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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
was simply explaining that a drug like midazolam can be used to induce unconsciousness—an issue that was and remains undisputed—not that it could render an inmate sufficiently unconscious to resist all noxious stimuli. Indeed, it was midazolam’s possible inability to serve the latter function that led Dr. Sasich to conclude that “it is not an appropriate drug to use when administering a paralytic followed by potassium chloride.” 18 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting noted that “[t]he drug would never be used and has never been used as a sole anesthetic to give anesthesia during a surgery,” and asserted that “the drug was not approved by the FDA as a sole anesthetic because after the use of fairly large doses that were sufficient to reach the ceiling effect and produce induction of unconscious ness, the patients responded to the surgery,” Thus, Dr. Lubarsky may not have been able to identify whether this effect would be reached at 40, 50, or 60 milli grams or some higher threshold, but he could specify that at no level would midazolam reliably keep an in- mate unconscious once the second and third drugs were delivered.5 These assertions were amply supported by the evidence of the manner in which midazolam is and can be used. All three experts agreed that midazolam is utilized as the sole sedative only in minor procedures. Dr. Evans, for exam ple, acknowledged that while midazolam may be used as the sole drug in some procedures that are not “terribly invasive,” even then “you would [generally] see it used in combination with a narcotic.” And though, as the Court observes, Dr. Sasich believed midazolam could be “used for medical procedures like colonoscopies and gastroscopies,” ante, at 21, he insisted that these proce dures were not necessarily painful, and that it would be a —————— 5 The Court claims that the District Court could have properly disre garded Dr. Lubarsky’s testimony because he asserted that a protocol with sodium thiopental would “ ‘produce egregious harm and suffer ing.’ ” Ante, at 24, n. 6 (quoting App. 227). But Dr. Lubarsky did not testify that, like midazolam, sodium thiopental would not render an inmate fully insensate even if properly administered; rather, he simply observed that he had previously contended that protocols using that drug were ineffective. See App. 227. He was presumably referring to an article he coauthored that found many condemned inmates were not being successfully delivered the dose of sodium thiopental necessary to fully anesthetize them. See (ALITO, J., concur ring) (discussing this study). Cite as: 576 U. S. 19 SOTOMAYOR,
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
(discussing this study). Cite as: 576 U. S. 19 SOTOMAYOR, J., dissenting “big jump” to conclude that midazolam would be effective to maintain unconsciousness throughout an execution. Tr. 9–370. Indeed, the record provides no reason to think that these procedures cause excruciating pain remotely comparable to that produced by the second and third lethal injection drugs Oklahoma intends to use. As for more painful procedures, the consensus was also clear: Midazolam is not FDA-approved for, and is not used as, a sole drug to maintain unconsciousness. See App. 171 262 (Sasich), 327 One might infer from the fact that midazolam is not used as the sole anes thetic for more serious procedures that it cannot be used for them. But drawing such an inference is unnecessary, as petitioners’ experts invoked sources expressly stating as much. In particular, Dr. Lubarsky pointed to a survey article that cited four separate authorities and declared that “[m]idazolam cannot be used alone to maintain adequate anesthesia.” Reves 318; see also Stoelting & Hillier 145 (explaining that midzolam is used for “induc tion of anesthesia,” and that, “[i]n combination with other drugs, [it] may be used for maintenance of anesthesia” ). This evidence was alone sufficient, but if one wanted further support for these conclusions it was provided by the Lockett and Wood executions. The procedural flaws that marred the Lockett execution created the conditions for an unintended (and grotesque) experiment on midazo lam’s efficacy. Due to problems with the IV line, Lockett was not fully paralyzed after the second and third drugs were administered. He had, however, been administered more than enough midazolam to “render an average per son unconscious,” as the District Court found. App. 57. When Lockett awoke and began to writhe and speak, he demonstrated the critical difference between midazolam’s ability to render an inmate unconscious and its ability to maintain the inmate in that state. The Court insists that GLOSSIP v. GROSS SOTOMAYOR, J., dissenting Lockett’s execution involved “only 100 milligrams of mid azolam,” ante, at 28, but as explained previously, more is not necessarily better given midazolam’s ceiling effect. The Wood execution is perhaps even more probative. Despite being given over 750 milligrams of midazolam, Wood gasped and snorted for nearly two hours. These reactions were, according to Dr. Lubarsky, inconsistent with Wood being fully anesthetized, App. 177–178, and belie the claim that a lesser dose of 500 milligrams would somehow suffice. The Court attempts to distinguish the Wood execution on the ground that the timing of Arizona’s administration of midazolam was different. Ante, at 28. But as Dr. Lubarsky
|
Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
midazolam was different. Ante, at 28. But as Dr. Lubarsky testified, it did not “matter” whether in Wood’s execution the “midazolam was introduced all at once or over multiple doses,” because “[t]he drug has a sufficient half life that the effect is cumulative.” App. 2; see also Saari 253 (midazolam’s “elimination half-life ranges from 1.7 to 3.5 h[ours]”).6 Nor does the fact that Wood’s dose of midazolam was paired with hydromor phone rather than a paralytic and potassium chromide, see ante, at 29, appear to have any relevance—other than that the use of this analgesic drug may have meant that Wood did not experience the same degree of searing pain that an inmate executed under Oklahoma’s protocol may face. By contrast, Florida’s use of this same three-drug proto col in 11 executions, see ante, at 28 (citing Brief for State of Florida as Amicus Curiae 1), tells us virtually nothing. Although these executions have featured no obvious mis haps, the key word is “obvious.” Because the protocol —————— 6 The Court asserts that the State refuted these contentions, pointing to Dr. Evans’ testimony that 750 milligrams of the drug “might not have the effect that was sought” if administered over an hour. Tr. 667; see ante, at 28, n. 6. But as has been the theme here, this pronounce ment was entirely unsupported, and appears to be contradicted by the secondary sources cited by petitioners’ experts. Cite as: 576 U. S. 21 SOTOMAYOR, J., dissenting involves the administration of a powerful paralytic, it is, as Drs. Sasich and Lubarsky explained, impossible to tell whether the condemned inmate in fact remained uncon scious. App. 218, 273; see also 553 U.S., (Stevens, J., concurring in judgment). Even in these executions, moreover, there have been indications of the inmates’ possible awareness. See Brief for State of Ala bama et al. as Amici Curiae 9–13 (describing the 11 Flor- ida executions, and noting that some allegedly involved blinking and other movement after administration of the three drugs).7 Finally, none of the State’s “safeguards” for administer ing these drugs would seem to mitigate the substantial risk that midazolam will not work, as the Court contends. See ante, at 21–22. Protections ensuring that officials have properly secured a viable IV site will not enable midazolam to have an effect that it is chemically incapable of having. Nor is there any indication that the State’s monitoring of the inmate’s consciousness will be able to anticipate whether the inmate will remain unconscious while the second and third drugs are administered. No one questions whether midazolam can induce uncon
|
Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
are administered. No one questions whether midazolam can induce uncon sciousness. The problem, as Lockett’s execution vividly illustrates, is that an unconscious inmate may be awak ened by the pain and respiratory distress caused by ad ministration of the second and third drugs. At that point, even if it were possible to determine whether the inmate is conscious—dubious, given the use of a paralytic—it is already too late. Presumably for these reasons, the Tenth Circuit characterized the District Court’s reliance on these procedural mechanisms as “not relevant to its rejection of —————— 7 The fact that courts in Florida have approved the use of midazolam in this fashion is arguably slightly more relevant, though it is worth noting that the majority of these decisions were handed down before the Lockett and Wood executions, and that some relied, as here, on Dr. Evans’ testimony. See ante, at 17. 22 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting [petitioners’] claims regarding the inherent characteristics of midazolam.” C The Court not only disregards this record evidence of midazolam’s inadequacy, but also fails to fully appreciate the procedural posture in which this case arises. Petition ers have not been accorded a full hearing on the merits of their claim. They were granted only an abbreviated evi dentiary proceeding that began less than three months after the State issued its amended execution protocol; they did not even have the opportunity to present rebuttal evidence after Dr. Evans testified. They sought a prelimi nary injunction, and thus were not required to prove their claim, but only to show that they were likely to succeed on the merits. See ; (06). Perhaps the State could prevail after a full hearing, though this would require more than Dr. Evans’ unsup ported testimony. At the preliminary injunction stage, however, petitioners presented compelling evidence sug gesting that midazolam will not work as the State intends. The State, by contrast, offered absolutely no contrary evidence worth crediting. Petitioners are thus at the very least likely to prove that, due to midazolam’s inherent deficiencies, there is a constitutionally intolerable risk that they will be awake, yet unable to move, while chemi cals known to cause “excruciating pain” course through their veins. 553 U.S., (Stevens, J., concurring in judgment). III The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is fac tually wrong. The Court’s conclusion that petitioners’ Cite as: 576 U. S. 23 SOTOMAYOR, J., dissenting challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible. A
|
Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
which the State may kill them is legally indefensible. A This Court has long recognized that certain methods of execution are categorically off-limits. The Court first confronted an Eighth Amendment challenge to a method of execution in Although Wilkerson approved the particular method at issue—the firing squad—it made clear that “public dissec tion,” “burning alive,” and other “punishments of torture in the same line of unnecessary cruelty, are forbidden by [the Eighth A]mendment to the Constitution.” at 135–1. Eleven years later, in rejecting a challenge to the first proposed use of the electric chair, the Court again reiterated that “if the punishment prescribed for an of fense against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.” In re In the more than a century since, the Members of this Court have often had cause to debate the full scope of the Eighth Amendment’s prohibition of cruel and unusual punishment. See, e.g., (1972). But there has been little dispute that it at the very least precludes the imposition of “barbarous physical punishments.” (19); see, e.g., ; –313 (Burger, C. J., dissenting); 553 U.S., –99 (THOMAS, J., concurring in judgment); Harmelin v. Michigan, (opinion of SCALIA, J.). Nor has there been any question that the Amendment prohibits such “inherently barbaric punishments under all circumstances.” 24 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting (10) Simply stated, the “Eighth Amendment categorically prohibits the infliction of cruel and unusual punishments.” Penry v. Lynaugh, 492 U.S. 302, 330 (1989) B The Court today, however, would convert this categori cal prohibition into a conditional one. A method of execu tion that is intolerably painful—even to the point of being the chemical equivalent of burning alive—will, the Court holds, be unconstitutional if, and only if, there is a “known and available alternative” method of execution. Ante, at 15. It deems to foreclose any argument to the con trary. Ante, at 14. held no such thing. In the first place, the Court cites only the plurality opinion in as support for its known-and-available-alternative requirement. See Even assuming that the plurality set forth such a requirement—which it did not—none of the Members of the Court whose concurrences were necessary to sustain the Court’s judgment articulated a similar view. See 553 U.S., –77, 87 (Stevens, J., concurring in judg ment); 99–107 (THOMAS, J., concurring in judg ment); at 107–108, 113 (BREYER, J., concurring in judgment). In general, “the holding
|
Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
113 (BREYER, J., concurring in judgment). In general, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” (internal quotation marks omitted). And as the Court observes, ante, at 14, n. 2, the opinion of JUSTICE THOMAS, joined by JUSTICE SCALIA, took the broadest position with respect to the degree of intent that state officials must have in order to have violated the Eighth Amendment, concluding that only a method of execution deliberately designed to inflict pain, and not one simply designed with deliberate indifference to the risk of severe pain, would be un Cite as: 576 U. S. 25 SOTOMAYOR, J., dissenting 553 U.S., (THOMAS, J., concurring in judgment). But this understanding of the Eighth Amendment’s intent requirement is unrelated to, and thus not any broader or narrower than, the requirement the Court now divines from Because the position that a plaintiff challenging a method of execution under the Eighth Amendment must prove the availability of an alternative means of execution did not “represent the views of a majority of the Court,” it was not the holding of the Court. CTS In any event, even the plurality opinion provides no support for the Court’s proposition. To be sure, that opinion contains the following sentence: “[The condemned] must show that the risk is substantial when compared to the known and available alternatives.” But the meaning of that key sentence and the limits of the requirement it imposed are made clear by the sentence directly preceding it: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain.” In the very premise of the petitioners’ Eighth Amendment claim was that they had “identified a significant risk of harm [in Kentucky’s protocol] that [could] be eliminated by adopting alterna tive procedures.” Their basic theory was that even if the risk of pain was only, say, 25%, that risk would be objectively intolerable if there was an obvious alterna tive that would reduce the risk to 5%. See Brief for Peti tioners in O. T. 07, No. 07–5439, p. 29 (“In view of the severity of the pain risked and the ease with which it could be avoided, Petitioners should not have been required to show a high likelihood that they would suffer such pain ”). Thus, the “grounds asserted” for relief in were that the State’s protocol was intol 26 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
protocol was intol 26 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting erably risky given the alternative procedures the State could have employed. Addressing this claim, the plurality clarified that “a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative,” 553 U.S., ; instead, to succeed in a challenge of this type, the comparative risk must be “substantial,” Nowhere did the plurality suggest that all challenges to a State’s method of execu tion would require this sort of comparative-risk analysis. Recognizing the relevance of available alternatives is not at all the same as concluding that their absence precludes a claimant from showing that a chosen method carries objectively intolerable risks. If, for example, prison offi cials chose a method of execution that has a 99% chance of causing lingering and excruciating pain, certainly that risk would be objectively intolerable whether or not the officials ignored other methods in making this choice. Irrespective of the existence of alternatives, there are some risks “so grave that it violates contemporary stand ards of decency to expose anyone unwillingly to” them. (emphasis in original). That the plurality’s statement regarding a con demned inmate’s ability to point to an available alterna tive means of execution pertained only to challenges prem ised on the existence of such alternatives is further evidenced by the opinion’s failure to distinguish or even mention the Court’s unanimous decision in Hill v. McDonough, Hill held that a plain tiff challenging a State’s method of execution need not “identif[y] an alternative, authorized method of execution.” True, as the Court notes, ante, at 14–15, Hill did so in the context of addressing ’s pleading stand ard, rejecting the proposed alternative-means requirement because the Court saw no basis for the “[i]mposition of Cite as: 576 U. S. 27 SOTOMAYOR, J., dissenting heightened pleading requirements.” 547 U.S., But that only confirms that the Court in Hill did not view the availability of an alternative means of execution as an element of an Eighth Amendment claim: If it had, then requiring the plaintiff to plead this element would not have meant imposing a heightened standard at all, but rather would have been entirely consistent with “tradi tional pleading requirements.” ; see (09). The plurality opinion should not be understood to have so carelessly tossed aside Hill’s underlying premise less than two years later. C In reengineering to support its newfound rule, the Court appears to rely on a flawed syllogism. If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it,
|
Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
reasons, then there must be a means of accomplishing it, and thus some avail able method of execution must be See ante, at 4, 15–16. But even accepting that the death penalty is, in the abstract, consistent with evolving standards of decency, but see ante, p. (BREYER, J., dissenting), the Court’s conclusion does not follow. The constitutionality of the death penalty may inform our conception of the degree of pain that would render a particular method of imposing it un See (plurality opinion) (because “[s]ome risk of pain is inherent in any method of execution,” “[i]t is clear the Constitution does not demand the avoidance of all risk of pain”). But a method of execution that is “barbarous,” Rhodes, 452 U.S., at or “involve[s] torture or a lingering death,” 1 U.S., 7, does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does 28 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitu tion imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death. For these reasons, the Court’s available-alternative requirement leads to patently absurd consequences. Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equiva lent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availabil ity of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated. But see –102 (THOMAS, J., concurring in judgment) (“It strains credulity to suggest that the defin ing characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like was that they involved risks of pain that could be eliminated by using alternative methods of execution”).8 The Eighth Amendment cannot possibly countenance such a result. D In concocting this additional requirement, the Court is motivated by a desire to
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
additional requirement, the Court is motivated by a desire to preserve States’ ability to conduct —————— 8 The Court protests that its holding does not extend so far, deriding this description of the logical implications of its legal rule as “simply not true” and “outlandish rhetoric.” Ante, at 29. But presumably when the Court imposes a “requirement o[n] all Eighth Amendment method- of-execution claims,” that requirement in fact applies to “all” methods of execution, without exception. Ante, at 1 Cite as: 576 U. S. 29 SOTOMAYOR, J., dissenting executions in the face of changing circumstances. See ante, at 4–6, 27–28. It is true, as the Court details, that States have faced “practical obstacle[s]” to obtaining lethal injection drugs since was decided. Ante, at 4. One study concluded that recent years have seen States change their protocols “with a frequency that is unprecedented among execution methods in this country’s history.” Denno, Lethal Injection Chaos Post-, 102 Geo. L. J. 1331, 1335 (14). But why such developments compel the Court’s imposi tion of further burdens on those facing execution is a mystery. Petitioners here had no part in creating the shortage of execution drugs; it is odd to punish them for the actions of pharmaceutical companies and others who seek to disassociate themselves from the death penalty— actions which are, of course, wholly lawful. Nor, certainly, should these rapidly changing circumstances give us any greater confidence that the execution methods ultimately selected will be sufficiently humane to satisfy the Eighth Amendment. Quite the contrary. The execution protocols States hurriedly devise as they scramble to locate new and untested drugs, see are all the more likely to be cruel and unusual—presumably, these drugs would have been the States’ first choice were they in fact more effective. But see Denno, The Lethal Injection Quandry: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 65–79 (07) (describing the hurried and unreasoned process by which States first adopted the original three-drug protocol). Courts’ review of execution methods should be more, not less, searching when States are engaged in what is in effect human experimentation. It is also worth noting that some condemned inmates may read the Court’s surreal requirement that they iden tify the means of their death as an invitation to propose methods of executions less consistent with modern sensi bilities. Petitioners here failed to meet the Court’s new 30 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting test because of their assumption that the alternative drugs to which they pointed, pentobarbital and sodium thiopental, were available to the State. See ante, at 13–
|
Justice Sotomayor
| 2,015 | 24 |
second_dissenting
|
Glossip v. Gross
|
https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
|
thiopental, were available to the State. See ante, at 13– 14. This was perhaps a reasonable assumption, especially given that neighboring Texas and Missouri still to this day continue to use pentobarbital in executions. See The Death Penalty Institute, Execution List online at www.deathpenaltyinfo.org/execution-list- (as visited June 26, and available in the Clerk of the Court’s case file). In the future, however, condemned inmates might well decline to accept States’ current reliance on lethal injec tion. In particular, some inmates may suggest the firing squad as an alternative. Since the 19’s, only Utah has utilized this method of execution. See S. The Death Penalty 3 (02); Johnson, Double Murderer Executed by Firing Squad in Utah, N. Y. Times, June 19, 10, p. A12. But there is evidence to suggest that the firing squad is significantly more reliable than other methods, including lethal injection using the various combinations of drugs thus far developed. See A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, App. A, p. 177 (14) (calculating that while 7.12% of the 1,054 executions by lethal injection between 1900 and 10 were “botched,” none of the 34 executions by firing squad had been). Just as important, there is some reason to think that it is relatively quick and painless. See Certainly, use of the firing squad could be seen as a devolution to a more primitive era. See Wood v. Ryan, 7 F.3d 1076, 1103 (CA9 14) (Kozinski, C. J., dissenting from denial of rehearing en banc). That is not to say, of course, that it would therefore be un But lethal injection represents just the latest iteration of the States’ centuries-long search for “neat and non-disfiguring homicidal methods.” C. Brandon, The Electric Chair: An Cite as: 576 U. S. 31 SOTOMAYOR, J., dissenting Unnatural American History 39 (1999) (quoting Editorial, New York Herald, Aug. 10, 1884); see generally at 169–7. A return to the firing squad—and the blood and physical violence that comes with it—is a step in the opposite direction. And some might argue that the visible brutality of such a death could conceivably give rise to its own Eighth Amendment concerns. See Campbell v. Wood, (Blackmun, J., dissenting from denial of stay of execution and certiorari); (Brennan, J., dissenting from denial of certiorari). At least from a condemned inmate’s perspective, however, such visible yet relatively painless violence may be vastly preferable to an excruciatingly painful death hidden behind a veneer of medication. The States may well be reluctant to pull back the curtain for fear of how the rest of us might react to what
|
Justice Kennedy
| 1,999 | 4 |
dissenting
|
Jones v. United States
|
https://www.courtlistener.com/opinion/118274/jones-v-united-states/
|
The question presented is whether the federal carjacking statute, prohibiting the taking of a motor vehicle from the person or presence of another by force and violence or by intimidation, contains in the first paragraph a complete definition of the offense, with all of the elements of the crime Congress intended to codify. 18 U.S. C. 2119. n my view, shared by every Court of Appeals to have addressed the issue, it does. The Court adopts a contrary, strained reading according to which the single statutory section prohibits three distinct offenses. Had it involved simply a question of statutory interpretation, the majority opinion would not have been cause for much concern. Questions of statutory interpretation can be close but nonetheless routine. That should have been so in today's case. The Court, however, is unwilling to rest its opinion on textual analysis. Rather, to bolster its statutory interpretation, the Court raises the specter of "`grave and doubtful constitutional questions,' " ante, at 239, without an adequate explanation of the origins, contours, or consequences of its constitutional concerns. The Court's reliance on the so-called constitutional doubt rule is inconsistent with usual principles of stare decisis and contradicts the approach followed just last Term in Our precedents admit of no real doubt regarding the power of Congress to establish serious bodily injury and death as sentencing factors rather than offense elements, as we made clear in Almendarez-Torres. Departing from this recent authority, the Court's sweeping constitutional discussion casts doubt on sentencing practices and assumptions followed not only in the federal system but also in many Thus, among other unsettling consequences, today's decision intrudes upon legitimate and vital state interests, upsetting the proper federal balance. dissent from this unfortunate and unnecessary result. *255 Before it departs on its troubling constitutional discussion, the Court analyzes the text of 2119. This portion of the Court's opinion, it should be acknowledged, is careful and comprehensive. n my submission, however, the analysis suggests the presence of more interpretative ambiguity than in fact exists and reaches the wrong result. Like the Court, begin with the textual question. Criminal laws proscribe certain conduct and specify punishment for transgressions. A person commits a crime when his or her conduct violates the essential parts of the defined offense, which we refer to as its elements. As a general rule, each element of a charged crime must be set forth in an indictment, and established by the government by proof beyond a reasonable doubt, n re Winship, as determined by a jury, assuming the jury right is invoked, ; The same rigorous requirements
|
Justice Kennedy
| 1,999 | 4 |
dissenting
|
Jones v. United States
|
https://www.courtlistener.com/opinion/118274/jones-v-united-states/
|
the jury right is invoked, ; The same rigorous requirements do not apply with respect to "factors relevant only to the sentencing of an offender found guilty of the charged crime." ; see also "[T]he question of which factors are which is normally a matter for Congress." 523 U. S., n determining whether clauses (1)-(3) of 2119 set forth sentencing factors or define distinct criminal offenses, our task is to "look to the statute before us and ask what Congress intended." The statute is as follows: "Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall *256 "(1) be fined under this title or imprisoned not more than 15 years, or both, "(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and "(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both." 18 U.S. C. 2119 (1988 ed., Supp. V). As the Court is quite fair to acknowledge, the first reading or initial look of the statute suggests that clauses (1)-(3) are sentencing provisions. Ante, at 232. n my view, this conclusion survives further and meticulous examination. Section 2119 begins by setting forth in its initial paragraph elements typical of a robbery-type offense. For all ordinary purposes, this is a complete crime. f, for instance, there were only a single punishment, as provided in clause (1), think there could be no complaint with jury instructions drawn from the first paragraph of 2119, without reference to the punishment set forth in clause (1). The design of the statute yields the conclusion that the following numbered provisions do not convert each of the clauses into additional elements. These are punishment provisions directed to the sentencing judge alone. To be sure, the drafting could have been more clear, and my proffered interpretation would have been better implemented, if the word "shall" at the end of the first paragraph had been followed by a verb form (e. g., "be punished") and a period. Even as written, though, the statute sets forth a complete crime in the first paragraph. t is difficult to see why Congress would double back and insert additional elements for the jury's consideration in clauses (2) and (3). The more likely explanation is
|
Justice Kennedy
| 1,999 | 4 |
dissenting
|
Jones v. United States
|
https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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in clauses (2) and (3). The more likely explanation is that Congress set forth the offense first and the punishment second, without intending to combine the two. Unlike the Court, am unpersuaded by other factors that this commonsense reading is at odds with congressional intent. As to the substance of clauses (2) and (3), the harm *257 from a crimeincluding whether the crime, after its commission, results in the serious bodily injury or death of a victimhas long been deemed relevant for sentencing purposes. Like recidivism, it is "as typical a sentencing factor as one might imagine," a point the Court cannot dispute. To fix punishment based on the harm resulting from a crime has been the settled practice under traditional, discretionary sentencing regimes. See, e. g., U. S. Dept. of Justice, W. Rhodes & C. Conly, Analysis of Federal Sentencing X-13, XV-11 (Federal Justice Research Program Rep. No. FJRP-81/004, 1981) (under preguidelines practice, with respect to a variety of crimes, the amount of harm threatened or done to victims made a significant difference in the length of sentence). Even if we confine our attention to codified law, however, examples abound to prove the point. Other federal statutes, as the Court notes, treat serious bodily injury as a sentencing factor. Ante, at 235. As for state law, common practice discloses widespread reliance on victim-impact factors for sentencing purposes. See, e. g., Alaska Stat. Ann. 12.55.125(c)(2) ; Ariz. Rev. Stat. Ann. 13.702(C) ("serious physical injury"); Colo. Rev. Stat. 18-105(9)(f) (1997) ; Fla. Stat. Ann. 921.0016(3) (Supp. 1999) ("permanent physical injury"); Haw. Rev. Stat. 706-662(5) (Supp. 1996) ; ll. Comp. Stat., ch. 730, 5/5-5-3.2(a) (1997) ("serious harm"); La. Code Crim. Proc. Ann., Art. 894.1(B)(5) (West 1997) ("risk of death or great bodily harm to more than one person"); N. J. Stat. Ann. 2C:44-1(a)(2) ("gravity and seriousness of harm inflicted on the victim"); N. C. Gen. Stat. 15A-1340.16(d)(19) (1997) ("[t]he serious injury inflicted upon the victim is permanent and debilitating"); Ohio Rev. Code Ann. 2929.12(B)(2) (1997) ; Ore. Admin. Rules 213-0080002(1)(b)() (1997) ("permanent injury"); Tenn. Code Ann. *258 40-35-114(12) (1997) ("death or serious bodily injury"); Utah Code of Judicial Admin., App. D, Form 2 ("substantial bodily injury"). Given this widespread understanding, there is nothing surprising or anomalous in the conclusion that Congress chose to treat serious bodily injury and resulting death as sentencing factors in 2119. n addition, the plain reading of 2119 is reinforced by common patterns of statutory drafting. For example, in one established statutory model, Congress defines the elements of an offense in an initial paragraph ending with the phrase
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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an offense in an initial paragraph ending with the phrase "shall be punished as provided in" a separate subsection. The subsection provides for graded sentencing ranges, predicated upon specific findings (such as serious bodily injury or death). See, e. g., 8 U.S. C. 1324(a)(1). Section 2119 follows a similar logic. t is true that clauses (1)-(3) are not separated into a separate subsection, thus giving rise to the textual problem we must resolve. Congress does not always separate sentencing factors into separate subsections, however. See, e. g., 18 U.S. C. 1347 (1994 ed., Supp. ) (health-care fraud; enhanced penalties if the violation "results in serious bodily injury" or "results in death"). As with statutes like 1324, the structure of 2119 suggests a design which defines the offense first and the punishment afterward. n addition, there is some significance in the use of the active voice in the main paragraph and the passive voice in clauses (2) and (3) of 2119. n the more common practice, criminal statutes use the active voice to define prohibited conduct. See, e. g., 18 U.S. C. 1116 (1994 ed., Supp. ) ("[w]hoever kills or attempts to kill"); 2114 ("assaults," "robs or attempts to rob," "receives, possesses, conceals, or disposes"); Tex. Penal Code Ann. 29.03(a)(1), (2) (aggravated robbery; "causes serious bodily injury," or "uses or exhibits a deadly weapon"); cf. 18 U.S. C. 248(b) (setting forth, as sentencing factors, "if bodily injury results," and "if death results"); United Sentencing *259 Commission, Guidelines Manual 2B3.1(b)(3) (robbery guideline; "[i]f any victim sustained bodily injury"). These drafting conventions are not absolute rules. Congress uses active language in phrasing sentencing factors in some instances. See, e. g., 18 U.S. C. 2262(b)(3) (1994 ed., Supp. ) ("if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense"). Nevertheless, the more customary drafting conventions support, rather than contradict, the interpretation that 2119 sets forth but one offense. The Court offers specific arguments regarding these background considerations, each deserving of consideration and response. First, as its principal argument, the Court cites the three federal robbery statutes on which (according to the legislative history) 2119 was modeled. As the Court acknowledges, however, one of those statutes, 18 U.S. C. 2111, does not refer to "serious bodily injury" or "death" "result[ing]" at all. Because of the omission, the Court deems this statute irrelevant for our purposes. Yet the Committee Report cited by the Court states that "`[t]he definition of the offense' " in 2119 "`tracks the language used in other federal robbery statutes' " including 2111. Ante,
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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used in other federal robbery statutes' " including 2111. Ante, at 235, n. 4 (quoting H. R. Rep. No. 102-851, pt. 1, p. 17 (1992)). The definition of the offense in 2119 includes "tak[ing]" or "attempt[ing]" to take a motor vehicle, "from the person or presence of another," "by force and violence or by intimidation." This is altogether consistent with the definition of the offense in 2111, which provides in part that "[w]hoever by force and violence, or by intimidation, takes or attempts to take from the person or presence of another" something of value "shall be imprisoned." Of course 2111 and 2119 each include at least one element the other does not (e. g., "within the special maritime and territorial jurisdiction of the United " in the former, "transported, shipped, or received in interstate or foreign commerce" in the latter). Those elements, *260 however, are included in unambiguous fashion in the offense-defining part of the statutes. With respect to the debatable interpretive questionwhether serious bodily injury and death are part of the carjacking offensethe circumstance that the definition of the offense in 2119 is based on 2111 and that 2111 does not include these elements suggests 2119 does not include the elements either. Passing over 2111, the Court suggests 2113 and 2118 support its reading of 2119. disagree. Section 2113, captioned "Bank robbery and incidental crimes," consists of eight subsections. The last three are definitional and irrelevant to the question at hand. The first subsection, subsection (a), proscribes the crime of bank robbery in language that tracks the definition of the offense in 2119, i. e., "tak[ing], or attempt[ing] to take," something of value "from the person or presence of another," "by force and violence, or by intimidation." Subsection (b) proceeds to define the offense of bank larceny and is cast in different termsas is natural in light of the different conduct proscribed. Subsections (d) and (e) of 2113, the two subsections relied upon by the Court, provide as follows: "(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both. "(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person,
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment." *261 We have not held that subsections (d) and (e) set forth separate offenses. (The Court's citations to AlmendarezTorres and McMillan on this score are inapt. n neither case did we hold that 2113(d) and (e) set forth distinct offenses.) Assuming they do, however, they fail to prove the Court's point, for two reasons. First, as a matter of structure, 2113 is divided into distinct subsections with a parallel form. Excluding the definitional provisions at the end, each of the five subsections begins with the word "[w]hoever," followed by specified conduct. Given that some of these subsections (e. g., subsections (a) and (b)) set forth distinct offenses, it is fair to presume their like structured neighbors do so as well. One finds no analogous subsections in 2119 with which clauses (1)-(3) can be matched. On the contrary, clause (1) plainly fails to introduce anything that could be construed as an offense element, making it all the less likely that offense elements are introduced in clauses (2) and (3). Second, the phrases from 2113 cited by the Court"assaults any person" and "puts in jeopardy the life of any person by the use of a dangerous weapon or device"are rather different from the "serious bodily injury results" and "death results" language of 2119. The former phrases occur before, not after, the punishment-introducing clause "shall be" They are also phrased in the active voice, placing attention on the defendant's actions, rather than their consequences. The "or if death results" phrase at the end of subsection (e) is a closer analogue to clauses (2) and (3) of 2119, but there is no reason to assume that this phrase by itself as opposed to the preceding portion of subsection (e)defines an element of an offense. With respect to 2118, the Court asserts without citation to authority that the phrase "another person suffered significant bodily injury" in subsection (a)(3) is an element of the offense. Ante, at 235-236. Even assuming the Court is correct on the point, however, the differences in structure between that provision and 2119 show them not to be comparable. *262 Clauses (1)-(3) in 2119 set forth alternative sentences; but the three clauses in 2118(a) set forth alternative ways of qualifying for the only punishment provided. The more natural reading is that the drafters of 2119 took from 2118 the
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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is that the drafters of 2119 took from 2118 the same thing they took from 2111 and 2113: the language defining the basic elements of robbery. t is this language, and not other provisions, that is common to all four statutes. n short, even indulging the Court's assumptions, the federal robbery statutes do not support the conclusion that 2119 contains three substantive offenses. Rather, all four statutes employ similar language to define the elements of a basic robbery-type offense. t is in this sense that 2119 is modeled on 2111, 2113, and 2118. The Court next relies on the consumer product-tampering statute, 18 U.S. C. 1365(a), as support for its reading of 2119. t is indeed true, as the Court suggests, that the structure and phrasing of 1365(a) is similar to the carjacking statute. However, neither the Court nor, my research indicates, any Court of Appeals has held that 1365(a) creates multiple offenses. The only case cited for the proposition that "the Courts of Appeals treat the statute as defining basic and aggravated offenses," ante, at 234, establishes nothing of the kind. There, the Court of Appeals did no more than recite that the defendant had been charged and convicted on multiple counts of product tampering, under three subsections of 1365(a). United v. Meling, None of the issues presented turned on whether the subsections set forth additional elements. The Court's final justification for its reading of 2119 rests on state practice. Of course, the Court cannot argue that do not take factors like serious bodily injury into account at sentencing; as discussed above, they do. nstead, the Court says many have created a distinct offense of aggravated robbery, requiring proof of serious bodily injury *263 or harm. This is unremarkable. The laws reflect nothing more than common intuition that a forcible theft, all else being equal, is more blameworthy when it results in serious bodily injury or death. have no doubt Congress was responding to this same intuition when it added clauses (2) and (3) to 2119. Recognizing the common policy concern, however, gives scant guidance on the question before us: whether Congress meant to give effect to the policy by making serious bodily injury and death elements of distinct offenses or by making them sentencing factors. agree with the Court that these state statutes are not direct authority for the issue presented here. Ante, at 237. The persuasive force of the Court's state-law citations is further undercut by the structural differences between those laws and 2119. Ten of the thirteen statutes cited by the Court follow the same pattern.
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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thirteen statutes cited by the Court follow the same pattern. One statutory section sets forth the elements of the basic robbery offense. Another section (captioned "Aggravated robbery" or "Robbery in the first degree") incorporates the basic robbery offense (either by explicit cross-reference or by obvious implication), adds the bodily or physical injury element (in the active voice), and then provides that the aggravated crime is subject to a higher penalty set forth elsewhere (e. g., "a class A felony"). Two of the remaining three statutes, N. Y. Penal Law 160.15 (McKinney 1988), and Ky. Rev. Stat. Ann. 515.020 deviate from this pattern in only minor respects while the third, N. H. Rev. Stat. Ann. 636:1 (1996), has a singular structure. Had Congress wished to emulate this state practice in detail, one might have expected it to structure 2119 in a similar manner to the majority model. Cf. 18 U.S. C. 2113(e), (d). t did not do so. This suggests to me either (i) that Congress chose a different structure than utilized by the in order to show its intent to treat "serious bodily injury" as a sentencing factor, or (ii) that Congress simply did not concentrate on state practice in deciding whether "serious *264 bodily injury" should be classed as an element or a sentencing factor. Neither possibility sustains the Court's interpretation of 2119. Although the Court, in my view, errs in its reading of 2119 as a simple matter of statutory construction, of far greater concern is its constitutional discussion. n order to inject the rule of constitutional doubt into the case, the Court treats the relevant line of authorities from Winship to Almendarez-Torres as if it had been the Court's purpose to write them at odds with each other, not to produce a coherent body of case law interpreting the relevant constitutional provisions. This attempt to create instability is neither a proper use of the rule of constitutional doubt nor a persuasive reading of our precedents. We have settled more than the Court's opinion says. n re Winship, made clear what has long been accepted in our criminal justice system. t is the principle that in a criminal case the government must establish guilt beyond a reasonable doubt. To implement this constitutional protection, it follows, there must be an understanding of the essential elements of the crime; and cases like this one will arise, requiring statutory analysis. Nonetheless, the holding of the first case decided in the wake of Winship, now seems straightforward. n homicide cases, Maine sought to presume malice from the fact of an intentional killing
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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to presume malice from the fact of an intentional killing alone, subject to the defendant's right to prove he had acted in the heat of passion. This was so even though "the fact at issuethe presence or absence of the heat of passion on sudden provocationhas been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide." As we later explained, Mullaney "held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that *265 it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense." n Patterson, the Court confronted a state rule placing on the defendant the burden of establishing extreme emotional disturbance as an affirmative defense to murder. As today's majority opinion recognizes, Patterson stands for the proposition that the State has considerable leeway in determining which factors shall be included as elements of its crimes. We determined that New was permitted to place the burden of proving the affirmative defense on defendants because "nothing was presumed or implied against" them. n we upheld a state law requiring imposition of a mandatory minimum sentence upon the trial judge's determination that the defendant had visibly possessed a firearm during the commission of an enumerated offense. Today's majority errs, in my respectful view, by suggesting McMillan is somewhat inconsistent with Patterson. McMillan' s holding follows easily from Patterson. McMillan confirmed the State's authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the crime. The opinion made clear that we had already "rejected the claim that whenever a State links the `severity of punishment' to `the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt." (quoting ). n today's decision, the Court chooses to rely on language from McMillan to create a doubt where there should be none. Ante, at 242. Yet any uncertainty on this score ought to have been put to rest by our decision last Term in Almendarez-Torres. To say otherwise, the majority must strive to limit Almendarez-Torres, just as it must struggle *266 with Patterson and McMillan. Almendarez-Torres, however, controls the question before us. As an initial matter, Almendarez-Torres makes clear that the constitutional doubt methodology employed by the Court today is incorrect. t teaches that the constitutional doubt canon of construction is applicable only if the statute at issue is "genuinely susceptible to two constructions
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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the statute at issue is "genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a `fair' one." For the reasons given in Part the Court of Appeals' interpretation of 2119 is, in my view, superior to petitioner's reading. At a minimum, the question whether 8 U.S. C. 1326(b), the statute at issue in Almendarez-Torres, set forth sentencing factors or elements of distinct offenses was a closer one than the statutory question presented here. Yet we found insufficient ambiguity to warrant application of the constitutional doubt principle Unless we are to abandon any pretense of consistency in the application of the principle, it is incumbent on the Court to explain how it reconciles its analysis with Almendarez-Torres. Not only is the proper construction of the statute clearer here, but there is less reason, in light of Almendarez-Torres itself, to question the constitutionality of the statute as construed by the Court of Appeals. The insubstantiality of the Court's constitutional concern is indicated by its quite summary reference to the principle of constitutional law the statute might offend. The Court puts the argument this way: "[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Ante, at 243, n. 6. t suggests the carjacking statute violates this principle because absent a finding of serious bodily injury, a defendant may be sentenced to a maximum of 15 years' imprisonment and, absent a finding of death, he may be sentenced to a maximum of 25 years' imprisonment. *267 A finding of serious bodily injury increases the maximum penalty for the crime of carjacking from 15 to 25 years' imprisonment and a finding of death increases the maximum to life imprisonment. f the Court is to be taken at its word, Congress could comply with this principle by making only minor changes of phraseology that would leave the statutory scheme, for practical purposes, unchanged. Congress could leave the initial paragraph of 2119 intact, and provide that one who commits the conduct described there shall "be imprisoned for any number of years up to life." t could then add that "if the sentencing judge determines that no death resulted, one convicted under this section shall be imprisoned not more than 25 years" and "if the sentencing judge determines that no serious bodily injury resulted, one convicted under this section shall be imprisoned not more than 15 years." The practical result would be
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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not more than 15 years." The practical result would be the same as the current version of 2119 (as construed by the Court of Appeals): The jury makes the requisite findings under the initial paragraph, and the court itself sentences the defendant within one of the prescribed ranges based on the judge's own determination whether serious bodily injury or death resulted. The Court does not tell us whether this version of the statute would pass constitutional muster. f so, the Court's principle amounts to nothing more than chastising Congress for failing to use the approved phrasing in expressing its intent as to how carjackers should be punished. No constitutional values are served by so formalistic an approach, while its constitutional costs in statutes struck down or, as today, misconstrued, are real. f, on the other hand, a rephrased 2119 would still violate the Court's underlying constitutional principle, the Court ought to explain how it would determine which sentencing schemes cross the constitutional line. For example, a statute that sets a maximum penalty and then provides detailed sentencing criteria to be applied by a sentencing judge (along *268 the lines of the federal Sentencing Guidelines) would be only a more detailed version of the rephrased 2119 suggested above. We are left to guess whether statutes of that sort might be in jeopardy. (Further, by its terms, Justice Scalia's viewe"that it is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed," ante, at 253 (concurring opinion)would call into question the validity of judge-administered mandatory minimum sentencing provisions, contrary to our holding in McMillan. Once the facts triggering application of the mandatory minimum are found by the judge, the sentencing range to which the defendant is exposed is altered.) n light of these uncertainties, today's decision raises more questions than the Court acknowledges. n any event, the Court's constitutional doubts are not well founded. n Almendarez-Torres, we squarely rejected the petitioner's argument that "any significant increase in a statutory maximum sentence would trigger a constitutional `elements' requirement"; as we said, the Constitution "does not impose that requirement." See also ndeed, the dissenters in Almendarez-Torres had no doubt on this (arguing that "there was, until today's unnecessary resolution of the point, `serious doubt' whether the Constitution permits a defendant's sentencing exposure to be increased tenfold on the basis of a fact that is not charged, tried to a jury, and found beyond a reasonable doubt"). The Court suggests two bases on which AlmendarezTorres is distinguishable, neither of which
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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two bases on which AlmendarezTorres is distinguishable, neither of which is persuasive. First, the Court suggests that this case is "concerned with the Sixth Amendment right to jury trial and not alone the *269 rights to indictment and notice as claimed by AlmendarezTorres." Ante, at 248-249. This is not avalid basis upon which to distinguish Almendarez-Torres. The petitioner in Almendarez-Torres claimed that "the Constitution requires Congress to treat recidivism as an element of the offense" and that, as a corollary, "[t]he Government must prove that `element' to a jury." The Court has not suggested in its previous opinions, moreover, that there is a difference, in the context relevant here, between, on the one hand, a right to a jury determination, and, on the other, a right to notice by indictment and to a determination based upon proof by the prosecution beyond a reasonable doubt. The Court offers no reason why the concept of an element of a crime should mean one thing for one inquiry and something else for another. There would be little to guide us in formulating a standard to differentiate between elements of a crime for purposes of indictment, jury trial, and proof beyond a reasonable doubt. nviting such confusion is a curious way to safeguard the important procedural rights of criminal defendants. Second, the Court is eager to find controlling significance in the fact that the statute at issue in Almendarez-Torres made recidivism a sentencing factor, while the sentencing factor at issue here is serious bodily injury. This is not a difference of constitutional dimension, and AlmendarezTorres does not say otherwise. t is true that our statutory analysis was informed in substantial measure by the fact that recidivism is a common sentencing factor. n our constitutional analysis we invoked the long history of using recidivism as a basis for increasing an offender's sentence to illustrate the novel and anomalous character of the petitioner's proposed constitutional rulei. e. that under any factor that increases the maximum penalty for a crime must be deemed an element of the offense. We proceeded to reject that rule. The *270 dissenters there (like the Court today) misunderstood the import of this discussion, but they were correct in their observation that "[i]t is impossible to understand how McMillan could mean one thing in a later case where recidivism is at issue, and something else in a later case where some other sentencing factor is at issue." The constitutional portion of Almendarez-Torres also rejected the argument that constitutional concerns were raised by a "different `tradition'that of courts having treated recidivism as an element
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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"different `tradition'that of courts having treated recidivism as an element of the related crime." We found this argument unconvincing because "any such tradition is not uniform." Of course, the same is true with respect to the sentencing factors at issue here. See n sum, "there is no rational basis for making recidivism an exception." 523 U.S., (emphasis deleted). f the Court deems its new direction to be a justified departure from stare decisis, it does not make the case. There is no support for the view that Almendarez-Torres was based on a historical misunderstanding or misinterpretation. By the Court's own submission, its historical discussion demonstrates no more than that "the tension between jury powers and powers exclusively judicial" would probably and generally have informed the Framers' conception of the jury right. Ante, at 244. That must be correct, but it does not call into question the principle that "`[t]he definition of the elements of a criminal offense is entrusted to the legislature.' " Staples v. United ). The Court's historical analysis might have some bearing on the instant case if 2119 disclosed the intent to serve the real objective of punishing (without constitutional safeguards) those who caused serious bodily harm, rather than to prevent the underlying conduct of carjacking. See No *271 such inference or implication can be drawn from the text and statutory history of the offense here under consideration. n fact, the Court makes no attempt to argue that anything particular to the carjacking statute suggests the jury's role has been unconstitutionally diminished. The gravamen of the offense is carjacking coupled with a threat of bodily harm. The jury resolves these issues, i. e., whether a vehicle is taken "by force and violence or by intimidation." ndeed, whether serious bodily injury results can be outside of the defendant's control. As already explained, it is not in the least a novel view that after the offense is established, the extent of the harm caused is taken into account in the sentencing phase. n this respect, today's case is far easier than McMillan, where the sentencing factor was inherent in the criminal conduct itself. The rationale of the Court's constitutional doubt holding makes it difficult to predict the full consequences of today's holding, but it is likely that it will cause disruption and uncertainty in the sentencing systems of the Sentencing is one of the most difficult tasks in the enforcement of the criminal law. n seeking to bring more order and consistency to the process, some have sought to move from a system of indeterminate sentencing or a grant
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Justice Kennedy
| 1,999 | 4 |
dissenting
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Jones v. United States
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https://www.courtlistener.com/opinion/118274/jones-v-united-states/
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move from a system of indeterminate sentencing or a grant of vast discretion to the trial judge to a regime in which there are more uniform penalties, prescribed by the legislature. See A. Campbell, Law of Sentencing 1:3, 4:6-4:8 (2d ed. 1991). These should not be confronted with an unexpected rule mandating that what were once factors bearing upon the sentence now must be treated as offense elements for determination by the jury. This is especially so when, as here, what is at issue is not the conduct of the defendant, but the consequences of a completed criminal act. A further disconcerting result of today's decision is the needless doubt the Court's analysis casts upon our cases involving capital sentencing. For example, while in we viewed the aggravating *272 factors at issue as sentencing enhancements and not as elements of the offense, the same is true of serious bodily injury under the reading of 2119 the Court rejects as constitutionally suspect. The question is why, given that characterization, the statutory scheme in Walton was constitutionally permissible. Under the relevant Arizona statute, Walton could not have been sentenced to death unless the trial judge found at least one of the enumerated aggravating factors. See Ariz. Rev. Stat. Ann. 13-703 (1989). Absent such a finding, the maximum potential punishment provided by law was a term of imprisonment. f it is constitutionally impermissible to allow a judge's finding to increase the maximum punishment for carjacking by 10 years, it is not clear why a judge's finding may increase the maximum punishment for murder from imprisonment to death. n fact, Walton would appear to have been a better candidate for the Court's new approach than is the instant case. n Walton, the question was the aggravated character of the defendant's conduct, not, as here, a result that followed after the criminal conduct had been completed. n distinguishing this line of precedent, the Court suggests Walton did not "squarely fac[e]" the key constitutional question "implicated by the Government's position on the meaning of 2119(2)." Ante, at 251. The implication is clear. Reexamination of this area of our capital jurisprudence can be expected. * * * The Court misreads 2119 and seeks to create constitutional doubt where there is none. n my view, AlmendarezTorres controls this case. would hold 2119 as interpreted by the Court of Appeals constitutional, and dissent from the opinion and judgment of the Court
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Justice White
| 1,978 | 6 |
majority
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Procunier v. Navarette
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https://www.courtlistener.com/opinion/109776/procunier-v-navarette/
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Respondent Navarette, an inmate of Soledad Prison in California when the events revealed here occurred, filed his second amended complaint on January 19, 1974, charging six prison officials with various types of conduct allegedly violative of his constitutional rights and of 42 U.S. C. 1983 and 1985.[1] Three of the defendants were subordinate officials at Soledad;[2] three were supervisory officials: the director of the *557 State Department of Corrections and the warden and assistant warden of Soledad. The first three of nine claims for relief alleged wrongful interference with Navarette's outgoing mail. The first claim charged that the three subordinate officers, who were in charge of mail handling, had failed to mail various items of correspondence during the 15 months that respondent was incarcerated at Soledad, from September 1, to December 11, These items, described in 13 numbered paragraphs, included letters to legal assistance groups, law students, the news media, and inmates in other state prisons, as well as personal friends. Some of these items had been returned to Navarette, some the defendants had refused to send by registered mail as Navarette had requested, and, it was alleged, none of the items had ever reached the intended recipient. This "interference" or "confiscation" was asserted to have been in "knowing disregard" of the applicable state-wide prisoner mail regulations[3] and of Navarette's "constitutional rights," including his rights to free speech and due process as guaranteed by the First, Fifth, and Fourteenth *558 Amendments to the United States Constitution. The three supervisory officers were alleged to have knowingly condoned this conduct and to have conspired with their subordinates for forbidden ends. The second claim for relief alleged wrongful failure to mail the same items of correspondence and asserted that the "interference or confiscation" had been conducted with "bad faith disregard" for Navarette's rights. The third claim posed the same failures to mail but claimed that the "interference" or "confiscation" had occurred because the three subordinate officers had "negligently and inadvertently" misapplied the prison mail regulations and because the supervisory officers had "negligent[ly]" failed to provide sufficient training and direction to their subordinates, all assertedly in violation of Navarette's constitutional rights. Petitioners moved for dismissal for failure to state a claim on which relief could be granted or alternatively for summary judgment. Affidavits in support of the motion and counter-affidavits opposing it were also before the District Court. By order and without opinion, the court then granted summary judgment for petitioners on the first three claims and dismissed the remaining claims for failure to state a federal claim.[4] The Court of Appeals reversed as
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Procunier v. Navarette
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state a federal claim.[4] The Court of Appeals reversed as to the first three claims. It held, first, that prisoners themselves are entitled to First and Fourteenth Amendment protection for their outgoing mail and that Navarette's allegations were sufficient to encompass proof that would entitle him to relief in damages. Second, the court ruled *559 that summary judgment on the first two claims was improper because there were issues of fact to be tried, particularly with respect to the claim that "a reasonable and good faith belief of a state official that his or her conduct is lawful, even where in fact it is not, constitutes a complete defense to a 1983 claim for damages." Third, the Court of Appeals held that Navarette's "allegations that state officers negligently deprived him of [his constitutional] rights state a 1983 cause of action" and that summary judgment on the third purported claim was "improper because, as in the case of counts one and two, viewing the evidence in the light most favorable to Navarette, we are unable to say appellees are entitled to prevail as a matter of law." and n. 6.[5] We granted certiorari, and the question before us is whether the Court of Appeals correctly reversed the District Court's judgment with respect to Navarette's third claim for relief alleging negligent interference with a claimed constitutional right.[6] *560 In support of their motion for summary judgment, petitioners argued that on the record before the court they were immune from liability for damages under 1983 and hence were entitled to judgment as a matter of law. The claim was not that they shared the absolute immunity accorded judges and prosecutors but that they were entitled to the qualified immunity accorded those officials involved in and The Court of Appeals appeared to agree that petitioners were entitled to the claimed degree of immunity but held that they were nevertheless not entitled to summary judgment because in the court's view there were issues of fact to be resolved and because when the facts were viewed most favorably to respondent, it could not be held that petitioners were entitled to judgment as a matter of law. Without disagreeing that petitioners enjoyed a qualified immunity from damages liability under 1983, respondent defends *561 the judgment of the Court of Appeals as a proper application of 1983 and of the Court's cases construing it. Although the Court has recognized that in enacting 1983 Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending wholesale revocation
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section has been consistently construed as not intending wholesale revocation of the common-law immunity afforded government officials. Legislators, judges, and prosecutors have been held absolutely immune from liability for damages under 1983. ; ; Only a qualified immunity from damages is available to a state Governor, a president of a state university, and officers and members of a state National Guard. The same is true of local school board members, of the superintendent of a state hospital, ; and of policemen, see We agree with petitioners that as prison officials and officers, they were not absolutely immune from liability in this 1983 damages suit and could rely only on the qualified immunity described in and [7] Scheuer declared: "[I]n varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as *562 they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." -248. We further held in that "if the work of the schools is to go forward," there must be a degree of immunity so that "public school officials understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity." This degree of immunity would be unavailable, however, if the official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." The official cannot be expected to predict the future course of constitutional law, ibid.; but he will not be shielded from liability if he acts "with such disregard of the [plaintiff's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." 420 U.S., Under the first part of the rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that
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Procunier v. Navarette
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conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Petitioners claim that in and when the conduct involved in this case took place there was no established First Amendment right protecting the mailing *563 privileges of state prisoners and that hence there was no such federal right about which they should have known. We are in essential agreement with petitioners in this respect and also agree that they were entitled to judgment as a matter of law. In ruling that petitioners' conduct had encroached on Navarette's First Amendment rights, the Court of Appeals relied on two of its own decisions, one in 1973 and the other in 1974, as well as upon (ND Cal.), a 1973 three-judge court opinion with which the Court of Appeals said it was in essential agreement. The court relied on no earlier opinions, and this Court, in affirming the judgment in did so on the ground that the constitutional rights of the addressees of a prisoner's correspondence were involved when prison officials interfered with a prisoner's outgoing mail. The question of the rights of the prisoner himself was left open. The Court referred to the "tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights" which has "led the federal courts to adopt a variety of widely inconsistent approaches to the problem" of constitutional challenges to censorship of prisoner mail and to the "absence of any generally accepted standard for testing the constitutionality of prison mail censorship regulations" Some Courts of Appeals were said to have maintained a "hands off posture";[8] others to have extended various degrees of protection to prisoners' mail.[9] The Court *564 referred to no relevant pronouncements by courts in the Ninth Circuit other than the one then under review; and it is apparent that Procunier, the defendant in the Martinez suit and in this one, was then maintaining that there was no established constitutional right protecting prison mail under which his mail regulations could be challenged.[10] Respondent relies on ; aff'd sub nom. ; ; ; and But none of these cases deals with the rights of convicted prisoners in their mail and none furnishes an adequate basis for claiming that in and there was a "clearly established" constitutional right protecting Navarette's correspondence involved in this case.[11] *565 Whether the state of the law is evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court, there
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Courts of Appeals, or of the local District Court, there was no "clearly established" First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners in -.[12] As a matter of law, therefore, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct "cannot reasonably be characterized as being in good faith." 420 U. S.,[13] *566 Neither should petitioners' immunity defense be overruled under the second branch of the standard, which would authorize liability where the official has acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury." This part of the rule speaks of "intentional injury," contemplating that the actor intends the consequences of his conduct. See Restatement (Second) of Torts 8A (1965). The third claim for relief with which we are concerned here, however, charges negligent conduct, which normally implies that although the actor has subjected the plaintiff to unreasonable risk, he did not intend the harm or injury that in fact resulted. See at 282 and Comment d. Claims 1 and 2 of the complaint alleged intentional and bad-faith conduct in disregard of Navarette's constitutional rights; but claim 3, as the court below understood it and as the parties have treated it, was limited to negligence. The prison officers were charged with negligent and inadvertent interference with the mail and the supervisory personnel with negligent failure to provide proper training. To the extent that a malicious intent to harm is a ground for denying immunity, that consideration is clearly not implicated by the negligence claim now before us.[14] We accordingly conclude that the District Court was correct in entering summary judgment for petitioners on the third claim of relief and that the Court of Appeals erred in holding otherwise. The judgment of the Court of Appeals is Reversed. MR.
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Comptroller of Treasury of Md. v. Wynne
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https://www.courtlistener.com/opinion/2801433/comptroller-of-treasury-of-md-v-wynne/
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This case involves the constitutionality of an unusual feature of Maryland’s personal income tax scheme. Like many other States, Maryland taxes the income its resi dents earn both within and outside the State, as well as the income that nonresidents earn from sources within Maryland. But unlike most other States, Maryland does not offer its residents a full credit against the income taxes that they pay to other States. The effect of this scheme is that some of the income earned by Maryland residents outside the State is taxed twice. Maryland’s scheme creates an incentive for taxpayers to opt for intra state rather than interstate economic activity. We have long held that States cannot subject corporate income to tax schemes similar to Maryland’s, and we see no reason why income earned by individuals should be treated less favorably. Maryland admits that its law has the same economic effect as a state tariff, the quintessen tial evil targeted by the dormant Commerce Clause. We therefore affirm the decision of Maryland’s highest court and hold that this feature of the State’s tax scheme vio 2 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court lates the Federal Constitution. I Maryland, like most States, raises revenue in part by levying a personal income tax. The income tax that Mary land imposes upon its own residents has two parts: a “state” income tax, which is set at a graduated rate, Md. Tax-Gen. Code Ann. (Supp. 2014), and a so- called “county” income tax, which is set at a rate that varies by county but is capped at 3.2%, 10–106 (2010). Despite the names that Maryland has assigned to these taxes, both are State taxes, and both are collected by the State’s Comptroller of the Treasury. 141–142, 483, 492 (2011). Of course, some Maryland residents earn income in other States, and some of those States also tax this income. If Maryland residents pay income tax to another jurisdiction for income earned there, Maryland allows them a credit against the “state” tax but not the “county” tax. 156–1, 64 A.3d 453, (2013) (case below). As a result, part of the in come that a Maryland resident earns outside the State may be taxed twice. Maryland also taxes the income of non This tax has two parts. First, nonresidents must pay the “state” income tax on all the income that they earn from sources within Maryland. (Supp. 2014), 10– 210 (2010). Second, nonresidents not subject to the county tax must pay a “special nonresident tax” in lieu of the “county” tax. at –126, 29 A.
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in lieu of the “county” tax. at –126, 29 A. 3d, at 483. The “special nonresident tax” is levied on income earned from sources within Maryland, and its rate is “equal to the lowest county income tax rate set by any Maryland county.” Maryland does not tax the income that nonresidents earn from sources outside Mary land. See Cite as: 5 U. S. (2015) 3 Opinion of the Court Respondents Brian and Karen Wynne are Maryland In 2006, the relevant tax year, Brian Wynne owned stock in Maxim Healthcare Services, Inc., a Sub- chapter S corporation.1 That year, Maxim earned income in States other than Maryland, and it filed state income tax returns in 39 States. The Wynnes earned income passed through to them from Maxim. On their 2006 Mary land tax return, the Wynnes claimed an income tax credit for income taxes paid to other States. Petitioner, the Maryland State Comptroller of the Treasury, denied this claim and assessed a tax deficiency. In accordance with Maryland law, the Comptroller allowed the Wynnes a credit against their Maryland “state” income tax but not against their “county” income tax. The Hear ings and Appeals Section of the Comptroller’s Office slightly modified the assessment but otherwise affirmed. The Maryland Tax Court also affirmed, but the Circuit Court for Howard County reversed on the ground that Maryland’s tax system violated the Commerce Clause. The Court of Appeals of Maryland affirmed. 431 Md. 147, That court evaluated the tax under the four-part test of Complete Transit, Inc. v. Brady, 430 —————— 1 Under federal law, S corporations permit shareholders “to elect a ‘pass-through’ taxation system under which income is subjected to only one level of taxation. The corporation’s profits pass through directly to its shareholders on a pro rata basis and are reported on the sharehold ers’ individual tax returns.” (2001) (citation omitted). Maryland affords similar pass-through treatment to the income of an S corporation. 64 A.3d 453, 459 (2013). By contrast, C corporations—organized under Sub- chapter C rather than S of Chapter 1 of the Internal Revenue Code— must pay their own taxes because they are considered to be separate tax entities from their shareholders. 14A W. Fletcher, Cyclopedia of the Law of Corporations 6973 (rev. ed. 2008 and Cum. Supp. 2014–2015). Because of limitations on the number and type of share holders they may have, S corporations tend to be smaller, more closely held corporations. 7026. 4 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court U. S. 274 which asks whether a “tax is applied to an activity with
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Comptroller of Treasury of Md. v. Wynne
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https://www.courtlistener.com/opinion/2801433/comptroller-of-treasury-of-md-v-wynne/
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asks whether a “tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against inter state commerce, and is fairly related to the services pro vided by the State.” The Court of Appeals held that the tax failed both the fair apportionment and nondiscrimination parts of the Complete test. With respect to fair apportionment, the court first held that the tax failed the “internal consistency” test because if every State adopted Maryland’s tax scheme, interstate com merce would be taxed at a higher rate than intrastate commerce. It then held that the tax failed the “external consistency” test because it created a risk of multiple taxation. With respect to nondiscrimination, the court held that the tax discriminated against interstate com merce because it denied residents a credit on income taxes paid to other States and so taxed income earned interstate at a rate higher than income earned intrastate. The court thus concluded that Maryland’s tax scheme was unconsti tutional insofar as it denied the Wynnes a credit against the “county” tax for income taxes they paid to other States. Two judges dissented and argued that the tax did not violate the Commerce Clause. The Court of Appeals later issued a brief clarification that “[a] state may avoid dis crimination against interstate commerce by providing a tax credit, or some other method of apportionment, to avoid discriminating against interstate commerce in viola tion of the dormant Commerce Clause.” We granted certiorari. 2 U. S. (2014). II A The Commerce Clause grants Congress power to “regu late Commerce among the several States.” Art. I, 8, cl. 3. These “few simple words reflected a central Cite as: 5 U. S. (2015) 5 Opinion of the Court concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” v. Oklahoma, Although the Clause is framed as a positive grant of power to Congress, “we have consistently held this language to contain a further, negative command, known as the dormant Com merce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject.” Oklahoma Tax Comm’n v. Jefferson Inc., 514 U.S. 175, 179 This interpretation of the Commerce Clause has been disputed. See Camps /Owatonna, (THOMAS, J., dissenting); Tyler Industries, (SCALIA, J., concurring in part and dissenting in part); License Cases, But
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concurring in part and dissenting in part); License Cases, But it also has deep roots. See, e.g., Case of the State Freight Tax, ; Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, ; Gibbons v. Ogden, By pro hibiting States from discriminating against or imposing excessive burdens on interstate commerce without con gressional approval, it strikes at one of the chief evils that led to the adoption of the Constitution, namely, state tariffs and other laws that burdened interstate commerce. Fulton ; ; (1876); see also The Federalist Nos. 7, 11 (A. Hamil ton), and 42 (J. Madison). Under our precedents, the dormant Commerce Clause 6 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court precludes States from “discriminat[ing] between transac tions on the basis of some interstate element.” Boston Stock n. 12 This means, among other things, that a State “may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.” 642 (1984). “Nor may a State impose a tax which discrim inates against interstate commerce either by providing a direct commercial advantage to local business, or by sub jecting interstate commerce to the burden of ‘multiple taxation.’ ” Northwestern States Portland Cement Co. v. Minnesota, B Our existing dormant Commerce Clause cases all but dictate the result reached in this case by Maryland’s high est court. Three cases involving the taxation of the income of domestic corporations are particularly instructive. In J. D. Adams Mfg. Indiana taxed the income of every Indiana resident (in cluding individuals) and the income that every nonresi dent derived from sources within Indiana. The State levied the tax on income earned by the plaintiff Indiana corporation on sales made out of the State. at 309. Holding that this scheme violated the dormant Commerce Clause, we explained that the “vice of the statute” was that it taxed, “without apportionment, re ceipts derived from activities in interstate commerce.” at 311. If these receipts were also taxed by the States in which the sales occurred, we warned, interstate commerce would be subjected “to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” The next year, in Gwin, & Prince, Inc. v. Henneford, we reached a similar Cite as: 5 U. S. (2015) 7 Opinion of the Court result. In that case, the State of Washington taxed all the income of persons doing business in the State. Washington levied that tax on income that
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Comptroller of Treasury of Md. v. Wynne
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in the State. Washington levied that tax on income that the plaintiff Washington corporation earned in shipping fruit from Washington to other States and foreign countries. at 436–437. This tax, we wrote, “discriminates against inter state commerce, since it imposes upon it, merely because interstate commerce is being done, the risk of a multiple burden to which local commerce is not exposed.” at 439. In the third of these cases involving the taxation of a domestic corporation, Central Greyhound Inc. v. Mealey, New York sought to tax the portion of a domiciliary bus company’s gross receipts that were derived from services provided in neighboring States. ; see also (stating that the plaintiff was a New York corporation). Noting that these other States might also attempt to tax this portion of the company’s gross receipts, the Court held that the New York scheme violated the dormant Com merce Clause because it imposed an “unfair burden” on interstate commerce. In all three of these cases, the Court struck down a state tax scheme that might have resulted in the double taxa tion of income earned out of the State and that discrimi nated in favor of intrastate over interstate economic activ ity. As we will explain, see Part II–F, infra, Maryland’s tax scheme is unconstitutional for similar reasons. C The principal dissent distinguishes these cases on the sole ground that they involved a tax on gross receipts rather than net income. We see no reason why the dis tinction between gross receipts and net income should matter, particularly in light of the admonition that we must consider “not the formal language of the tax statute 8 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court but rather its practical effect.” Complete 430 U.S., The principal dissent claims, post, at 13 (opinion of GINSBURG, J.), that “[t]he Court, historically, has taken the position that the difference between taxes on net income and taxes on gross receipts from interstate com merce warrants different results.” 2 C. Trost & P. Hart man, Federal Limitations on State and Local Taxation 2d 10:1, p. 251 (2003) (hereinafter Trost). But this historical point is irrelevant. As the principal dissent seems to acknowledge, our cases rejected this formal distinction some time ago. And the distinction between gross receipts and net income taxes was not the basis for our decisions in J. D. Adams, Gwin, and Central Greyhound, which turned instead on the threat of multiple taxation. The discarded distinction between taxes on gross re ceipts and net income was based on the notion, endorsed in some early
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income was based on the notion, endorsed in some early cases, that a tax on gross receipts is an impermissible “direct and immediate burden” on inter state commerce, whereas a tax on net income is merely an “indirect and incidental” burden. United States Glue Co. v. Town of Oak Creek, ; see also This arid distinction between direct and indirect burdens allowed “very little coherent, trustworthy guidance as to tax valid ity.” 2 Trost 9:1, at 212. And so, beginning with Justice Stone’s seminal opinion in Western Live and continuing through cases like J. D. Adams and Gwin, the direct- indirect burdens test was replaced with a more practical approach that looked to the economic impact of the tax. These cases worked “a substantial judicial reinterpreta tion of the power of the States to levy taxes on gross in come from interstate commerce.” 1 Trost 2:20, at 175. After a temporary reversion to our earlier formalism, see Spector Motor Service, Cite as: 5 U. S. (2015) 9 Opinion of the Court (1951), “the gross receipts judicial pendulum has swung in a wide arc, recently reaching the place where taxation of gross receipts from interstate commerce is placed on an equal footing with receipts from local business, in Com- plete Transit Inc. v. Brady,” 2 Trost 9:1, at 212. And we have now squarely rejected the argument that the Commerce Clause distinguishes between taxes on net and gross income. See Jefferson (ex plaining that the Court in Central Greyhound “understood the gross receipts tax to be simply a variety of tax on income”); Mfg. (rejecting a suggestion that the Commerce Clause distinguishes between gross receipts taxes and net income taxes); (“I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax”); Complete at (uphold ing a gross receipts tax and rejecting the notion that the Commerce Clause places “a blanket prohibition against any state taxation imposed directly on an interstate transaction”).2 For its part, petitioner distinguishes J. D. Adams, Gwin, and Central Greyhound on the ground that they concerned the taxation of corporations, not individuals. But it is hard to see why the dormant Commerce Clause should treat individuals less favorably than corporations. —————— 2 The principal dissent mischaracterizes the import of the Court’s statement in that a gross receipts tax is “ ‘more burdensome’ ” than a net income tax. Post, at 13. This was a statement about the relative economic impact of the taxes (a gross receipts tax applies regardless of whether the corporation makes a
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Comptroller of Treasury of Md. v. Wynne
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receipts tax applies regardless of whether the corporation makes a profit). It was not, as Justice Brennan confirmed in dissent, a suggestion that net income taxes are subject to lesser constitutional scrutiny than gross receipts taxes. Indeed, we noted in that “the actual burden on inter state commerce would have been the same had Iowa imposed a plainly valid gross-receipts tax instead of the challenged [net] income tax.” Mfg. –281 10 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court See Camps 520 U.S., at 4 (“A tax on real estate, like any other tax, may impermissibly burden interstate commerce” ). In addition, the distinction between individuals and corporations cannot stand because the taxes invalidated in J. D. Adams and Gwin, applied to the income of both individuals and corporations. See Ind. Stat. Ann., ch. 26, 64–2602 (Burns 1933) (tax in J. D. Adams); 1935 Wash. Sess. Laws ch. 180, Tit. II, 4(e), pp. 710–711 (tax in Gwin, ). Attempting to explain why the dormant Commerce Clause should provide less protection for natural persons than for corporations, petitioner and the Solicitor General argue that States should have a free hand to tax their residents’ out-of-state income because States provide their residents with many services. As the Solicitor General puts it, individuals “reap the benefits of local roads, local police and fire protection, local public schools, [and] local health and welfare benefits.” Brief for United States as Amicus Curiae 30. This argument fails because corporations also benefit heavily from state and local services. Trucks hauling a corporation’s supplies and goods, and vehicles transport ing its employees, use local roads. Corporations call upon local police and fire departments to protect their facilities. Corporations rely on local schools to educate prospective employees, and the availability of good schools and other government services are features that may aid a corpora tion in attracting and retaining employees. Thus, dispar ate treatment of corporate and personal income cannot be justified based on the state services enjoyed by these two groups of taxpayers. The sole remaining attribute that, in the view of peti tioner, distinguishes a corporation from an individual for present purposes is the right of the individual to vote. The principal dissent also emphasizes that residents can vote to change Maryland’s discriminatory tax law. Post, at 3–4. Cite as: 5 U. S. (2015) 11 Opinion of the Court The argument is that this Court need not be concerned about state laws that burden the interstate activities of individuals because those individuals can lobby and vote against legislators who support such measures. But if
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Comptroller of Treasury of Md. v. Wynne
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and vote against legislators who support such measures. But if a State’s tax unconstitutionally discriminates against inter state commerce, it is invalid regardless of whether the plaintiff is a resident voter or nonresident of the State. This Court has thus entertained and even sustained dormant Commerce Clause challenges by individual resi dents of the State that imposed the alleged burden on interstate commerce, Department of Revenue of Ky. v. Davis, ; Granholm v. Heald, 544 U.S. 469 (2005), and we have also sustained such a challenge to a tax whose burden was borne by in-state consumers, Bacchus Imports, 272 (1984).3 The principal dissent and JUSTICE SCALIA respond to these holdings by relying on dictum in that it is not the purpose of the dormant Commerce Clause “ ‘to protect state residents from their own state taxes.’ ” Post, at 3 (GINSBURG, J., dissenting); post, at 5 (SCALIA, J., dissenting). But we repudiated that dictum in West Creamery, Inc. v. Healy, where we stated that “[s]tate taxes are ordinarily paid by in-state businesses and con sumers, yet if they discriminate against out-of-state prod ucts, they are unconstitutional.” And, of course, the dictum must bow to the holdings of our many cases entertaining Commerce Clause challenges brought —————— 3 Similarly, we have sustained dormant Commerce Clause challenges by corporate residents of the State that imposed the burden on inter state commerce. See, e.g., Camps /Owatonna, ; Fulton 516 U.S. 325, 328 ; Central Greyhound 654 ; Gwin, & Prince, ; J. D. Adams Mfg. 12 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court by We find the dissents’ reliance on Goldberg’s dictum particularly inappropriate since they do not find themselves similarly bound by the rule of that case, which applied the internal consistency test to determine whether the tax at issue violated the dormant Commerce Clause. In addition, the notion that the victims of such discrimi nation have a complete remedy at the polls is fanciful. It is likely that only a distinct minority of a State’s residents earns income out of State. Schemes that discriminate against income earned in other States may be attractive to legislators and a majority of their constituents for pre cisely this reason. It is even more farfetched to suggest that natural persons with out-of-state income are better able to influence state lawmakers than large corporations head quartered in the State. In short, petitioner’s argument would leave no security where the majority of voters prefer protectionism at the expense of the few who earn income interstate. It would be particularly incongruous in the present
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Comptroller of Treasury of Md. v. Wynne
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income interstate. It would be particularly incongruous in the present case to disregard our prior decisions regarding the taxation of corporate income because the income at issue here is a type of corporate income, namely, the income of a Sub- chapter S corporation. Only small businesses may incor porate under Subchapter S, and thus acceptance of peti tioner’s submission would provide greater protection for income earned by large Subchapter C corporations than small businesses incorporated under Subchapter S. D In attempting to justify Maryland’s unusual tax scheme, the principal dissent argues that the Commerce Clause imposes no limit on Maryland’s ability to tax the income of its residents, no matter where that income is earned. It argues that Maryland has the sovereign power to tax all of the income of its residents, wherever earned, and it there Cite as: 5 U. S. (2015) 13 Opinion of the Court fore reasons that the dormant Commerce Clause cannot constrain Maryland’s ability to expose its residents (and nonresidents) to the threat of double taxation. This argument confuses what a State may do without violating the Due Process Clause of the Fourteenth Amendment with what it may do without violating the Commerce Clause. The Due Process Clause allows a State to tax “all the income of its residents, even income earned outside the taxing jurisdiction.” Oklahoma Tax Comm’n v. Chickasaw But “while a State may, consistent with the Due Process Clause, have the authority to tax a particular taxpayer, imposition of the tax may nonetheless violate the Com merce Clause.” Quill v. North Dakota, 504 U.S. 298, 305 (1992) (rejecting a due process challenge to a tax before sustaining a Commerce Clause challenge to that tax). Our decision in Camps illustrates the point. There, we held that the Commerce Clause prohibited Maine from granting more favorable tax treatment to charities that operated principally for the benefit of Maine –583. Because the plaintiff charity in that case was a Maine nonprofit corporation, there is no question that Maine had the raw jurisdictional power to tax the charity. See Chickasaw at Nonetheless, the tax failed scrutiny under the Commerce Clause. Camps at 580–581. Similarly, Maryland’s raw power to tax its residents’ out of-state income does not insulate its tax scheme from scrutiny under the dormant Commerce Clause. Although the principal dissent claims the mantle of precedent, it is unable to identify a single case that en dorses its essential premise, namely, that the Commerce Clause places no constraint on a State’s power to tax the income of its residents wherever earned. This is unsur prising. As
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of its residents wherever earned. This is unsur prising. As cases like Quill and Camps 14 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court recognize, the fact that a State has the jurisdictional power to impose a tax says nothing about whether that tax violates the Commerce Clause. See also, e.g., Barclays Bank (separately addressing due process and Commerce Clause challenges to a tax); ; Standard Pressed Steel ; Lawrence v. State Tax Comm’n of Miss., (separately addressing due process and equal protection challenges to a tax); (separately addressing due process and privileges and-immunities challenges to a tax). One good reason why we have never accepted the prin cipal dissent’s logic is that it would lead to plainly untena ble results. Imagine that Maryland taxed the income that its residents earned in other States but exempted income earned out of State from any business that primarily served Maryland Such a tax would violate the dormant Commerce Clause, see Camps and it cannot be saved by the principal dissent’s admoni tion that Maryland has the power to tax all the income of its There is no principled difference between that Commerce Clause challenge and this one. The principal dissent, if accepted, would work a sea change in our Commerce Clause jurisprudence. Legion are the cases in which we have considered and even up held dormant Commerce Clause challenges brought by residents to taxes that the State had the jurisdictional power to impose. See, e.g., Davis, ; Camps ; Fulton ; Bacchus Imports, ; Central Greyhound, 334 U.S. 653; Gwin, ; J. D. Adams, 304 U.S. 307. If the principal dissent were to prevail, all of these cases would be thrown into doubt. After all, in those Cite as: 5 U. S. (2015) 15 Opinion of the Court cases, as here, the State’s decision to tax in a way that allegedly discriminates against interstate commerce could be justified by the argument that a State may tax its residents without any Commerce Clause constraints. E While the principal dissent claims that we are departing from principles that have been accepted for “a century” and have been “repeatedly acknowledged by this Court,” see post, at 1, 2, 19, when it comes to providing supporting authority for this assertion, it cites exactly two Commerce Clause decisions that are supposedly inconsistent with our decision today. One is a summary affirmance, West Pub- lishing and neither actually supports the principal dissent’s argument. In the first of these cases, 252 U.S. 37, a resident of Illinois who earned income from oil in Oklahoma unsuccessfully argued
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Illinois who earned income from oil in Oklahoma unsuccessfully argued that his Oklahoma income tax assessment violated several provisions of the Federal Constitution. His main argument was based on due process, but he also raised a dormant Commerce Clause challenge. Although the principal dissent relies on for the proposition that a State may tax the in come of its residents wherever earned, did not reject the Commerce Clause challenge on that basis. The dormant Commerce Clause challenge in was nothing like the Wynnes’ challenge here. The tax- payer in argued that “[i]f the tax is considered an excise tax on business, rather than an income tax proper,” it unconstitutionally burdened interstate commerce. Brief for Appellant, O. T. 1919, No. 531, p. 166. The taxpayer did not argue that this burden occurred because he was subject to double taxation; instead, he argued that the tax was an impermissible direct “tax on interstate business.” That argument was based on the notion that States may not impose a tax “directly” on interstate commerce. 16 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court See at 8–9. After assuming that the taxpayer’s business was engaged in interstate commerce, we held that “it is sufficient to say that the tax is imposed not upon the gross receipts, but only upon the net proceeds, and is plainly sustainable, even if it includes net gains from interstate commerce. [United States Glue” at (citation omitted). thus did not adjudicate anything like the double taxation argument that was accepted in later cases and is before us today. And the principal dissent’s suggestion that allows States to levy discriminatory net income taxes is refuted by a case decided that same day. In Travis, a Connecticut corporation challenged New York’s net income tax, which allowed residents, but not nonresidents, certain tax exemptions. The Court first rejected the taxpayer’s due process argument as “settled by our decision in” But that due process inquiry was not the end of the matter: the Court then separately considered—and sustained—the argu ment that the net income tax’s disparate treatment of residents and nonresidents violated the Privileges and Immunities Clause. at 79–80. The second case on which the principal dissent relies, West Publishing, is a summary affirmance and thus has “considerably less precedential value than an opinion on the merits.” Illinois Bd. of A summary affir mance “ ‘is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument.’ ” (per curiam) (Burger, C. J., concurring)). The principal dissent’s reliance on the state-court decision below
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concurring)). The principal dissent’s reliance on the state-court decision below in that case is particularly inappropriate because “a summary affirmance is an affirmance of the judgment only,” and Cite as: 5 U. S. (2015) 17 Opinion of the Court “the rationale of the affirmance may not be gleaned solely from the opinion below.” 432 U.S., at Moreover, we do not disagree with the result of West Publishing. The tax in that case was levied only on “ ‘the net income of every corporation derived from sources within this State,’ ” and thus was an internally consistent and nondiscriminatory tax scheme. See West Publishing n., 862, n. Moreover, even if we did disagree with the result, the citation in our summary affirmance to United States Glue Co. suggests that our decision was based on the since-discarded distinction between net income and gross receipts taxes. West Pub- lishing did not—indeed, it could not—repudiate the double taxation cases upon which we rely. The principal dissent also finds it significant that, when States first enacted modern income taxes in the early 1900’s, some States had tax schemes similar to Mary land’s. This practice, however, was by no means univer sal. A great many States—such as Alabama, Colorado, Georgia, Kentucky, and Maryland—had early income tax schemes that allowed their residents a credit against taxes paid to other States. See Ala. Code, Tit. 51, ch. 17, 390 (1940); Colo. Stat. Ann., ch. 84A, 38 (Cum. Supp. 1951); Ga. Code Ann. 92–3111 (1974); Carroll’s Ky. Stat. Ann., ch. 108, Art. XX, 4281b–15 (Baldwin rev. 1936); Md. Ann. Code, Art. 81, ch. 277, 231 Other States also adopted internally consistent tax schemes. For example, Massachusetts and Utah taxed only the income of resi dents, not non See Mass. Gen. Laws, ch. 62 ; Utah Rev. Stat. 80–14–1 et seq. (1933). In any event, it is hardly surprising that these early state ventures into the taxation of income included some protectionist regimes that favored the local economy over interstate commerce. What is much more significant is that over the next century, as our Commerce Clause juris 18 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court prudence developed, the States have almost entirely abandoned that approach, perhaps in recognition of their doubtful constitutionality. Today, the near-universal state practice is to provide credits against personal income taxes for such taxes paid to other States. See 2 J. Hellerstein & W. Hellerstein, State Taxation, ¶20.10, pp. 20–163 to 20– 164 (3d ed. 2003).4 F 1 As previously noted, the tax schemes held to be uncon stitutional in J. D.
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tax schemes held to be uncon stitutional in J. D. Adams, Gwin, and Central Greyhound, had the potential to result in the discrimina tory double taxation of income earned out of state and created a powerful incentive to engage in intrastate rather than interstate economic activity. Although we did not use the term in those cases, we held that those schemes could be cured by taxes that satisfy what we have subse quently labeled the “internal consistency” test. See Jeffer- son (citing Gwin, as a case requiring internal consistency); see also 1 Trost 2:19, at 122–123, and n. 160 (explaining that the internal con sistency test has its origins in Western Live Stock, J. D. Adams, and Gwin, ). This test, which helps courts identify tax schemes that discriminate against interstate commerce, “looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage —————— 4 There is no merit to petitioner’s argument that Maryland is free to adopt any tax scheme that is not actually intended to discriminate against interstate commerce. Reply Brief 7. The Commerce Clause regulates effects, not motives, and it does not require courts to inquire into voters’ or legislators’ reasons for enacting a law that has a discrim inatory effect. See, e.g., Associated Industries of Mo. v. Lohman, 511 U.S. 641, 653 ; 626– 627 ; Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 352–353 Cite as: 5 U. S. (2015) 19 Opinion of the Court as compared with commerce intrastate.” See also, e.g., Tyler –248; –645; Container of By ly assuming that every State has the same tax structure, the internal consistency test allows courts to isolate the effect of a defendant State’s tax scheme. This is a virtue of the test because it allows courts to distinguish between (1) tax schemes that inher ently discriminate against interstate commerce without regard to the tax policies of other States, and (2) tax schemes that create disparate incentives to engage in interstate commerce (and sometimes result in double taxation) only as a result of the interaction of two different but nondiscriminatory and internally consistent schemes. See at 645–646; 437 U.S., at 277, n. 12; Brief for Tax Economists as Amici Curiae 23– 24 (hereinafter Brief for Tax Economists); Brief for Mi chael S. Knoll & Ruth Mason as Amici Curiae 18–23 (here inafter Brief for Knoll & Mason). The first category of taxes is typically unconstitutional; the second is not.5 See at 644–646; and n. 12. Tax schemes
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is not.5 See at 644–646; and n. 12. Tax schemes that fail the internal consistency test will fall into the first category, not the second: “[A]ny cross-border tax disadvantage that remains after applica tion of the [test] cannot be due to tax disparities”6 but is instead attributable to the taxing State’s discriminatory policies alone. —————— 5 Our cases have held that tax schemes may be invalid under the dormant Commerce Clause even absent a showing of actual double taxation. Mobil Oil v. Commissioner of Taxes of Vt., 445 U.S. 425, 444 (1980); Gwin, We note, however, that petitioner does not dispute that respondents have been subject to actual multiple taxation in this case. 6 Mason, Made in America for European Tax: The Internal Consistency Test, 49 Boston College L. Rev. 1277, 1310 20 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court Neither petitioner nor the principal dissent questions the economic bona fides of the internal consistency test. And despite its professed adherence to precedent, the principal dissent ignores the numerous cases in which we have applied the internal consistency test in the past. The internal consistency test was formally introduced more than three decades ago, see Container and it has been invoked in no fewer than seven cases, invalidat ing the tax in three of those cases. See American Assns., (2005);7 Jefferson Inc., ; Goldberg, 488 —————— 7 The principal dissent and JUSTICE SCALIA inaccurately state that the Court in American “conceded that a trucking tax ‘fail[ed] the “internal consistency” test,’ but upheld the tax anyway.” Post, at 5 (SCALIA, J., dissenting); see also post, at 14–15 (GINSBURG, J., dissent ing). The Court did not say that the tax in question “failed the ‘internal consistency test.’ ” The Court wrote that this is what petitioner argued. See American And the Court did not concede that this was true. The tax in that case was a flat tax on any truck that made point-to-point deliveries in Michigan. The tax there fore fell on all trucks that made solely intrastate deliveries and some that made interstate deliveries, namely, those that also made some intrastate deliveries. What the Court “concede[d]” was that “if all States [adopted a similar tax], an interstate truck would have to pay fees totaling several hundred dollars, or even several thousand dollars, were it to ‘top off’ its business by carrying local loads in many (or even all) other States.” But that was not the same as a concession that the tax violated the internal consistency test. The internal consistency test asks whether the adoption of
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test. The internal consistency test asks whether the adoption of a rule by all States “would place interstate commerce at a disadvantage as compared with commerce intrastate.” Oklahoma Tax Comm’n v. Jefferson Inc., Whether the Michigan trucking tax had such an effect depended on an empirical showing that petitioners failed to make, namely, that the challenged tax imposed a heavier burden on interstate truckers in general than it did on intra state truckers. Under the Michigan tax, some interstate truckers, i.e., those who used Michigan roads solely for trips that started and ended outside the State, did not pay this tax even though they benefited from the use of the State’s roads; they were thus treated more favorably than truckers who did not leave the State. Other truckers who made inter Cite as: 5 U. S. (2015) 21 Opinion of the Court U. S. 252; American Assns., Inc. v. Scheiner, 483 U.S. ; Tyler ; 467 U.S. 638; Container 2 Maryland’s income tax scheme fails the internal con sistency test.8 A simple example illustrates the point. Assume that every State imposed the following taxes, which are similar to Maryland’s “county” and “special nonresident” taxes: (1) a 1.25% tax on income that resi dents earn in State, (2) a 1.25% tax on income that resi dents earn in other jurisdictions, and (3) a 1.25% tax on income that nonresidents earn in State. Assume further that two taxpayers, April and Bob, both live in State A, but that April earns her income in State A whereas Bob earns his income in State B. In this circumstance, Bob —————— state trips, i.e., those who made some intrastate trips, were treated less favorably. As the United States explained in its brief, “[n]either record evidence nor abstract logic makes clear whether the overall effect of such a system would be to increase or to reduce existing financial disincentives to interstate travel.” Brief for United States in American Assns., O. T. 2004, No. 03–1230, p. 26. 8 In order to apply the internal consistency test in this case, we must evaluate the Maryland income tax scheme as a whole. That scheme taxes three separate categories of income: (1) the “county tax” on income that Maryland residents earn in Maryland; (2) the “county tax” on income that Maryland residents earn in other States; and (3) the “special nonresident tax” on income that nonresidents earn in Mary land. For Commerce Clause purposes, it is immaterial that Maryland assigns different labels (i.e., “county tax” and “special nonresident tax”) to these taxes. In applying the dormant Commerce Clause, they must
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these taxes. In applying the dormant Commerce Clause, they must be considered as one. Cf. Oregon Waste Systems, (independ ent taxes on intrastate and interstate commerce are “compensatory” if they are rough equivalents imposed upon substantially similar events). If state labels controlled, a State would always be free to tax domestic, inbound, and outbound income at discriminatory rates simply by attaching different labels. 22 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court will pay more income tax than April solely because he earns income interstate. Specifically, April will have to pay a 1.25% tax only once, to State A. But Bob will have to pay a 1.25% tax twice: once to State A, where he re sides, and once to State B, where he earns the income. Critically—and this dispels a central argument made by petitioner and the principal dissent—the Maryland scheme’s discriminatory treatment of interstate commerce is not simply the result of its interaction with the taxing schemes of other States. Instead, the internal consistency test reveals what the undisputed economic analysis shows: Maryland’s tax scheme is inherently discriminatory and operates as a tariff. See Brief for Tax Economists 4, 9; Brief for Knoll & Mason 2. This identity between Mary land’s tax and a tariff is fatal because tariffs are “[t]he paradigmatic example of a law discriminating against interstate commerce.” West Indeed, when asked about the foregoing analysis made by amici Tax Economists and Knoll & Mason, counsel for Maryland responded, “I don’t dispute the mathematics. They lose me when they switch from tariffs to income taxes.” Tr. of Oral Arg. 9. But Maryland has offered no reason why our analysis should change because we deal with an income tax rather than a formal tariff, and we see none. After all, “tariffs against the products of other States are so patently unconstitutional that our cases reveal not a single attempt by any State to enact one. Instead, the cases are filled with state laws that aspire to reap some of the benefits of tariffs by other means.” West None of our dissenting colleagues dispute this economic analysis. The principal dissent focuses instead on a sup posed “oddity” with our analysis: The principal dissent can envision other tax schemes that result in double taxation but do not violate the internal consistency test. This would happen, the principal dissent points out, if State A Cite as: 5 U. S. (2015) 23 Opinion of the Court taxed only based on residence and State B taxed only based on source. Post, at 17 (GINSBURG, J., dissenting); see also post,
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source. Post, at 17 (GINSBURG, J., dissenting); see also post, at 7 (SCALIA, J., dissenting). Our prior decisions have already considered and rejected this precise argument—and for good reason. For example, in we struck down an internally inconsistent tax that posed a risk of double taxation even though we recognized that there might be other permissible arrangements that would result in double taxation. Such schemes would be consti tutional, we explained, because “such a result would not arise from impermissible discrimination against interstate commerce.” The principal dissent’s protest that our distinction is “entirely circular,” post, at 17–18, n. 10, misunderstands the critical distinction, recognized in cases like between discriminatory tax schemes and double taxation that results only from the interaction of two different but nondiscriminatory tax schemes. See also 437 U.S., n. 12 (distinguishing “the potential consequences of the use of different formulas by the two States,” which is not prohib ited by the Commerce Clause, from discrimination that “inhere[s] in either State’s formula,” which is prohibited). Petitioner and the Solicitor General argue that Mary land’s tax is neutral, not discriminatory, because the same tax applies to all three categories of income. Specifically, they point out that the same tax is levied on (1) residents who earn income in State, (2) residents who earn income out of State, and (3) nonresidents who earn income in State. But the fact that the tax might have “ ‘the ad vantage of appearing nondiscriminatory’ does not save it from invalidation.” Tyler (quoting General Motors v. Washington, (1964) (Goldberg, J., dissenting)). See also American Assns., Inc. v. Scheiner, 483 U. S. at, 281 (dormant Commerce Clause applies to state taxes even when they “do not allocate tax burdens between insiders 24 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court and outsiders in a manner that is facially discriminatory”); (a state law may discriminate against interstate commerce “ ‘either on its face or in practical effect’ ” (quoting 441 U.S., at )). In this case, the internal consistency test and economic analysis—indeed, petitioner’s own concession— confirm that the tax scheme operates as a tariff and dis criminates against interstate commerce, and so the scheme is invalid. Petitioner and the principal dissent, post, at 6, also note that by offering residents who earn income in interstate commerce a credit against the “state” portion of the in come tax, Maryland actually receives less tax revenue from residents who earn income from interstate commerce rather than intrastate commerce. This argument is a red herring. The critical point is that the total tax burden on interstate
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critical point is that the total tax burden on interstate commerce is higher, not that Maryland may receive more or less tax revenue from a particular tax payer. See at 642–645. Maryland’s tax un- constitutionally discriminates against interstate commerce, and it is thus invalid regardless of how much a particular taxpayer must pay to the taxing State. Once again, a simple illustrates the point. Assume that State A imposes a 5% tax on the income that its residents earn in-state but a 10% tax on income they earn in other jurisdictions. Assume also that State A happens to grant a credit against income taxes paid to other States. Such a scheme discriminates against inter state commerce because it taxes income earned interstate at a higher rate than income earned intrastate. This is so despite the fact that, in certain circumstances, a resident of State A who earns income interstate may pay less tax to State A than a neighbor who earns income intrastate. For example, if Bob lives in State A but earns his income in State B, which has a 6% income tax rate, Bob would pay a total tax of 10% on his income, though 6% would go to Cite as: 5 U. S. (2015) 25 Opinion of the Court State B and (because of the credit) only 4% would go to State A. Bob would thus pay less to State A than his neighbor, April, who lives in State A and earns all of her income there, because April would pay a 5% tax to State A. But Bob’s tax burden to State A is irrelevant; his total tax burden is what matters. The principal dissent is left with two arguments against the internal consistency test. These arguments are incon sistent with each other and with our precedents. First, the principal dissent claims that the analysis outlined above requires a State taxing based on residence to “recede” to a State taxing based on source. Post, at 1–2. We establish no such rule of priority. To be sure, Mary land could remedy the infirmity in its tax scheme by offer ing, as most States do, a credit against income taxes paid to other States. See Tyler at 245–246, and n. 13. If it did, Maryland’s tax scheme would survive the internal consistency test and would not be inherently discriminatory. Tweak our first at 21–22, and assume that all States impose a 1.25% tax on all three categories of income but also allow a credit against income taxes that residents pay to other jurisdic tions. In that circumstance, April
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residents pay to other jurisdic tions. In that circumstance, April (who lives and works in State A) and Bob (who lives in State A but works in State B) would pay the same tax. Specifically, April would pay a 1.25% tax only once (to State A), and Bob would pay a 1.25% tax only once (to State B, because State A would give him a credit against the tax he paid to State B). But while Maryland could cure the problem with its current system by granting a credit for taxes paid to other States, we do not foreclose the possibility that it could comply with the Commerce Clause in some other way. See Brief for Tax Economists 32; Brief for Knoll & Mason 28– 30. Of course, we do not decide the constitutionality of a tax scheme that Maryland might adopt be cause such a scheme is not before us. That Maryland’s 26 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court existing tax unconstitutionally discriminates against interstate commerce is enough to decide this case. Second, the principal dissent finds a “deep flaw” with the possibility that “Maryland could eliminate the incon sistency [with its tax scheme] by terminating the special nonresident tax—a measure that would not help the Wynnes at all.” Post, at 16. This second objection refutes the first. By positing that Maryland could remedy the unconstitutionality of its tax scheme by eliminating the special nonresident tax, the principal dissent accepts that Maryland’s desire to tax based on residence need not “recede” to another State’s desire to tax based on source. Moreover, the principal dissent’s supposed flaw is simply a truism about every case under the dormant Commerce Clause (not to mention the Equal Protection Clause): Whenever government impermissibly treats like cases differently, it can cure the violation by either “leveling up” or “leveling down.” Whenever a State impermissibly taxes interstate commerce at a higher rate than intrastate commerce, that infirmity could be cured by lowering the higher rate, raising the lower rate, or a combination of the two. For this reason, we have concluded that “a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination.” McKesson v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 39–40 (1990). See also Associated Industries of Mo. v. Lohman, ; Fulton 516 U.S., at 346–347. If every claim that suffers from this “flaw” cannot succeed, no dormant Commerce Clause or equal protection claim could ever succeed. G JUSTICE SCALIA would uphold the constitutionality of the Maryland tax scheme
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SCALIA would uphold the constitutionality of the Maryland tax scheme because the dormant Commerce Clause, in his words, is “a judicial fraud.” Post, at 2. That Cite as: 5 U. S. (2015) 27 Opinion of the Court was not the view of the Court in Gibbons v. Ogden, 9 Wheat, at where Chief Justice Marshall wrote that there was “great force” in the argument that the Com merce Clause by itself limits the power of the States to enact laws regulating interstate commerce. Since that time, this supposedly fraudulent doctrine has been applied in dozens of our opinions, joined by dozens of Justices. Perhaps for this reason, petitioner in this case, while challenging the interpretation and application of that doctrine by the court below, did not ask us to reconsider the doctrine’s validity. JUSTICE SCALIA does not dispute the fact that State tariffs were among the principal problems that led to the adoption of the Constitution. See post, at 3. Nor does he dispute the fact that the Maryland tax scheme is tanta mount to a tariff on work done out of State. He argues, however, that the Constitution addresses the problem of state tariffs by prohibiting States from imposing “ ‘Imposts or Duties on Imports or Exports.’ ” (quoting Art. I, 10, cl. 2). But he does not explain why, under his inter pretation of the Constitution, the Import-Export Clause would not lead to the same result that we reach under the dormant Commerce Clause. Our cases have noted the close relationship between the two provisions. See, e.g., State Tonnage Tax Cases, JUSTICE THOMAS also refuses to accept the dormant Commerce Clause doctrine, and he suggests that the Constitution was ratified on the understanding that it would not prevent a State from doing what Maryland has done here. He notes that some States imposed income taxes at the time of the adoption of the Constitution, and he observes that “[t]here is no indication that those early state income tax schemes provided credits for income taxes paid elsewhere.” Post, at 2 (dissenting opinion). “It seems highly implausible,” he writes, “that those who ratified the Commerce Clause understood it to conflict 28 COMPTROLLER OF TREASURY OF MD. v. WYNNE Opinion of the Court with the income tax laws of their States and nonetheless adopted it without a word of concern.” This argu ment is plainly unsound. First, because of the difficulty of interstate travel, the number of individuals who earned income out of State in 1787 was surely very small. (We are unaware of records showing, for example, that it was
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are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach.) Second, JUSTICE THOMAS has not shown that the small number of individuals who earned income out of State were taxed twice on that income. A number of Founding- era income tax schemes appear to have taxed only the income of residents, not non For example, in his report to Congress on direct taxes, Oliver Wolcott, Jr., Secretary of Treasury, describes Delaware’s income tax as being imposed only on “the inhabitants of this State,” and he makes no mention of the taxation of nonresidents’ income. Report to 4th Cong., 2d Sess. (1796), concerning Direct Taxes, in 1 American State Papers, Finance 429 (1832). JUSTICE THOMAS likewise understands that the Massachusetts and Delaware income taxes were imposed only on Post, at 2, n. These tax schemes, of course, pass the internal consistency test. Moreover, the difficulty of administering an income tax on nonresidents would have diminished the likelihood of double taxation. See R. Blakey, State Income Taxation 1 (1930). Third, even if some persons were taxed twice, it is un likely that this was a matter of such common knowledge that it must have been known by the delegates to the State ratifying conventions who voted to adopt the Constitution. * * * For these reasons, the judgment of the Court of Appeals of Maryland is affirmed. It is so ordered. Cite as: 5 U. S. (2015) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–485 COMPTROLLER OF THE TREASURY OF MARYLAND, PETITIONER v. BRIAN WYNNE ET UX.
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Justice Souter
| 2,001 | 20 |
concurring
|
Illinois v. McArthur
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https://www.courtlistener.com/opinion/118405/illinois-v-mcarthur/
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I join the Court's opinion subject to this afterword on two points: the constitutionality of a greater intrusion than the one here and the permissibility of choosing impoundment over immediate search. Respondent McArthur's location made the difference between the exigency that justified temporarily barring him from his own dwelling and circumstances that would have supported a greater interference with his privacy and property. As long as he was inside his trailer, the police had probable cause to believe that he had illegal drugs stashed as his wife had reported and that with any sense he would flush them down the drain before the police could get a warrant to enter and search. This probability of destruction in anticipation of a warrant exemplifies the kind of present risk that undergirds the accepted exigent circumstances exception to the general warrant requirement. That risk would have justified the police in entering McArthur's trailer promptly to make a lawful, warrantless search. United ; Warden, Md. When McArthur stepped *338 outside and left the trailer uninhabited, the risk abated and so did the reasonableness of entry by the police for as long as he was outside. This is so because the only justification claimed for warrantless action here is the immediate risk, and the limit of reasonable response by the police is set by the scope of the risk. See Since, however, McArthur wished to go back in, why was it reasonable to keep him out when the police could perfectly well have let him do as he chose, and then enjoyed the ensuing opportunity to follow him and make a warrantless search justified by the renewed danger of destruction? The answer is not that the law officiously insists on safeguarding a suspect's privacy from search, in preference to respecting the suspect's liberty to enter his own dwelling. Instead, the legitimacy of the decision to impound the dwelling follows from the law's strong preference for warrants, which underlies the rule that a search with a warrant has a stronger claim to justification on later, judicial review than a search without one. See United ; see also 5 W. LaFave, Search and Seizure 11.2(b), p. 38 (3d ed. 1996) ("[M]ost states follow the rule which is utilized in the federal courts: if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution"). The law can hardly raise incentives to obtain a warrant without giving the police a fair chance to take their probable cause
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
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The Department of Justice regularly seeks advice from the American Bar Association's Standing Committee on Federal Judiciary regarding potential nominees for federal judgeships. The question before us is whether the Federal Advisory Committee Act (FACA), as amended, 5 U.S. C. App. 1 et seq. (1982 ed. and Supp. V), applies to these consultations and, if it does, whether its application interferes unconstitutionally with the President's prerogative under Article II to nominate and appoint officers of the United States; violates the doctrine of separation of powers; or unduly infringes the First Amendment right of members of the American Bar Association to freedom of association and expression. We hold that FACA does not apply to this special advisory relationship. We therefore do not reach the constitutional questions presented. I A The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Supreme Court Justices and, as established by Congress, other federal judges. Art. II, 2, cl. 2. Since 1952 the President, through the Department of Justice, has requested advice from the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee) in making such nominations. The American Bar Association is a private voluntary professional association of approximately 343,000 attorneys. It has several working committees, among them the advisory body whose work is at issue here. The ABA Committee consists of 14 persons belonging to, and chosen by, the American Bar Association. Each of the 12 federal judicial Circuits (not including the Federal Circuit) has one representative on the ABA Committee, except for the Ninth Circuit, which has *444 two; in addition, one member is chosen at large. The ABA Committee receives no federal funds. It does not recommend persons for appointment to the federal bench of its own initiative. Prior to announcing the names of nominees for judgeships on the courts of appeals, the district courts, or the Court of International Trade, the President, acting through the Department of Justice, routinely requests a potential nominee to complete a questionnaire drawn up by the ABA Committee and to submit it to the Assistant Attorney General for the Office of Legal Policy, to the chair of the ABA Committee, and to the committee member (usually the representative of the relevant judicial Circuit) charged with investigating the nominee. See American Bar Association Standing Committee on Federal Judiciary, What It Is and How It Works (1983), reprinted in App. 43-49; Brief for Federal Appellee 2.[1] The potential nominee's answers and the referral of his or her name to the ABA Committee are kept confidential. The committee
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Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
name to the ABA Committee are kept confidential. The committee member conducting the investigation then reviews the legal writings of the potential nominee, interviews judges, legal scholars, and other attorneys regarding the potential nominee's qualifications, and discusses the matter confidentially with representatives of various professional organizations and other groups. The committee member also interviews the potential nominee, sometimes with other committee members in attendance. Following the initial investigation, the committee representative prepares for the chair an informal written report describing the potential nominee's background, summarizing all interviews, assessing the candidate's qualifications, and recommending one of four possible ratings: "exceptionally well qualified," "well qualified," "qualified," or "not qualified."[2]*445 The chair then makes a confidential informal report to the Attorney General's Office. The chair's report discloses the substance of the committee representative's report to the chair, without revealing the identity of persons who were interviewed, and indicates the evaluation the potential nominee is likely to receive if the Department of Justice requests a formal report. If the Justice Department does request a formal report, the committee representative prepares a draft and sends copies to other members of the ABA Committee, together with relevant materials. A vote is then taken and a final report approved. The ABA Committee conveys its rating though not its final report in confidence to the Department of Justice, accompanied by a statement whether its rating was supported by all committee members, or whether it only commanded a majority or substantial majority of the ABA Committee. After considering the rating and other information the President and his advisers have assembled, including a report by the Federal Bureau of Investigation and additional interviews conducted by the President's judicial selection committee, the President then decides whether to nominate the candidate. If the candidate is in fact nominated, the ABA Committee's rating, but not its report, is made public at the request of the Senate Judiciary Committee.[3] B FACA was born of a desire to assess the need for the "numerous committees, boards, commissions, councils, and similar *446 groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 2(a), as set forth in 5 U.S. C. App. 2(a).[4] Its purpose was to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
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and cost; and that their work be exclusively advisory in nature. 2(b). To attain these objectives, FACA directs the Director of the Office of Management and Budget and agency heads to establish various administrative guidelines and management controls for advisory committees. It also imposes a number of requirements on advisory groups. For example, FACA requires that each advisory committee file a charter, 9(c), and keep detailed minutes of its meetings. 10(c). Those meetings must be chaired or attended by an officer or employee of the Federal Government who is authorized to adjourn any meeting when he or she deems its adjournment in the public interest. 10(e). FACA also requires advisory committees to provide advance notice of their meetings and to open them to the public, 10(a), unless the President or the agency head to which an advisory committee reports determines that it may be closed to the public in accordance with the Government in the Sunshine Act, 5 U.S. C. 552b(c). 10(d). In addition, FACA stipulates that advisory committee minutes, records, and reports be made available *447 to the public, provided they do not fall within one of the Freedom of Information Act's exemptions, see 5 U.S. C. 552, and the Government does not choose to withhold them. 10(b). Advisory committees established by legislation or created by the President or other federal officials must also be "fairly balanced in terms of the points of view represented and the functions" they perform. 5(b)(2), (c). Their existence is limited to two years, unless specifically exempted by the entity establishing them. 14(a)(1). C In October 1986, appellant Washington Legal Foundation (WLF) brought suit against the Department of Justice after the ABA Committee refused WLF's request for the names of potential judicial nominees it was considering and for the ABA Committee's reports and minutes of its meetings.[5] WLF asked the District Court for the District of Columbia to declare the ABA Committee an "advisory committee" as FACA defines that term. WLF further sought an injunction ordering the Justice Department to cease utilizing the ABA Committee as an advisory committee until it complied with FACA. In particular, WLF contended that the ABA Committee must file a charter, afford notice of its meetings, open those meetings to the public, and make its minutes, records, and reports available for public inspection and copying. See WLF Complaint, App. 5-11. The Justice Department moved to dismiss, arguing that the ABA Committee did not fall within FACA's definition of "advisory committee" *4 and that, if it did, FACA would violate the constitutional doctrine of separation of powers. Appellant Public Citizen
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
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the constitutional doctrine of separation of powers. Appellant Public Citizen then moved successfully to intervene as a party plaintiff. Like WLF, Public Citizen requested a declaration that the Justice Department's utilization of the ABA Committee is covered by FACA and an order enjoining the Justice Department to comply with FACA's requirements. The District Court dismissed the action following oral argument. The court held that the Justice Department's use of the ABA Committee is subject to FACA's strictures, but that "FACA cannot constitutionally be applied to the ABA Committee because to do so would violate the express separation of nomination and consent powers set forth in Article II of the Constitution and because no overriding congressional interest in applying FACA to the ABA Committee has been demonstrated." Congress' role in choosing judges "is limited to the Senate's advice and consent function," the court concluded; "the purposes of FACA are served through the public confirmation process and any need for applying FACA to the ABA Committee is outweighed by the President's interest in preserving confidentiality and freedom of consultation in selecting judicial nominees." We noted probable jurisdiction, and now affirm on statutory grounds, making consideration of the relevant constitutional issues unnecessary. II As a preliminary matter, appellee American Bar Association contests appellants' standing to bring this suit.[6] Appellee's challenge is twofold. First, it contends that neither appellant has alleged injury sufficiently concrete and specific to confer standing; rather, appellee maintains, they have *449 advanced a general grievance shared in substantially equal measure by all or a large class of citizens, and thus lack standing under our precedents. Brief for Appellee ABA 12-15. Second, appellee argues that even if appellants have asserted a sufficiently discrete injury, they have not demonstrated that a decision in their favor would likely redress the alleged harm, because the meetings they seek to attend and the minutes and records they wish to review would probably be closed to them under FACA. Hence, the American Bar Association submits, Article III bars their suit. We reject these arguments. Appellee does not, and cannot, dispute that appellants are attempting to compel the Justice Department and the ABA Committee to comply with FACA's charter and notice requirements, and that they seek access to the ABA Committee's meetings and records in order to monitor its workings and participate more effectively in the judicial selection process. Appellant WLF has specifically requested, and been refused, the names of candidates under consideration by the ABA Committee, reports and minutes of the Committee's meetings, and advance notice of future meetings. WLF Complaint, App. 8. As when an
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
of future meetings. WLF Complaint, App. 8. As when an agency denies requests for information under the Freedom of Information Act, refusal to permit appellants to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue. Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records. See, e. g., Department of ; Department of ; United ; ; Department of Air There is no reason for a different rule here. The fact that other citizens *450 or groups of citizens might make the same complaint after unsuccessfully demanding disclosure under FACA does not lessen appellants' asserted injury, any more than the fact that numerous citizens might request the same information under the Freedom of Information Act entails that those who have been denied access do not possess a sufficient basis to sue. We likewise find untenable the American Bar Association's claim that appellants lack standing because a ruling in their favor would not provide genuine relief as a result of FACA's exceptions to disclosure. Appellants acknowledge that many meetings of the ABA Committee might legitimately be closed to the public under FACA and that many documents might properly be shielded from public view. But they by no means concede that FACA licenses denying them access to all meetings and papers, or that it excuses noncompliance with FACA's other provisions. As Public Citizen contends, if FACA applies to the Justice Department's use of the ABA Committee without violating the Constitution, the ABA Committee will at least have to file a charter and give notice of its meetings. In addition, discussions and documents regarding the overall functioning of the ABA Committee, including its investigative, evaluative, and voting procedures, could well fall outside FACA's exemptions. See Reply Brief for Appellant in No. 88-429, pp. 5-6, and n. 3. Indeed, it is difficult to square appellee's assertion that appellants cannot hope to gain noteworthy relief with its contention that "even more significant interference [than participation of Government officials in the ABA Committee's affairs] would result from the potential application of the `public inspection' provisions of Section 10 of the Act." Brief for Appellee ABA 36. The American Bar Association explains: "Disclosure and public access are the rule under FACA; the exemptions generally are construed narrowly. In fact, the Government-in-the-Sunshine Act has no deliberative process privilege under which ABA Committee meetings *451 could be closed." Appellee therefore concludes: "At bottom, there can be no question
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
Appellee therefore concludes: "At bottom, there can be no question that application of FACA will impair the sensitive and necessarily confidential process of gathering information to assess accurately the qualifications and character of prospective judicial nominees." Whatever the merits of these claims and whatever their relevance to appellee's constitutional objections to FACA's applicability, they certainly show, as appellants contend, that appellants might gain significant relief if they prevail in their suit. Appellants' potential gains are undoubtedly sufficient to give them standing.[7] III Section 3(2) of FACA, as set forth in 5 U.S. C. App. 3(2), defines "advisory committee" as follows: "For the purpose of this Act "(2) The term `advisory committee' means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as `committee'), which is "(A) established by statute or reorganization plan, or "(B) established or utilized by the President, or "(C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes *452 (i) the Advisory Commission on Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government." Appellants agree that the ABA Committee was not "established" by the President or the Justice Department. See Brief for Appellant in No. 88-429, p. 16; Brief for Appellant in No. 88-494, pp. 13, 15-16, 21. Equally plainly, the ABA Committee is a committee that furnishes "advice or recommendations" to the President via the Justice Department. Whether the ABA Committee constitutes an "advisory committee" for purposes of FACA therefore depends upon whether it is "utilized" by the President or the Justice Department as Congress intended that term to be understood. A There is no doubt that the Executive makes use of the ABA Committee, and thus "utilizes" it in one common sense of the term. As the District Court recognized, however, "reliance on the plain language of FACA alone is not entirely satisfactory." "Utilize" is a woolly verb, its contours left undefined by the statute itself. Read unqualifiedly, it would extend FACA's requirements to any group of two or more persons, or at least any formal organization, from which the President or an Executive agency seeks advice.[8] We are convinced that Congress did not intend that result. A nodding acquaintance with FACA's purposes, *453 as manifested by its legislative history and as recited in
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
as manifested by its legislative history and as recited in 2 of the Act, reveals that it cannot have been Congress' intention, for example, to require the filing of a charter, the presence of a controlling federal official, and detailed minutes any time the President seeks the views of the National Association for the Advancement of Colored People (NAACP) before nominating Commissioners to the Equal Employment Opportunity Commission, or asks the leaders of an American Legion Post he is visiting for the organization's opinion on some aspect of military policy. Nor can Congress have meant as a straightforward reading of "utilize" would appear to require that all of FACA's restrictions apply if a President consults with his own political party before picking his Cabinet. It was unmistakably not Congress' intention to intrude on a political party's freedom to conduct its affairs as it chooses, cf. or its ability to advise elected officials who belong to that party, by placing a federal employee in charge of each advisory group meeting and making its minutes public property. FACA was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals; although its reach is extensive, we cannot believe that it was intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice.[9] As we *454 said in Church of the Holy : "[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Where the literal reading of a statutory term would "compel an odd result," we must search for other evidence of congressional intent to lend the term its proper scope. See also, e. g., Church of the Holy ; "The circumstances of the enactment of particular legislation," for example, "may persuade a court that Congress did not intend words of common meaning to have their literal effect." Even though, as Judge Learned Hand said, "the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing," nevertheless "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; *455 but to remember that statutes always
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
of the dictionary; *455 but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." (CA2), aff'd, Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention, since the plain-meaning rule is "rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel See also United Consideration of FACA's purposes and origins in determining whether the term "utilized" was meant to apply to the Justice Department's use of the ABA Committee is particularly appropriate here, given the importance we have consistently attached to interpreting statutes to avoid deciding difficult constitutional questions where the text fairly admits of a less problematic construction. See infra, 65-467. It is therefore imperative that we consider indicators of congressional intent in addition to the statutory language before concluding that FACA was meant to cover the ABA Committee's provision of advice to the Justice Department in connection with judicial nominations. B Close attention to FACA's history is helpful, for FACA did not flare on the legislative scene with the suddenness of a meteor. Similar attempts to regulate the Federal Government's use of advisory committees were common during the 20 years preceding FACA's enactment. See Note, The Federal *456 Advisory Committee Act, 10 Harv. J. Legis. 217, 219-221 (1973). An understanding of those efforts is essential to ascertain the intended scope of the term "utilize." In 1950, the Justice Department issued guidelines for the operation of federal advisory committees in order to forestall their facilitation of anticompetitive behavior by bringing industry leaders together with Government approval. See Hearings on WOC's [Without Compensation Government employees] and Government Advisory Groups before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., pt. 1, pp. 586-587 (1955) (reprinting guidelines). Several years later, after the House Committee on Government Operations found that the Justice Department's guidelines were frequently ignored, Representative Fascell sponsored a bill that would have accorded the guidelines legal status. H. R. 0, 85th Cong., 1st Sess. (1957). Although the bill would have required agencies to report to Congress on their use of advisory committees and would have subjected advisory committees to various controls, it apparently would not have imposed any requirements on private groups, not established by the Federal Government, whose advice was sought by the Executive. See H. R. Rep. No. 576, 85th Cong., 1st Sess., 5-7
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
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H. R. Rep. No. 576, 85th Cong., 1st Sess., 5-7 (1957); 103 Cong. Rec. 11252 (1957) (remarks of Rep. Fascell and Rep. Vorys). Despite Congress' failure to enact the bill, the Bureau of the Budget issued a directive in 19 incorporating the bulk of the guidelines. See Perritt & Wilkinson, Open Advisory Committees and the Political Process: The Federal Advisory Committee Act After Two Years, 63 Geo. L. J. 725, 731 (1975). Later that year, President Kennedy issued Executive Order No. 11007, 3 CFR 573 (1959-13 Comp.), which governed the functioning of advisory committees until FACA's passage. Executive Order No. 11007 is the probable source of the term "utilize" as later employed in FACA. The Order applied to advisory committees "formed by a *457 department or agency of the Government in the interest of obtaining advice or recommendations," or "not formed by a department or agency, but only during any period when it is being utilized by a department or agency in the same manner as a Government-formed advisory committee." 2(a) To a large extent, FACA adopted wholesale the provisions of Executive Order No. 11007. For example, like FACA, Executive Order No. 11007 stipulated that no advisory committee be formed or utilized unless authorized by law or determined as a matter of formal record by an agency head to be in the public interest, 3; that all advisory committee meetings be held in the presence of a Government employee empowered to adjourn the meetings whenever he or she considered adjournment to be in the public interest, 6(b); that meetings only occur at the call of, or with the advance approval of, a federal employee, 6(a); that minutes be kept of the meetings, 6(c), (d); and that committees terminate after two years unless a statute or an agency head decreed otherwise, 8. There is no indication, however, that Executive Order No. 11007 was intended to apply to the Justice Department's consultations with the ABA Committee. Neither President Kennedy, who issued the Order, nor President Johnson, nor President Nixon apparently deemed the ABA Committee to be "utilized" by the Department of Justice in the relevant sense of that term. Notwithstanding the ABA Committee's highly visible role in advising the Justice Department regarding potential judicial nominees, and notwithstanding the fact that the Order's requirements were established by the Executive itself rather than Congress, no President or Justice Department official applied them to the ABA Committee. As an entity formed privately, rather than at the Federal Government's prompting, to render confidential advice with respect to the President's constitutionally specified power to nominate federal judges
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
to the President's constitutionally specified power to nominate federal judges an entity in receipt of no federal funds and not amenable to the strict management by *458 agency officials envisaged by Executive Order No. 11007 the ABA Committee cannot easily be said to have been "utilized by a department or agency in the same manner as a Government-formed advisory committee." That the Executive apparently did not consider the ABA Committee's activity within the terms of its own Executive Order is therefore unsurprising. Although FACA's legislative history evinces an intent to widen the scope of Executive Order No. 11007's definition of "advisory committee" by including "Presidential advisory committees," which lay beyond the reach of Executive Order No. 11007,[10] see H. R. Rep. No. pp. 9-10 (1970); H. R. Rep. No. 92-1017, p. 4 (1972); S. Rep. No. 92-1098, pp. 3-5, 7 (1972), as well as to augment the restrictions applicable * to advisory committees covered by the statute, there is scant reason to believe that Congress desired to bring the ABA Committee within FACA's net. FACA's principal purpose was to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures on them. That purpose could be accomplished, however, without expanding the coverage of Executive Order No. 11007 to include privately organized committees that received no federal funds. Indeed, there is considerable evidence that Congress sought nothing more than stricter compliance with reporting and other requirements which were made more stringent by advisory committees already covered by the Order and similar treatment of a small class of publicly funded groups created by the President. The House bill which in its amended form became FACA applied exclusively to advisory committees "established" by statute or by the Executive, whether by a federal agency or by the President himself. H. R. 4383, 92d Cong., 2d Sess. 3(2) (1972). Although the House Committee Report stated that the class of advisory committees was to include "committees which may have been organized before their advice was sought by the President or any agency, but which are used by the President or any agency in the same way as an advisory committee formed by the President himself or the agency itself," H. R. Rep. No. 92-1017, it is questionable whether the Report's authors believed that the Justice Department used the ABA Committee in the same way as it used advisory committees it established. The phrase "used. in the same way" is reminiscent of Executive Order No. 11007's reference to advisory committees "utilized in the same manner" as a
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
to advisory committees "utilized in the same manner" as a committee established by the Federal Government, and the practice of three administrations demonstrates that Executive Order No. 11007 did not encompass the ABA Committee. *460 This inference draws support from the earlier House Report which instigated the legislative efforts that culminated in FACA. That Report complained that committees "utilized" by an agency as opposed to those established directly by an agency rarely complied with the requirements of Executive Order No. 11007. See H. R. Rep. No. But it did not cite the ABA Committee or similar advisory committees as willful evaders of the Order. Rather, the Report's paradigmatic example of a committee "utilized" by an agency for purposes of Executive Order No. 11007 was an advisory committee established by a quasi-public organization in receipt of public funds, such as the National Academy of Sciences.[11] There is no indication in the Report that a purely private group like the ABA Committee that was not formed by the Executive, accepted no public funds, and assisted the Executive in performing a constitutionally specified task committed to the Executive was within the terms of Executive Order No. 11007 or was the type of advisory entity that legislation was urgently needed to address. *461 Paralleling the initial House bill, the Senate bill that grew into FACA defined "advisory committee" as one "established or organized" by statute, the President, or an Executive agency. S.3529, 92d Cong., 2d Sess. 3(1), (2) (1972). Like the House Report, the accompanying Senate Report stated that the phrase "established or organized" was to be understood in its "most liberal sense, so that when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice and information, such group is covered by the provisions of this bill." S. Rep. No. 92-1098, While the Report manifested a clear intent not to restrict FACA's coverage to advisory committees funded by the Federal Government, it did not indicate any desire to bring all private advisory committees within FACA's terms. Indeed, the examples the Senate Report offers "the Advisory Council on Federal Reports, the National Industrial Pollution Control Council, the National Petroleum Council, advisory councils to the National Institutes of Health, and committees of the national academies where they are utilized and officially recognized as advisory to the President, to an agency, or to a Government official," are limited to groups organized by, or closely tied to, the Federal Government, and thus enjoying quasi-public status. Given
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Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
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https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
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to, the Federal Government, and thus enjoying quasi-public status. Given the prominence of the ABA Committee's role and its familiarity to Members of Congress, its omission from the list of groups formed and maintained by private initiative to offer advice with respect to the President's nomination of Government officials is telling. If the examples offered by the Senate Committee on Government Operations are representative, as seems fair to surmise, then there is little reason to think that there was any support, at least at the committee stage, for going beyond the terms of Executive Order No. 11007 to regulate comprehensively the workings of the ABA Committee. It is true that the final version of FACA approved by both Houses employed the phrase "established or utilized," *4 and that this phrase is more capacious than the word "established" or the phrase "established or organized." But its genesis suggests that it was not intended to go much beyond those narrower formulations. The words "or utilized" were added by the Conference Committee to the definition included in the House bill. See H. R. Conf. Rep. No. 92-1403, p. 2 (1972). The Joint Explanatory Statement, however, said simply that the definition contained in the House bill was adopted "with modification." The Conference Report offered no indication that the modification was significant, let alone that it would substantially broaden FACA's application by sweeping within its terms a vast number of private groups, such as the Republican National Committee, not formed at the behest of the Executive or by quasi-public organizations whose opinions the Federal Government sometimes solicits. Indeed, it appears that the House bill's initial restricted focus on advisory committees established by the Federal Government, in an expanded sense of the word "established," was retained rather than enlarged by the Conference Committee. In the section dealing with FACA's range of application, the Conference Report stated: "The Act does not apply to persons or organizations which have contractual relationships with Federal agencies nor to advisory committees not directly established by or for such agencies." The phrase "or utilized" therefore appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations such as the National Academy of Sciences "for" public agencies as well as "by" such agencies themselves. Read in this way, the term "utilized" would meet the concerns of the authors of House Report No. that advisory committees covered by Executive Order No. 11007, because they were "utilized by a department or agency in
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
because they were "utilized by a department or agency in the same manner as a Government-formed advisory committee" *463 such as the groups organized by the National Academy of Sciences and its affiliates which the Report discussed would be subject to FACA's requirements. And it comports well with the initial House and Senate bills' limited extension to advisory groups "established," on a broad understanding of that word, by the Federal Government, whether those groups were established by the Executive Branch or by statute or whether they were the offspring of some organization created or permeated by the Federal Government. Read in this way, however, the word "utilized" does not describe the Justice Department's use of the ABA Committee. Consultations between the Justice Department and the ABA Committee were not within the purview of Executive Order No. 11007, nor can the ABA Committee be said to have been formed by the Justice Department or by some semiprivate entity the Federal Government helped bring into being. In sum, a literalistic reading of 3(2) would bring the Justice Department's advisory relationship with the ABA Committee within FACA's terms, particularly given FACA's objective of opening many advisory relationships to public scrutiny except in certain narrowly defined situations.[12] A *464 literalistic reading, however, would catch far more groups and consulting arrangements than Congress could conceivably have intended. And the careful review which this interpretive difficulty warrants of earlier efforts to regulate *465 federal advisory committees and the circumstances surrounding FACA's adoption strongly suggests that FACA's definition of "advisory committee" was not meant to encompass the ABA Committee's relationship with the Justice Department. That relationship seems not to have been within the contemplation of Executive Order No. 11007. And FACA's legislative history does not display an intent to widen the Order's application to encircle it. Weighing the deliberately inclusive statutory language against other evidence of congressional intent, it seems to us a close question whether FACA should be construed to apply to the ABA Committee, although on the whole we are fairly confident it should not. There is, however, one additional consideration which, in our view, tips the balance decisively against FACA's application. C "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible *466 by which the question may be avoided." It has long been an axiom of statutory interpretation that "where an otherwise acceptable construction of a statute would
|
Justice Brennan
| 1,989 | 13 |
majority
|
Public Citizen v. Department of Justice
|
https://www.courtlistener.com/opinion/112305/public-citizen-v-department-of-justice/
|
that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Edward J. DeBartolo 5 U.S. 568, See also St. Martin Evangelical Lutheran ; ; This approach, we said recently, "not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution." Edward J. DeBartolo at Our reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of government. See American Foreign Service Hence, we are loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils. That construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties is undeniable. The District Court declared FACA unconstitutional insofar as it applied to those consultations, because it concluded that FACA, so applied, infringed unduly on the President's Article II power to nominate federal judges and violated the doctrine of separation of powers.[13] Whether or not the court's conclusion *467A was correct, there is no gainsaying the seriousness of these constitutional challenges. To be sure, "[w]e cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question." United quoting Moore Ice Cream But unlike in Locke, where "nothing in the legislative history remotely suggest[ed] a congressional intent contrary to Congress' chosen words," 471 U.S., 6, our review of the regulatory scheme prior to FACA's enactment and the likely origin of the phrase "or utilized" in FACA's definition of "advisory committee" reveals that Congress probably did not intend to subject the ABA Committee to FACA's requirements when the ABA Committee offers confidential advice regarding Presidential appointments to the federal bench. Where the competing arguments based on FACA's text and legislative history, though both plausible, tend to show that Congress did not desire FACA to apply to the Justice Department's confidential solicitation of the ABA Committee's views on prospective judicial nominees, sound sense counsels adherence to our rule of caution. Our unwillingness to resolve important constitutional questions unnecessarily thus solidifies our conviction that FACA is inapplicable. The judgment of the District Court is Affirmed. JUSTICE SCALIA took no part in the consideration or decision of these cases. *467B JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurring in the judgment.
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
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Quite properly, the plurality does not question the merits of the preliminary injunction entered by the United States District Court for the Northern District of Illinois staying proceedings in the Illinois courts. It was predicated on appropriate findings of fact,[1] it was entered by a District Judge whose *646 understanding of the federal antitrust laws was unique,[2] and its entry was affirmed unanimously by the Court of Appeals. Judge McLaren found substantial evidence that petitioner intended to monopolize the relevant market; that one of the overt acts performed in furtherance thereof was the use of litigation as a method of harassing and eliminating competition; that two of the corporate plaintiffs in the case, respondents here, would be eliminated by collection of the Illinois judgment; and that the state litigation had already severely hampered, and collection of the judgment would prevent, the marketing of a promising, newly developed machine which would compete with petitioner's products.[3] The Court of Appeals implicitly endorsed these findings when it noted that "[h]ere Vendo seeks to thwart a federal antitrust suit by the enforcement of state court judgments which are alleged to be the very object of antitrust violations." The question which is therefore presented is whether the *647 anti-injunction statute[4] deprives the federal courts of power to stay state-court litigation which is being prosecuted in direct violation of the Sherman Act. I cannot believe that any of the members of Congress who unanimously enacted that basic charter of economic freedom[5] in 1890 would have answered that question the way the plurality does today. I The plurality relies on the present form of a provision of the Judiciary Act of 1793.[6] In the ensuing century, there were changes in our economy which persuaded the Congress that the state courts could not adequately deal with contracts in restraint of trade that affected commerce in more than one *648 jurisdiction.[7] The Sherman Act was enacted virtually unanimously in 1890 to protect the national economy from the pernicious effects of regulation by private cartel and to vest the federal *649 courts with jurisdiction adequate to "exert such remedies as would fully accomplish the purposes intended."[8] Between 1890 and 1914, although private litigants could *650 recover treble damages, only the United States could invoke the jurisdiction of the federal courts to prevent and restrain violations of the Sherman Act.[9] When Congress authorized the federal courts to grant injunctive relief in private antitrust litigation, it conferred the same broad powers that the courts possess in cases brought by the Government.[10] Section *651 16 of the Clayton Act expressly authorizes injunctions against
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
|
*651 16 of the Clayton Act expressly authorizes injunctions against "a violation of the antitrust laws."[11] The scope of the jurisdictional grant is just as broad as the definition of a violation of the antitrust laws. That definition was deliberately phrased in general language to be sure that "every conceivable act which could possibly come within *652 the spirit or purpose of the prohibition" would be covered by the statute, regardless of whether or not the particular form of restraint was actually foreseen by Congress.[12] In the decades following the formulation of the Rule of Reason in 1911, this Court has made it perfectly clear that the prosecution of litigation in a state court may itself constitute a form of violation of the federal statute. Thus, the attempt to enforce a patent obtained by fraud,[13] or a patent known to be invalid for other reasons,[14] may constitute an independent violation of the Sherman Act; and such litigation may be brought in a state court.[15] The prosecution of frivolous claims and objections before regulatory bodies, including state agencies, may violate the antitrust laws.[16] The enforcement of restrictive provisions in a license to use a patent or a trademark[17] may violate the Sherman Act; such enforcement may, of course, be sought in the state courts. Similarly, the provisions of a lease,[18] or a fair trade *653 agreement,[19] may become the focus of enforcement litigation which has a purpose or effect of frustrating rights guaranteed by the antitrust laws, either in a state or federal court.[20] Indeed, the enforcement of a covenant not to competethe classic example of a contract in restraint of tradetypically takes place in a state court.[21] These examples are sufficient to demonstrate that "litigation in state courts may constitute an antitrust violation" ante, at 635 n. 6. Since the judicial construction of a statute is as much a part of the law as the words written by the legislature, the illegal use of state-court litigation as a method of monopolizing or restraining trade is as plainly a violation of the antitrust laws as if Congress had specifically described each of the foregoing cases as an independent *654 violation. The language in 16 of the Clayton Act which expressly authorizes injunctions against violations of the antitrust laws is therefore applicable to this species of violation as well as to other kinds of violations. Since 16 of the Clayton Act is an Act of Congress which expressly authorizes an injunction against a state-court proceeding which violates the antitrust laws, the plain language of the anti-injunction statute excepts this kind of injunction
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
|
language of the anti-injunction statute excepts this kind of injunction from its coverage.[22] II There is nothing in this Court's precedents which is even arguably inconsistent with this rather obvious reading of the statutory language.[23] On at least three occasions the Court *655 has held that general grants of federal jurisdiction which make no mention of either state-court proceedings, or of the anti-injunction statute, are within the "expressly authorized" exception. Providence & N. Y. S. S. ;[24]Porter v. Dicken, *656 In Mitchum the Court made it clear that a statute may come within the "expressly authorized" exception to 2283 even though it does not mention the anti-injunction statute or contain any reference to state-court proceedings, provided that it creates a uniquely federal right or remedy that could be frustrated if the federal court were not empowered to enjoin the state proceeding.[26] The Court then formulated and applied this test: "The test is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope' only by the stay of a state court proceeding." Section 16 of the Clayton Act created a federal remedy which can only be given its intended scope if it includes the power to stay state-court proceedings in appropriate *657 cases. As one of the sponsors of the statute explained, under "this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy."[27] But if the plurality's interpretation of the legislation were correct, a private litigant might indeed be "ruined in his business before he has his remedy" against state-court litigation seeking enforcement of an invalid patent, a covenant not to compete, or an executory merger agreement, to take only a few obvious examples of antitrust violations that might be consummated by state-court litigation. The plurality assumes that Congress intended to distinguish between illegal state proceedings which are already pending and those which have not yet been filed at the time of a federal court's determination that a violation of the antitrust laws has been consummated; the federal court may enjoin the latter, but is powerless to restrain the former. See ante, at 635-, n. 6. Nothing in the history of the anti-injunction statute suggests any such logic-chopping distinction.[28] Indeed, it is squarely at odds with Senator Sherman's own explanation of the intended scope of the statutory power "to issue all remedial process or writs proper and necessary to enforce its provisions"[29] It would demean the legislative *658 process to construe the eloquent
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
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would demean the legislative *658 process to construe the eloquent rhetoric which accompanied the enactment of the antitrust laws as implicitly denying federal courts the power to restrain illegal state-court litigation simply because it was filed before the federal case was concluded.[30] A faithful application of the rationale of Mitchum v. Foster requires a like result in this case. III The plurality expresses the fear that if the Clayton Act is given its intended scope, the anti-injunction statute "would be completely eviscerated" since there are 26 other federal statutes which may also be within the "expressly authorized" exception. Ante, at -637, n. 7. That fear, stated in its strongest terms, is that in the 184 years since the anti-injunction statute was originally enacted, there are 26 occasions on which Congress has qualified its prohibition to some extent. There are at least three reasons why this argument should not cause panic. First, the early history of the anti-injunction statute indicates that it was primarily intended to prevent the federal courts from exercising a sort of appellate review function in litigation in which the state and federal courts had equal competence. The statute imposed a limitation on the general equity powers of the federal courts which existed in 1793, and which have been exercised subsequently in diversity *659 and other private litigation. But the anti-injunction statute has seldom, if ever, been construed to interfere with a federal court's power to implement federal policy pursuant to an express statutory grant of federal jurisdiction.[31] Although there is no need to resolve the question in this case, I must confess that I am not now persuaded that the concept of federalism is necessarily inconsistent with the view that the 1793 Act should be considered wholly inapplicable to later enacted federal statutes that are enforceable exclusively in federal litigation.[32] If a fair reading of the jurisdictional grant in any such statute does authorize an injunction against state-court litigation frustrating the federal policy, nothing in our prior cases would foreclose the conclusion that it is within the "expressly authorized" exception to 2283. Second, in any event, the question whether the Packers and Stockyards Act of 1921, for example, gives the federal court the power to enjoin state litigation has little, if any, relevance to the issues presented by this case. Whatever the answer to that question may be,[33] that 56-year-old statute will not exacerbate federal-state relations and jeopardize the vitality of "our federalism." Indeed, even if all the statutes identified by the plurality are within the "expressly authorized" exception to 2283, it is extremely doubtful that they
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
|
authorized" exception to 2283, it is extremely doubtful that they would generate as much, or as significant, litigation as either *660 the Civil Rights Act of 1871 or the antitrust laws.[34] The answer to the important question presented by this case should not depend on speculation about potential consequences for other statutes of relatively less importance to the economy and the Nation. Third, concern about the Court's ability either to enlarge or to contain the exceptions to the anti-injunction statute, ante, at 635-639, is disingenuous at best. As originally enacted in 1793, the statute contained no express exception at all. Those few that were recognized in the ensuing century and a half were the product of judicial interpretation of the statute's prohibition in concrete situations. The codification of the Judicial Code in 1948 restated the exceptions in statutory language, but was not intended to modify the Court's power to accommodate the terms of the statute to overriding expressions of national policy embodied in statutes like the Ku Klux Klan Act of 1871 or the Sherman Act of 1890.[35] IV Since the votes of THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN are decisive, a separate comment on MR. JUSTICE BLACKMUN'S opinion concurring in the result is required. His agreement with the proposition that an injunction properly entered pursuant to 16 of the Clayton Act is within the "expressly authorized" exception to the anti-injunction statute establishes that proposition as the law for the future. *661 His view that 16 did not authorize the preliminary injunction entered by Judge McLaren is dispositive of this litigation but, for reasons which may be briefly summarized, is not a view that finds any support in the law. Unlike the plurality, which would draw a distinction between ongoing litigation and future litigation, ante, at 635-, n. 6, MR. JUSTICE BLACKMUN differentiates between a violation committed by a multiplicity of lawsuits and a violation involving only one lawsuit. The very case on which he relies rejects that distinction. In California Motor Transport the Court stated: "Yet unethical conduct in the setting of the adjudicatory process often results in sanctions. Perjury of witnesses is one example. Use of a patent obtained by fraud to exclude a competitor from the market may involve a violation of the antitrust laws, as we held in Walker Process Similarly, bribery of a public purchasing agent may constitute a violation of 2 (c) of the Clayton Act, as amended by the Robinson-Patman Act. Rangen, "There are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
|
which may corrupt the administrative or judicial processes and which may result in antitrust violations." Each of the examples given in this excerpt from the California Motor Transport opinion involves a single use of the adjudicatory process to violate the antitrust laws. *662 Manifestly, when Mr. Justice Douglas wrote for the Court in that case and described "a pattern of baseless, repetitive claims," as an illustration of an antitrust violation, he did not thereby circumscribe the category to that one example. Nothing in his opinion even remotely implies that there would be any less reason to enjoin the "[u]se of a patent obtained by fraud to exclude a competitor from the market," for example, than to enjoin the particular violation before the Court in that case. In this case we are reviewing the affirmance by the Court of Appeals of an order granting a preliminary injunction. Affirmance was required unless the exercise of the District Court's discretion was clearly erroneous. And when both the District Court and the Court of Appeals are in agreement, the scope of review in this Court is even more narrow, ; United ; Without the most careful review of the record, and the findings and conclusions of the District Court, it is most inappropriate for this Court to reverse on the basis of a contrary view of the facts of the particular case. The mere fact that the Illinois courts concluded that petitioner's state-law claim was meritorious does not disprove the existence of a serious federal antitrust violation. For if it did, invalid patents, price-fixing agreements, and other illegal covenants in restraint of trade would be enforceable in state courts no matter how blatant the violation of federal law. V Apart from the anti-injunction statute, petitioner has argued that principles of equity, comity, and federalism create a bar to injunctive relief in this case. Brief for Petitioner 36-39. This argument is supported by three facts: The Illinois litigation was pending for a period of nine years; the Illinois Supreme Court concluded that respondents were guilty of *663 a breach of fiduciary duty; and respondents withdrew their antitrust defense from the state action. Unfortunately, in recent years long periods of delay have been a characteristic of litigation in the Illinois courts. That is not a reason for a federal court to show any special deference to state courts; quite the contrary, it merely emphasizes the seriousness of any decision by a federal court to abstain, on grounds of federalism, from the prompt decision of a federal question. The Illinois Supreme Court's conclusion that respondents had violated
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
|
question. The Illinois Supreme Court's conclusion that respondents had violated a fiduciary obligation and that petitioner was entitled to a large damages recovery rested on that court's appraisal of the legality of a covenant in restraint of trade.[36] The fact that the covenant not to compete is valid as a matter of state law is irrelevant to the federal antitrust issue. If, for example, instead of a contract totally excluding respondents from the relevant market, the parties had agreed on a lesser restraint which merely required respondents to sell at prices fixed by petitioner, the Illinois court might also have concluded that respondents were bound by the contract even though the federal courts would have found it plainly violative of the Sherman Act. The Illinois decision on the merits merely highlights the fact that state and federal courts apply significantly different standards in evaluating contracts in restraint of trade.[37] *664 That fact provides the explanation for respondents' decision to withdraw their federal antitrust defense from the Illinois litigation and to present it to the federal courts. Congress has granted the federal courts exclusive jurisdiction over the prosecution of private antitrust litigation.[38] Since the state courts do not have the power to award complete relief for an antitrust violation, since state judges are unfamiliar with the complexities of this area of the law, and since state procedures are sometimes unsatisfactory for cases of nationwide scope, no adverse inference should be drawn from a state-court defendant's election to reserve his federal antitrust claim for decision by a federal court. Indeed, since these respondents made that election, and since Congress has withheld jurisdiction of antitrust claims from the state courts, the plurality properly ignores the argument that principles of federalism require abstention in this case. For a ruling requiring the federal court to abstain from *665 the decision of an antitrust issue that might have been raised in a state-court proceeding would be tantamount to holding that the federal defense must be asserted in the state action. Such a holding could not be reconciled with the congressional decision to confer exclusive jurisdiction of the private enforcement of the antitrust laws on the federal courts. Quite plainly, therefore, this is not the kind of case in which abstention is even arguably proper. When principles of federalism are invoked to defend a violation of the Sherman Act, one is inevitably reminded of the fundamental issue that was resolved only a few years before the anti-injunction statute was passed. Perhaps more than any other provision in the Constitution, it was the Commerce Clause that transformed the
|
Justice Stevens
| 1,977 | 16 |
dissenting
|
Vendo Co. v. Lektro-Vend Corp.
|
https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/
|
the Constitution, it was the Commerce Clause that transformed the ineffective coalition created by the Articles of Confederation into a great Nation. "It was to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view to Philadelphia. Thus the generating source of the Constitution lay in the rising volume of restraints upon commerce which the Confederation could not check. These were the proximate cause of our national existence down to today. "So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power. ". On this fact as much as any other we may safely say rests the vast economic development and present industrial power of the nation. To it may be credited largely the fact we are an independent and democratic country today." W. Rutledge, A Declaration of Legal Faith 25-27 (1947). *666 Only by ignoring this chapter in our history could we invoke principles of federalism to defeat enforcement of the "Magna Carta of free enterprise"[39] enacted pursuant to Congress' plenary power to regulate commerce among the States. I respectfully dissent.
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term "modification," (a)(4), while the PSD provisions use that word "as defined in" NSPS, 7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on "modification" to their NSPS counterparts, and that EPA's 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals's reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act's restrictions on judicial review of EPA regulations for validity. I The Clean Air Amendments of 1970, broadened federal authority to combat air pollution, see U.S.A. and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U.S.C. 7409, 7410. The amendments dealing with NSPS authorized EPA to require operators of stationary sources of air pollutants to use the best technology for limiting pollution, ; see also 1 F. Grad, Environmental Law 2.03, p. 2-356 both in newly constructed sources and those undergoing "modification," (a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme as "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted," (a)(4). EPA's 1975 regulations implementing NSPS provided generally that "any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of [S]ection 111." 40 CFR 60.14(a) (1976). Especially significant here is the identification of an NSPS "modification" as a change that "increase[s]. the emission rate," which "shall be expressed as kg/hr of any pollutant discharged into the atmosphere." 60.14(b).[1] *1429 NSPS, however, did too little to "achiev[e] the ambitious goals of the 1970 Amendments," R. Belden, Clean Air Act 7 (hereinafter Belden), and the Clean Air Act Amendments of 1977, included the PSD provisions, which aimed at giving added protection to air quality in certain parts of the country "notwithstanding attainment and maintenance of" the NAAQS. 42
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
the country "notwithstanding attainment and maintenance of" the NAAQS. 42 U.S.C. 7470(1).[2] The 1977 amendments required a PSD permit before a "major emitting facility" could be "constructed" in an area covered by the scheme. 7475(a). As originally enacted, PSD applied only to newly constructed sources, but soon a technical amendment added the following subparagraph: "The term `construction' when used in connection with any source or facility, includes the modification (as defined in [S]ection 111(a)) of any source or facility." 14(a)(54), 42 U.S.C. 7479(2)(C); see also New In other words, the "construction" requiring a PSD permit under the statute was made to include (though it was not limited to) a "modification" as defined in the statutory NSPS In 1980, EPA issued PSD regulations,[3] which "limited the application of [PSD] review" of modified sources to instances of "`major' modificatio[n]," Belden 46, defined as "any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act." 40 CFR 51.166(b)(2)(i) (1987). Further regulations in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of "[a]n increase in the hours of operation or in the production rate" would not generally constitute a "physical change or change in the method of operation." 51.166(b)(2)(iii)(f). For purposes of a PSD permit, that is, such an operational change would not amount to a "modification" as the Act defines it. Second, the PSD regulations defined a "net emissions increase" as "[a]ny increase in actual emissions from a particular physical change or change in the method of operation," net of other contemporaneous "increases and decreases in actual emissions at the source." 51.166(b)(3). "Actual emissions" were defined to "equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation." 51.166(b)(21)(ii). "[A]ctual emissions" were to be "calculated using the unit's actual operating hours [and] production rates." Third, the term "significant" was defined as "a rate of emissions that would equal or exceed" one or another enumerated threshold, each expressed in "tons per year." 51.166(b)(23)(i). *1430 It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this case: (a) The Act defines modification of a stationary source of a pollutant as a physical change to it,
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. (b) EPA's NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pollutants measured in kilograms per hour. (c) EPA's 1980 PSD regulations require a permit for a modification (with the same statutory definition) only when it is a major one and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years. The Court of Appeals held that Congress's provision defining a PSD modification by reference to an NSPS modification caught not only the statutory NSPS definition, but also whatever regulatory gloss EPA puts on that definition at any given time (for the purposes of the best technology requirement). When, therefore, EPA's PSD regulations specify the "change" that amounts to a "major modification" requiring a PSD permit, they must measure an increase in "the amount of any air pollutant emitted," (a)(4), in terms of the hourly rate of discharge, just the way NSPS regulations do. Petitioners and the United States say, on the contrary, that when EPA addresses the object of the PSD scheme it is free to put a different regulatory interpretation on the common statutory core of "modification," by measuring increased emission not in terms of hourly rate but by the actual, annual discharge of a pollutant that will follow the modification, regardless of rate per hour. This disagreement is the nub of the case. II Respondent Duke Energy Corporation runs 30 coal-fired electric generating units at eight plants in North and South Carolina. United The units were placed in service between 1940 and 1975, and each includes a boiler containing thousands of steel tubes arranged in sets. Between 1988 and 2000,[4] Duke replaced or redesigned 29 tube assemblies in order to extend the life of the units and allow them to run longer each day. The United States filed this action in 2000, claiming, among other things, that Duke violated the PSD provisions by doing this work without permits. Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund intervened as plaintiffs and filed a complaint charging similar violations. Duke moved for summary judgment, one of its positions being that none of the projects was a "major modification" requiring *1431 a PSD permit because none increased hourly rates of emissions. The District Court agreed with
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
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https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
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increased hourly rates of emissions. The District Court agreed with Duke's reading of the 1980 PSD regulations. It reasoned that their express exclusion of "[a]n increase in the hours of operation" from the definition of a "physical change or change in the method of operation" implied that "post-project emissions levels must be calculated assuming" preproject hours of operation. (M.D.N.C.2003). Consequently, the District Court said, a PSD "major modification" can occur "only if the project increases the hourly rate of emissions." The District Court found further support for its construction of the 1980 PSD regulations in one letter and one memorandum written in by EPA's Director of the Division of Stationary Source Enforcement, Edward E. Reich. -642. The United States and intervenor-plaintiffs (collectively, plaintiffs) subsequently stipulated "that they do not contend that the projects at issue in this case caused an increase in the maximum hourly rate of emissions at any of Duke Energy's units." App. 504. Rather, their claim "is based solely on their contention that the projects would have been projected to result in an increased utilization of the units at issue." Duke, for its part, stipulated to plaintiffs' right to appeal the District Court's determination that projects resulting in greater operating hours are not "major modifications" triggering the PSD permit requirement, absent an increase in the hourly rate of emissions. The District Court then entered summary judgment for Duke on all PSD claims. The Court of Appeals for the Fourth Circuit affirmed, "albeit for somewhat different reasons." "[T]he language and various interpretations of the PSD regulations are largely irrelevant to the proper analysis of this case," reasoned the Court of Appeals, "because Congress' decision to create identical statutory definitions of the term `modification'" in the NSPS and PSD provisions of the Clean Air Act "has affirmatively mandated that this term be interpreted identically" in the regulations promulgated under those The Court of Appeals relied principally on the authority of Rowan where we held against the Government's differing interpretations of the word "wages" in different tax As the Court of Appeals saw it, Rowan establishes an "effectively irrebuttable" presumption that PSD regulations must contain the same conditions for a "modification" as the NSPS regulations, including an increase in the hourly rate of emissions.[5] As the Court of Appeals said, Duke had not initially relied on Rowan, see n. 4, and when the Court sua sponte requested supplemental briefing on Rowan's relevance, plaintiffs injected a new issue into the case. They argued that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the validity
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
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https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
exceeded statutory authority would be an attack on the validity of the regulation that could not be raised in an enforcement proceeding. See 42 U.S.C. 7607(b)(2). Under 307(b) of the Act, they said, judicial review for validity can be obtained only by *1432 a petition to the Court of Appeals for the District of Columbia Circuit, generally within 60 days of EPA's rulemaking. 42 U.S.C. 7607(b). The Court of Appeals rejected this argument. "Our choice of this interpretation of the PSD regulations is not an invalidation of those regulations," it said, because "the PSD regulations can be interpreted" to require an increase in the hourly emissions rate as an element of a major "modification" triggering the permit requirement. n. 7. To show that the 1980 PSD regulations are open to this construction, the Court of Appeals cited the conclusions of the District Court and the Reich opinions. We granted the petition for certiorari brought by intervenor-plaintiffs, 547 U.S. and now vacate. III The Court of Appeals understood that it was simply construing EPA's 1980 PSD regulations in a permissible way that left them in harmony with their NSPS counterpart and, hence, the Act's single definition of "modification." The plaintiffs say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text. It is true that no precise line runs between a purposeful but permissible reading of the regulation adopted to bring it into harmony with the Court of Appeals's view of the statute, and a determination that the regulation as written is invalid. But the latter occurred here, for the Court of Appeals's efforts to trim the PSD regulations to match their different NSPS counterparts can only be seen as an implicit declaration that the PSD regulations were invalid as written. A In applying the 1980 PSD regulations to Duke's conduct, the Court of Appeals thought that, by defining the term "modification" identically in its NSPS and PSD provisions, the Act required EPA to conform its PSD interpretation of that definition to any such interpretation it reasonably adhered to under NSPS. But principles of statutory construction are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as "effectively irrebuttable." We also understand that "[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
when used more than once in the same statute or even in the same section." Atlantic & Dyers, Thus, the "natural presumption that identical words used in different parts of the same act are intended to have the same meaning is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies. The point is the same even when the terms share a common statutory definition, if it is general enough, as we recognized in 6 L. Ed. 2d 808 There the question was whether the term "employees" in 704(a) of Title VII of the Civil Rights Act of 1964 covered former employees. Title VII expressly defined *1 the term "employee," 42 U.S.C. 2000e(f), but the definition was "consistent with either current or past employment," and we held that "each section" of Title VII "must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute," If Robinson were inconsistent with Rowan (on which the Court of Appeals relied), it would be significant that Robinson is the later case, but we read the two as compatible. In Rowan, the question was whether the value of meals and lodging given to employees by an employer for its own convenience should be counted in computing "wages" under the Federal Insurance Contributions Act (FICA), 26 U.S.C. 3101 et seq., and the Federal Unemployment Tax Act (FUTA), 26 U.S.C. 3301 et seq. Treasury Regulations made this value "includable in `wages' as defined in FICA and FUTA, even though excludable from `wages' under the substantially identical" statutory definition of "wages" for income-tax withholding Although we ultimately held that the income tax treatment was the proper one across the board, we did not see it this way simply because a "substantially identical" definition of "wages" appeared in each of the different statutory Instead, we relied on a manifest "congressional concern for the interest of simplicity and ease of administration." (internal quotation marks omitted). The FICA and FUTA regulations fell for failing to "serve that interest," not for defying definitional identity. In fact, in a setting much like Rowan, we recently declined to require uniformity when resolving ambiguities in identical statutory terms. In United 121 S. Ct. 1, we rejected the notion that using the phrase "wages paid"
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
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we rejected the notion that using the phrase "wages paid" in both "the discrete taxation and benefits eligibility contexts" can, standing alone, "compel symmetrical construction," at 2, 121 S. Ct. 1; we gave "substantial judicial deference" to the "longstanding," "reasonable," and differing interpretations adopted by the Internal Revenue Service in its regulations and Revenue Rulings. 121 S. Ct. 1. There is, then, no "effectively irrebuttable" presumption that the same defined term in different provisions of the same statute must "be interpreted identically." Context counts. It is true that the Clean Air Act did not merely repeat the term "modification" or the same definition of that word in its NSPS and PSD sections; the PSD language referred back to the section defining "modification" for NSPS 42 U.S.C. 7479(2)(C). But that did not matter in Robinson, and we do not see the distinction as making any difference here. Nothing in the text or the legislative history of the technical amendments that added the cross-reference to NSPS suggests that Congress had details of regulatory implementation in mind when it imposed PSD requirements on modified sources; the cross-reference alone is certainly no unambiguous congressional code for eliminating the customary agency discretion to resolve questions about a statutory definition by looking to the surroundings of the defined term, where it occurs. See New 4 F.3d, ; compare ; New Absent any iron rule to ignore the reasons for regulating PSD and NSPS "modifications" differently, EPA's construction need do no more than fall within the limits of what is reasonable, as set by the Act's common[6] definition. B The Court of Appeals's reasoning that the PSD regulations must conform to their NSPS counterparts led the court to read those PSD regulations in a way that seems to us too far a stretch for the language used. The 1980 PSD regulations on "modification" simply cannot be taken to track the agency's regulatory definition under the NSPS. True, the 1980 PSD regulations may be no seamless narrative, but they clearly do not define a "major modification" in terms of an increase in the "hourly emissions rate." On its face, the definition in the PSD regulations specifies no rate at all, hourly or annual, merely requiring a physical or operational change "that would result in a significant net emissions increase of any" regulated pollutant. 40 CFR 51.166(b)(2)(i). But even when a rate is mentioned, as in the regulatory definitions of the two terms, "significant" and "net emissions increase," the rate is annual, not hourly. Each of the thresholds that quantify "significant" is described in "tons per year," 51.166(b)(23)(i), and
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
quantify "significant" is described in "tons per year," 51.166(b)(23)(i), and a "net emissions increase" is an "increase in actual emissions" measured against an "average" prior emissions rate of so many "tons per year." 51.166(b)(3) and (21)(ii). And what is further at odds with the idea that hourly rate is relevant is the mandate that "[a]ctual emissions shall be calculated using the unit's actual operating hours," 51.166(b)(21)(ii), since "actual emissions" must be measured in a manner that looks to the number of hours the unit is or probably will be actually running. What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which "hourly rate of emissions," is dispositive. The reasons invoked by the Court of Appeals for its different view are no match for these textual differences. The appellate *1435 court cited two authorities ostensibly demonstrating that the 1980 PSD regulations "can be interpreted consistently" with the hourly emissions test, the first being the analysis of the District Court in this case. The District Court thought that an increase in the hourly emissions rate was necessarily a prerequisite to a PSD "major modification" because a provision of the 1980 PSD regulations excluded an "`increase in the hours of operation or in the production rate'" from the scope of "`[a] physical change or change in the method of operation.'" 278 F.Supp.2d, at (quoting 40 CFR 51.166(b)(2)(iii)(f) and (3)(i)(a) (1987)). The District Court read this exclusion to require, in effect, that a source's hours of operation "be held constant" when preproject emissions are being compared with postproject emissions for the purpose of calculating the "net emissions increase." We think this understanding of the 1980 PSD regulations makes the mistake of overlooking the difference between the two separate components of the regulatory definition of "major modification": "[1] any physical change in or change in the method of operation of a major stationary source that [2] would result in a significant net emissions increase of any pollutant subject to regulation under the Act." 51.166(b)(2)(i); cf. New 4 F.3d, at 11 ; Wisconsin Electric Power The exclusion of "increase in hours or production rate," 51.166(b)(2)(iii)(f), speaks to the first of these components ("physical change or change in method," 51.166(b)(2)(i)), but not to the second ("significant net emissions increase," ibid.). As the preamble to the 1980 PSD regulations explains, forcing companies to obtain a PSD permit before they could simply adjust operating hours "would severely and unduly hamper the ability of any company to take advantage of favorable market
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
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ability of any company to take advantage of favorable market conditions." 45 Fed.Reg. 52704. In other words, a mere increase in the hours of operation, standing alone, is not a "physical change or change in the method of operation." 40 CFR 51.166(b)(2)(iii). But the District Court took this language a step further. It assumed that increases in operating hours (resulting in emissions increases at the old rate per hour) must be ignored even if caused or enabled by an independent "physical change or change in the method of operation." 51.166(b)(2)(i). That reading, however, turns an exception to the first component of the definition into a mandate to ignore the very facts that would count under the second, which defines "net emissions increase" in terms of "actual emissions," 51.166(b)(3), during "the unit's actual operating hours," 51.166(b)(21)(ii); see also 57 Fed.Reg. 32328 (1992) ("[A]n increase in emissions attributable to an increase in hours of operation or production rate which is the result of a construction-related activity is not excluded from [PSD] review").[7] *1436 The Court of Appeals invoked one other source of support, the suggestion in the Reich opinions that a physical or operational change increasing a source's hours of operation, without an increase in the hourly emissions rate, cannot be a PSD "major modification." Duke continues to rely on those opinions here, asserting that "there are no contrary Agency pronouncements." Brief for Respondent Duke 28. The Reich letters are not, however, heavy ammunition. Their persuasiveness is elusive, neither of them containing more than one brief and conclusory statement supporting Duke's position. Nor, it seems, are they unembarrassed by any "contrary Agency pronouncements." See, e.g., App. 258 (Memorandum of Don R. Clay, Acting Assistant EPA Administrator for Air and Radiation) (Sept. 9, 1988) (when "plans to increase production rate or hours of operation are inextricably intertwined with the physical changes planned," they are "precisely the type of change in hours or rate o[f] operation that would disturb a prior assessment of a source's environmental impact and should have to undergo PSD review scrutiny" (internal quotation marks and alterations omitted)); see also In any event, it answers the citation of the Reich letters to realize that an isolated opinion of an agency official does not authorize a court to read a regulation inconsistently with its language.[8] In sum, the text of the 1980 PSD regulations on "modification" doomed the Court of Appeals's attempt to equate those regulations with their NSPS counterpart. As a consequence, we have to see the Court of Appeals's construction of the 1980 PSD regulations as an implicit invalidation of
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of 307(b) of the Act, which limit challenges to the validity of a regulation during enforcement proceedings when such review "could have been obtained" in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking. See 42 U.S.C. 7607(b); see also United ; Wisconsin Electric Power n. 6. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of 307(b) ourselves. IV Finally, Duke assumes for argument that the Act and the 1980 regulations may authorize EPA to construe a PSD "modification" as it has done, but it *1437 charges that the agency has taken inconsistent positions and is now "retroactively targeting twenty years of accepted practice." Brief for Respondent Duke 37; see also Brief for State of Alabama et al. as Amici Curiae. This claim, too, has not been tackled by the District Court or the Court of Appeals; to the extent it is not procedurally foreclosed, Duke may press it on remand. * * * The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice THOMAS, concurring in part. I join all but Part III-A of the Court's opinion. I write separately to note my disagreement with the dicta in that portion of the opinion, which states that the statutory cross-reference does not mandate a singular regulatory construction. The Prevention of Significant Deterioration (PSD) statute explicitly links the definition of the term "modification" to that term's definition in the New Source Performance Standard (NSPS) statute: "The term `construction' when used in connection with any source or facility, includes the modification (as defined in section 7411(a) of this title) of any source or facility." 42 U.S.C. 7479(2)(C). Section 7411(a) contains the NSPS definition of "modification," which the parties agree is the relevant statutory definition of the term for both PSD and NSPS. Because of the cross-reference, the definitions of "modification" in PSD and NSPS are one and the same. The term "modification" therefore has the same meaning despite contextual variations in the two admittedly different statutory schemes. Congress' explicit linkage of PSD's definition of "modification" to NSPS' prevents the Environmental Protection Agency (EPA) from adopting differing regulatory definitions of "modification" for PSD and NSPS. Cf. IBP, Section 7479(2)(C)'s cross-reference carries more meaning
|
Justice Souter
| 2,007 | 20 |
majority
|
Environmental Defense v. Duke Energy Corporation
|
https://www.courtlistener.com/opinion/145748/environmental-defense-v-duke-energy-corporation/
|
and NSPS. Cf. IBP, Section 7479(2)(C)'s cross-reference carries more meaning than the mere repetition of the same word in a different statutory context. When Congress repeats the same word in a different statutory context, it is possible that Congress might have intended the context to alter the meaning of the word. See Atlantic & Dyers, No such possibility exists with 7479(2)(C). By incorporating NSPS' definition of "modification," Congress demonstrated that it did not intend for PSD's definition of "modification" to hinge on contextual factors unique to the PSD statutory scheme. Thus, United 121 S. Ct. 1, which analyzes the mere repetition of the same word in a different statutory context, carries little weight in this situation. Likewise, this case differs from the circumstance we faced in 6 L. Ed. 2d 808 In Robinson, we considered whether "employee," as used in 704(a) of Title VII of the Civil Rights Act of 1964, included former employees. We determined that under the clear language of the statute, certain statutory provisions using the term "employee" made sense only with respect to former employees or current employees, but not *1438 both. at 2-3, Accordingly, upon analyzing the context of 704(a), we were compelled to conclude that the term "employee" included former employees. This case does not present a similar situation. The statute here includes a statutory cross-reference, which conveys a clear congressional intent to provide a common definition for the term "modification." And the contextual differences between PSD and NSPS do not compel different meanings for the term "modification." Robinson is, therefore, inapplicable. Even if the cross-reference were merely the equivalent of repeating the words of the definition, we must still apply our usual presumption that the same words repeated in different parts of the same statute have the same meaning. See Atlantic at ; ante, at 1432. That presumption has not been overcome here. While the broadly stated regulatory goals of PSD and NSPS differ, these contextual differences do not compel different definitions of "modification." That is, unlike in Robinson, reading the statutory definition in the separate contexts of PSD and NSPS does not require different interpretations of the term "modification." EPA demonstrated as much when it recently proposed regulations that would unify the regulatory definitions of "modification." See 70 Fed.Reg. 61083, n. 3 (terming the proposal "an appropriate exercise of our discretion" and stating that the unified definition better serves PSD's goals). The majority opinion does little to overcome the presumption that the same words, when repeated, carry the same meaning. Instead, it explains that this Court's cases do not compel identical language
|
Justice Marshall
| 1,979 | 15 |
dissenting
|
Washington v. Confederated Bands and Tribes of Yakima Nation
|
https://www.courtlistener.com/opinion/109972/washington-v-confederated-bands-and-tribes-of-yakima-nation/
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For over 140 years, the Court has resolved ambiguities i statutes, documets, ad treaties that affect retaied tribal sovereigty i favor of the Idias.[1] This iterpretive priciple *503 is a respose to the uique relatioship betwee the Federal Govermet ad the Idia people, "who are the wards of the atio, depedet upo its protectio ad good faith." More fudametally, the priciple is a doctrial embodimet of "the right of [Idia atios] to make their ow laws ad be ruled by them," a right emphatically reaffirmed last Term i Uited Although retaied tribal sovereigty "exists oly at the sufferace of Cogress," the States may ot ecroach upo a Idia atio's iteral self-govermet util Cogress has uequivocally sactioed their presece withi a reservatio. See ibid.; ; see also While the Court i its discussio of the disclaimer issue professes to follow this settled priciple of statutory iterpretatio, ate, at 484, it completely igores the rule whe addressig Washigto's assertio of partial jurisdictio. I my view, the laguage ad legislative history of Pub. L. 280 do ot uequivocally authorize States to assume the type of selective geographic ad subject-matter jurisdictio that Washigto asserted i 1963.[2] Because our precedets compel *504 us to costrue the statute i favor of the Idias, I respectfully disset. As is evidet from the majority opiio, the text of Pub. L. 280 does ot o its face empower optio States to assert partial geographic or subject-matter jurisdictio over Idia reservatios.[3] The statute refers without limitatio to "crimial" ad "civil" jurisdictio. Nevertheless, because optio States could have coditioed their exercise of full jurisdictio o the coset of affected tribes, ate, at 495, 498, ad because Pub. L. 280 would have permitted Washigto to exted full jurisdictio over the Yakima Idia Reservatio without cosultig the Tribe, ate, at 499, the Court cocludes that the States ca uilaterally assert less tha full jurisdictio. I agree that Pub. L. 280 permits optio States to refuse jurisdictio abset the coset of the Idias, ad that prior to the 1968 amedmets of the Act,[4] Washigto could have uilaterally exteded full jurisdictio over the Reservatio. But the majority does ot explai how the statutory laguage goverig exercise of full jurisdictio allows the States to exercise piecemeal jurisdictio. That Washigto has doe o more tha "refrai from exercisig the full measure of allowable jurisdictio," ate, at 495, raises but does ot aswer *505 the critical questio whether Pub. L. 280 sactios this jurisdictioal arragemet. The sparse legislative history of Pub. L. 280, like the statutory laguage, says othig about the propriety of partial jurisdictioal schemes. I light
|
Justice Marshall
| 1,979 | 15 |
dissenting
|
Washington v. Confederated Bands and Tribes of Yakima Nation
|
https://www.courtlistener.com/opinion/109972/washington-v-confederated-bands-and-tribes-of-yakima-nation/
|
othig about the propriety of partial jurisdictioal schemes. I light of the expressed reluctace of at least oe State to assume the fiacial burde that jurisdictio over Idia territory etails,[5] this silece is particularly istructive. Although selective assertio of jurisdictio withi reservatios would obviously ameliorate such fiscal cocers, at o poit i the cogressioal deliberatios was it advaced as a solutio. Rather, Cogress permitted the optio States to refrai from exercisig full jurisdictio util they could meet their fiacial obligatios.[6] The legislative focus was clearly o full-fledged assumptio of jurisdictio.[7] To disregard this legislative focus ad allow assumptio of partial jurisdictio udermies a importat purpose behid Pub. L. 280. I eactig the statute, Cogress sought to elimiate the serious "hiatus i law-eforcemet authority" o Idia reservatios, H. R. Rep. No. at 6, which was attributable i large part to the divisio of law eforcemet fuctios amog federal, state, ad Idia authorities.[8] It iteded to accomplish this goal by gratig *506 to the States the authority previously exercised by the Federal Govermet, thereby simplifyig the admiistratio of law o Idia reservatios. See 1953 Subcommittee Hearigs 7. Washigto's complex jurisdictioal system, depedet o the status of the offeder, the locatio of the crime, ad the type of offese ivolved, by o meas simplifies law eforcemet o the Yakima Reservatio. Cf. 1 Natioal America Idia Court Judges Ass., Justice ad the America Idia: The Impact of Public Law 280 upo the Admiistratio of Justice o Idia Reservatios 6-13 (1974). To the cotrary, it exacerbates the cofusio that the statute was desiged to redress. Had Cogress iteded to codoe exercise of limited subject-matter jurisdictio o a radom geographic basis, it could have easily expressed this purpose. See ; ; -175, ad 13; Meomiee Tribe of Idias v. Uited States, ; Creek Couty Ideed, it did so i the 1968 amedmets to the Act whe it authorized partial crimial or civil jurisdictio by subject matter, geography, or both, but oly with the Idias' coset. 25 U.S. C. 1321 (a), 1322 (a).[9] I am uwillig to *507 presume that Cogress' failure i 1953 to sactio piecemeal jurisdictio i similar terms was uitetioal. I ay evet, it is idisputable that the statute does ot uambiguously authorize assertio of partial jurisdictio. If we adhere more tha omially to the practice of resolvig ambiguities i favor of the Idias, the Washigto's jurisdictioal arragemet caot stad. Accordigly, I disset.
|
per_curiam
| 1,978 | 200 |
per_curiam
|
Vitek v. Jones
|
https://www.courtlistener.com/opinion/109869/vitek-v-jones/
|
This appeal presents a challenge under the Due Process Clause of the Fourteenth Amendment to a state statute which authorizes the transfer of a state prisoner, without his consent, to a state mental hospital upon a finding by a physician or psychologist that the prisoner suffers from a mental disease or defect and that he cannot be given proper treatment within the facility in which he is confined.[1] *408 Appellee Larry D. Jones[2] was convicted of the crime of robbery and was sentenced to a prison term of three to nine years. In May 1974, he began serving his sentence at the Nebraska Penal and Correctional Complex, a state prison. In January 1975, appellee was transferred to the penitentiary hospital; two days later he was placed in solitary confinement in the prison adjustment center. While there, appellee set his mattress on fire and suffered serious burns. Appellee was transferred by ambulance to the burn unit of a private hospital where he remained for some four months. In April 1975, immediately following his release from the hospital, appellee was transferred to the security unit of the Lincoln Regional Center, a hospital facility owned and operated by the State of Nebraska for the purpose of providing treatment for persons afflicted with emotional and mental disorders. In advance of his transfer to Lincoln Regional Center, *409 appellee was examined by a psychiatrist as required by (1976). The evidence adduced before the District Court revealed that, when asked by the examining psychiatrist whether or not he wished to be transferred, appellee answered that he did. However, the District Court deemed the transfer to have been involuntary because appellee was offered no means of obtaining independent advice on the subject and because, in the view of the District Court, appellee "may well not have been competent to exercise a free choice."[3] It is undisputed that, in transferring appellee from a prison facility to a mental institution, the correctional authorities exercised the authority conferred on them by the state statute challenged here. In April 1976, appellee filed a complaint in the United States District Court for the District of Nebraska seeking to intervene in a civil rights action brought by a state prisoner who, like appellee, had been transferred from the State Penal Complex to Lincoln Regional Center. The three-judge District Court agreed that due process attached to plaintiffs' asserted liberty interest and declared 83-180 (1) unconstitutional as applied. and Additional procedures set forth by the District Court require the State to furnish the inmate with effective and timely notice of his rights and, in the
|
Justice Thomas
| 2,018 | 1 |
dissenting
|
Rosales-Mireles v. United States
|
https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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The Court holds that, “in the ordinary case,” a miscalcu- lation of the advisory Sentencing Guidelines range will “seriously affect the fairness, integrity, or public reputa- tion of judicial proceedings.” Ante, at 1. In other words, a defendant who does not alert the district court to a plain miscalculation of his Guidelines range—and is not happy with the sentence he receives—can raise the Guidelines error for the first time on appeal and ordinarily get another shot at a more favorable sentence. The Court’s decision goes far beyond what was necessary to answer the ques- tion presented.1 And it contravenes long-established principles of plain-error review. I respectfully dissent. —————— 1 We granted certiorari to decide whether “the fourth prong of plain error review [demands], as the Fifth Circuit Court of Appeals required, that the error be one that ‘would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.’ ” Pet. for Cert. i; 5 U. S. (2017). Although I doubt it changed the outcome in any case, I agree that the Fifth Circuit’s standard is higher than the one articulated in this Court’s precedents— at least to the extent it requires an uncorrected error to “shock the conscience.” See ante, at 5–7. 2 ROSALES-MIRELES v. UNITED STATES THOMAS, J., dissenting I Under Federal Rule of Criminal Procedure 52(b), “[a] plain error that affects substantial rights may be consid- ered even though it was not brought to the court’s atten- tion.” (Emphasis added.) The “point of the plain-error rule” is to “requir[e] defense counsel to be on his toes.” United Its de- manding standard is meant to “encourage timely objec- tions and reduce wasteful reversals by demanding strenu- ous exertion to get relief for unpreserved error.” United If the standard were not stringent, there would be nothing “prevent[ing] a litigant from ‘ “sandbagging” ’ the court— remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Satis- fying the plain-error standard “is difficult, ‘as it should be.’ ” This Court has held that Rule 52(b) is satisfied only when four requirements are met: “(1) there is ‘an error,’ (2) the error is ‘plain,’ ” “(3) the error ‘affect[s] substantial rights,’ ” and “(4) ‘the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceed- ings.” ’ ” (2013). The fourth requirement—the one at issue here—is discretionary. It should “be applied on a case- specific and fact-intensive basis.” And it
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Justice Thomas
| 2,018 | 1 |
dissenting
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Rosales-Mireles v. United States
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https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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applied on a case- specific and fact-intensive basis.” And it cannot be satisfied by “a plain error affecting sub- stantial rights without more, for otherwise the discretion afforded by Rule 52(b) would be illusory.” United 7 Instead, “only ‘particularly egregious errors’ ” will meet the fourth prong’s rigorous standard. United States v. 470 U.S. 1, 15 (1985) (quoting United States v. 456 U.S. 152, 163 (19)); see also United (explaining that courts should Cite as: 585 U. S. (2018) 3 THOMAS, J., dissenting provide relief under plain-error review only in “exceptional circumstances”). II The Court holds that Guidelines errors will “ordi- nar[ily]” satisfy the fourth prong of plain-error review. Ante, This result contravenes several established principles from our precedents. To begin, the Court’s decision is at odds with the princi- ple that the fourth prong of plain-error review “be applied on a case-specific and fact-intensive basis.” By holding that a Guidelines error “ordinarily will satisfy [the] fourth prong” absent “countervailing factors,” ante, at 11, the Court creates what is essentially a rebut- table presumption that plain Guidelines errors satisfy Rule 52(b). And, based on the Court’s application of it today, this presumption certainly must be difficult to rebut. The Court matter-of-factly asserts, in a single sentence with no analysis, that “there are no [countervail- ing] factors” in this case that counsel in favor of affir- mance. Ante, at 11. It does so without even discussing the particular details of the defendant’s crime, what happened at his sentencing, the reasoning that the District Court employed, the difference between the defendant’s calculated Guidelines range and the correct one, or where his sen- tence fell relative to the correct Guidelines range. This approach is neither “case-specific” nor “fact-intensive.” The Court candidly admits as much. See ante, at 11, n. 4. But this is exactly the kind of “ ‘per se approach to plain-error review’ ” that we have consistently rejected. The Court’s rebuttable presumption also renders the fourth prong of plain-error review “illusory” in most Guidelines cases. at 7. The Court ex- pressly states that Guidelines errors will satisfy the fourth prong in “the ordinary case.” Ante, But this Court 4 ROSALES-MIRELES v. UNITED STATES THOMAS, J., dissenting has repeatedly held that the fourth prong limits courts’ discretion to “correct[ing] only ‘particularly egregious errors.’ ” Because Rule 52(b) “ ‘is not a run-of-the-mill remedy,’ ” relief should be granted “sparingly” in “ ‘the rare case,’ ” 527 U.S. 3, and only in “exceptional circumstances,” at Today’s decision turns that principle on its head by mak- ing relief available “in the ordinary case.” Ante,
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Justice Thomas
| 2,018 | 1 |
dissenting
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Rosales-Mireles v. United States
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https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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by mak- ing relief available “in the ordinary case.” Ante, at 1. The Court asserts that relief under plain-error review need not be exceptional or rare when a remand would not require “additional jury proceedings.” Ante, at 12. But that distinction has no basis in the text of Rule 52(b) or this Court’s precedents. The only Rule 52(b) precedent that the Court cites for this assertion is Molina-Martinez v. United States, 578 U. S. (2016) (slip op., ). See ante, at 9. That decision rejected the Fifth Circuit’s categorical rule requiring defendants to present “additional evidence” (beyond the Guidelines error itself) to prove prejudice under the third prong of plain-error review. See 578 U. S., at – (slip op., at 8–9). In dicta it suggested that, “in the ordinary case,” the Guidelines error would be enough to satisfy the third prong’s requirement that the error affect substantial rights. at (slip op., ). And it rebuffed the Government’s pragmatic “concern over the judicial resources needed” if Guidelines errors usually satisfy the third prong of plain-error review. at (slip op., at 14). But Molina-Martinez did not discuss the fourth prong of plain-error review, which is at issue here and is an independent requirement, see at 7. Nor did it relax the plain-error standard whenever reversal would not require “additional jury proceedings.” Ante, at 12. Thus, Molina-Martinez gives no support to the Court’s innovation. Additionally, the Court’s encouragement of remands based on ordinary Guidelines errors undermines “the Cite as: 585 U. S. (2018) 5 THOMAS, J., dissenting policies that underpin Rule 52(b).” Dominguez 542 U.S., at As explained, the plain-error standard encourages defendants to make timely objections in order to avoid sandbagging and to prevent wasteful reversals and remands. After today, however, most defendants who fail to object to a Guidelines error will be in virtually the same position as those who do. Today’s decision, especially when combined with Molina-Martinez, means that plain Guidelines errors will satisfy Rule 52(b) in all but the unusual case. That creates the very opportunity for “sandbagging” that Rule 52(b) is supposed to prevent, 556 U.S., at (internal quotation marks omit- ted), by allowing a defendant who is aware of a mistake in the presentence report to “simply relax and wait to see if the sentence later str[ikes] him as satisfactory,” Vonn, 535 U.S., at Oddly, defendants who do not object to a Guidelines error could be in a better position than ones who do. An objection would give the district court a chance to explain why it would “arrive at the same sen- tencing conclusion” even if
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Justice Thomas
| 2,018 | 1 |
dissenting
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Rosales-Mireles v. United States
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https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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would “arrive at the same sen- tencing conclusion” even if the defendant was correct about an alleged Guidelines error, which would “mak[e] clear” that the Guidelines error did not “adversely affect the defendant’s ultimate sentence.” United States v. Sabillon-Umana, Today’s decision thus inverts Rule 52(b) by giving defend- ants an incentive to withhold timely objections and “ ‘game’ the system.” III Even if it were appropriate to create rebuttable pre- sumptions under the fourth prong of plain-error review, the Court is wrong to conclude that the “ordinary” Guide- lines error will “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Ante, at 1. Whether a district court’s failure to correctly calculate the advisory Guidelines range satisfies the fourth prong of 6 ROSALES-MIRELES v. UNITED STATES THOMAS, J., dissenting plain-error review will depend on the circumstances of each case. And the circumstances of this case prove the folly of the Court’s presumption. A The Court asserts that plain Guidelines errors must ordinarily be corrected to ensure that defendants do not “linger longer in federal prison than the law demands.” Ante, at 10 (internal quotation marks omitted). But the Guidelines are not “law.” They neither “define criminal offenses” nor “fix the permissible sentences for criminal offenses.” Beckles v. United States, 580 U. S. (2017) (slip op., at 5) (emphasis deleted). Instead, they are purely “advisory” and “merely guide the district courts’ discretion.” at (slip op., at 8). They provide advice about what sentencing range the Sentencing Commission believes is appropriate, “but they ‘do not constrain’ ” dis- trict courts. Accordingly, district courts are free to disagree with the Guidelines range, for reasons as simple as a policy disagreement with the Sentencing Commission. See ; 18 U.S. C. In fact, district courts commit reversible error if they “trea[t] the Guidelines as mandatory.” Gall v. United States, Although the Guidelines range is one of the factors that courts must consider at sentencing, 18 U.S. C. judges need not give the Guidelines range any particular weight. The only thing that “the law demands” is that a defendant’s sentence be substantively reasonable and within the applicable statutory range. See 577 U. S. – (2015) (Scalia, J., dissenting from denial of certiorari) (slip op., at 1–2); (Scalia, J., concurring). The Court also justifies its presumption by repeatedly stressing the importance of procedural rules to the public’s Cite as: 585 U. S. (2018) 7 THOMAS, J., dissenting perception of judicial proceedings. See ante, at 10 (“[T]he public legitimacy of our justice system relies on proce- dures”); ante, at 13 (“[U]njust procedures may well un- dermine public
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Justice Thomas
| 2,018 | 1 |
dissenting
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Rosales-Mireles v. United States
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https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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ante, at 13 (“[U]njust procedures may well un- dermine public perception of [sentencing] proceedings”). It even cites a hodgepodge of psychological studies on proce- dural justice. Ante, at 13 (Hollander-Blumoff)). Putting aside the obvious problems with this research,2 the Court contradicts our precedents by suggesting that adhering to procedure has prime importance for purposes of the fourth prong. This Court has repeatedly concluded that purely procedural errors—ones that likely did not affect the substantive outcome—do not satisfy the fourth prong of plain-error review. In for example, the District Court failed to submit a materiality element to the jury, but this Court found that the fourth prong of plain-error review was not —————— 2 The article that the Court cites makes broad claims based on limited research. For instance, the article states that, “[w]hen people feel that they have received fair treatment, they are more likely to adhere to, accept, and feel satisfied with a given outcome, and to view the system that gave rise to that outcome as legitimate.” Hollander-Blumoff, But the only support it provides for that proposition is a telephone survey of a few hundred Chicago residents. See at n. 37 (citing T. Tyler, Why People Obey the Law 162 (2006)); see also at 8–15 (explaining the study’s methodology). The article also draws conclu- sions about the general importance of “procedural justice” in court, based on marginally relevant studies of noncourt settings such as “arbitration and mediation,” interactions with “police officers” and “work supervisors,” and “highly relational settings like the family.” See Hollander-Blumoff 132–. Crucially, none of this research has any bearing on the far more complicated question of “procedural justice” at issue here: whether it is presumptively unfair to penalize a defendant who fails to object to an error until appeal. The contemporaneous- objection rule, after all, is also a procedural rule that affects the fair- ness, integrity, and reputation of judicial proceedings. 8 ROSALES-MIRELES v. UNITED STATES THOMAS, J., dissenting satisfied because “the evidence supporting materiality was ‘overwhelming.’ ” Reversal based on errors that have no actual “ ‘effect on the judgment,’ ” this Court explained, “ ‘encourages litigants to abuse the judicial process and bestirs the public to ridicule it.’ ” (quot- ing R. Traynor, The Riddle of Harmless Error 50 (1970)). Similarly, in United the indictment failed to allege a fact that increased the statutory maximum, but the evidence of that fact “was ‘overwhelming’ and ‘essentially uncontroverted.’ ” at 633. This Court held that reversing a defendant’s sen- tence based on such a technicality would be “[t]he real threat to the ‘fairness, integrity, and
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Justice Thomas
| 2,018 | 1 |
dissenting
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Rosales-Mireles v. United States
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https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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would be “[t]he real threat to the ‘fairness, integrity, and public reputation of judicial proceedings.’ ” And in United States v. Marcus, the Second Circuit had held that an ex post facto error automatically satisfies the plain-error standard, “ ‘no matter how unlikely’ ” it was that the jury actually convicted the defendant based on conduct that predated the statute of conviction. (emphasis deleted). In reversing that decision, this Court emphasized that, “in most circumstances, an error that does not affect the jury’s verdict does not significantly impugn the ‘fairness,’ ‘integrity,’ or ‘public reputation’ of the judicial process.” at 265–266. Thus, the Court is mistaken when it asserts that, because Guidelines errors are procedural mistakes, they are particularly likely to implicate the fourth prong of plain error. B While the Court holds that the ordinary Guidelines error will satisfy the fourth prong of plain-error review, it admits that there can be “instances where countervailing factors” preclude defendants from satisfying the fourth prong. Ante, at 11. Because the Court does not question our existing plain-error precedents, see ante, at 12, the burden presumably remains on defendants to establish Cite as: 585 U. S. (2018) 9 THOMAS, J., dissenting that there are no such countervailing factors, and to per- suade the appellate court that any countervailing factor identified by the Government is insufficient. See Vonn, (“[A] defendant has the further burden to persuade the court that the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceed- ings” (internal quotation marks omitted)); Dominguez 542 U.S., at (“[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it”). But the Court does not explain what the defendant in this case has done to satisfy his burden. If this case is an ordinary one, it highlights the folly of the Court’s new rebuttable presumption. Petitioner Flor- encio Rosales-Mireles has a penchant for entering this country illegally and committing violent crimes— especially against women. A Mexican citizen, Rosales- Mireles entered the United States illegally in 1997. In 2002, he was convicted of assault for throwing his girl- friend to the floor of their apartment and dragging her outside by her hair. In 2009, he was convicted of aggra- vated assault with serious bodily injury and assault caus- ing bodily injury to a family member.3 His convictions stemmed from an altercation in which he attempted to stab one man and did stab another—once in the shoulder and twice in the chest. In January 2010, Rosales-Morales was removed to Mexico. But that same month he reen- tered the United States
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Justice Thomas
| 2,018 | 1 |
dissenting
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Rosales-Mireles v. United States
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https://www.courtlistener.com/opinion/4508136/rosales-mireles-v-united-states/
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But that same month he reen- tered the United States illegally. In 2015, he was convicted in Texas state court of assaulting his wife and 14-year-old son. During the altercation, Rosales-Mireles grabbed his wife by the hair and punched her in the face repeatedly. —————— 3 These assaults occurred in 2001, but Rosales-Mireles was not ar- rested for years—apparently because he was going by the name “Emilio Ruiz” at the time of the assaults. When Rosales-Mireles was eventually arrested in 2009, he had two outstanding warrants for other assaults of his wife. 10 ROSALES-MIRELES v. UNITED STATES THOMAS, J., dissenting Most recently, Rosales-Mireles pleaded guilty to illegal reentry. See 8 U.S. C. (b)(2). The District Court sentenced him to 78 months in prison, which was within the Guidelines range he argued for on appeal. See ante, at 4. In choosing that sentence, the District Court emphasized that it was “the second time he’s come to the courts for being here illegally”; that he had “attempted to hide in the United States with multiple aliases, birth dates, [and] Social Security numbers”; and that his “as- saultive behavior” spanned from “at least 2001 to 2015.” App. 20. The sentence that Rosales-Mireles received was not only within both the improperly and properly calculated Guide- lines ranges but also in the bottom half of both possible ranges. See ante, at 4. If the District Court had used the proper Guidelines range at his initial sentencing, then the sentence that it ultimately gave Rosales-Mireles would have been presumptively reasonable on appeal. See 850 F.3d 246, 250 (CA5 2017); Rita v. United States, 5 U.S. 338, 347 And the Fifth Circuit determined that his sentence was in fact reasonable. See – 2. Leaving that reasonable sentence in place would not “ ‘seriously affect the fairness, integrity, or public reputa- tion of judicial proceedings.’ ” 470 U.S., A sentence that is substantively reasonable is hardly the kind of “particularly egregious erro[r]” that warrants plain-error relief. * * * Rule 52(b) strikes a “careful balance between judicial efficiency and the redress of injustice.” 556 U.S., Because today’s decision upsets that balance for scores of cases involving Guidelines errors, I respectfully dissent
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Justice Rehnquist
| 1,985 | 19 |
majority
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Walters v. National Assn. of Radiation Survivors
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https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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Title 38 U.S. C. 3404(c) limits to $10 the fee that may be paid an attorney or agent who represents a veteran seeking benefits for service-connected death or disability. The United States District Court for the Northern District of California held that this limit violates the Due Process Clause of the Fifth Amendment, and the First Amendment, because it denies veterans or their survivors the opportunity to retain counsel of their choice in pursuing their claims. We noted probable jurisdiction of the Government's appeal, and we now reverse. I Congress has by statute established an administrative system for granting service-connected death or disability benefits to veterans. See 38 U.S. C. 301 et seq. The amount of the benefit award is not based upon need, but upon service connection that is, whether the disability is causally related to an injury sustained in the service and the degree of incapacity caused by the disability. A detailed system has been established by statute and Veterans' Administration (VA) regulation for determining a veteran's entitlement, with final authority resting with an administrative body known as the Board of Veterans' Appeals (BVA). Judicial review of VA decisions is precluded by statute. 38 U.S. C. 211(a); The controversy in this case centers on the opportunity for a benefit applicant *308 or recipient to obtain legal counsel to aid in the presentation of his claim to the VA. Section 3404(c) of Title 38 provides: "The Administrator shall determine and pay fees to agents or attorneys recognized under this section in allowed claims for monetary benefits under laws administered by the Veterans' Administration. Such fees "(2) shall not exceed $10 with respect to any one claim" Section 3 provides criminal penalties for any person who charges fees in excess of the limitation of 3404. Appellees here are two veterans' organizations, three individual veterans, and a veteran's widow.[1] The two veterans' organizations are the National Association of Radiation Survivors, an organization principally concerned with obtaining compensation for its members for injuries resulting from atomic bomb tests, and Swords to Plowshares Veterans Rights Organization, an organization particularly devoted to the concerns of Vietnam veterans. The complaint contains no further allegation with respect to the numbers of members in either organization who are veteran claimants. Appellees did not seek class certification. Appellees contended in the District Court that the fee limitation provision of 3404 denied them any realistic opportunity to obtain legal representation in presenting their claims to the VA and hence violated their rights under the Due Process Clause of the Fifth Amendment and under the First Amendment.
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Justice Rehnquist
| 1,985 | 19 |
majority
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Walters v. National Assn. of Radiation Survivors
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https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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Clause of the Fifth Amendment and under the First Amendment. The District Court agreed with the appellees on both of these grounds, and entered a nationwide "preliminary injunction" barring appellants from enforcing the fee limitation. To understand fully the posture in which the case reaches us it is necessary to discuss the administrative scheme in some detail. *309 Congress began providing veterans pensions in early 1789, and after every conflict in which the Nation has been involved Congress has, in the words of Abraham Lincoln, "provided for him who has borne the battle, and his widow and his orphan." The VA was created by Congress in 1930, and since that time has been responsible for administering the congressional program for veterans' benefits. In 1978, the year covered by the report of the Legal Services Corporation to Congress that was introduced into evidence in the District Court, approximately 800,000 claims for service-connected disability or death and pensions were decided by the 58 regional offices of the VA. Slightly more than half of these were claims for service-connected disability or death, and the remainder were pension claims. Of the 800,000 total claims in 1978, more than 400,000 were allowed, and some 379,000 were denied. Sixty-six thousand of these denials were contested at the regional level; about a quarter of these contests were dropped, 15% prevailed on reconsideration at the local level, and the remaining 36,000 were appealed to the BVA. At that level some 4,500, or 12%, prevailed, and another % won a remand for further proceedings. Although these figures are from 1978, the statistics in evidence indicate that the figures remain fairly constant from year to year. As might be expected in a system which processes such a large number of claims each year, the process prescribed by Congress for obtaining disability benefits does not contemplate the adversary mode of dispute resolution utilized by courts in this country. It is commenced by the submission of a claim form to the local veterans agency, which form is provided by the VA either upon request or upon receipt of notice of the death of a veteran. Upon application a claim generally is first reviewed by a three-person "rating board" of the VA regional office consisting of a medical specialist, a legal specialist, and an "occupational specialist." A claimant is "entitled to a hearing at any time on any issue involved in a claim." 38 CFR 3.103(c) Proceedings in front of the rating board "are ex parte in nature," 3.103(a); no *310 Government official appears in opposition. The principal issues are the extent
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Justice Rehnquist
| 1,985 | 19 |
majority
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Walters v. National Assn. of Radiation Survivors
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https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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official appears in opposition. The principal issues are the extent of the claimant's disability and whether it is service connected. The board is required by regulation "to assist a claimant in developing the facts pertinent to his claim," 3.103(a), and to consider any evidence offered by the claimant. See 3.103(b). In deciding the claim the board generally will request the applicant's Armed Service and medical records, and will order a medical examination by a VA hospital. Moreover, the board is directed by regulation to resolve all reasonable doubts in favor of the claimant. 3.102.[2] After reviewing the evidence the board renders a decision either denying the claim or assigning a disability "rating" pursuant to detailed regulations developed for assessing various disabilities. Money benefits are calculated based on the rating. The claimant is notified of the board's decision and its reasons, and the claimant may then initiate an appeal by *311 filing a "notice of disagreement" with the local agency. If the local agency adheres to its original decision it must then provide the claimant with a "statement of the case" a written description of the facts and applicable law upon which the board based its determination so that the claimant may adequately present his appeal to the BVA. Hearings in front of the BVA are subject to the same rules as local agency hearings they are ex parte, there is no formal questioning or cross-examination, and no formal rules of evidence apply. 38 CFR 19.157 The BVA's decision is not subject to judicial review. 38 U.S. C. 211(a).[3] The process is designed to function throughout with a high degree of informality and solicitude for the claimant. There is no statute of limitations, and a denial of benefits has no formal res judicata effect; a claimant may resubmit as long as he presents new facts not previously forwarded. See 38 CFR 3.104, 3.105 Although there are time limits for submitting a notice of disagreement and although a claimant may prejudice his opportunity to challenge factual or legal decisions by failing to challenge them in that notice, the time limit is quite liberal up to one year and the VA boards are instructed to read any submission in the light most favorable to the claimant. See 38 CFR 19.129, 19.124, 19.121 Perhaps more importantly for present purposes, however, various veterans' organizations across the country make available trained service agents, free of charge, to assist claimants in developing and presenting their claims. These service representatives are contemplated by the VA statute, 38 U.S. C. 3402, and they are
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Justice Rehnquist
| 1,985 | 19 |
majority
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Walters v. National Assn. of Radiation Survivors
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https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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the VA statute, 38 U.S. C. 3402, and they are recognized as an important part of the administrative scheme. Appellees' counsel agreed at argument that a representative is available for *312 any claimant who requests one, regardless of the claimant's affiliation with any particular veterans' group.[4] In support of their claim that the present statutory and administrative scheme violates the Constitution, appellees submitted affidavits and declarations of 16 rejected claimants or recipients and 24 practicing attorneys, depositions of several VA employees, and various exhibits. The District Court held a hearing and then issued a 52-page opinion and order granting the requested "preliminary injunction."[5] With respect to the merits of appellees' due process claim, the District Court first determined that recipients of service-connected death and disability benefits possess "property" interests protected by the Due Process Clause, see and also held that applicants for such benefits possess such an interest. Although noting that this Court has never ruled on the latter question, the court relied on several opinions of the Court of Appeals for the Ninth Circuit holding, with respect to similar Government benefits, that applicants possess such an interest. See, e. g., The court then held that appellees had a strong likelihood of showing that the administrative scheme violated the due process rights of those entitled to benefits. In holding that the process described above was "fundamentally unfair," the court relied on the analysis developed by this Court in *3 in which we stated the factors that must be weighed in determining what process is due an individual subject to a deprivation: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." In applying this test the District Court relied heavily on appellees' evidence; it noted that the veterans' interest in receiving benefits was significant in that many recipients are disabled, and totally or primarily dependent on benefits for their With respect to the likelihood of error under the present system, and the value of the additional safeguard of legal representation, it first noted that some of the appellees had been represented by service agents and had been dissatisfied with their representation, and had sought and failed to obtain legal counsel due solely to the fee limitation. The court found that absent expert legal counsel claimants ran a significant
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Justice Rehnquist
| 1,985 | 19 |
majority
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Walters v. National Assn. of Radiation Survivors
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https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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found that absent expert legal counsel claimants ran a significant risk of forfeiting their rights, because of the highly complex issues involved in some cases. VA processes, the court reasoned, allow claimants to waive points of disagreement on appeal, or to waive appeal altogether by failing to file the notice of disagreement; in addition, claimants simply are not equipped to engage in the factual or legal development necessary in some cases, or to spot errors made by the administrative boards. With respect to whether the present process alleviated these problems, the court found that "neither the VA officials themselves nor the service organizations are providing the full array of services that paid attorneys might make available *314 to claimants." Even assuming that all VA personnel were willing to go out of their way for each claimant, a point which the court would not fully accept,[6] the court found that in any event the VA does not have the resources to permit the substantial investments of time that are necessary. The VA does not seek independent testimony that might establish service connection, or independent medical examinations with respect to disability. In reaching its conclusions the court relied heavily on the problems presented by what it described as "complex cases" a class of cases also focused on in the depositions. Though never expressly defined by the District Court, these cases apparently include those in which a disability is slow developing and therefore difficult to find service connected, such as the claims associated with exposure to radiation or harmful chemicals, as well as other cases identified by the deponents as involving difficult matters of medical judgment. Nowhere in the opinion of the District Court is there any estimate of what percentage of the annual VA caseload of 800,000 these cases comprise, nor is there any more precise description of the class. There is no question but what the 3 named plaintiffs and the plaintiff veteran's widow asserted such claims, and in addition there are declarations in the record from 12 other claimants who were asserting such claims. The evidence contained in the record, however, suggests that the sum total of such claims is extremely small; in for example, roughly 2% of the BVA caseload consisted of "agent orange" or "radiation" claims, and what evidence *315 there is suggests that the percentage of such claims in the regional offices was even less perhaps as little as 3 in 1,000. With respect to the service representatives, the court again found the representation unsatisfactory. Although admitting that this was not due to any "lack
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
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https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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Although admitting that this was not due to any "lack of dedication," the court found that a heavy caseload and the lack of legal training combined to prevent service representatives from adequately researching a claim. Facts are not developed, and "it is standard practice for service organization representatives to submit merely a one to two page handwritten brief." Based on the inability of the VA and service organizations to provide the full range of services that a retained attorney might, the court concluded that appellees had demonstrated a "high risk of erroneous deprivation" from the process as administered. The court then found that the Government had "failed to demonstrate that it would suffer any harm if the statutory fee limitation were lifted." The only Government interest suggested was the "paternalistic" assertion that the fee limitation is necessary to ensure that claimants do not turn substantial portions of their benefits over to unscrupulous lawyers. The court suggested that there were "less drastic means" to confront this problem. Finally, the court agreed with appellees that there was a substantial likelihood that the fee limitation also violates the First Amendment. The court relied on this Court's decisions in Mine and Railroad as establishing "the principle that the First Amendment rights to petition, association and speech protect efforts by organizations and individuals to obtain effective legal representation of their constituents or themselves." This right to "adequate legal representation" or "meaningful access to courts," the court found, was infringed by the fee limitation again *316 without substantial justification by the Government. After reiterating the Government's failure of proof with respect to the likely harms arising from doing away with the fee limitation, the court entered a "preliminary injunction" enjoining the Government appellants from "enforcing or attempting to enforce in any way the provisions of 38 U.S. C. 3404-3" The injunction was not limited to the particular plaintiffs, nor was it limited to claims processed in the District of Northern California, where the court sits. II Before proceeding to the merits we must deal with a significant question as to our jurisdiction, one not raised by appellees in this Court. This appeal was taken under 28 U.S. C. 1252, which grants this Court jurisdiction "from an interlocutory or final judgment, decree or order of any court of the United States holding an Act of Congress unconstitutional in any civil action to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." We have here an interlocutory decree in a civil action to
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