeven if it was so badly mistaken that it misunderstood the true basis for its ordersit purported to remand for lack of jurisdiction, and 447(d) bars any further review." 547 U.S., at Today's opinion goes even further than Whereas that case at least claimed to be applying
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Justice Scalia
| 2,007 | 9 |
dissenting
|
Osborn v. Haley
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https://www.courtlistener.com/opinion/145762/osborn-v-haley/
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than Whereas that case at least claimed to be applying our precedents, see, e.g., at 255 ), today's opinion makes no such pretense. Having recognized, as it must, that the District Court in this case *90 invoked 447(c) and remanded for lack of subjectmatter jurisdiction, ante, at 96, the Court nevertheless reaches the amazing conclusion that 447(d) does not "contro[l]" whether the remand order is reviewable on appeal. Ante, at 9596. How can that be? How can a statute explicitly eliminating appellate jurisdiction to review a remand order not "contro[l]" whether an appellate court has jurisdiction to review a remand order? The Court says the answer to this riddle lies in 2 U.S.C. 2679(d)(2). But that section says only that the Attorney General's certification is "conclusiv[e] for purposes of removal" (emphasis added); it says absolutely nothing about the reviewability of remand orders. Thus, the most 2679(d)(2) can prove is that the District Court should not have remanded the case; that its remand order was erroneous. But our precedents make abundantly clear that 447(d)'s appellatereview bar applies with full force to erroneous remand orders. Just last Term we acknowledged that "a remand premised on an erroneous conclusion of no jurisdiction is unappealable." at See also Thermtron at ("If a trial judge purports to remand a case on the ground that it was removed `improvidently and without jurisdiction,' his order is not subject to challenge in the court of appeals by appeal, by mandamus, or otherwise") (quoting 447(c) (975 ed.) (emphasis added)); (where a remand order is based on one of the grounds enumerated in 447(c), "review is unavailable no matter how plain the legal error in ordering the remand"). Today's opinion repudiates that principle. The only basis for its holding is that 2679(d)(2) renders the remand erroneous. This utterly novel proposition, that a remand order can be set aside when it is contrary to law, leaves nothing remaining of 447(d). Determination of an order's lawfulness can only be made upon reviewand it is precisely review that 447(d) forbids.[4] Congress knows how to make remand orders reviewable when it wishes to do so. See, e.g., 2 U.S.C. 44a(l)(3)(C) ("The Corporation may appeal any order of remand entered by a United States district court"); 9(b)(2)(C) (same); 25 U.S.C. 47(d) Even 447(d) itself exempts certain remand orders from its own appellatereview bar. See n. "Absent a clear statutory command to the contrary, we assume that Congress is aware of the universality of th[e] practice of denying appellate review of remand orders when Congress creates a new ground for removal." Things 56 U.S., at 2,
|
Justice Scalia
| 2,007 | 9 |
dissenting
|
Osborn v. Haley
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https://www.courtlistener.com/opinion/145762/osborn-v-haley/
|
a new ground for removal." Things 56 U.S., at 2, (internal quotation marks omitted). As the Court recognized in "[t]here is no such `clear statutory command' here, and that silence tells us we must look to (d) to determine the reviewability of remand orders under the Act." 547 U.S., at n. n. Were the Court in this case to look to 447(d), instead of looking for a way around 447(d), the answer would be abundantly clear. II Respondents argued that, even if the remand order is unreviewable on appeal, *909 the District Court's rejection of the Attorney General's certification should be reviewable as a logically distinct determination, citing 293 U.S. 40, (934). See ante, at 90902 (SOUTER, J., concurring in part and dissenting in part) (adopting this argument). The continuing vitality of Waco is dubious in light of more recent precedents, see at n. 3, 26 S.Ct., at 256, n. 3. We need not address that question here, however, since Waco is patently inapposite. There, removal had been premised on diversity jurisdiction. The District Court dismissed the party whose citizenship was alleged to supply the requisite diversity, finding that party's joinder improper, and thus remanded the case for lack of jurisdiction. We found the dismissal order to be reviewable on appeal, even though the remand order was 293 U.S., at 43, But there is a crucial distinction between that case and this one: In Waco, reversal of the dismissal would not have subverted the remand. There was no question that the suit would proceed in state court regardless of whether the diverse party was rightfully or wrongfully dismissed. Nowhere did the Waco Court so much as hint that the District Court might need to reexamine its remand order; to the contrary, it was clear that the remand would occur, no matter what: "If the District Court's [dismissal] order stands, the crossaction will be no part of the case which is remanded to the state court A reversal cannot affect the order of remand, but it will at least, if the dismissal of the petitioner's complaint was erroneous, remit the entire controversy, with the [diverse party] still a party, to the state court for such further proceedings." at 4344, (emphasis added). In other words, the remand order and the dismissal order were truly "separate orders," at 42, ; we could revieweven reversethe dismissal order without affecting the remand or its impact on the case. Today's case far more closely resembles There, the remand order had been predicated upon a finding that the cause of action was not a "covered" classaction suit
|
Justice Scalia
| 2,007 | 9 |
dissenting
|
Osborn v. Haley
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https://www.courtlistener.com/opinion/145762/osborn-v-haley/
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the cause of action was not a "covered" classaction suit as defined by the Securities Litigation Uniform Standards Act of 99 (SLUSA), 2 Stat. 3227, and therefore that the federal courts lacked jurisdiction. The District Court remanded so the suit could continue in state court, outside the confines of SLUSA. If the suit had been "covered," SLUSA would have precluded the action from going forward in any court, state or federal. 5 U.S.C. 77p(b). We therefore determined that neither the remand itself nor the determination of SLUSA inapplicability was reviewable on appeal: "The District Court's remand order here cannot be disaggregated as the Waco orders could, and if [we were to find the suit to be covered by SLUSA], there [would be] nothing to remand to state court." 547 U.S., at n. 3, 26 S.Ct., at 256, n. 3. That is precisely the situation in this case: The remand here is predicated upon a finding that the United States should not be substituted as a defendant under the Westfall Act. If we were to disagree with the District Court and substitute the United States as a defendant, while at the same time recognizing (as 447(d) requires) that there is nothing we can do about the remand order, the case would go back to state court as an action under the Federal Tort Claims Act (FTCA), see ante, at and the remanded case would be styled Osborn v. United States. But the state court would have to dismiss such a case at once, since federal courts have exclusive jurisdiction over FTCA suits. 2 U.S.C. 346(b)(). Thus, as in but unlike Waco, the *90 District Court's decision on the preliminary matterhere, Westfall Act certification; in SLUSA applicabilityis inextricably intertwined with the remand order. Since that is so, there is no jurisdiction to review either determination. * * * In an alltoorare effort to reduce the high cost of litigation, Congress provided that remand orders are completely unreviewable "on appeal or otherwise." Section 447(d) effectuated a tradeoff of sorts: Even though Congress undoubtedly recognized that some remand orders would be entered in error, it thought that, all in all, justice would better be served by allowing that small minority of cases to proceed in state courts than by subjecting every remanded case to endless rounds of forum disputes. "[B]y denying any form of review of an order of remand," "Congress. established the policy of not permitting interrupting of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is
|
Justice Ginsburg
| 1,998 | 5 |
majority
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Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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This case concerns the authority of one State's court to order that a witness' testimony shall not be heard in any *226 court of the United States. In settlement of claims and counterclaims precipitated by the discharge of Ronald Elwell, a former General Motors Corporation (GM) engineering analyst, GM paid Elwell an undisclosed sum of money, and the parties agreed to a permanent injunction. As stipulated by GM and Elwell and entered by a Michigan County Court, the injunction prohibited Elwell from "testifying, without the prior written consent of [GM],as a witness of any kindin any litigation already filed, or to be filed in the future, involving [GM] as an owner, seller, manufacturer and/or designer" GM separately agreed, however, that if Elwell were ordered to testify by a court or other tribunal, such testimony would not be actionable as a violation of the Michigan court's injunction or the GM-Elwell agreement. After entry of the stipulated injunction in Michigan, Elwell was subpoenaed to testify in a product liability action commenced in Missouri by plaintiffs who were not involved in the Michigan case. The question presented is whether the national full faith and credit command bars Elwell's testimony in the Missouri case. We hold that Elwell may testify in the Missouri action without offense to the full faith and credit requirement. I Two lawsuits, initiated by different parties in different States, gave rise to the full faith and credit issue before us. One suit involved a severed employment relationship, the other, a wrongful-death complaint. We describe each controversy in turn. A The Suit Between Elwell and General Motors Ronald Elwell was a GM employee from 1959 until 1989. For 15 of those years, beginning in 1971, Elwell was assigned to the Engineering Analysis Group, which studied the performance of GM vehicles, most particularly vehicles involved in product liability litigation. Elwell's studies and research concentrated on vehicular fires. He assisted in *227 improving the performance of GM products by suggesting changes in fuel line designs. During the course of his employment, Elwell frequently aided GM lawyers engaged in defending GM against product liability actions. Beginning in 1987, the Elwell-GM employment relationship soured. GM and Elwell first negotiated an agreement under which Elwell would retire after serving as a GM consultant for two years. When the time came for Elwell to retire, however, disagreement again surfaced and continued into 1991. In May 1991, plaintiffs in a product liability action pending in Georgia deposed Elwell. The Georgia case involved a GM pickup truck fuel tank that burst into flames just after a collision. During the
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Justice Ginsburg
| 1,998 | 5 |
majority
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Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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that burst into flames just after a collision. During the deposition, and over the objection of counsel for GM, Elwell gave testimony that differed markedly from testimony he had given when serving as an in-house expert witness for GM. Specifically, Elwell had several times defended the safety and crashworthiness of the pickup's fuel system. On deposition in the Georgia action, however, Elwell testified that the GM pickup truck fuel system was inferior in comparison to competing products. A month later, Elwell sued GM in a Michigan County Court, alleging wrongful discharge and other tort and contract claims. GM counterclaimed, contending that Elwell had breached his fiduciary duty to GM by disclosing privileged and confidential information and misappropriating documents. In response to GM's motion for a preliminary injunction, and after a hearing, the Michigan trial court, on November 22, 1991, enjoined Elwell from "consulting or discussing with or disclosing to any person any of General Motors Corporation's trade secrets[,] confidential information or matters of attorney-client work product relating in any manner to the subject matter of any products liability litigation whether already filed or [to be] filed in the future which Ronald Elwell received, had knowledge of, or was entrusted with during *228 his employments with General Motors Corporation." Elwell v. General Motors Corp., No. 91-115946NZ (Wayne Cty.) (Order Granting in Part, Denying in Part Injunctive Relief, pp. 1-2), App. 9-10. In August 1992, GM and Elwell entered into a settlement under which Elwell received an undisclosed sum of money. The parties also stipulated to the entry of a permanent injunction and jointly filed with the Michigan court both the stipulation and the agreed-upon injunction. The proposed permanent injunction contained two proscriptions. The first substantially repeated the terms of the preliminary injunction; the second comprehensively enjoined Elwell from "testifying, without the prior written consent of General Motors Corporation, either upon deposition or at trial, as an expert witness, or as a witness of any kind, and from consulting with attorneys or their agents in any litigation already filed, or to be filed in the future, involving General Motors Corporation as an owner, seller, manufacturer and/or designer of the product(s) in issue." Order Dismissing Plaintiff's Complaint and Granting Permanent Injunction (Wayne Cty., Aug. 26, 1992), p. 2, App. 30. To this encompassing bar, the consent injunction made an exception: "[This provision] shall not operate to interfere with the jurisdiction of the Court in Georgia [where the litigation involving the fuel tank was still pending]." No other noninterference provision appears in the stipulated decree. On August 26, 1992, with no further hearing, the
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Justice Ginsburg
| 1,998 | 5 |
majority
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Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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decree. On August 26, 1992, with no further hearing, the Michigan court entered the injunction precisely as tendered by the parties.[1] Although the stipulated injunction contained an exception only for the Georgia action then pending, Elwell and GM included in their separate settlement agreement a more general *229 limitation. If a court or other tribunal ordered Elwell to testify, his testimony would "in no way" support a GM action for violation of the injunction or the settlement agreement: "`It is agreed that [Elwell's] appearance and testimony, if any, at hearings on Motions to quash subpoena or at deposition or trial or other official proceeding, if the Court or other tribunal so orders, will in no way form a basis for an action in violation of the Permanent Injunction or this Agreement.' " Settlement Agreement, p. 10, as quoted in In the six years since the Elwell-GM settlement, Elwell has testified against GM both in Georgia (pursuant to the exception contained in the injunction) and in several other jurisdictions in which Elwell has been subpoenaed to testify. B The Suit Between the Bakers and General Motors Having described the Elwell-GM employment termination litigation, we next summarize the wrongful-death complaint underlying this case. The decedent, Beverly Garner, was a front-seat passenger in a 1985 Chevrolet S-10 Blazer involved in a February 1990 Missouri highway accident. The Blazer's engine caught fire, and both driver and passenger died. In September 1991, Garner's sons, Kenneth and Steven Baker, commenced a wrongful-death product liability action against GM in a Missouri state court. The Bakers alleged that a faulty fuel pump in the 1985 Blazer caused the engine fire that killed their mother. GM removed the case to federal court on the basis of the parties' diverse citizenship. On the merits, GM asserted that the fuel pump was neither faulty nor the cause of the fire, and that collision impact injuries alone caused Garner's death. The Bakers sought both to depose Elwell and to call him as a witness at trial. GM objected to Elwell's appearance as a deponent or trial witness on the ground that the Michigan *230 injunction barred his testimony. In response, the Bakers urged that the Michigan injunction did not override a Missouri subpoena for Elwell's testimony. The Bakers further noted that, under the Elwell-GM settlement agreement, Elwell could testify if a court so ordered, and such testimony would not be actionable as a violation of the Michigan injunction. After in camera review of the Michigan injunction and the settlement agreement, the Federal District Court in Missouri allowed the Bakers to depose Elwell
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Justice Ginsburg
| 1,998 | 5 |
majority
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Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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District Court in Missouri allowed the Bakers to depose Elwell and to call him as a witness at trial. Responding to GM's objection, the District Court stated alternative grounds for its ruling: (1) Michigan's injunction need not be enforced because blocking Elwell's testimony would violate Missouri's "public policy," which shielded from disclosure only privileged or otherwise confidential information; (2) just as the injunction could be modified in Michigan, so a court elsewhere could modify the decree. At trial, Elwell testified in support of the Bakers' claim that the alleged defect in the fuel pump system contributed to the postcollision fire. In addition, he identified and described a 1973 internal GM memorandum bearing on the risk of fuel-fed engine fires. Following trial, the jury awarded the Bakers $11.3 million in damages, and the District Court entered judgment on the jury's verdict. The United States Court of Appeals for the Eighth Circuit reversed the District Court's judgment, ruling, inter alia, that Elwell's testimony should not have been admitted. Assuming, arguendo, the existence of a public policy exception to the full faith and credit command, the Court of Appeals concluded that the District Court erroneously relied on Missouri's policy favoring disclosure of relevant, nonprivileged information, see at for Missouri has an "equally strong public policy in favor of full faith and credit," The Eighth Circuit also determined that the evidence was insufficient to show that the Michigan court would modify *231 the injunction barring Elwell's testimony. See 820. The Court of Appeals observed that the Michigan court "has been asked on several occasions to modify the injunction, [but] has yet to do so," and noted that, if the Michigan court did not intend to block Elwell's testimony in cases like the Bakers', "the injunction would have been unnecessary." We granted certiorari to decide whether the full faith and credit requirement stops the Bakers, who were not parties to the Michigan proceeding, from obtaining Elwell's testimony in their Missouri wrongful-death action.[2] II A The Constitution's Full Faith and Credit Clause provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Art. IV, 1.[3] Pursuant to that Clause, Congress has prescribed: "Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law
|
Justice Ginsburg
| 1,998 | 5 |
majority
|
Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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and its Territories and Possessions as they have by law or *232 usage in the courts of such State, Territory or Possession from which they are taken." 28 U.S. C. 1738.[4] The animating purpose of the full faith and credit command, as this Court explained in Milwaukee "was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin." See also Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. "In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded." Milwaukee County, 296 U. S., The Full Faith and Credit Clause does not compel "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Pacific Employers Ins. ; see Phillips *233 Petroleum Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. For claim and issue preclusion (res judicata) purposes,[5] in other words, the judgment of the rendering State gains nationwide force. See, e. g., Matsushita Elec. Industrial ; ; see also Reese & Johnson, The Scope of Full Faith and Credit to Judgments, A court may be guided by the forum State's "public policy" in determining the law applicable to a controversy. See[6] But our decisions support no roving "public policy exception" to the full faith and credit due judgments. See 334 U. S., at ; In assuming the existence of a ubiquitous "public policy exception" permitting one State to resist recognition of another State's judgment, the District Court in the Bakers' wrongful-death action, see misread our precedent. "The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation." We are "aware of [no] considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause and the Act
|
Justice Ginsburg
| 1,998 | 5 |
majority
|
Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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which the full faith and credit clause and the Act of Congress require to be given to [a money] judgment outside the state of its rendition." Magnolia Petroleum The Court has never placed equity decrees outside the full faith and credit domain. Equity decrees for the payment of money have long been considered equivalent to judgments at law entitled to nationwide recognition. See, e. g., ; see also A. Ehrenzweig, Conflict of Laws 51, p. 182 (rev. ed. 1962) (describing as "indefensible" the old doctrine that an equity decree, because it does not "merge" the claim into the judgment, does not qualify for recognition). We see no reason why the preclusive effects of an adjudication on parties and those "in privity" with them, i. e., claim preclusion and issue preclusion (res judicata and collateral estoppel),[7] should differ depending solely upon the type of relief sought in a civil action. Cf. Barber, 323 * (Full Faith and Credit Clause and its implementing statute speak not of "judgments" but of "`judicial proceedings' without limitation"); Fed. Rule Civ. Proc. 2 (providing for "one form of action to be known as `civil action,' " in lieu of discretely labeled actions at law and suits in equity). Full faith and credit, however, does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the evenhanded control of forum law. See McElmoyle ex rel. ; see also Restatement (Second) of Conflict of Laws 99 (1969) ("The local law of the forum determines the methods by which a judgment of another state is enforced.").[8] Orders commanding action or inaction have been denied enforcement in a sister State when they purported to accomplish an official act within the exclusive province of that other State or interfered with litigation over which the ordering State had no authority. Thus, a sister State's decree concerning land ownership in another State has been held ineffective to transfer title, see although such a decree may indeed preclusively adjudicate the rights and obligations running between the parties to the foreign litigation, see, e. g., And antisuit injunctions regarding litigation elsewhere, even if compatible with due process as a direction constraining parties to the decree, see in fact have not controlled the second court's actions regarding litigation in that court. See, e. g., ; see also E. Scoles & P. Hay, Conflict of Laws 24.21, p. 981 (2d ed. 1992) (observing that antisuit injunction "does not
|
Justice Ginsburg
| 1,998 | 5 |
majority
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Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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981 (2d ed. 1992) (observing that antisuit injunction "does not address, and thus has no preclusive effect on, the merits of the litigation [in the second forum]").[9] Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction. See, e. g., * B With these background principles in view, we turn to the dimensions of the order GM relies upon to stop Elwell's testimony. Specifically, we take up the question: What matters did the Michigan injunction legitimately conclude? As earlier recounted, see the parties before the Michigan County Court, Elwell and GM, submitted an agreed-upon injunction, which the presiding judge signed.[10] While no issue was joined, expressly litigated, and determined in the Michigan proceeding,[11] that order is claim preclusive between Elwell and GM. Elwell's claim for *238 wrongful discharge and his related contract and tort claims have "merged in the judgment," and he cannot sue again to recover more. See Parklane Hosiery ; see also Restatement (Second) of Judgments 17 Similarly, GM cannot sue Elwell elsewhere on the counterclaim GM asserted in Michigan. See 23, Comment a, p. 194 ("A defendant who interposes a counterclaim is, in substance, a plaintiff, as far as the counterclaim is concerned, and the plaintiff is, in substance, a defendant."). Michigan's judgment, however, cannot reach beyond the Elwell-GM controversy to control proceedings against GM brought in other States, by other parties, asserting claims the merits of which Michigan has not considered. Michigan has no power over those parties, and no basis for commanding them to become intervenors in the Elwell-GM dispute. See Most essentially, Michigan lacks authority to control courts elsewhere by precluding them, in actions brought by strangers to the Michigan litigation, from determining for themselves what witnesses are competent to testify and what evidence is relevant and admissible in their search for the truth. See Restatement (Second) of Conflict of Laws 137-139 (1969 and rev. 1988) (forum's own law governs witness competence and grounds for excluding evidence); cf. Société Nationale Industrielle ; United *239 As the District Court recognized, Michigan's decree could operate against Elwell to preclude him from volunteering his testimony. See App. to Pet. for Cert. 26a27a. But a Michigan court cannot, by entering the injunction to which Elwell and GM stipulated, dictate to a court in another jurisdiction that evidence relevant in the Bakers' casea controversy to which Michigan is foreignshall be inadmissible. This conclusion creates no general exception to the full faith and credit command, and surely does not permit a State to refuse to honor a sister state judgment based
|
Justice Ginsburg
| 1,998 | 5 |
majority
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Baker v. General Motors Corp.
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https://www.courtlistener.com/opinion/118161/baker-v-general-motors-corp/
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State to refuse to honor a sister state judgment based on the forum's choice of law or policy preferences. Rather, we simply recognize that, just as the mechanisms for enforcing a judgment do not travel with the judgment itself for purposes of full faith and credit, see McElmoyle ex rel. ; see also Restatement (Second) of Conflict of Laws 99, and just as one State's judgment cannot automatically transfer title to land in another State, see similarly the Michigan decree cannot determine evidentiary issues in a lawsuit brought by parties who were not subject to the jurisdiction of the Michigan court. Cf. United[12] *240 The language of the consent decree is informative in this regard. Excluding the then-pending Georgia action from the ban on testimony by Elwell without GM's permission, the decree provides that it "shall not operate to interfere with the jurisdiction of the Court inGeorgia." Elwell v. General Motors Corp., No. 91-115946NZ (Wayne Cty.) (Order Dismissing Plaintiff's Complaint and Granting Permanent Injunction, p. 2), App. 30 But if the Michigan order, extended to the Georgia case, would have "interfer[ed] with the jurisdiction" of the Georgia court, Michigan's ban would, in the same way, "interfere with the jurisdiction" of courts in other States in cases similar to the one pending in Georgia. In line with its recognition of the interference potential of the consent decree, GM provided in the settlement agreement that, if another court ordered Elwell to testify, his testimony would "in no way" render him vulnerable to suit in Michigan for violation of the injunction or agreement. See The Eighth Circuit regarded this settlement agreement provision as merely a concession by GM that "some courts might fail to extend full faith and credit to the [Michigan] injunction." As we have explained, however, Michigan's power does not reach into a Missouri courtroom to displace the forum's own determination whether to admit or exclude evidence relevant in the Bakers' wrongful-death case before it. In that light, we see no altruism in GM's agreement not to institute contempt or breach-of-contract proceedings against Elwell in Michigan for giving subpoenaed testimony elsewhere. Rather, we find it telling that GM ruled out resort to the court that entered the injunction, for injunctions are ordinarily enforced by the enjoining court, not by a surrogate tribunal. See In sum, Michigan has no authority to shield a witness from another jurisdiction's subpoena power in a case involving persons and causes outside Michigan's governance. Recognition, *241 under full faith and credit, is owed to dispositions Michigan has authority to order. But a Michigan decree cannot command obedience
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowledged, *706 may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required. I The Immigration and Nationality Act (INA), et seq. (1994 ed. and Supp. V), is straightforward enough. It provides: "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." (a)(6) (1994 ed., Supp. V). By this statute, Congress confers upon the Attorney General discretion to detain an alien ordered removed. It gives express authorization to detain "beyond the removal period." The class of removed aliens detainable under the section includes aliens who were inadmissible and aliens subject to final orders of removal, provided they are a risk to the community or likely to flee. The issue to be determined is whether the authorization to detain beyond the removal period is subject to the implied, nontextual limitation that the detention be no longer than reasonably necessary to effect removal to another country. The majority invokes
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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necessary to effect removal to another country. The majority invokes the canon of constitutional doubt to read that implied term into the statute. One can accept the premise that a substantial constitutional question is presented by the prospect of lengthy, even unending, detention in some instances; but the statutory construction the Court adopts should be rejected in any event. The interpretation has no basis in the language *707 or structure of the INA and in fact contradicts and defeats the purpose set forth in the express terms of the statutory text. The Court, it is submitted, misunderstands the principle of constitutional avoidance which it seeks to invoke. The majority gives a brief bow to the rule that courts must respect the intention of Congress, ante, at 696, but then waltzes away from any analysis of the language, structure, or purpose of the statute. Its analysis is not consistent with our precedents explaining the limits of the constitutional doubt rule. The rule allows courts to choose among constructions which are "fairly possible," not to "`press statutory construction to the point of disingenuous evasion even to avoid a constitutional question,' " Were a court to find two interpretations of equal plausibility, it should choose the construction that avoids confronting a constitutional question. The majority's reading of the statutory authorization to "detai[n] beyond the removal period," however, is not plausible. An interpretation which defeats the stated congressional purpose does not suffice to invoke the constitutional doubt rule, for it is "plainly contrary to the intent of Congress." United The majority announces it will reject the Government's argument "that the statute means what it literally says," ante, at 689, but then declines to offer any other acceptable textual interpretation. The majority does not demonstrate an ambiguity in the delegation of the detention power to the Attorney General. It simply amends the statute to impose a time limit tied to the progress of negotiations to effect the aliens' removal. The statute cannot be so construed. The requirement the majority reads into the law simply bears no relation to the text; and in fact it defeats the statutory purpose and design. *708 Other provisions in 1231 itself do link the requirement of a reasonable time period to the removal process. See, e. g., 1231(c)(1)(A) (providing that an alien who arrives at a port of entry "shall be removed immediately on a vessel or aircraft" unless "it is impracticable" to do so "within a reasonable time" (emphasis added)); 1231(c)(3)(A)(ii)(II) (requiring the "owner of a vessel or aircraft bringing an alien to the United States [to] pay the
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
bringing an alien to the United States [to] pay the costs of detaining and maintaining the alien for the period of time reasonably necessary for the owner to arrange for repatriation" (emphasis added)). That Congress chose to impose the limitation in these sections and not in 1231(a)(6) is evidence of its intent to measure the detention period by other standards. When Congress has made express provisions for the contingency that repatriation might be difficult or prolonged in other portions of the statute, it should be presumed that its omission of the same contingency in the detention section was purposeful. Indeed, the reasonable time limits in the provisions just mentioned simply excuse the duty of early removal. They do not mandate release. An alien within one of these categories, say, a ship stowaway, would be subject as well to detention beyond the removal period under 1231(a)(6), if the statute is read as written. Under the majority's view, however, it appears the alien must be released in six months even if presenting a real danger to the community. The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations, see ante, at 701, makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens' return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It *709 is a fact of international diplomacy that governments and their policies change; and if repatriation efforts can be revived, the Attorney General has an interest in ensuring the alien can report so the removal process can begin again. Congress, moreover, was well aware of the difficulties confronting aliens who are removable but who cannot be repatriated. It made special provisions allowing them to be employed, a privilege denied to other deportable aliens. See 1231(a)(7) (providing an "alien [who] cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien" still remains eligible for employment in the United States). Congress' decision to ameliorate the condition of aliens subject to a final order of removal who cannot be repatriated, but who need not be detained, illustrates a balance in the statutory design. Yet the Court renders the other side of the
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
design. Yet the Court renders the other side of the balance meaningless. The risk to the community posed by a removable alien is a function of a variety of circumstances, circumstances that do not diminish just because the alien cannot be deported within some foreseeable time. Those circumstances include the seriousness of the alien's past offenses, his or her efforts at rehabilitation, and some indication from the alien that, given the real prospect of detention, the alien will conform his or her conduct. This is the purpose for the periodic review of detention status provided for by the regulations. See 8 CFR 241.4 The Court's amendment of the statute reads out of the provision the congressional decision that dangerousness alone is a sufficient basis for detention, see ante, at 699 (citing 1 E. Coke, Institutes *70b), and reads out as well any meaningful structure for supervised release. The majority is correct to observe that in United the Court "read significant limitations into" a statute, ante, at 689, but that does not permit us to avoid the proper reading of the enactment now before us. In Witkovich, the Court construed former 1252(d), which required an alien under a final order of deportation *710 "to give information under oath as the Attorney General may deem fit and proper." The Court held that although the plain language "appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months," the constitutional doubt this interpretation would raise meant the language would be construed as limited to the provision of information "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue," In Witkovich the interpretation of the text was in aid of the statutory purpose; in the instant cases the interpretation nullifies the statutory purpose. Here the statute by its own terms permits the Attorney General to consider factors the Court now makes irrelevant. The majority's unanchored interpretation ignores another indication that the Attorney General's detention discretion was not limited to this truncated period. Section 1231(a)(6) permits continued detention not only of removable aliens but also of inadmissible aliens, for instance those stopped at the border before entry. Congress provides for detention of both categories within the same statutory grant of authority. Accepting the majority's interpretation, then, there are two possibilities, neither of which is sustainable. On the one hand, it may be that the majority's rule applies to both categories of aliens, in which case we are asked to
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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categories of aliens, in which case we are asked to assume that Congress intended to restrict the discretion it could confer upon the Attorney General so that all inadmissible aliens must be allowed into our community within six months. On the other hand, the majority's logic might be that inadmissible and removable aliens can be treated differently. Yet it is not a plausible construction of 1231(a)(6) to imply a time limit as to one class but not to another. The text does not admit of this possibility. As a result, it is difficult to see why "[a]liens who have not yet gained initial admission *711 to this country would present a very different question." Ante, at 682. Congress' power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature's considerable authority over immigration matters. See, e. g., Wong It is reasonable to assume, then, and it is the proper interpretation of the INA and 1231(a)(6), that when Congress provided for detention "beyond the removal period," it exercised its considerable power over immigration and delegated to the Attorney General the discretion to detain inadmissible and other removable aliens for as long as they are determined to be either a flight risk or a danger to the Nation. The majority's interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive's discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. Brief for Respondents in No. 99-7791, p. 49. The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals *712 to force dangerous aliens upon us. One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership. The cases which the Court relies upon to support the imposition of presumptions are inapposite. The rule announced in "that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial" was based on the definition of a "petty offense" that was still operable in the United States Code, and was proper "under the peculiar power of the federal courts to revise sentences in contempt cases." The majority can point to no similar statutory or judicial source for its authority to create its own time-based rule in these cases. It cites only an observation in a brief filed by the Government in United O. T. 1956, No. 295, pp. 8-9, see ante, at 701, relying, in turn, on doubts expressed in a 1952 Senate Report concerning detention for longer than six months under an Act with standards different from, and far less precise than, those applicable here. In County of our reasonableness presumption for delays of less than 48 hours between an arrest and a probable-cause hearing was, as the majority recognizes, ante, at 701, based on the "Court of Appeals' determination of the time required to complete those procedures." Here, as far as we know, the 6-month period bears no particular relationship to how long it now takes to deport any group of aliens, or, for that matter, how long it took in the past to remove. Zadvydas' case itself demonstrates that the repatriation process may often take years to *713 negotiate, involving difficult issues of establishing citizenship and the like. See Brief for Petitioner in No. 99-7791, pp. 17-20. It is to be expected that from time to time a foreign power will adopt a truculent stance with respect to the United States and other nations. Yet the Court by its time limit, or presumptive time limit, goes far to undercut the position of the Executive in repatriation negotiations, thus ill serving the interest of all foreign nationals of the country concerned. Law-abiding aliens might wish to return to their home country, for instance, but the strained relationship caused by the difficult repatriation talks might prove to be a substantial obstacle for these aliens as well. In addition to weakening the hand of our Government, court ordered release cannot help but encourage dilatory and obstructive tactics by aliens
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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cannot help but encourage dilatory and obstructive tactics by aliens who, emboldened by the Court's new rule, have good reason not to cooperate by making their own repatriation or transfer seem foreseeable. An alien ordered deported also has less incentive to cooperate or to facilitate expeditious removal when he has been released, even on a supervised basis, than does an alien held at an Immigration and Naturalization Service (INS) detention facility. Neither the alien nor his family would find any urgency in assisting with a petition to other countries to accept the alien back if the alien could simply remain in the United States indefinitely. The risk to the community posed by the mandatory release of aliens who are dangerous or a flight risk is far from insubstantial; the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself. The Government cites statistical studies showing high recidivism rates for released aliens. One Government Accounting Office study cited by Congress in floor debates on the Antiterrorism and Effective Death Penalty Act of 1996, put the figure as high as 77 percent. 142 Cong. Rec. 7972 ; Brief for Respondents in *714 No. 99-7791, at 27, n. 13. It seems evident a criminal record accumulated by an admitted alien during his or her time in the United States is likely to be a better indicator of risk than factors relied upon during the INS's initial decision to admit or exclude. Aliens ordered deported as the result of having committed a felony have proved to be dangerous. Any suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist, as determined by the many factors set forth in the regulations. See 8 CFR 241.4(f) Underworld and terrorist links are subtle and may be overseas, beyond our jurisdiction to impose felony charges. Furthermore, the majority's rationale seems to apply to an alien who flees prosecution or escapes from custody in some other country. The fact an alien can be deemed inadmissible because of fraud at the time of entry does not necessarily distinguish his or her case from an alien whose entry was legal. Consider, for example, a fugitive alien who enters by fraud or stealth and resides here for five years with significant ties to the community, though still presenting a danger; contrast him with an alien who entered lawfully but a month later committed an act making him removable. Why the Court's rationale should apply to the second
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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removable. Why the Court's rationale should apply to the second alien but not the first is not apparent. The majority cannot come to terms with these distinctions under its own rationale. The rule the majority creates permits consideration of nothing more than the reasonable foreseeability of removal. See ante, at 699-700. That standard is not only without sound basis in the statutory structure, but also is not susceptible to customary judicial inquiry. Cf. The majority does say that the release of terrorists or other "special circumstances" might justify "heightened deference to the judgments of the political *715 branches with respect to matters of national security." Ante, at 696. Here the Court appears to rely on an assessment of risk, but this is the very premise it finds inadequate to sustain the natural reading of the statute. The Court ought not to reject a rationale in order to deny power to the Attorney General and then invoke the same rationale to save its own analysis. This rule of startling breadth invites potentially perverse results. Because other nations may refuse to admit aliens who have committed certain crimessee, e. g., Brief for Petitioner in No. 99-7791, at 19 ("Lithuanian law precludes granting of citizenship to persons who, before coming to Lithuania, have been sentenced in another state to imprisonment for a deliberate crime for which criminal liability is imposed by the laws of the Republic of Lithuania" (citations and internal quotation marks omitted))often the aliens who have committed the most serious crimes will be those who may be released immediately under the majority's rule. An example is presented in the case of Saroeut Ourk, a Cambodian alien determined to be removable and held pending deportation. See Ourk v. INS, No. 00-35645 cert. pending, No. 00-987. Ourk was convicted of rape by use of drugs in conjunction with the kidnaping of a 13-year-old girl; after serving 18 months of his prison term, he was released on parole but was returned to custody twice more for parole violations. Pet. for Cert. in No. 00-987, pp. 4-5. When he was ordered deported and transferred to the custody of the INS, it is no surprise the INS determined he was both a flight risk and a danger to the community. Yet the Court of Appeals for the Ninth Circuit concluded, based on its earlier decision in Kim Ho that Ourk could no longer be held pending deportation, since removal to Cambodia was not reasonably foreseeable. App. to Pet. for Cert. in No. 00-987, pp. 3a4a. See also Phetsany v. INS, No. 00-186 cert. pending, No. 00-986
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
also Phetsany v. INS, No. 00-186 cert. pending, No. 00-986 (requiring release of a native and *716 citizen of Laos convicted of attempted, premeditated murder); Mounsaveng v. INS, No. 00-15309 cert. pending, No. 00-751[*] (releasing a citizen of Laos convicted of rape of a 15-year-old girl and reckless endangerment for involvement in a fight in which gunshots were fired); Lim v. Reno, No. 99-36191 cert. pending, No. 00-777 (releasing a Cambodian convicted of rape and robbery); Phuong Phuc Le v. INS, No. 00-195 cert. pending, No. 00-1001 (releasing a Vietnamese citizen convicted of voluntary manslaughter in a crime involving the attempted murder of two other persons). Today's result will ensure these dangerous individuals, and hundreds more like them, will remain free while the Executive Branch tries to secure their removal. By contrast, aliens who violate mere tourist visa requirements, ante, at 691, can in the typical case be held pending deportation on grounds that a minor offender is more likely to be removed. There is no reason to suppose Congress intended this odd result. The majority's rule is not limited to aliens once lawfully admitted. Today's result may well mandate the release of those aliens who first gained entry illegally or by fraud, and, indeed, is broad enough to require even that inadmissible and excludable aliens detained at the border be set free in our community. In for example, Rosales, a Cuban citizen, arrived in this country during the 1980 Mariel boatlift. Upon arrival in the United States, Rosales was released into the custody of a relative under the Attorney General's authority to parole illegal aliens, see 8 U. S. C. 1182(d)(5)(A), and there he committed multiple crimes for which he was convicted and 238 F. 3d, 708. While serving a sentence for burglary and grand larceny, Rosales escaped from prison, another of the offenses *717 for which he ultimately served time. The INS eventually revoked Rosales' immigration parole, ordered him deported, and held him pending deportation, subject to periodic consideration for parole under the Cuban Review Plan. See 8 CFR 212.12(g)(2) In reasoning remarkably similar to the majority's, the Court of Appeals for the Sixth Circuit held that the indefinite detention of Rosales violated Fifth Amendment due process rights, because "the government has offered no credible proof that there is any possibility that Cuba may accept Rosales's return anytime in the foreseeable future." 238 F. 3d, at This resultthat Mariel Cubans and other illegal, inadmissible aliens will be released notwithstanding their criminal history and obvious flight riskwould seem a necessary consequence of the majority's construction of the statute.
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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
a necessary consequence of the majority's construction of the statute. The majority's confidence that the Judiciary will handle these matters "with appropriate sensitivity," ante, at 696, 700, allows no meaningful category to confine or explain its own sweeping rule, provides no justification for wresting this sovereign power away from the political branches in the first place, and has no support in judicially manageable standards for deciding the foreseeability of removal. It is curious that the majority would approve of continued detention beyond the 90-day period, or, for that matter, during the 90-day period, where deportation is not reasonably foreseeable. If the INS cannot detain an alien because he is dangerous, it would seem irrelevant to the Constitution or to the majority's presumption that the INS has detained the alien for only a little while. The reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does. The Court cannot bring itself to acknowledge this established proposition. Likewise, it is far from evident under the majority's theory why the INS can condition and supervise the release of aliens who are not removable in the reasonably foreseeable future, or why "the alien may no doubt be returned to custody upon *718 a violation of those conditions." Ante, at 700. It is true that threat of revocation of supervised release is necessary to make the supervised release itself effective, a fact even counsel for Zadvydas acknowledged. Brief for Petitioner in No. 99-7791, at 20-21. If that is so, however, the whole foundation for the Court's position collapses. The Court today assumes a role in foreign relations which is unprecedented, unfortunate, and unwise. Its misstep results in part from a misunderstanding of the liberty interests these aliens retain, an issue next to be discussed. II The aliens' claims are substantial; their plight is real. They face continued detention, perhaps for life, unless it is shown they no longer present a flight risk or a danger to the community. In a later case the specific circumstances of a detention may present a substantial constitutional question. That is not a reason, however, for framing a rule which ignores the law governing alien status. As persons within our jurisdiction, the aliens are entitled to the protection of the Due Process Clause. Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint or detention. The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however. See, e. g., No party to this proceeding contests
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