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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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have here an interlocutory decree in a civil action to which an officer of the United States is a party, and the only question is whether the District Court's decision "holds" an Act of Congress unconstitutional. The problem, of course, is that given that the court's opinion and order are cast in terms of a "preliminary injunction" the court only states that there is a "high likelihood of success" on the merits of appellees' claims, and does not specifically state that the fee limitation provision is unconstitutional. We do not write on a clean slate. In this Court similarly entertained an appeal from an order that granted a preliminary injunction and in the process held an Act of Congress unconstitutional. In holding that we had jurisdiction under 1252 we noted that that section constitutes an "exception" to "the *317 policy of minimizing the mandatory docket of this Court," and we went on to state: "It might be argued that, in deciding to issue the preliminary injunction, the District Court made only an interlocutory determination of appellee's probability of success on the merits and did not finally `hold' the article unconstitutional. By its terms, however, 1252 applies to interlocutory as well as final judgments, decrees, and orders, and this Court previously has found the section properly invoked when the court below has made only an interlocutory determination of unconstitutionality, at least if, as here, that determination forms the necessary predicate to the grant or denial of preliminary equitable relief." We think this case is controlled by McLucas. It is true that in McLucas the District Court actually stated its holding that the statute was unconstitutional, whereas here the court's statements are less direct. But that is merely a semantic difference in this case; inasmuch as any conclusions reached at the preliminary injunction stage are subject to revision, University of it should make little difference whether the court stated conclusively that a statute was unconstitutional, or merely said it was likely, so long as the injunction granted enjoined the statute's operation. This Court's appellate jurisdiction does not turn on such semantic niceties. See also (" 1252 provides jurisdiction even though the lower court did not expressly declare a federal statute unconstitutional."). Indeed, we note that the problem raised by the statute's use of the word "holding" may in any event be a bit of a red herring. In its original form 1252 provided this Court with appellate jurisdiction over decisions "against the constitutionality of any Act of Congress," see Act of Aug. 24, 1937, *318 ch. 754, 2, ;[7] although this language
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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24, 1937, *318 ch. 754, 2, ;[7] although this language was changed when the provision was codified in 1948, so that 1252 now grants jurisdiction from a decision "holding any Act of Congress unconstitutional," this change was effected without substantive comment, and absent such comment it is generally held that a change during codification is not intended to alter the statute's scope. See Any fair reading of the decision at issue would conclude that it is "against the constitutionality" of 3404, and we are loath to read an unheralded change in phraseology to divest us of jurisdiction here. Finally, acceptance of appellate jurisdiction in this case is in accord with the purpose of the statutory grant. Last Term, in we discussed 1252's legislative history. We noted that in enacting 1252 Congress sought to identify a category of important decisions adverse to the constitutionality of an Act of Congress which decisions, because the United States or its agent was a party, had implications beyond the controversy then before the court and to provide an expeditious means for ensuring certainty and uniformity in the enforcement of such an Act by establishing direct review over such decisions in this Court. teaches that the decisions Congress targeted for appeal under 1252 were those which involved the exercise of judicial power to impair the enforcement of an Act of Congress on constitutional grounds, and that it was the constitutional question that Congress wished this Court to decide. As we pointed out in McLucas, *319 1252 contemplates that this impairment can arise from interlocutory decrees, just as the original statute provided for appeal from decisions in "any proceedings." Cf. (28 U.S. C. 1253 authorizes direct appeals from preliminary injunctions issued by three-judge courts). A single district judge's interlocutory decision on constitutional grounds that an Act of Congress should not be enforced frustrates the will of Congress in the short run just as surely as a final decision to that effect. By 1252 Congress gave the Government the right of immediate appeal to this Court in such a situation so that only those district court injunctions which had been reviewed and upheld by this Court would continue to have such an effect. Cf. The injunction at issue here creates precisely the problem to which 1252 was addressed, inasmuch as it enjoins the operation of the fee limitation on constitutional grounds, across the country and under all circumstances. Thus, whether or not the injunction here is framed as a "holding" of unconstitutionality we believe we have jurisdiction under 1252. III Judging the constitutionality of an Act
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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jurisdiction under 1252. III Judging the constitutionality of an Act of Congress is properly considered " `the gravest and most delicate duty that this Court is called upon to perform,' " and we begin our analysis here with no less deference than we customarily must pay to the duly enacted and carefully considered decision of a coequal and representative branch of our Government. Indeed one might think, if anything, that more deference is called for here; the statute in question for all relevant purposes has been on the books for over 120 years. Cf. This deference to congressional judgment must be afforded even though the *320 claim is that a statute Congress has enacted effects a denial of the procedural due process guaranteed by the Fifth Amendment. ; We think that the District Court went seriously awry in assessing the constitutionality of 3404. Appellees' first claim, accepted by the District Court, is that the statutory fee limitation, as it bears on the administrative scheme in operation, deprives a rejected claimant or recipient of "life, liberty or property, without due process of law," U. S. Const., Amdt. 5, by depriving him of representation by expert legal counsel.[8] Our decisions establish that "due process" is a flexible concept that the processes required by the Clause with respect to the termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur. See ; In defining the process necessary to ensure "fundamental fairness" we have recognized that the Clause does not require that "the procedures used to guard against an erroneous deprivation. be so comprehensive as to preclude any possibility of error," and in addition we have emphasized that the marginal gains from affording an additional procedural safeguard often may be *321 outweighed by the societal cost of providing such a safeguard. See[9] These general principles are reflected in the test set out in which test the District Court purported to follow, and which requires a court to consider the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedural safeguards, and the government's interest in adhering to the existing system. In applying this test we must keep in mind, in addition to the deference owed to Congress, the fact that the very nature of the due process inquiry indicates that the fundamental fairness of a particular procedure does not turn on the result obtained in any individual
|
Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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does not turn on the result obtained in any individual case; rather, "procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions." ; see also 2-6 The Government interest, which has been articulated in congressional debates since the fee limitation was first enacted in 1862 during the Civil War, has been this: that the system for administering benefits should be managed in a sufficiently informal way that there should be no need for the employment of an attorney to obtain benefits to which a claimant was entitled, so that the claimant would receive the entirety of the award without having to divide it with a lawyer. See United This purpose is reinforced by a similar absolute prohibition on compensation of any service organization representative. *322 38 U.S. C. 3402(b)(1). While Congress has recently considered proposals to modify the fee limitation in some respects, a Senate Committee Report in highlighted that body's concern that "any changes relating to attorneys' fees be made carefully so as not to induce unnecessary retention of attorneys by VA claimants and not to disrupt unnecessarily the very effective network of nonattorney resources that has evolved in the absence of significant attorney involvement in VA claims matters." S. Rep. No. 97-466, p. 49 Although this same Report professed the Senate's belief that the original stated interest in protecting veterans from unscrupulous lawyers was "no longer tenable," the Senate nevertheless concluded that the fee limitation should with a limited exception remain in effect, in order to "protect claimants' benefits" from being unnecessarily diverted to lawyers.[10] In the face of this congressional commitment to the fee limitation for more than a century, the District Court had only this to say with respect to the governmental interest: "The government has neither argued nor shown that lifting the fee limit would harm the government in any way, *323 except as the paternalistic protector of claimants' supposed best interests. To the extent the paternalistic role is valid, there are less drastic means available to ensure that attorneys' fees do not deplete veterans' death or disability benefits." 589 F. Supp., It is not for the District Court or any other federal court to invalidate a federal statute by so cavalierly dismissing a long-asserted congressional purpose. If "paternalism" is an insignificant Government interest, then Congress first went astray in 1792, when by its Act of March 23 of that year it prohibited the "sale, transfer or mortgage of the pension. [of a] soldier before the same shall
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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of the pension. [of a] soldier before the same shall become due." Ch. 11, 6, Acts of Congress long on the books, such as the Fair Labor Standards Act, might similarly be described as "paternalistic"; indeed, this Court once opined that "[s]tatutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual" That day is fortunately long gone, and with it the condemnation of rational paternalism as a legitimate legislative goal. There can be little doubt that invalidation of the fee limitation would seriously frustrate the oft-repeated congressional purpose for enacting it. Attorneys would be freely employable by claimants to veterans' benefits, and the claimant would as a result end up paying part of the award, or its equivalent, to an attorney. But this would not be the only consequence of striking down the fee limitation that would be deleterious to the congressional plan. A necessary concomitant of Congress' desire that a veteran not need a representative to assist him in making his claim was that the system should be as informal and nonadversarial as possible. This is not to say that complicated factual inquiries may be rendered simple by the expedient of informality, but surely Congress desired that the proceedings be as *324 informal and nonadversarial as possible.[11] The regular introduction of lawyers into the proceedings would be quite unlikely to further this goal. Describing the prospective impact of lawyers in probation revocation proceedings, we said in : "The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual Certainly, *325 the decisionmaking process will be prolonged, and the financial cost to the State for appointed counsel, a longer record, and the possibility of judicial review will not be insubstantial." We similarly noted in that the use of counsel in prison disciplinary proceedings would "inevitably give the proceedings a more adversary cast" Knowledgeable and thoughtful observers have made the same point in other language: "To be sure,
|
Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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made the same point in other language: "To be sure, counsel can often perform useful functions even in welfare cases or other instances of mass justice; they may bring out facts ignored by or unknown to the authorities, or help to work out satisfactory compromises. But this is only one side of the coin. Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance his client's cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty. The appearance of counsel for the citizen is likely to lead the government to provide one or at least to cause the government's representative to act like one. The result may be to turn what might have been a short conference leading to an amicable result into a protracted controversy. "These problems concerning counsel and confrontation inevitably bring up the question whether we would not do better to abandon the adversary system in certain areas of mass justice. While such an experiment would be a sharp break with our tradition of adversary process, that tradition, which has come under serious general challenge from a thoughtful and distinguished judge, was not formulated for a situation in which many thousands of hearings must be provided each month." *326 Friendly, "Some Kind of Hearing," Thus, even apart from the frustration of Congress' principal goal of wanting the veteran to get the entirety of the award, the destruction of the fee limitation would bid fair to complicate a proceeding which Congress wished to keep as simple as possible. It is scarcely open to doubt that if claimants were permitted to retain compensated attorneys the day might come when it could be said that an attorney might indeed be necessary to present a claim properly in a system rendered more adversary and more complex by the very presence of lawyer representation. It is only a small step beyond that to the situation in which the claimant who has a factually simple and obviously deserving claim may nonetheless feel impelled to retain an attorney simply because so many other claimants retain attorneys. And this additional complexity will undoubtedly engender greater administrative costs, with the end result being that less Government money reaches its intended beneficiaries. We accordingly conclude that under the analysis great weight must be accorded to the Government interest at stake here. The flexibility of our approach in due process cases is intended in part to allow room for other forms
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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is intended in part to allow room for other forms of dispute resolution; with respect to the individual interests at stake here, legislatures are to be allowed considerable leeway to formulate such processes without being forced to conform to a rigid constitutional code of procedural necessities. See n. 16. It would take an extraordinarily strong showing of probability of error under the present system and the probability that the presence of attorneys would sharply diminish that possibility to warrant a holding that the fee limitation denies claimants due process of law. We have no hesitation in deciding that no such showing was made out on the record before the District Court. *327 As indicated by the statistics set out earlier in this opinion, more than half of the 800,000 claims processed annually by the VA result in benefit awards at the regional level. An additional 10,000 claims succeed on request for reconsideration at the regional level, and of those that do not, 36,000 are appealed to the BVA. Of these, approximately 16% succeed before the BVA. It is simply not possible to determine on this record whether any of the claims of the named plaintiffs, or of other declarants who are not parties to the action, were wrongfully rejected at the regional level or by the BVA, nor is it possible to quantify the "erroneous deprivations" among the general class of rejected claimants. If one regards the decision of the BVA as the "correct" result in every case, it follows that the regional determination against the claimant is "wrong" in the 16% of the cases that are reversed by the Board. Passing the problems with quantifying the likelihood of an erroneous deprivation, however, under we must also ask what value the proposed additional procedure may have in reducing such error. In this case we are fortunate to have statistics that bear directly on this question, which statistics were addressed by the District Court. These unchallenged statistics chronicle the success rates before the BVA depending on the type of representation of the claimant, and are summarized in the following figures taken from the record. App. 568. ULTIMATE SUCCESS RATES BEFORE THE BOARD OF VETERANS' APPEALS BY MODE OF REPRESENTATION American Legion 16.2% American Red Cross 16.8% Disabled American Veterans 16.6% Veterans of Foreign Wars 16.7% Other nonattorney 15.8% No representation 15.2% Attorney/Agent 18.3% *328 The District Court opined that these statistics were not helpful, because in its view lawyers were retained so infrequently that no body of lawyers with an expertise in VA practice had developed, and lawyers who
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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an expertise in VA practice had developed, and lawyers who represented veterans regularly might do better than lawyers who represented them only pro bono on a sporadic basis. The District Court felt that a more reliable index of the effect lawyers would have on the proceedings was a statistical study showing success of various representatives in appeals to discharge review boards in the uniformed services statistics that showed a significantly higher success rate for those claimants represented by lawyers as compared to those claimants not so represented. We think the District Court's analysis of this issue totally unconvincing, and quite lacking in the deference which ought to be shown by any federal court in evaluating the constitutionality of an Act of Congress. We have the most serious doubt whether a competent lawyer taking a veteran's case on a pro bono basis would give less than his best effort, and we see no reason why experience in developing facts as to causation in the numerous other areas of the law where it is relevant would not be readily transferable to proceedings before the VA. Nor do we think that lawyers' success rates in proceedings before military boards to upgrade discharges proceedings which are not even conducted before the VA, but before military boards of the uniformed services are to be preferred to the BVA statistics which show reliable success by mode of representation in the very type of proceeding to which the litigation is devoted. The District Court also concluded, apparently independently of its ill-founded analysis of the claim statistics, (1) that the VA processes are procedurally, factually, and legally complex, and (2) that the VA system presently does not work as designed, particularly in terms of the representation afforded by VA personnel and service representatives, and that these representatives are "unable to perform all of the services which might be performed by a claimant's own *329 paid attorney." 589 F. Supp., Unfortunately the court's findings on "complexity" are based almost entirely on a description of the plan for administering benefits in the abstract, together with references to "complex" cases involving exposure to radiation or agent orange, or post-traumatic stress syndrome. The court did not attempt to state even approximately how often procedural or substantive complexities arise in the run-of-the-mine case, or even in the unusual case. The VA procedures cited by the court do permit a claimant to prejudice his rights by failing to respond in a timely manner to an agency notice of denial of an initial claim, but despite this possibility there is nothing in
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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initial claim, but despite this possibility there is nothing in the District Court's opinion indicating that these procedural requirements have led to an unintended forfeiture on the part of a diligent claimant. On the face of the procedures, the process described by the District Court does not seem burdensome: one year would in the judgment of most be ample time to allow a claimant to respond to notice requesting a response. In addition, the VA is required to read any submission in the light most favorable to the claimant, and service representatives are available to see that various procedural steps are complied with. It may be that the service representative cannot, as the District Court hypothesized, provide all the services that a lawyer could, but there is no evidence in the record that they cannot or do not provide advice about time limits. The District Court's opinion is similarly short on definition or quantification of "complex" cases. If this term be understood to include all cases in which the claimant asserts injury from exposure to radiation or agent orange, only approximately 3 in 1,000 of the claims at the regional level and 2% of the appeals to the BVA involve such claims. Nor does it appear that all such claims would be complex by any fair definition of that term: at least 25% of all agent orange cases and 30% of the radiation cases, for example, are disposed of because the medical examination reveals no disability. What evidence does appear in the record indicates that the great *330 majority of claims involve simple questions of fact, or medical questions relating to the degree of a claimant's disability; the record also indicates that only the rare case turns on a question of law. There are undoubtedly "complex" cases pending before the VA, and they are undoubtedly a tiny fraction of the total cases pending. Neither the District Court's opinion nor any matter in the record to which our attention has been directed tells us more than this. The District Court's treatment of the likely usefulness of attorneys is on the same plane with its efforts to quantify the likelihood of error under the present system. The court states several times in its opinion that lawyers could provide more services than claimants presently receive a fact which may freely be conceded but does not suggest how the availability of these services would reduce the likelihood of error in the run-of-the-mine case. Simple factual questions are capable of resolution in a nonadversarial context, and it is less than crystal clear why
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Justice Rehnquist
| 1,985 | 19 |
majority
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Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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nonadversarial context, and it is less than crystal clear why lawyers must be available to identify possible errors in medical judgment. Cf. -2. The availability of particular lawyers' services in so-called "complex" cases might be more of a factor in preventing error in such cases, but on this record we simply do not know how those cases should be defined or what percentage of all of the cases before the VA they make up. Even if the showing in the District Court had been much more favorable, appellees still would confront the constitutional hurdle posed by the principle enunciated in cases such as to the effect that a process must be judged by the generality of cases to which it applies, and therefore a process which is sufficient for the large majority of a group of claims is by constitutional definition sufficient for all of them. But here appellees have failed to make the very difficult factual showing necessary.[12] *331 Reliable evidence before the District Court showed that claimants represented by lawyers have a slightly better success rate before the BVA than do claimants represented by service representatives, and that both have a slightly better success rate than claimants who were not represented at all. Evidence also showed that there may be complex issues of causation in comparatively few of the hundreds of thousands of cases before the VA, but there is no adequate showing of the effect the availability of lawyers would have on the proper disposition of these cases. Neither the difference in success rate nor the existence of complexity in some cases is sufficient to warrant a conclusion that the right to retain and compensate an attorney in VA cases is a necessary element of procedural fairness under the Fifth Amendment. *332 We have in previous cases, of course, held not only that the Constitution permits retention of an attorney, but also that on occasion it requires the Government to provide the services of an attorney. The Sixth Amendment affords representation by counsel in all criminal proceedings, and in cases such as and we have held that this provision requires a State prosecuting an indigent to afford him legal representation for his defense. No one would gainsay that criminal proceedings are adversarial in nature, and of course the Sixth Amendment applies only to such proceedings. In cases such as we observed that counsel can aid in identifying legal questions and presenting arguments, and that one charged with probation violation may have a right to counsel because of the liberty interest involved. We have also concluded after weighing
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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the liberty interest involved. We have also concluded after weighing the factors that the right to appointed counsel in a case involving the threatened termination of parental rights depends upon the circumstances of each particular case, see while three of the dissenters thought the same balancing required appointment of counsel in all such cases. But where, as here, the only interest protected by the Due Process Clause is a property interest in the continued receipt of Government benefits, which interest is conferred and terminated in a nonadversary proceeding, these precedents are of only tangential relevance. Appellees rely on in which the Court held that a welfare recipient subject to possible termination of benefits was entitled to be represented by an attorney. The Court said that "counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the *333 recipient." But in defining the process required the Court also observed that "the crucial factor in this context is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy." at 2 We think that the benefits at stake in VA proceedings, which are not granted on the basis of need, are more akin to the Social Security benefits involved in than they are to the welfare payments upon which the recipients in Goldberg depended for their daily subsistence. Just as this factor was dispositive in in the Court's determination that no evidentiary hearing was required prior to a temporary deprivation of benefits, -343, so we think it is here determinative of the right to employ counsel. Indeed, there appears to have been no stated policy on the part of New York in Goldberg against permitting an applicant to divide up his welfare check with an attorney who had represented him in the proceeding; the procedures there simply prohibited personal appearance of the recipient with or without counsel and regardless of whether counsel was compensated, and in reaching its conclusion the Court relied on agency regulations allowing recipients to be represented by counsel under some circumstances. -343. This case is further distinguishable from our prior decisions because the process here is not designed to operate adversarially. While counsel may well be needed to respond to opposing counsel or other forms of adversary in a trial-type proceeding, where as here no such
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Justice Rehnquist
| 1,985 | 19 |
majority
|
Walters v. National Assn. of Radiation Survivors
|
https://www.courtlistener.com/opinion/111504/walters-v-national-assn-of-radiation-survivors/
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adversary in a trial-type proceeding, where as here no such adversary appears, and in addition a claimant or recipient is provided with substitute safeguards such as a competent representative, a decision-maker whose duty it is to aid the claimant, and significant concessions with respect to the claimant's burden of proof, *334 the need for counsel is considerably diminished. We have expressed similar concerns in other cases holding that counsel is not required in various proceedings that do not approximate trials, but instead are more informal and nonadversary. See -609; ; 418 U. S., at Thus none of our cases dealing with constitutionally required representation by counsel requires the conclusion reached by the District Court. Especially in light of the Government interests at stake, the evidence adduced before the District Court as to success rates in claims handled with or without lawyers shows no such great disparity as to warrant the inference that the congressional fee limitation under consideration here violates the Due Process Clause of the Fifth Amendment. What evidence we have been pointed to in the record regarding complex cases falls far short of the kind which would warrant upsetting Congress' judgment that this is the manner in which it wishes claims for veterans' benefits adjudicated. ; 424 U. S., 349. The District Court abused its discretion in holding otherwise. IV Finally, we must address appellees' suggestion that the fee limitation violates their First Amendment rights. Appellees claim that cases such as Mine and Railroad establish for individuals and organizations a right to ensure "meaningful access to courts" for themselves or their members, and that the District Court was correct in holding that this right was violated by the fee limitation. There are numerous conceptual difficulties with extending the cited cases to cover the situation here; for example, those cases involved the rights of unions and union members to retain or recommend counsel *335 for proceedings where counsel were allowed to appear, and the First Amendment interest at stake was primarily the right to associate collectively for the common good. In contrast, here the asserted First Amendment interest is primarily the individual interest in best prosecuting a claim, and the limitation challenged applies across-the-board to individuals and organizations alike. But passing those problems, appellees' First Amendment arguments, at base, are really inseparable from their due process claims. The thrust is that they have been denied "meaningful access to the courts" to present their claims. This must be based in some notion that VA claimants, who presently are allowed to speak in court, and to have someone speak for them,
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per_curiam
| 1,993 | 200 |
per_curiam
|
Izumi Seimitsu Kogyo Kabushiki Kaisha v. US Philips Corp.
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https://www.courtlistener.com/opinion/112912/izumi-seimitsu-kogyo-kabushiki-kaisha-v-us-philips-corp/
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In order to reach the merits of this case, we would have to address a question that was neither presented in the petition for certiorari nor fairly included in the one question that was presented. Because we will consider questions not raised in the petition only in the most exceptional cases, and because we conclude this is not such a case, we dismiss the writ of certiorari as improvidently granted. Petitioner was named as a defendant, along with respondent Windmere Corporation, in an action brought by respondent U. S. Philips Corporation in the District Court for the Southern District of Florida claiming that the defendants had infringed Philips' patent rights and engaged in unfair trade competition. Windmere counterclaimed for antitrust violations. At the first trial of the action, judgment was entered on a jury verdict for Philips on its patent infringement claim, and neither Izumi nor Windmere appealed. Philips also prevailed on Windmere's antitrust counterclaim, and the District Court ordered a new trial on the unfair competition *29 claim. On Windmere's interlocutory appeal, the United States Court of Appeals for the Federal Circuit reversed the judgment on the antitrust counterclaim and remanded the case for a new trial. U. S. Philips cert. denied, Izumi took no further part in the litigation. A second jury found in favor of Windmere both on Philips' unfair competition claim and on Windmere's antitrust counterclaim, and judgment was entered in favor of Windmere on the latter for more than $89 million. Philips appealed both judgments to the Federal Circuit. Before the Court of Appeals decided the case, however, Windmere and Philips reached a settlement wherein Philips agreed to pay Windmere $57 million. Windmere and Philips also agreed jointly to request the Court of Appeals to vacate the District Court's judgments, although the settlement was not conditioned on the Federal Circuit granting the vacatur motion. After Windmere and Philips filed their joint motion to vacate, petitioner sought to intervene on appeal for purposes of opposing vacatur. The Court of Appeals denied Izumi's motion to intervene. U. S. Philips It reasoned that Izumi was not a party to the second trial, and that its financial support of Windmere's litigation as an indemnitor was not sufficient to confer party status. The Court of Appeals also concluded that Izumi's interest in preserving the judgment for collateral estoppel purposes was insufficient to provide standing.[1] The Court of Appeals proceeded to review the vacatur motion and concluded that, because the settlement included all the parties to the appeal, vacatur was appropriate. Title 28 U.S. C. 1254(1) provides, in relevant part: *30
|
per_curiam
| 1,993 | 200 |
per_curiam
|
Izumi Seimitsu Kogyo Kabushiki Kaisha v. US Philips Corp.
|
https://www.courtlistener.com/opinion/112912/izumi-seimitsu-kogyo-kabushiki-kaisha-v-us-philips-corp/
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Title 28 U.S. C. 1254(1) provides, in relevant part: *30 "Cases in the courts of appeals may be reviewed by the Supreme Court "(1) [B]y writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." (Emphasis added.) Because the Court of Appeals denied petitioner's motion for intervention, Izumi is not a party to this particular civil case. One who has been denied the right to intervene in a case in a court of appeals may petition for certiorari to review that ruling, Automobile but Izumi presented no such question in its petition for certiorari. It presented a single question for our review: "Should the United States Courts of Appeals routinely vacate district court final judgments at the parties' request when cases are settled while on appeal?" Because this question has divided the Courts of Appeals,[2] we granted certiorari. In its brief on the merits, petitioner added the following to its list of questions presented: "Whether the court of appeals should have permitted Petitioner to oppose Respondents' motion to vacate the district court judgment." This Court's Rule 14.1(a) provides, in relevant part: "The statement of any question presented [in a petition for certiorari] will be deemed to comprise every subsidiary question fairly included therein. Only the questions set forth in the petition, or fairly included therein, will be considered by the *31 Court."[3] Unless we can conclude that the question of the denial of petitioner's motion to intervene in the Court of Appeals was "fairly included" in the question relating to the vacatur of final judgments at the parties' request, Rule 14.1 would prevent us from reaching it. It seems clear that a challenge to the Federal Circuit's denial of petitioner's motion to intervene is not "subsidiary" to the question on which we granted certiorari. On the contrary, it is akin to a question regarding a party's standing,[4] which we have described as a "threshold inquiry" that "`in no way depends on the merits'" of the case. We also believe that the question is not "fairly included" in the question presented for our review.[5] A question which is merely "complementary" or "related" to the question presented in the petition for certiorari is not "`fairly included *32 therein.'" Thus, in we concluded that the question whether an ordinance effected a physical taking did not include the related question of whether it effected a regulatory taking. Whether petitioner should have been granted leave to intervene below is quite distinct, both analytically and factually, from the question whether the Court
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per_curiam
| 1,993 | 200 |
per_curiam
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Izumi Seimitsu Kogyo Kabushiki Kaisha v. US Philips Corp.
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https://www.courtlistener.com/opinion/112912/izumi-seimitsu-kogyo-kabushiki-kaisha-v-us-philips-corp/
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both analytically and factually, from the question whether the Court of Appeals should vacate judgments where the parties have so stipulated. The questions are even less related or complementary to one another than were the questions in The intervention question being neither presented as a question in the petition for certiorari nor fairly included therein, "Rule 14.1(a) accordingly creates a heavy presumption against our consideration" of that issue. Rule 14.1(a), of course, is prudential; it "does not limit our power to decide important questions not raised by the parties." Laboratories, A prudential rule, however, is more than a precatory admonition. As we have stated on numerous occasions, we will disregard Rule 14.1(a) and consider issues not raised in the petition "`only in the most exceptional cases.'" ); see also[6] *33 We have made exceptions to Rule 14.1(a) in cases where we have overruled one of our prior decisions even though neither party requested it. See, e. g., We have also decided a case on nonconstitutional grounds even though the petition for certiorari presented only a constitutional question. See, e. g., ; We must also notice the possible absence of jurisdiction because we are obligated to do so even when the issue is not raised by a party. See, e. g., Lake Country Estates, ; Liberty Mut. Ins. And we may, pursuant to this Court's Rule 24.1(a), "consider a plain error not among the questions presented but evident from the record and otherwise within [our] jurisdiction to decide." See, e. g., ; see generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 6.26 (6th ed. 1986) (discussing Rule 14.1(a) and its exceptions). The present case bears scant resemblance to those cited above in which we have made exceptions to the provisions of Rule 14.1. While the decision on any particular motion to intervene may be a difficult one, it is always to some extent bound up in the facts of the particular case. Should we undertake to review the Court of Appeals' decision on intervention, it is unlikely that any new principle of law would be enunciated, as is evident from the briefs of the parties on this question. As we said in Rule 14.1(a) helps us "[t]o use our resources most efficiently" by highlighting those cases "that will enable us to resolve particularly important questions." The Court of Appeals' disposition of petitioner's motion to intervene is simply not such a question.[7] *34 Should we disregard the Rule here, there would also be a natural tendencyto be consciously resisted, of courseto reverse the holding of the Court of Appeals
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per_curiam
| 1,993 | 200 |
per_curiam
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Izumi Seimitsu Kogyo Kabushiki Kaisha v. US Philips Corp.
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https://www.courtlistener.com/opinion/112912/izumi-seimitsu-kogyo-kabushiki-kaisha-v-us-philips-corp/
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of courseto reverse the holding of the Court of Appeals on the intervention question in order that we could address the merits of the question on which we actually granted certiorari; otherwise, we would have devoted our efforts solely to addressing a relatively factbound issue which does not meet the standards that guide the exercise of our certiorari jurisdiction. Our faithful application of Rule 14.1(a) thus helps ensure that we are not tempted to engage in ill-considered decisions of questions not presented in the petition. Faithful application will also inform those who seek review here that we continue to strongly "disapprove the practice of smuggling additional questions into a case after we grant certiorari." Izumi was not a party to the appeal below, and the Court of Appeals denied its motion to intervene there. Because we decline to review the propriety of the Court of Appeals' denial of intervention, petitioner lacks standing under 1254(1) to seek review of the question presented in the petition for certiorari. The writ of certiorari is therefore dismissed as improvidently granted. It is so ordered.
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per_curiam
| 1,974 | 200 |
per_curiam
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Speight v. Slayton
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https://www.courtlistener.com/opinion/108976/speight-v-slayton/
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This is an appeal from a decision of a three-judge District Court () declining to intervene in a pending state civil proceeding and holding that such intervention was barred by our decision in The state proceeding, brought against appellants by the Solicitor General of Fulton County, Georgia, sought an injunction against the operation of appellant Speight's bookstore, and confiscation and destruction of all merchandise on the store's premises, on the grounds that the store was being used for the *334 "advertising, storage, sale, and exhibition for sale of materials obscene within the meaning of Section 26-2101 of the Criminal Code of Georgia." The basis for the 's action was 26-2103 of the Code under which the use of any premises for the violation of 26-2101 constitutes a "public nuisance," thereby triggering the application of state statutory provisions for the abatement of public nuisances, c. 72-2 of the Code of Georgia. The case is here on appeal. 28 U.S. C. 1253, 2101 (b). We noted probable jurisdiction to decide whether under these circumstances federal intervention in the pending state proceedings was barred by our holding in Since oral argument of this case the Georgia Supreme Court has struck down the application of 26-2103 in another case involving similar facts. In Sanders the had brought an action to enjoin the operation of a bookstore on the ground that certain publications sold by the store were obscene under 26-2101. The supreme court held that this application of 26-2103 "represents an unconstitutional prior restraint when construed and applied to authorize the permanent closure of the book store as a public nuisance upon a finding that a single publication, obscene under the standards of Code Ann. 26-2101 (b), was sold on its premises." As we understand the Georgia court's decision, the operation of a bookstore could not be enjoined merely because some of its merchandise had been judicially determined to be obscene. The Georgia court cited both the Federal and Georgia Constitutions in its decision, although it was not explicit as to whether each provided, in its view, an independent ground for its holding. It would appear that this Georgia Supreme Court decision would probably foreclose the state action *335 against which federal injunctive relief was sought by appellants in this case. In that event appellants could obtain full relief in the state court proceeding merely by moving to dismiss the state action, in accord with state procedural rules, in light of If that is the case, appellants could not now make any showing of irreparable injury by reason of the state court proceeding, and
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Justice Breyer
| 2,005 | 2 |
majority
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Tory v. Cochran
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https://www.courtlistener.com/opinion/142901/tory-v-cochran/
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Johnnie Cochran brought a state-law defamation action against petitioner Ulysses Tory. The state trial court determined that Tory (with the help of petitioner Ruth Craft and others) had engaged in unlawful defamatory activity. It found, for example, that Tory, while claiming falsely that Cochran owed him money, had complained to the local bar association, had written Cochran threatening letters demanding $10 million, had picketed Cochran's office holding up signs containing various insults and obscenities; and, with a group of associates, had pursued Cochran while chanting similar threats and insults. App. 38, 40-41. The court concluded that Tory's claim that Cochran owed him money was without foundation, that Tory engaged in a continuous pattern of libelous and slanderous activity, and that Tory had *736 used false and defamatory speech to "coerce" Cochran into paying "amounts of money to which Tory was not entitled" as a "tribute" or a "premium" for "desisting" from this libelous and slanderous activity. After noting that Tory had indicated that he would continue to engage in this activity in the absence of a court order, the Superior Court issued a permanent injunction. The injunction, among other things, prohibited Tory, Craft, and their "agents" or "representatives" from "picketing," from "displaying signs, placards or other written or printed material," and from "orally uttering statements" about Johnnie L. Cochran, Jr., and about Cochran's law firm in "any public forum." Tory and Craft appealed. The California Court of Appeal affirmed. Tory and Craft then filed a petition for a writ of certiorari, raising the following question: "Whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment." Pet. for Cert. i. After oral argument, Cochran's counsel informed the Court of Johnnie Cochran's recent death. Counsel also moved to substitute Johnnie Cochran's widow, Sylvia Dale Mason Cochran, as respondent, and suggested that we dismiss the case as moot. Tory and Craft filed a response agreeing to the substitution of Ms. Cochran. But they denied that the case was moot. We agree with Tory and Craft that the case is not moot. Despite Johnnie Cochran's death, the injunction remains in effect. Nothing in its language says to the contrary. Cochran's counsel tells us that California law does not recognize a "cause of action for an injury to the memory of a deceased person's reputation," see which circumstance, counsel believes, "moots" a "portion" of the injunction *737 (the portion "personal to Cochran"). Respondent's Suggestion of Death, etc., 4 (emphasis added). But counsel adds that "[t]he [i]njunction continues to be necessary, valid
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Justice Breyer
| 2,005 | 2 |
majority
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Tory v. Cochran
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https://www.courtlistener.com/opinion/142901/tory-v-cochran/
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counsel adds that "[t]he [i]njunction continues to be necessary, valid and enforceable." The parties have not identified, nor have we found, any source of California law that says the injunction here automatically becomes invalid upon Cochran's death, not even the portion personal to Cochran. Counsel also points to the "value of" Cochran's "law practice" and adds that his widow has an interest in enforcing the injunction. And, as we understand California law, a person cannot definitively know whether an injunction is legally void until a court has ruled that it is. See ; Given the uncertainty of California law, we take it as a given that the injunction here continues significantly to restrain petitioners' speech, presenting an ongoing federal controversy. See, e. g., ; Consequently, we need not, and we do not, dismiss this case as moot. Cf. At the same time, Johnnie Cochran's death makes it unnecessary, indeed unwarranted, for us to explore petitioners' basic claims, namely, (1) that the First Amendment forbids the issuance of a permanent injunction in a defamation case, at least when the plaintiff is a public figure, and (2) that *738 the injunction (considered prior to Cochran's death) was not properly tailored and consequently violated the First Amendment. See Brief for Petitioners ii, iii. Rather, we need only point out that the injunction, as written, has now lost its underlying rationale. Since picketing Cochran and his law offices while engaging in injunction-forbidden speech could no longer achieve the objectives that the trial court had in mind (i. e., coercing Cochran to pay a "tribute" for desisting in this activity), the grounds for the injunction are much diminished, if they have not disappeared altogether. Consequently the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification. See Nebraska Press ; Pittsburgh Press As such, the Constitution forbids it. See ; see also Board of Airport Comm'rs of Los 482 U.S. We consequently grant the motion to substitute Sylvia Dale Mason Cochran for Johnnie Cochran as respondent. We vacate the judgment of the California Court of Appeal, and we remand the case for proceedings not inconsistent with this opinion. If, as the Cochran supplemental brief suggests, injunctive relief may still be warranted, any appropriate party remains free to ask for such relief. We express no view on the constitutional validity of any such new relief, *739 tailored to these changed circumstances, should it be entered. It is so ordered.
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Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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This case concerns the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” Michael Brillon, defendant below, respondent here, was arrested in July 2001 on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. The Vermont Supreme Court vacated Brillon’s conviction and held that the charges against him must be dismissed because he had been denied his right to a speedy trial. During the time between Brillon’s arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” the first, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. The Vermont Supreme Court charged against Brillon the delays associated with those periods, but charged against the State periods in which assigned counsel failed “to move the case forward.” 2 VERMONT v. BRILLON Opinion of the Court (2008). We hold that the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. For a total of some six months of the time that elapsed between Brillon’s arrest and his trial, Brillon lacked an attorney. The State may be charged with those months if the gaps resulted from the trial court’s failure to appoint replacement counsel with dispatch. Similarly, the State may bear responsibility if there is “a breakdown in the public defender system.” But, as the Vermont Supreme Court acknowledged, the record does not establish any such institutional break down. I On July 27, 2001, Michael Brillon was arrested after striking his girlfriend. Three days later he was arraigned in state court in Bennington Vermont and charged with felony domestic assault. His alleged status as a habitual offender exposed him to a potential life sentence. The court ordered him held without bail. Richard Ammons, from the county public defender’s office, was assigned on the day of arraignment as Brillon’s first counsel.1 In October, Ammons filed a motion to recuse the trial judge. It was denied the next month and trial was scheduled for February 2002. In mid-January, Ammons moved for a continuance, but the State objected, and the trial court denied the motion. On February 22, four days before
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Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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court denied the motion. On February 22, four days before the jury draw, Am —————— 1 Vermont’s Defender General has “the primary responsibility for providing needy persons with legal services.” Vt. Stat. Ann., Tit. 13, (1998). These services may be provided “personally, through public defenders,” or through contract attorneys. Cite as: 556 U. S. (2009) 3 Opinion of the Court mons again moved for a continuance, citing his heavy workload and the need for further investigation. Ammons acknowledged that any delay would not count (presumably against the State) for speedy-trial purposes. The State opposed the motion,2 and at the conclusion of a hearing, the trial court denied it. Brillon, participating in the proceedings through interactive television, then an nounced: “You’re fired, Rick.” App. 1. Three days later, the trial court—over the State’s objection—granted Am mons’ motion to withdraw as counsel, citing Brillon’s termination of Ammons and Ammons’ statement that he could no longer zealously represent Brillon.3 The trial court warned Brillon that further delay would occur while a new attorney became familiar with the case. The same day, the trial court appointed a second attorney, but he immediately withdrew based on a conflict. On March 1, 2002, Gerard Altieri was assigned as Bril lon’s third counsel. On May 20, Brillon filed a motion to dismiss Altieri for, among other reasons, failure to file motions, “[v]irtually no communication whatsoever,” and his lack of diligence “because of heavy case load.” 5, at 113–114. At a June 11 hearing, Altieri denied sev eral of Brillon’s allegations, noted his disagreement with Brillon’s trial strategy,4 and insisted he had plenty of time —————— 2 The State expressed its concern that the continuance request was “just part and parcel of an effort by the defense to have the Court not hear this matter.” App. 180. Under Vermont procedures, the judge presiding over the trial was scheduled to “rotate” out of the county where Brillon’s case was pending in March 2002. See at 109. Thus, a continuance past March would have caused a different judge to preside over Brillon’s trial, despite the denial of his motion to recuse the initial judge. Ammons requested a continuance until April. 3 Ammons cited as cause to withdraw, “certain irreconcilable differences in preferred approach between Mr. Brillon and counsel as to trial strategy, as well as other legitimate legal decisions.” at 104. 4 Specifically, Altieri appeared reluctant to follow Brillon’s tactic that 4 VERMONT v. BRILLON Opinion of the Court to prepare. The State opposed Brillon’s motion as well. Near the end of the hearing, however, Altieri moved to withdraw on
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Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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end of the hearing, however, Altieri moved to withdraw on the ground that Brillon had threatened his life during a break in the proceedings. The trial court granted Brillon’s motion to dismiss Altieri, but warned Brillon that “this is somewhat of a dubious victory in your case because it simply prolongs the time that you will remain in jail until we can bring this matter to trial.” at 226. That same day, the trial court appointed Paul Donaldson as Brillon’s fourth counsel. At an August 5 status conference, Donaldson requested additional time to conduct discovery in light of his caseload. A few weeks later, Brillon sent a letter to the court complaining about Donaldson’s unresponsiveness and lack of competence. Two months later, Brillon filed a motion to dismiss Donaldson—similar to his motion to dismiss Altieri—for failure to file motions and “virtually no communication whatsoever.” at 115–116. At a November 26 hearing, Donaldson reported that his contract with the Defender General’s office had expired in June and that he had been in discussions to have Brillon’s case reassigned. The trial court released Donaldson from the case “[w]ithout making any findings regarding the adequacy of [Donaldson]’s representation.” Cf. post, at 2. Brillon’s fifth counsel, David Sleigh, was not assigned until January 15, 2003; Brillon was without counsel dur ing the intervening two months. On February 25, Sleigh sought extensions of various discovery deadlines, noting that he had been in trial out of town. App. 117. On April 10, however, Sleigh withdrew from the case, based on —————— he “bring in a lot of people” at trial, “some of them young kids and relatives in an attempt by Mr. Brillon—this is his theory—I don’t want to use the words trash, [to] impeach [the victim].” at 216–217. Cite as: 556 U. S. (2009) 5 Opinion of the Court “modifications to [his] firm’s contract with the Defender General.” Brillon was then without counsel for the next four months. On June 20, the Defender General’s office noti fied the court that it had received “funding from the legis lature” and would hire a new special felony unit defender for Brillon. On August 1, Kathleen Moore was appointed as Brillon’s sixth counsel. The trial court set November 7 as the deadline for motions, but granted several extensions in accord with the parties’ stipulation. On February 23, 2004, Moore filed a motion to dismiss for lack of a speedy trial. The trial court denied the motion on April 19. The case finally went to trial on June 14, 2004. Brillon was found guilty and sentenced to 12 to
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Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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2004. Brillon was found guilty and sentenced to 12 to 20 years in prison. The trial court denied a post-trial motion to dismiss for want of a speedy trial, concluding that the delay in Bril lon’s trial was “in large part the result of his own actions” and that Brillon had “failed to demonstrate prejudice as a result of [the] pre-trial delay.” App. to Pet. for Cert. 72. On appeal, the Vermont Supreme Court held 3 to 2 that Brillon’s conviction must be vacated and the charges dismissed for violation of his Sixth Amendment right to a speedy trial. Citing the balancing test of the majority concluded that all four of the factors described in —“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”—weighed against the State. The court first found that the three-year delay in bring ing Brillon to trial was “extreme” and weighed heavily in his favor. See In assessing the rea sons for that delay, the Vermont Supreme Court sepa rately considered the period of each counsel’s representa tion. It acknowledged that the first year, when Brillon was represented by Ammons and Altieri, should not count 6 VERMONT v. BRILLON Opinion of the Court against the State. But the court counted much of the remaining two years against the State for delays “caused, for the most part, by the failure of several of defendant’s assigned counsel, over an inordinate period of time, to move his case forward.” As for the third and fourth factors, the court found that Brillon “repeatedly and adamantly demanded to be tried,” ib and that his “lengthy pretrial incarceration” was prejudi cial, despite his insubstantial assertions of evidentiary prejudice, The dissent strongly disputed the majority’s characteri zation of the periods of delay. It concluded that “the lion’s share of delay in this case is attributable to defendant, and not to the state.” But for Brillon’s “re peated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment,” the dissent explained, “the difficulty in finding additional counsel would not have arisen.” We granted certiorari, 554 U. S. (2008),5 and now reverse the judgment of the Vermont Supreme Court. II The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” The speedy-trial right is “amorphous,” “slip pery,” and “necessarily relative.” ). It is “consistent with delays and depend[ent] upon circum —————— 5 Vermont’s Constitution contains a speedy-trial clause which reads: “[I]n all prosecutions for criminal offenses, a person hath a right
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Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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all prosecutions for criminal offenses, a person hath a right to a speedy public trial by an impartial jury” Vt. Const., Ch. I, Art. 10. Notably, the Vermont Supreme Court made no ruling under the State’s own prescription, but instead relied solely on the Federal Constitution. Because it did so, our review authority was properly invoked and exercised. See 719–720 (1975); Ginsburg, Book Review, 343–344 (1978). But see post, at 1–4. Cite as: 556 U. S. (2009) 7 Opinion of the Court stances.” (internal quotation marks omitted). In the Court refused to “quantif[y]” the right “into a specified number of days or months” or to hinge the right on a defendant’s explicit request for a speedy trial. at 522–525. Rejecting such “inflexible approaches,” established a “balancing test, in which the conduct of both the prosecution and the defen dant are weighed.” “[S]ome of the fac tors” that courts should weigh include “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Primarily at issue here is the reason for the delay in Brillon’s trial. instructs that “different weights should be assigned to different reasons,” and in applying we have asked “whether the government or the criminal defendant is more to blame for th[e] delay.” Delib erate delay “to hamper the defense” weighs heavily against the prosecution. 407 U.S., “[M]ore neutral reason[s] such as negligence or over crowded courts” weigh less heavily “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” In contrast, delay caused by the defense weighs against the defendant: “[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine.” Cf. United (noting that a defendant whose trial was delayed by his interlocutory appeal “normally should not be able to reap the reward of dismissal for failure to receive a speedy trial”). That rule accords with the reality that defendants may have incentives to employ delay as a “defense tactic”: delay may “work to the ac cused’s advantage” because “witnesses may become un available or their memories may fade” over time. 8 VERMONT v. BRILLON Opinion of the Court Because “the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” delay caused by the defendant’s counsel is charged against the defendant. U.S. 722, 753 (1991).6 The same principle applies whether counsel is privately retained or publicly assigned, for “[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations
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Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” Polk (internal quotation marks omit ted). “Except for the source of payment,” the relationship between a defendant and the public defender representing him is “identical to that existing between any other lawyer and client.” Unlike a prosecutor or the court, as signed counsel ordinarily is not considered a state actor.7 III ’s formulation “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” 407 U.S., and the balance arrived at in close cases ordinarily would not prompt this Court’s review. But the Vermont Supreme Court made a fundamental error in its applica tion of that calls for this Court’s correction. The —————— 6 Several States’ speedy-trial statutes expressly exclude from compu tation of the time limit continuances and delays caused by the defen dant or defense counsel. See, e.g., Cal. Penal Code Ann. (West 2000); Ill. Comp. Stat., ch. 725, (2006); N. Y. Crim. Proc. Law Ann. (West Supp. 2009); Alaska Rule Crim. Proc. 45(d) (1993); Ark. Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim. Proc. 4(A) (2009). See Brief for National Governors Association et al. as Amici Curiae 17–18, and n. 12. 7 A public defender may act for the State, however, “when making hiring and firing decisions on behalf of the State,” and “while perform ing certain administrative and possibly investigative functions.” Polk Cite as: 556 U. S. (2009) 9 Opinion of the Court Vermont Supreme Court erred in attributing to the State delays caused by “the failure of several assigned counsel to move his case forward,” 955 A.2d, and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance. A The Vermont Supreme Court’s opinion is driven by the notion that delay caused by assigned counsel’s “inaction” or failure “to move [the] case forward” is chargeable to the State, not the defendant. 1122. In this case, that court concluded, “a significant portion of the delay in bringing defendant to trial must be attributed to the state, even though most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward.” We disagree. An assigned counsel’s failure “to move the case forward” does not warrant attribution of delay to the State. Contrary to the Vermont Supreme Court’s analysis, assigned counsel generally are not state actors for pur poses of a speedy-trial claim. While the Vermont Defender General’s office is indeed “part of
|
Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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https://www.courtlistener.com/opinion/145899/vermont-v-brillon/
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While the Vermont Defender General’s office is indeed “part of the criminal justice system,” ib the individual counsel here acted only on behalf of Brillon, not the State. See Polk 454 U.S., at 320–322 (rejecting the view that public defenders act under color of state law because they are paid by the State). See Most of the delay that the Vermont Supreme Court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel. During those periods, Brillon was represented by Donaldson, Sleigh, and Moore, all of whom requested extensions and continu ances.8 Their “inability or unwillingness to move the —————— 8 The State conceded before the Vermont Supreme Court that the period of Sleigh’s representation—along with a six-month period of no representation—was properly attributed to the State. 10 VERMONT v. BRILLON Opinion of the Court case forward,” 955 A.2d, may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed coun sel to delay proceedings by seeking unreasonable continu ances, hoping thereby to obtain a dismissal of the indict ment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by ap pointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel’s requests for time extensions. We see no justification for treating defendants’ speedy trial claims differently based on whether their counsel is privately retained or publicly assigned. B In addition to making assigned counsel’s “failure to move [the] case forward” the touchstone of its speedy-trial inquiry, the Vermont Supreme Court further erred by treating the period of each counsel’s representation dis cretely. The factors identified in “have no talis manic qualities; courts must still engage in a difficult and sensitive balancing process.” Yet the Vermont Supreme Court failed appropriately to take into account Brillon’s role during the first year of delay in “the chain of events that started all this.” Tr. of Oral Arg. 46. Brillon sought to dismiss Ammons on the eve of trial. His strident, aggressive behavior with regard to Altieri, whom he threatened, further impeded prompt trial and likely made it more difficult for the Defender General’s —————— 1120–1121 (2008). The State sought to avoid its concession at oral argument before this Court, but in the alternative, noted that the period of Sleigh’s representation “is really inconsequential.” Tr. of Oral Arg. 5–6. We agree that in light of the three-year delay caused mostly by Brillon, the attribution of
|
Justice Ginsburg
| 2,009 | 5 |
majority
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Vermont v. Brillon
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the three-year delay caused mostly by Brillon, the attribution of Sleigh’s three-month representation does not tip the balance for either side. Cite as: 556 U. S. (2009) 11 Opinion of the Court office to find replacement counsel. Even after the trial court’s warning regarding delay, Brillon sought dismissal of yet another attorney, Donaldson. Just as a State’s “deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State],” 407 U.S., so too should a defen dant’s deliberate attempt to disrupt proceedings be weighted heavily against the defendant. Absent Brillon’s deliberate efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have arisen. The effect of these earlier events should have been factored into the court’s analysis of subsequent delay.9 C The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay result ing from a systemic “breakdown in the public defender system,” 955 A.2d, could be charged to the State. Cf. Polk –. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon’s case. In sum, delays caused by defense counsel are properly attributed to the defendant, even where counsel is as signed. “[A]ny inquiry into a speedy trial claim necessi tates a functional analysis of the right in the particular context of the case,” and the record in this case does not show that Brillon was denied his constitutional right to a speedy trial. * * * For the reasons stated, the judgment of the Vermont Supreme Court is reversed, and the case is remanded for —————— 9 Brillon lacked counsel for some six months. In light of his own role in the initial periods of delay, however, this six-month period, even if attributed to the State, does not establish a speedy-trial violation. 12 VERMONT v. BRILLON Opinion of the Court further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 556 U. S. (2009) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–88 VERMONT, PETITIONER v.
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As this school desegregation litigation enters its 18th year, we are called upon again to review the decisions of the lower court n this case, the State of Missouri has challenged the District Court's order of salary increases for virtually all instructional and noninstructional staff within the Kansas City, Missouri, School District (KCMSD) and the District Court's order requiring the State to continue to fund remedial "quality education" programs because student achievement levels were still "at or below national norms at many grade level" *74 A general overview of this litigation is necessary for proper resolution of the issues upon which we granted certiorari. This case has been before the same United States District Judge since 1977. n that year, the KCMSD, the school board, and the children of two school board members brought suit against the State and other defendant Plaintiffs alleged that the State, the surrounding suburban school districts (SSD's), and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. The District Court realigned the KCMSD as a nominal defendant and certified as a class, present and future KCMSD The KCMSD brought a cross-claim against the State for its failure to eliminate the vestiges of its prior dual school system. After a trial that lasted 7 12months, the District Court dismissed the case against the federal defendants and the SSD's, but determined that the State and the KCMSD were liable for an intradistrict violation, i. e., they had operated a segregated school system within the KCMSD. The District Court determined that prior to 1954 "Missouri mandated segregated schools for black and white children." Furthermore, the KCMSD and the State had failed in their affirmative obligations to eliminate the vestiges of the State's dual school system within the KCMSD. n June the District Court issued its first remedial order and established as its goal the "elimination of all vestiges of state imposed segregation." The District Court determined that "[s]egregation ha[d] caused a system wide reduction in student achievement in the schools of the KCMSD." The District Court made no particularized findings regarding the extent that student achievement *75 had been reduced or what portion of that reduction was attributable to segregation. The District Court also identified 25 schools within the KCMSD that had enrollments of 90% or more black The District Court, pursuant to plans submitted by the KCMSD and the State, ordered a wide range of quality education programs for all students attending the KCMSD. First, the District Court ordered that the KCMSD be restored to
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the District Court ordered that the KCMSD be restored to an AAA classification, the highest classification awarded by the State Board of Second, it ordered that the number of students per class be reduced so that the student-to-teacher ratio was below the level required for AAA standing. The District Court justified its reduction in class size as "an essential part of any plan to the vestiges of segregation in the KCMSD. Reducing class size will serve to the vestiges of past segregation by increasing individual attention and instruction, as well as increasing the potential for desegregative educational experiences for KCMSD students by maintaining and attracting non-minority enrollment." The District Court also ordered programs to expand educational opportunities for all KCMSD students: full-day kindergarten; expanded summer school; before- and after-school tutoring; and an early childhood development program. Finally, the District Court implemented a statefunded "effective schools" program that consisted of substantial yearly cash grants to each of the schools within the KCMSD. Under the "effective schools" program, the State was required to fund programs at both the 25 racially identifiable schools as well as the 43 other schools within the KCMSD. The KCMSD was awarded an AAA rating in the school year, and there is no dispute that since that time it has "`maintained and greatly exceeded AAA requirement' *76 " The total cost for these quality education programs has exceeded $220 million. Missouri Department of Elementary and Secondary KCMSD Total Desegregation Program Expenditures (Desegregation Expenditures). The District Court also set out to desegregate the KCMSD but believed that "[t]o accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task." Because it had found no interdistrict violation, the District Court could not order mandatory interdistrict redistribution of students between the KCMSD and the surrounding SSD' ; see also The District Court refused to order additional mandatory student reassignments because they would "increase the instability of the KCMSD and reduce the potential for " Relying on favorable precedent from the Eighth Circuit, the District Court determined that "[a]chievement of AAA status, improvement of the quality of education being offered at the KCMSD schools, magnet schools, as well as other components of this desegregation plan can serve to maintain and hopefully attract non-minority student enrollment." n November the District Court approved a comprehensive magnet school and capital improvements plan and held the State and the KCMSD jointly and severally liable for its funding. -193. Under the District Court's plan, every senior high school, every middle school, and one-half of the elementary schools were
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every middle school, and one-half of the elementary schools were converted into magnet school[1] at 131. The District Court adopted the *77 magnet-school program to "provide a greater educational opportunity to all KCMSD students," and because it believed "that the proposed magnet plan [was] so attractive that it would draw non-minority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburb" The District Court felt that "[t]he long-term benefit of all KCMSD students of a greater educational opportunity in an integrated environment is worthy of such an investment." Since its inception, the magnet-school program has operated at a cost, including magnet transportation, in excess of $448 million. See Desegregation Expenditure n April the District Court considered, but ultimately rejected, the plaintiffs' and the KCMSD's proposal seeking approval of a longrange magnet renewal program that included a 10-year budget of well over $500 million, funded by the State and the KCMSD on a joint-and-several basi App. to Pet. for Cert. A-1. n June the District Court ordered substantial capital improvements to combat the deterioration of the KCMSD's facilitie n formulating its capital-improvements plan, the District Court dismissed as "irrelevant" the "State's argument that the present condition of the facilities [was] not traceable to unlawful segregation." nstead, the District Court focused on its responsibility to "remed[y] the vestiges of segregation" and to "implemen[t] a desegregation plan which w[ould] maintain and attract non-minority enrollment." The initial phase of the capital-improvements plan cost $37 million. The District Court also required the KCMSD to present further capital-improvements proposals "in order to bring its facilities to a point comparable with the facilities in neighboring suburban school district" n November the District Court approved further capital improvements in order to remove the vestiges of racial segregation *78 and "to attract non-minority students back to the KCMSD." App. to Pet. for Cert. A-133 to A-134. n September the District Court adopted, for the most part, KCMSD's long-range capital-improvements plan at a cost in excess of $187 million. The plan called for the renovation of approximately 55 schools, the closure of 18 facilities, and the construction of 17 new school The District Court rejected what it referred to as the "`patch and repair' approach proposed by the State" because it "would not achieve suburban comparability or the visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint." The District Court reasoned that "if the KCMSD schools underwent the limited
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Court reasoned that "if the KCMSD schools underwent the limited renovation proposed by the State, the schools would continue to be unattractive and substandard, and would certainly serve as a deterrent to parents considering enrolling their children in KCMSD school" As of 1990, the District Court had ordered $260 million in capital improvement Since then, the total cost of capital improvements ordered has soared to over $540 million. As part of its desegregation plan, the District Court has ordered salary assistance to the KCMSD. n the District Court initially ordered salary assistance only for teachers within the KCMSD. Since that time, however, the District Court has ordered salary assistance to all but three of the approximately 5,000 KCMSD employee The total cost of this component of the desegregation since is over $200 million. See Desegregation Expenditure The District Court's desegregation plan has been described as the most ambitious and expensive remedial program in the history of school *79 The annual cost per pupil at the KCMSD far exceeds that of the neighboring SSD's or of any school district in Missouri. Nevertheless, the KCMSD, which has pursued a "friendly adversary" relationship with the plaintiffs, has continued to propose ever more expensive program[2] As a result, the desegregation costs have escalated and now are approaching an annual cost of $200 million. These massive expenditures have financed "high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; green houses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilitie" Not surprisingly, the cost of this remedial plan has "far exceeded KCMSD's budget, or for that matter, its authority to tax." The State, through the operation of jointand-several liability, has borne the brunt of these cost The District Court candidly has acknowledged that it has "allowed the District planners to dream" and "provided the *80 mechanism for th[ose] dreams to be realized." App. to Pet. for Cert. A-133. n short, the District Court "has gone to great lengths to provide KCMSD with facilities and opportunities not available anywhere else in the country." at A-115. With this background, we turn to the present controversy. First, the State has challenged the District Court's requirement that it fund salary increases for KCMSD
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District Court's requirement that it fund salary increases for KCMSD instructional and noninstructional staff. at A-76 to A-93 ; at A-94 to A-109 ; at A-110 to A-121 The State claimed that funding for salaries was beyond the scope of the District Court's remedial authority. at A-86. Second, the State has challenged the District Court's order requiring it to continue to fund the remedial quality education programs for the 1992- school year. at A-69 to A-75 The State contended that under it had achieved partial unitary status with respect to the quality education programs already in place. As a result, the State argued that the District Court should have relieved it of responsibility for funding those program The District Court rejected the State's argument t first determined that the salary increases were warranted because "[h]igh quality personnel are necessary not only to implement specialized desegregation programs intended to `improve educational opportunities and reduce racial isolation', but also to `ensure that there is no diminution in the quality of its regular academic program.' " App. to Pet. for Cert. A-87 (citations omitted). ts "ruling [was] grounded in ing the vestiges of segregation by improving the desegregative attractiveness of the KCMSD." at A-90. The District Court did not address the State's arguments; nevertheless, it ordered the State to continue to *81 fund the quality education programs for the 1992- school year. See App. to Pet. for Cert. A-70. The Court of Appeals for the Eighth Circuit affirmed. t rejected the State's argument that the salary increases did not directly address and relate to the State's constitutional violation and that "low teacher salaries d[id] not flow from any earlier constitutional violations by the State." n doing so, it observed that "[i]n addition to compensating the victims, the in this case was also designed to reverse white flight by offering superior educational opportunitie" ; see also (affirming the District Court's June 30, and July 30, orders). The Court of Appeals concluded that the District Court implicitly had rejected the State's arguments in spite of the fact that it had failed "to articulate even a conclusory rejection" of t looked to the District Court's comments from the bench and its later orders to "illuminate the June 1992 order." at 7. The Court of Appeals relied on statements made by the District Court during a May 28, 1992, hearing: "The Court's goal was to integrate the Kansas City, Missouri, School District to the maximum degree possible, and all these other matters were elements to be used to try to integrate the Kansas City, Missouri, schools so
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to try to integrate the Kansas City, Missouri, schools so the goal is integration. That's the goal. And a high standard of quality education. The magnet schools, the summer school program and all these programs are tied to that goal, and until such time as that goal has been reached, then we have not reached the goal. The goal is to integrate the Kansas City, Missouri, School district. So think we are wasting our time." See 11 F.3d, at 7. Apparently, the Court of Appeals extrapolated from the findings regarding the magnet-school *82 program and later orders and imported those findings wholesale to reject the State's request for a determination of partial unitary status as to the quality education program See at 7-762. t found significant the District Court's determination that although "there had been a trend of improvement in academic achievement, the school district was far from reaching its maximum potential because KCMSD is still at or below national norms at many grade level" t went on to say that with respect to quality education, "implementation of programs in and of itself is not sufficient. The test, after all, is whether the vestiges of segregation, here the system wide reduction in student achievement, have been eliminated to the greatest extent practicable. The success of quality of education programs must be measured by their effect on the students, particularly those who have been the victims of segregation." The Court of Appeals denied rehearing en banc, with five judges The dissent first examined the salary increases ordered by the District Court and characterized "the current effort by the KCMSD and the American Federation of Teachers aided by the plaintiffs, to bypass the collective bargaining process" as "uncalled for" and "probably not an exercise reasonably related to the constitutional violations found by the court." The dissent also "agree[d] with the [S]tate that logic d[id] not directly relate the pay of parking lot attendants, trash haulers and food handlers to any facet or phase of the desegregation plan or to the constitutional violation" Second, the dissent believed that in evaluating whether the KCMSD had achieved partial unitary status in its quality education programs, the District Court and the panel had "misrea[d] and create[d] a hurdle to the withdrawal of judicial intervention from public education that has no support in the law. The district court has, *83 with the approbation of the panel, imbedded a student achievement goal measured by annual standardized tests into its test of whether the KCMSD has built a high-quality educational system sufficient to past discrimination. The Constitution requires no
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educational system sufficient to past discrimination. The Constitution requires no such standard." The dissent noted that "KCMSD students have in place a system that offers more educational opportunity than anywhere in America," but that the District Court was "`not satisfied that the District has reached anywhere close to its maximum potential because the District is still at or below national norms at many grade levels,' " The dissent concluded that this case, "as it now proceeds, involves an exercise in pedagogical sociology, not constitutional adjudication." Because of the importance of the issues, we granted certiorari to consider the following: (1) whether the District Court exceeded its constitutional authority when it granted salary increases to virtually all instructional and noninstructional employees of the KCMSD, and (2) whether the District Court properly relied upon the fact that student achievement test scores had failed to rise to some unspecified level when it declined to find that the State had achieved partial unitary status as to the quality education program Respondents argue that the State may no longer challenge the District Court's and in any event, the propriety of the is not before the Court. Brief for Respondents KCMSD et al. 40-49; Brief for Respondents et al. We disagree on both count n we granted certiorari to review the manner in which the District Court had funded this desegregation Because we had denied certiorari on the State's *84 challenge to review the scope of the remedial order, we resisted the State's efforts to challenge the scope of the ; cf. Thus, we neither "approv[ed]" nor "disapprov[ed] the Court of Appeals' conclusion that the District Court's was proper." Here, however, the State has challenged the District Court's approval of across-the-board salary increases for instructional and noninstructional employees as an action beyond its remedial authority. Pet. for Cert. i.[3] An analysis of the permissible scope of the District Court's remedial authority is necessary for a proper determination of whether the order of salary increases is beyond the District Court's remedial authority, see Milliken -740, 745, and thus, it is an issue subsidiary to our ultimate inquiry. Cf. v.Escondido, Given that the District Court's basis for its salary order was grounded in "improving the desegregative attractiveness of the KCMSD," App. to Pet. for Cert. A-90, we must consider the propriety of that reliance in order to resolve properly the State's challenge to that order. We conclude that a challenge to the scope of the District Court's is fairly included in the question presented. See this Court's Rule 14.1; ; see also United (Where *85 the determination of
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14.1; ; see also United (Where *85 the determination of a question "is essential to the correct disposition of the other issues in the case, we shall treat it as `fairly comprised' by the questions presented in the petition for certiorari"); cf. 6-. Justice Souter argues that our decision to review the scope of the District Court's remedial authority is both unfair and imprudent. Post, at 147. He claims that factors such as our failure to grant certiorari on the State's challenge to the District Court's remedial authority in "lulled [respondents] into addressing the case without sufficient attention to the foundational issue, and their lack of attention has now infected the Court's decision." Post, at 139. Justice Souter concludes that we have "decide[d] the issue without any warning to respondent" Post, at 147. These arguments are incorrect. Of course, "[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many time" United (19). A fortiori, far from lulling respondents into a false sense of security, our previous decision in put respondents on notice that the Court had not affirmed the validity of the District Court's 495 U.S., and that at least four Justices of the Court questioned that With respect to the specific orders at issue here, the State has once again challenged the scope of the District Court's remedial authority. The District Court was aware of this fact. See App. to Pet. for Cert. A-86 ("The State claims that the Court should not approve desegregation funding for salaries because such funding would be beyond the scope of the Court's remedial authority") (District Court's June 25, 1992, order); at A-97 ("The State has argued repeatedly and currently on appeal that the salary component is not a valid component of the desegregation ") (District *86 Court's June 30, order). The Court of Appeals also understood that the State had renewed this challenge. See 11 F.3d, ("The State argues first that the salary increase sought exceeded that necessary to the constitutional violations, and alternatively, that if the district court had lawful authority to impose the increases, it abused its discretion in doing so");] and [v. CharlotteMecklenburg Bd. of Ed.,] in that it does not directly address and relate to the State's constitutional violation"); 13 F.3d, at The State renewed this same challenge in its petition for certiorari, Pet. for Cert. i, and argued here that the District Court's salary orders were beyond the scope of its remedial authority. Brief for Petitioners 27-32; Reply Brief for Petitioners 6-12. n
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Brief for Petitioners 27-32; Reply Brief for Petitioners 6-12. n the 100 pages of briefing provided by respondents, they have argued that the State's challenge to the scope of the District Court's remedial authority is not fairly presented and is meritles See Brief for Respondents KCMSD et al. 40-49; Brief for Respondents et al. 2-21, 44-49; cf. Reply Brief for Petitioners 2 ("[R]espondent urge the Court to dismiss the writ as improvidently granted. This is not surprising; respondents cannot defend the excesses of the courts below"). n short, the State has challenged the scope of the District Court's remedial authority. The District Court, the Court of Appeals, and respondents have recognized this to be the case. Contrary to Justice Souter's arguments, there is no unfairness or imprudence in deciding issues that have been passed upon below, are properly before us, and have been briefed by the partie We turn to the questions presented. Almost 25 years ago, in we dealt with the authority of a district court to fashion remedies for a school district that *87 had been segregated in law in violation of the Equal Protection Clause of the Fourteenth Amendment. Although recognizing the discretion that must necessarily adhere in a district court in fashioning a we also recognized the limits on such remedial power: "[E]limination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of the school authoritie One vehicle can carry only a limited amount of baggage. t would not serve the important objective of Brown [v. Board of] to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination." at 22 Three years later, in Milliken we held that a District Court had exceeded its authority in fashioning interdistrict relief where the surrounding school districts had not themselves been guilty of any constitutional violation. We said that a desegregation "is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." "[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict " We also rejected "[t]he suggestion that schools which have a majority of Negro students are not `desegregated,' whatever the makeup of the school district's population and however neutrally the district lines have been drawn and administered." ; see also *88 Three years later, in we articulated a three-part framework derived from
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years later, in we articulated a three-part framework derived from our prior cases to guide district courts in the exercise of their remedial authority. "n the first place, like other equitable remedies, the nature of the desegregation is to be determined by the nature and scope of the constitutional violation. v. Charlotte-Mecklenburg Board of The must therefore be related to `the condition alleged to offend the Constitution.' Milliken Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible `to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Third, the federal courts in devising a must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." We added that the "principle that the nature and scope of the are to be determined by the violation means simply that federal-court decrees must directly address and ;relate to the constitutional violation itself." n applying these principles, we have identified "student assignments, `faculty, staff, transportation, extracurricular activities and facilities' " as the most important indicia of a racially segregated school system. Board of Ed. of Oklahoma City Public 498 U.S. 7, Because "federal supervision of local school systems was intended as a temporary measure to past discrimination," 7, we also have considered the showing that must be made by a school district operating under a desegregation order for complete or partial relief from that order. n we stated that *89 "[a]mong the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the courts' decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance." The ultimate inquiry is "`whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.' " (quoting 9-). Proper analysis of the District Court's orders challenged here, then, must rest upon their serving as proper means
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here, then, must rest upon their serving as proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct and their eventual restoration of "state and local authorities to the control of a school system that is operating in compliance with the Constitution." We turn to that analysi The State argues that the order approving salary increases is beyond the District Court's authority because it was crafted to serve an "interdistrict goal," in spite of the fact that the constitutional violation in this case is "intradistrict" in nature. Brief for Petitioners 19. "[T]he nature of the desegregation is to be determined by the nature and scope of the constitutional violation." Milliken ; Pasadena City Bd. of The proper response to an intradistrict violation is an intradistrict see Milliken ; Milliken that serves to eliminate the racial identity of the schools within the affected school district by eliminating, as far as practicable, the vestiges of de jure segregation in all facets of their operation See at ; see also -19; at Here, the District Court has found, and the Court of Appeals has affirmed, that this case involved no interdistrict constitutional violation that would support interdistrict relief. n. 3 ("The District Court also found that none of the alleged discriminatory actions had resulted in lingering interdistrict effects and so dismissed the suburban school districts and denied interdistrict relief"); ("[T]here was no interdistrict constitutional violation that would support mandatory interdistrict relief").[4] Thus, the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a system wide reduction in student achievement and the existence of 25 racially identifiable schools with a population of over 90% black 639 F. Supp., 36. *91 The District Court and Court of Appeals, however, have felt that because the KCMSD's enrollment remained 68.3% black, a purely intra district would be insufficient. ; But, as noted in Milliken we have rejected the suggestion "that schools which have a majority of Negro students are not `desegregated' whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered." ; see Milliken 433 U. S., n. 14 ; at[5] nstead of seeking to remove the racial identity of the various schools within the KCMSD, the District Court has set out on a program to create a school district that was equal to or superior to the surrounding SSD' ts has focused on "desegregative attractiveness,"
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to the surrounding SSD' ts has focused on "desegregative attractiveness," coupled with "suburban comparability." Examination of the District Court's reliance on "desegregative attractiveness" and "suburban comparability" is instructive for our ultimate resolution of the salary-order issue. The purpose of desegregative attractiveness has been not only to the systemwide reduction in student achievement, but also to attract nonminority students not presently enrolled in the KCMSD. This has included an elaborate program of capital improvements, course enrichment, *92 and extracurricular enhancement not simply in the formerly identifiable black schools, but in schools throughout the district. The District Court's remedial orders have converted every senior high school, every middle school, and one-half of the elementary schools in the KCMSD into "magnet" school The District Court's remedial order has all but made the KCMSD itself into a magnet district. We previously have approved of intradistrict desegregation remedies involving magnet school See, e. g., Milliken Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis, without requiring extensive busing and redrawing of district boundary line Cf. (citing Milliken ). As a component in an intradistrict magnet schools also are attractive because they promote desegregation while limiting the withdrawal of white student enrollment that may result from mandatory student reassignment. See ; cf. United The District Court's remedial plan in this case, however, is not designed solely to redistribute the students within the KCMSD in order to eliminate racially identifiable schools within the KCMSD. nstead, its purpose is to attract nonminority students from outside the KCMSD school But this inter district goal is beyond the scope of the intra district violation identified by the District Court. n effect, the District Court has devised a to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of ("`[B]ecause of restrictions on this Court's remedial powers in restructuring the operations of local and state government entities,' any mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond *93 the nature and extent of the constitutional violation [that] this Court found existed"). n Milliken we determined that a desegregation that would require mandatory interdistrict reassignment of students throughout the Detroit metropolitan area was an impermissible interdistrict response to the intradistrict violation 418 U.S., n that case, the lower courts had ordered an interdistrict because "`any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white
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practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.' " We held that before a district court could order an interdistrict there must be a showing that "racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation." Because the record "contain[ed] evidence of de jure segregated conditions only in the Detroit Schools" and there had been "no showing of significant violation by the 53 outlying school districts and no evidence of interdistrict violation or effect," we reversed the District Court's grant of interdistrict relief. Justice Stewart provided the Court's fifth vote and wrote separately to underscore his understanding of the decision. n describing the requirements for imposing an "interdistrict" Justice Stewart stated: "Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines; by transfer of school units between districts; or by purposeful, racially discriminatory use of state housing or zoning laws, then a decree calling for the transfer of pupils across district lines or for restructuring of district lines might well be appropriate. n this case, however, no such interdistrict violation was shown." (citations omitted). Justice Stewart concluded that the Court *94 properly rejected the District Court's interdistrict because "[t]here were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort." What we meant in Milliken by an interdistrict violation was a violation that caused segregation between adjoining district Nothing in Milliken suggests that the District Court in that case could have circumvented the limits on its remedial authority by requiring the State of Michigan, a constitutional violator, to implement a magnet program designed to achieve the same interdistrict transfer of students that we held was beyond its remedial authority. Here, the District Court has done just that: created a magnet district of the KCMSD in order to serve the inter district goal of attracting nonminority students from the surrounding SSD's and redistributing them within the KCMSD. The District Court's pursuit of "desegregative attractiveness" is beyond the scope of its broad remedial authority. See Milliken 433 U. S., Respondents argue that the District Court's reliance upon desegregative attractiveness is justified in light of the District Court's statement that segregation has "led to white flight from the KCMSD to suburban district" ; see Brief for Respondents KCMSD et al. 44-45, and n. 28; Brief for Respondents et al. 47-49.[6]
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Justice Rehnquist
| 1,995 | 19 |
majority
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Missouri v. Jenkins
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44-45, and n. 28; Brief for Respondents et al. 47-49.[6] The lower *95 courts' "findings" as to "white flight" are both inconsistent internally,[7] and inconsistent with the typical supposition, bolstered here by the record evidence, that "white flight" may result from desegregation, not de jure segregation.[8] The United States, as amicus curiae, argues that the District Court's finding that "de jure segregation in the KCMSD caused white students to leave the system is not inconsistent with the district court's earlier conclusion that the suburban districts did nothing to cause this white flight and therefore could not be included in a mandatory interdistrict " Brief for United States as Amicus Curiae 19, n. 2; see also post, at 160-164. But the District Court's earlier findings, affirmed by the Court of Appeals, were not so limited: "[C]ontrary to the argument of [plaintiffs] that the [district court] looked only to the culpability of the SSDs, the scope of the order is far broader. t noted that only the schools in one district were affected and that the must be limited to that system. n examining the cause and effect issue, the court noted that `not only is plaintiff's evidence here blurred as to cause and *96 effect, there is no "careful delineation of the extent of the effect."` The district court thus dealt not only with the issue whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effect When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met." (en banc).[9] n we stated that "[t]he vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied." The record here does not support the District Court's reliance on "white flight" as a justification for a permissible expansion of its intradistrict remedial authority through its pursuit of desegregative attractivenes See Milliken 418 U. S., ; see also Dayton Bd. of (Dayton ). Justice Souter claims that our holding effectively overrules See also Brief for American Civil Liberties Union et al. as Amici Curiae 18-20. n the Federal Department of *97 Housing and Urban Development (HUD) was found to have participated, along with a local housing agency, in establishing and maintaining a racially segregated public housing program. -291. After the Court of Appeals ordered "`the adoption of a comprehensive metropolitan area plan,' " 1, we granted certiorari to
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Justice Rehnquist
| 1,995 | 19 |
majority
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Missouri v. Jenkins
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comprehensive metropolitan area plan,' " 1, we granted certiorari to consider the "permissibility in light of [Milliken ] of `inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation.' " 2. Because the "relevant geographic area for purposes of the [plaintiffs'] housing options [was] the Chicago housing market, not the Chicago city limits," 425 U.S., 9, we concluded that "a metropolitan area [was] not impermissible as a matter of law," Cf. 8, n. 13 (distinguishing Milliken in part, because prior cases had established that racial segregation in schools is "to be dealt with in terms of `an established geographic and administrative school system' "). n we did not obligate the District Court to "subjec[t] HUD to measures going beyond the geographical or political boundaries of its violation." Post, at 171 172. nstead, we cautioned that our holding "should not be interpreted as requiring a metropolitan area order." 425 U. S., We reversed appellate fact finding by the Court of Appeals that would have mandated a metropolitan-area see 4-295, n. 11, and remanded the case back to the District Court "`for additional evidence and for further consideration of the issue of metropolitan area relief,' " Our decision today is fully consistent with A district court seeking to an intra district violation that has not "directly caused" significant interdistrict effects, Milliken exceeds its remedial authority if it orders a with an interdistrict purpose. This conclusion follows directly from Milliken decided one year after where we reaffirmed the bedrock *98 principle that "federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation." n Milliken we also emphasized that "federal courts in devising a must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." however, involved the imposition of a upon a federal agency. See 425 U.S., 2, n. 9. Thus, it did not raise the same federalism concerns that are implicated when a federal court issues a remedial order against a State. See Milliken The District Court's pursuit of "desegregative attractiveness" cannot be reconciled with our cases placing limitations on a district court's remedial authority. t is certainly theoretically possible that the greater the expenditure per pupil within the KCMSD, the more likely it is that some unknowable number of nonminority students not presently attending schools in the KCMSD will choose to enroll in those school Under this reasoning, however, every increased expenditure, whether it be for teachers, noninstructional
|
Justice Rehnquist
| 1,995 | 19 |
majority
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Missouri v. Jenkins
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https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/
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however, every increased expenditure, whether it be for teachers, noninstructional employees, books, or buildings, will make the KCMSD in some way more attractive, and thereby perhaps induce nonminority students to enroll in its school But this rationale is not susceptible to any objective limitation. Cf. Milliken This case provides numerous examples demonstrating the limitless authority of the District Court operating under this rationale. See, e. g., App. to Pet. for Cert. A-115 (The District Court has recognized that it has "provide[d] the KCMSD with facilities and opportunities not available anywhere else in the country"); at A-140 ("The District has repeatedly requested that the [District Court] provide extravagant *99 programs based on the hopes that they will succeed in the desegregation effort"). n short, desegregative attractiveness has been used "as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD." 495 U. S., Nor are there limits to the duration of the District Court's involvement. The expenditures per pupil in the KCMSD currently far exceed those in the neighboring SSD' 19 F.3d, (per-pupil costs within the SSD's, excluding capital costs, range from $2,854 to $5,956; per-pupil costs within the KCMSD, excluding capital costs, are $9,412); Brief for Respondent KCMSD et al. 18, n. 5 (arguing that per-pupil costs in the KCMSD, excluding capital costs, are $7,665.18). Sixteen years after this litigation began, the District Court recognized that the KCMSD has yet to offer a viable method of financing the "wonderful school system being built." App. to Pet. for Cert. A-124; cf. Milliken 3 ("Th[e] parties have now joined forces apparently for the purpose of extracting funds from the state treasury"). Each additional program ordered by the District Courtand financed by the Stateto increase the "desegregative attractiveness" of the school district makes the KCMSD more and more dependent on additional funding from the State; in turn, the greater the KCMSD's dependence on state funding, the greater its reliance on continued supervision by the District Court. But our cases recognize that local autonomy of school districts is a vital national tradition, Dayton 433 U. S., 0, and that a district court must strive to restore state and local authorities to the control of a school system operating in compliance with the Constitution. See ; 498 U. S., 7. *100 The District Court's pursuit of the goal of "desegregative attractiveness" results in so many imponderables and is so far removed from the task of eliminating the racial identifiability of the schools within the KCMSD that we believe it is beyond the admittedly broad discretion
|
Justice Rehnquist
| 1,995 | 19 |
majority
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Missouri v. Jenkins
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https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/
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that we believe it is beyond the admittedly broad discretion of the District Court. n this posture, we conclude that the District Court's order of salary increases, which was "grounded in ing the vestiges of segregation by improving the desegregative attractiveness of the KCMSD," App. to Pet. for Cert. A-90, is simply too far removed from an acceptable implementation of a permissible means to previous legally mandated segregation. See Milliken 433 U. S., Similar considerations lead us to conclude that the District Court's order requiring the State to continue to fund the quality education programs because student achievement levels were still "at or below national norms at many grade levels" cannot be sustained. The State does not seek from this Court a declaration of partial unitary status with respect to the quality education program Reply Brief for Petitioners 3. t challenges the requirement of indefinite funding of a quality education program until national norms are met, based on the assumption that while a mandate for significant educational improvement, both in teaching and in facilities, may have been justified originally, its indefinite extension is not. Our review in this respect is needlessly complicated because the District Court made no findings in its order approving continued funding of the quality education program See App. to Pet. for Cert. A-69 to A-75. Although the Court of Appeals later recognized that a determination of partial unitary status requires "careful factfinding and detailed articulation of findings," it declined to remand to the District Court. nstead it attempted to assemble an adequate record from the District Court's statements *101 from the bench and subsequent order at 7. n one such order relied upon by the Court of Appeals, the District Court stated that the KCMSD had not reached anywhere close to its "maximum potential because the District is still at or below national norms at many grade level" App. to Pet. for Cert. A-131. But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary statu See at ; 498 U. S., 9-. The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable. Under our precedents, the State and the KCMSD are "entitled to a rather precise statement of [their] obligations under a desegregation decree." 6. Although the District Court has determined that "[s]egregation has caused a system wide reduction in achievement in the schools of the KCMSD," 639 F. Supp., it never has
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Justice Rehnquist
| 1,995 | 19 |
majority
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Missouri v. Jenkins
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https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/
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schools of the KCMSD," 639 F. Supp., it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education program Cf. Dayton[10] n reconsidering this order, the District Court should apply our three-part test from at The District Court should consider that the State's role with respect to the quality education programs has been limited to the funding, not the implementation, of those program As all the parties agree that improved achievement on test scores is not necessarily required for the State to achieve partial unitary status as to the quality education programs, the District Court should sharply limit, if not dispense with, its reliance on this factor. Brief for Respondents *102 KCMSD et al. 34-35; Brief for Respondents et al. 26. Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, -495, so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculu See 427 U. S., at ; nsistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own. The District Court also should consider that many goals of its quality education plan already have been attained: the KCMSD now is equipped with "facilities and opportunities not available anywhere else in the country." App. to Pet. for Cert. A-115. KCMSD schools received an AAA rating eight years ago, and the present remedial programs have been in place for seven year See 19 F.3d, at t may be that in education, just as it may be in economics, a "rising tide lifts all boats," but the remedial quality education program should be tailored to the injuries suffered by the victims of prior de jure segregation. See Milliken Minority students in kindergarten through grade 7 in the KCMSD always have attended AAArated schools; minority students in the KCMSD that previously attended schools rated below AAA have since received remedial education programs for a period of up to seven year On remand, the District Court must bear in mind that its end purpose is not only "to the violation" to the extent practicable, but also "to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." *103 The judgment of the Court of Appeals is reversed. t is so ordered.
|
Justice Douglas
| 1,973 | 10 |
dissenting
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United States v. Florida East Coast R. Co.
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https://www.courtlistener.com/opinion/108715/united-states-v-florida-east-coast-r-co/
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The present decision makes a sharp break with traditional concepts of procedural due process. The Commission order under attack is tantamount to a rate order. Charges are fixed that nonowning railroads must pay *247 owning railroads for boxcars of the latter that are on the tracks of the former. These charges are effective only during the months of September through February, the period of greatest boxcar use. For example, the charge for a boxcar that costs from $15,000 to $17,000 and that is five years of age or younger amounts to $5.19 a day. Boxcars costing between $39,000 and $41,000 and that are five years of age or younger cost the non-owning railroad $12.98 a day. The fees or rates charged decrease as the ages of the boxcars lengthen. This is the imposition on carriers by administrative fiat of a new financial liability. I do not believe it is within our traditional concepts of due process to allow an administrative agency to saddle anyone with a new rate, charge, or fee without a full hearing that includes the right to present oral testimony, cross-examine witnesses, and present oral argument. That is required by the Administrative Procedure Act, 5 U.S. C. 556 (d); 556 (a) states that 556 applies to hearings required by 553. Section 553 (c) provides that 556 applies "[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing." A hearing under 1 (14) (a) of the Interstate Commerce Act fixing rates, charges, or fees is certainly adjudicatory, not legislative in the customary sense. The question is whether the Interstate Commerce Commission procedures used in this rate case "for the submission of evidence in written form" avoided prejudice to the appellees so as to comport with the requirements of the Administrative Procedure Act.[1] The Government appeals from the District Court's order *248 remanding this case to the Commission for further proceedings on the incentive per diem rates to be paid by the appellee railroads for the standard boxcars they use. In 1966, Congress amended 1 (14) (a) of the Interstate Commerce Act to require that the Commission investigate the use of methods of incentive compensation to alleviate any shortage of freight cars "and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and the national defense." 49 U.S. C. 1 (14) (a). While the Commission was given the discretion to exempt carriers from incentive payments "in the national interest," it was denied the power to "make any incentive element applicable to any type of
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
United States v. Florida East Coast R. Co.
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https://www.courtlistener.com/opinion/108715/united-states-v-florida-east-coast-r-co/
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to "make any incentive element applicable to any type of freight car the supply of which the Commission finds to be adequate" The Commission's initial investigation under this authority () was terminated without action because it "produced no reliable information respecting the quantum of interim incentive charge necessary to meet the statutory standards." 332 I. C. C. 11, 16. A subsequent study of boxcar supply-and-demand conditions () yielded data that were compiled in an interim report containing tentative charges and that were submitted to the railroads for comment. 337 I. C. C. 183. Although the Commission was admittedly uncertain whether its proposed charges would accomplish the statutory objective, and even though "the opportunity to present evidence and arguments" was contemplated, congressional impatience militated against further delay in implementing 1 (14) (a).[2] Consequently, the Commission rejected the requests of the appellees and other railroads for further hearings and promulgated an incentive *249 per diem rate schedule for standard boxcars. 337 I. C. C. 217. Appellees then brought this action in the District Court alleging that they were "prejudiced" within the meaning of the Administrative Procedure Act by the Commission's failure to afford them a proper hearing. Seaboard argued that it had been damaged by what it alleged to be the Commission's sudden change in emphasis from specialty to unequipped boxcars and that it would lose some $1.8 million as the result of the Commission's allegedly hasty and experimental action. Florida East Coast raised significant challenges to the statistical validity of the Commission's data,[3] and also contended that its status as a terminating railroad left it with a surfeit of standard boxcars which should exempt it from the requirement to pay incentive charges. Appellees, in other words, argue that the inadequacy of the supply of standard boxcars was not sufficiently established by the Commission's procedures. Seaboard contends that specialty freight cars have supplanted standard boxcars and Florida East Coast challenges the accuracy of the Commission's findings. In its interim report, the commission indicated that there would be an opportunity to present evidence and arguments. See 337 I. C. C. 183, 187. The appellees could reasonably have expected that the later hearings would give them the opportunity to substantiate and elaborate the criticisms they set forth in their *250 initial objections to the interim report. That alone would not necessarily support the claim of "prejudice." But I believe that "prejudice" was shown when it was claimed that the very basis on which the Commission rested its finding was vulnerable because it lacked statistical validity or other reasoned basis. At least in that narrow
|
Justice Douglas
| 1,973 | 10 |
dissenting
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United States v. Florida East Coast R. Co.
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https://www.courtlistener.com/opinion/108715/united-states-v-florida-east-coast-r-co/
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validity or other reasoned basis. At least in that narrow group of cases, prejudice for lack of a proper hearing has been shown. Both Long Island R. and the present case involve challenges to the Commission's procedures establishing incentive per diem rates. In Long Island, however, the railroad pointed to no specific challenges to the Commission's findings ( at 499), and the trial was conducted on stipulated issues involving the right to an oral hearing. at 491 n. 2. Since Long Island presented no information which might have caused the Commission to reach a different result,[4] there was no showing of prejudice, and a fortiori no right to an oral hearing. In the *251 present case, by contrast, there are specific factual disputes and the issue is the narrow one of whether written submission of evidence without oral argument was prejudicial. The more exacting hearing provisions of the Administrative Procedure Act, 5 U.S. C. 556-557, are only applicable, of course, if the "rules are required by statute to be made on the record after opportunity for an agency hearing." 553 (c). United was concerned strictly with a rulemaking proceeding of the Commission for the promulgation of "car service rules" that in general required freight cars, after being unloaded, to be returned "in the direction of the lines of the road owning the cars." We sustained the Commission's power with respect to these two rules on the narrow ground that they were wholly legislative. We held that 1 (14) (a) of the Interstate Commerce Act, requiring by its terms a "hearing," "does not require that such rules `be made on the record' " within the meaning of 553 (c). We recognized, however, that the precise words "on the record" are not talismanic, but that the crucial question is whether the proceedings under review are "an exercise of legislative rulemaking" or "adjudicatory hearings." The "hearing" requirement of 1 (14) (a) cannot be given a fixed and immutable meaning to be applied in each and every case without regard to the nature of the proceedings. The rules in question here established "incentive" per diem charges to spur the prompt return of existing cars and to make the acquisition of new cars financially attractive to the railroads.[5] Unlike those we considered in *252 Allegheny-Ludlum, these rules involve the creation of a new financial liability. Although quasi-legislative, they are also adjudicatory in the sense that they determine the measure of the financial responsibility of one road for its use of the rolling stock of another road. The Commission's power to promulgate these rules pursuant to
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
United States v. Florida East Coast R. Co.
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https://www.courtlistener.com/opinion/108715/united-states-v-florida-east-coast-r-co/
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road. The Commission's power to promulgate these rules pursuant to 1 (14) (a) is conditioned on the preliminary finding that the supply of freight cars to which the rules apply is inadequate. Moreover, in fixing incentive compensation once this threshold finding has been made, the Commission "shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply"[6] *253 The majority finds "sufficiently different" as to make the opinion in that case inapplicable to the case now before us. I would read the case differently, finding a clear mandate that where, as here, ratemaking must be *254 based on evidential facts, 1 (14) (a) requires that full hearing which due process normally entails. There we considered Commission procedures for setting aside as unreasonable, after a hearing, carrier-made rates. The Government maintained that the Commission, invested with legislative ratemaking power, but required by the Commerce Act to obtain necessary information, could act on such information as the Congress might. The Government urged that we presume that the Commission's findings were supported by such information, "even though not formally proved at the hearing." We rejected the contention, holding that the right to a hearing included "an opportunity to test, explain, or refute. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal." I would agree with the District Court in Long Island R. that Congress was fully cognizant of our decision in Louisville & Nashville R. when it first adopted the hearing requirement of 1 (14) (a) in 1917. And when Congress debated the 1966 amendment that empowered the Commission to adopt incentive per diem rates, it had not lost sight of the importance of hearings. Questioned about the effect that incentive compensation might have on terminating lines, Mr. Staggers, Chairman of the House Committee on Interstate and Foreign Commerce and floor manager of the bill, responded: "I might say to the gentleman that this will not be put into practice until there have been full hearings before the Commission and all sides have had an opportunity to argue and present their facts on the question." 112 Cong. Rec. 10443 (emphasis added). Nor should we overlook the Commission's own interpretation of the hearing requirement in 1 (14) (a) as it applies to this case. The Commission's order initiating *255 the rulemaking proceeding notified the parties that it was acting "under authority of Part
|
Justice Douglas
| 1,973 | 10 |
dissenting
|
United States v. Florida East Coast R. Co.
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https://www.courtlistener.com/opinion/108715/united-states-v-florida-east-coast-r-co/
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the parties that it was acting "under authority of Part I of the Interstate Commerce Act (49 U.S. C. 1, et seq.); more particularly, section 1 (14) (a) and the Administrative Procedure Act (5 U.S. C. 553, 556, and 557)." Clearly, the Commission believed that it was required to hold a hearing on the record.[7] This interpretation, not of the Administrative Procedure Act, but of 1 (14) (a) of the Commission's own Act, is "entitled to great weight." United ; Norwegian Nitrogen Products The majority, at one point, distinguishes (Morgan II), on the ground that the proceedings there involved were "quasi-judicial," "and thus presumably distinct from a rulemaking proceeding such as that engaged in by the Commission here." It is this easy categorization and pigeonholing that leads the majority to find Allegheny-Ludlum of controlling significance in this case. Morgan II dealt with the "full hearing" requirement of 310 of the Packers and Stockyards Act, as it related to rate-making for the purchase and sale of livestock.[8] It is true that the Court characterized the proceedings as "quasi-judicial." *256 But, the first time the case was before the Court, Mr. Chief Justice Hughes noted that the "distinctive character" of the proceeding was legislative: "It is a proceeding looking to legislative action in the fixing of rates of market agencies." Nevertheless, the Secretary of Agriculture was required to establish rates in accordance with the standards and under the limitations prescribed by Congress. The Court concluded: "A proceeding of this sort requiring the taking and weighing of evidence, determinations of fact based upon the consideration of the evidence, and the making of an order supported by such findings, has a quality resembling that of a judicial proceeding. Hence it is frequently described as a proceeding of quasi-judicial character. The requirement of a `full hearing' has obvious reference to the tradition of judicial proceedings" Section 1 (14) (a) of the Interstate Commerce Act bestows upon the Commission broad discretionary power to determine incentive rates. These rates may have devastating effects on a particular line. According to the brief of one of the appellees, the amount of incentive compensation paid by debtor lines amounts to millions of dollars each six-month period. Nevertheless, the courts must defer to the Commission as long as its findings are supported by substantial evidence and it has not abused its discretion. "All the more insistent is the need, when power has been bestowed so freely, that the `inexorable safeguard' of a fair and open hearing be maintained in its integrity." Ohio Bell Telephone v. Public Utilities Comm'n, Accordingly, I would
|
Justice Scalia
| 1,997 | 9 |
dissenting
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Commissioner v. Estate of Hubert
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https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
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The statute and regulation most applicable to the question presented in this case are discussed in today's opinion almost as an afterthought. Instead of relying on the text of 26 U.S. C. 2056(4)(B) and its interpretive Treasury Regulation, 26 CFR 20.20564(a) the plurality hinges its analysis on general principles of valuation which it mistakenly believes to inhere in the estate tax. It thereby creates a tax boondoggle never contemplated by Congress, and announces a test of deductibility virtually impossible for taxpayers and the Internal Revenue Service to apply. In my view, 2056(4)(B) and 20.20564(a) provide a straightforward disposition, namely, that the marital (and charitable) deductions must be reduced whenever income from property *123 comprising the residuary bequest to the spouse (or charity) is used to satisfy administration expenses. I therefore respectfully dissent. I Section 2056 of the Internal Revenue Code provides for a deduction from gross estate for marital bequests.[1] The Code places two limitations on the marital deduction which are relevant to this case. First, as would be expected, the marital deduction is limited to "an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate." 26 U.S. C. 2056(a). Thus, as the plurality correctly recognizes, and as both parties agree, if any portion of marital bequest principal is used to pay estate administration expenses, then the marital deduction must be reduced commensurately. Second, and more to the point, "where such interest or property [bequeathed to the spouse] is encumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such encumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined." 2056(4)(B). Section 2056(4)(B) controls this case and leads to the conclusion that the marital deduction must be reduced when estate income which would otherwise pass to the spouse is used to pay administration expenses of the estate. A As the plurality implicitly recognizes, Mrs. Hubert's interest in the estate was burdened with the obligation of paying *124 administration expenses. The settlement agreement resolving the will contest, like Mr. Hubert's most recent will, provided that the estate's administration expenses would be paid from the residuary trusts, with the discretion given to the executor to apportion expenses between the income and principal of the residue. The marital bequest, which
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
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https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
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income and principal of the residue. The marital bequest, which makes up some 52% of the residue, was thus plainly burdened with the obligation of paying 52% of the administration expenses of the estate. (The charitable bequest accounted for the remaining 48% of the residue.) Our task under 2056(4)(B) is to determine how this obligation would affect the value of the marital bequest were the bequest an inter vivos gift. This seemingly rudimentary question proves difficult to answer. Both parties point to various provisions of the Internal Revenue Code and the Treasury Regulations, but these concern the quite different question whether a gift qualifies for the gift tax marital deduction; none discusses how the actual payment of administration expenses from income will affect the value of the gift tax marital deduction. See, e. g., Treas. Reg. 25.2523(e)1(f)(3) and (4), 26 CFR 25.2523(e)1(f)(3) and (4) (inclusion of the power to a trustee to allocate expenses of a trust between income and corpus will not disqualify the gift from the marital deduction so long as the spouse maintains substantial beneficial enjoyment of the income). The plurality seeks to derive some support from 25.2523(a)1(e), see ante, at 101-102, though it must acknowledge that "[t]he question presented here. is not controlled by the exact terms of [that regulation or the provisions to which it refers]," ante, at 101. Even going beyond its "exact terms," however, the regulation has no relevance. Like its counterparts in the estate tax provisions, see 20.2031-1, 20.2031-7, it simply provides instruction on how to value the assets comprising the gift. It says nothing about how to take account of administration expenses. Indeed, the gross estate does not include anticipated administration *125 expenses. As I discuss below, infra, at 134-135, the estate tax provisions provide for a deduction from the gross estate for administration expenses actually incurred. See 26 U.S. C. 2053(a)(2) and 26 CFR 20.2053-3(a) Were expected administration expenses taken into account in valuing the assets of the gross estate, as the plurality incorrectly suggests, then the estate tax deduction for actual administration expenses would in effect be a second deduction for the same charge. Respondent's strongest argument is based on Rev. Rul. 69-56, 1969-1 Cum. Bull. 224, which held that inclusion in a marital trust of the power to charge administration expenses to either income or principal does not run afoul of that provision of the regulations which requires, in order for a lifeestate trust to qualify for the gift and estate tax marital deductions, that the settlor intend the spouse to enjoy "substantially that degree of beneficial enjoyment
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
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https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
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the spouse to enjoy "substantially that degree of beneficial enjoyment of the trust property during her life which the principles of the law of trust accord to a person who is unqualifiedly designated as the life beneficiary of a trust." 26 CFR 2523(e)1(f)(1), 20565(f)(1) Although the Revenue Ruling was an interpretation of qualification regulations, it also purported to "h[o]ld" that inclusion of the "power" to allocate expenses between income and principal "does not result in the disallowance or diminution of the marital deduction," Rev. Rul. 69-56, 1969-1 Cum. Bull. 224, 225 I agree with the Commissioner that this Revenue Ruling is in apposite because it deals with the effect of the mere existence of the power to allocate expenses against income; it speaks not at all to the question of how the actual exercise of that power will affect the valuation of the estate tax marital deduction. If the Ruling is construed to mean that exercise of the power does not reduce the marital deduction, then actually using principal to pay the expenses should not reduce the marital deduction, a result which everyone agrees is incorrect, see, e. g., ante, at 104 (plurality opinion); *126 ante, at 112-113 (O'Connor, J., concurring in judgment); and which plainly conflicts with 2056(a). It seems to me obvious that the Commissioner was simply not addressing the issue before us today when she issued Revenue Ruling 69-56, a conclusion confirmed by the fact that the Commissioner's long standing viewwhich antedates Revenue Ruling 69-56is that use of marital bequest income to pay administration expenses requires that the marital deduction be reduced, see, e. g., Brief for Government Appellee in Ballantine v. Tomlinson, No. 18,736 (CA5 1961), p. 18; Brief for Government Appellee in Alston v. United States, No. 21,402 (CA5 1965), p. 15. B The Commissioner contends that Treas. Reg. 20.2056 4(a), 26 CFR 20564(a) which interprets 2056(4)(B), mandates the conclusion that payment of administration expenses from marital bequest income reduces the marital deduction. Section 20.20564(a) provides: "The value, for the purpose of the marital deduction, of any deductible interest which passed from the decedent to his surviving spouse is to be determined as of the date of the decedent's death, [unless the executor elects the alternate valuation date]. The marital deduction may be taken only with respect to the net value of any deductible interest which passed from the decedent to his surviving spouse, the same principles being applicable as if the amount of a gift to the spouse were being determined. In determining the value of the interest in property passing to the spouse
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
|
value of the interest in property passing to the spouse account must be taken of the effect of any material limitations upon her right to income from the property. An example of a case in which this rule may be applied is a bequest of property in trust for the benefit of the decedent's spouse but the income from the property from the date of decedent's death until distribution of the property to the trustee is *127 to be used to pay expenses incurred in the administration of the estate." (Emphasis added.) This text was issued pursuant to explicit authority given the Secretary of the Treasury to promulgate the rules and regulations necessary to enforce the Internal Revenue Code. See 26 U.S. C. 7805(a). As this Court has repeatedly acknowledged, judicial deference to the Secretary's handiwork "helps guarantee that the rules will be written by `masters of the subject.' " National Muffler Dealers quoting United Thus, when a provision of the Internal Revenue Code is ambiguous, as 2056(4)(B) plainly is, this Court has consistently deferred to the Treasury Department's interpretive regulations so long as they "` "implement the congressional mandate in some reasonable manner."` " National Muffler Dealers quoting United in turn quoting United See also Cottage Savings As the courts below recognized, the crucial term of the regulation for present purposes is "material limitations." Curiously enough, however, neither the Commissioner nor respondent comes forward with a definition of this term, the former simply contending that "it is the burden of paying administration expenses itself that constitutes the `material' limitation," Brief for Petitioner 31, and the latter simply contending that that burden is for various reasons not substantial enough to qualify. Today's plurality opinion also takes the latter approach, never defining the term but displaying by its examples that "material" must mean "relatively substantial." If, it says, a spouse's bequest represents a small portion of the overall estate and could be expected to generate little income, the estate's anticipated administration expenses "`may' be material" when compared to the anticipated *128 income. Ante, at 106. But, it says, the mere fact that an estate incurs (or as I discuss below, under the plurality's approach, expects to incur) "substantial litigation costs" is insufficient to make a limitation material. Ante, at 107. The beginning of analysis, it seems to me, is to determine what, in the context of 20.20564(a), the word "material" means. In common parlance, the word sometimes bears the meaning evidently assumed by respondent: "substantial," or "serious," or "important." See 1 The New Shorter Oxford English Dictionary 1714 (def. 3); Webster's
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
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https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
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The New Shorter Oxford English Dictionary 1714 (def. 3); Webster's New International Dictionary 1514 (2d ed. 1950) (def. 2a). It would surely bear that meaning in a regulation that referred to a "material diminution of the value of the spouse's estate." Relatively small diminutions would not count. But where, as here, the regulation refers to "material limitations upon [the spouse's] right to receive income," it seems to me that the more expansive meaning of "material" is naturally suggestedthe meaning that lawyers use when they move that testimony be excluded as "immaterial": Not "insubstantial" or "unimportant," but "irrelevant " or "inconsequential. " See American Heritage Dictionary 1109 (def. 4: defining "material" as "[b]eing both relevant and consequential," and listing "relevant" as a synonym). In the context of 20.20564(a), which deals, as its first sentence recites, with "[t]he value, for the purpose of the marital deduction, of any deductible interest which passed from the decedent to his surviving spouse" a "material limitation" is a limitation that is relevant or consequential to the value of what passes. Many limitations are notfor example, a requirement that the spouse not spend the income for five years, or that the spouse be present at the reading of the will, or that the spouse reconcile with an alienated relative. That this is the more natural reading of the provision is amply demonstrated by the consequences of the alternative reading, which would leave it to the taxpayer, the Commissioner, and ultimately the courts, to guess whether a particular *129 decrease in value is "material" enough to qualifywithout any hint as to what might be a "ballpark" figure, or indeed any hint as to whether there is such a thing as "absolute materiality" (the $2 million at issue here, for instance), or whether it is all relative to the size of the estate. One should not needlessly impute such a confusing meaning to a regulation which readily bears another interpretation that is more precise. Moreover, the Commissioner's interpretation of her own regulation, so long as it is consistent with the text, is entitled to considerable deference, see National Muffler Dealers ; Cottage Savings at The concurrence contends that the other (more unnatural) reading of "material" must be adoptedand that no deference is to be accorded the Commissioner's long standing approach of reducing the marital deduction for any payment of administrative expenses out of marital-bequest income because of a recent Revenue Ruling in which the Commissioner acquiesced in lower court holdings that the marital deduction is not reduced by the payment from the marital bequest of interest on deferred estate
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
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payment from the marital bequest of interest on deferred estate Ante, at 118 120 (discussing Rev. Rul. 93-48). The concurrence asserts that interest accruing on estate taxes "is functionally indistinguishable" from administrative expenses, so that Revenue Ruling 93-48 "created a quantitative rule" shielding some financial burdens from affecting the calculation of the marital deduction. Ante, at 118, 119. I think not. The Commissioner issued Revenue Ruling 93-48 only after her contention, that 20.20564(a) required the marital deduction to be reduced by payment of estate tax interest from the marital bequest, was repeatedly rejected by the Tax Court and the Courts of Appeals. See, e. g., Estate of ; Estate of ; Estate of Rather than continuing to expend resources in litigation that seemed likely *130 to bring little or no income to the Treasury, the Commissioner chose, in Revenue Ruling 93-48, to "adopt the result" of then-recent court decisions regarding interest on It is impossible to think that this suggested her view on the proper treatment of administrative expenses had changed. Indeed, the Ruling itself expressly indicates continued adherence to the Commissioner's long standing position by reaffirming Revenue Ruling 73-98, which held that the charitable deduction must be reduced by the amount of charitable bequest income and principal consumed to pay administrative expenses, modifying it only insofar as it applies to payment of interest on Moreover, the Courts of Appeals whose results the Commissioner adopted themselves distinguished administrative expenses. In Estate of Street, for example, the court reasoned that while administrative expenses accrue at death interest on taxes accrues after death, and noted that the example in Treas. Reg. 20564(a) specifically required a reduction of the marital deduction for payment of administrative expenses, but was silent as to interest on 729. While the concurrence may be correct that the distinctions advanced by the Courts of Appeals are not wholly persuasive (the Commissioner herself argued that to no avail), I hardly think they are so irrational that it was arbitrary or capricious for the Commissioner to maintain her long standing prior position on administrative expenses once Revenue Ruling 93-48 was issued; and it is utterly impossible to think that Revenue Ruling 93-48 was, or was understood to be, an indication that the Commissioner had changed her prior position on administrative expenses. That eliminates the only two grounds on which Revenue Ruling 93-48 could be relevant. The concurrence's reading of Revenue Ruling 93-48 suffers from an additional flaw. Revenue Ruling 93-48 is not limited to payment from marital bequest income, but rather extends to payment from marital bequest principal as well. Thus,
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
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extends to payment from marital bequest principal as well. Thus, under the concurrence's view of that Ruling, even substantial *131 administrative expenses paid out of marital bequest principal may not require a reduction of the marital deduction. This result is, of course, inconsistent with the statute, see 26 U.S. C. 2056(a), and with what appears to be (as I noted ) the concurrence's view, ante, at 112-113. Respondent asserts that some inquiry into "substantiality" is necessarily implied by the fact that the last sentence of the regulation describes an income-to-pay-administrationexpenses limitation as "[a]n example of a case in which this rule [of taking account of material limitations] may be applied," 26 CFR 20.20564(a) The word "may" implies, the argument goes, that in some circumstances under those same facts the rule would not be appliednamely (the argument posits), when the administration expenses are not "substantial." But the latter is not the only explanation for the "may." Assuming it connotes possibility rather than permissibility (as in, "My boss said that I may go to New York"), the contingency referred to could simply be the contingency that there be some income which is used to pay administration expenses. The Tax Court (in analysis adopted verbatim by the Eleventh Circuit and seemingly adopted by the concurrence, ante, at 120-121) took yet a third approach to "material limitation," which I must pause to consider. The Tax Court relied on 26 CFR 25.2523(e)1(f)(3) which, it stated, provides that so long as the spouse has substantial beneficial enjoyment of the income of a trust, the bequest will not be disqualified from the marital gift deduction by virtue of a provision allowing the trustee to allocate expenses to income, and the spouse will be deemed to have received all the income from the trust. The Tax Court concluded: "If Mrs. Hubert is treated as having received all of the income from the trust, there can be no material limitation on her right to receive income." This reasoning fails for a number of reasons. First, 25.2523(e) *132 1(f)(3) is a qualification provision; it does not purport to instruct on how to value the bequest. Second, and more fundamentally, the Tax Court's approach renders the "material limitation" phrase in 20.20564(a) superfluous. Under that view, a limitation is material only if it deprives the spouse of substantial beneficial enjoyment of the income. However, if the spouse does not have substantial beneficial enjoyment of the income, the trust does not qualify for the marital deduction and whether the limitation is material is irrelevant. That "material limitation" is not synonymous with "substantial beneficial
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
|
irrelevant. That "material limitation" is not synonymous with "substantial beneficial enjoyment" is further suggested by the regulations governing the qualification of trusts for the marital estate tax deduction, which are virtually identical to the gift tax provisions relied upon by the Tax Court. See 26 CFR 20.20565(f) Section 20.2056 5(f)(9) provides that a spouse will not be deemed to lack substantial beneficial enjoyment of the income merely because the spouse is not entitled to the income from the estate assets for the period reasonably required for administration of the estate. However, that section expressly provides: "As to the valuation of the property interest passing to the spouse in trust where the right to income is expressly postponed, see 20.20564. " C My understanding of 20.20564(a) is the only approach consistent with the statutory requirement that the marital deduction be limited to the value of property which passes to the spouse. See 26 U.S. C. 2056(a). As the plurality and the concurrence acknowledge, one component of an asset's value is its discounted future income. See, e. g., ; 26 CFR 20.2031-1 (This explains why postmortem income earned by the estate is not added to the date-of-death value in computing the gross estate: projected income was already included in the date-of-death value.) The plurality *133 and the concurrence also properly acknowledge that if residuary principal is used to pay administration expenses, then the marital deduction must be reduced commensurately because the property does not pass to the spouse. See ante, at 104 (plurality opinion); ante, at 112-113 (O'Connor, J., concurring in judgment); 26 U.S. C. 2056(a). The plurality and the concurrence decline, however, to follow this reasoning to its logical conclusion. Since the future stream of income is one part of the value of the assets at the date of death, use of the income to pay administration expenses (which were not included in calculating the assets' values) in effect reduces the value of the interest that passes to the spouse. As succinctly explained by a respected tax commentator: "Beneficiaries are compensated for the delay in receiving possession by giving them the right to the income that is earned during administration. [I]t is only the combination of the two rightsthat to the income and that to possess the property in the futurethat gives the beneficiary rights at death that are equal to value of the property at death. If the beneficiary does not get the income, what the beneficiary gets is less than the death time value of the property." Davenport, A Street Through Hubert `s Fog, If the beneficiary does not
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
|
Street Through Hubert `s Fog, If the beneficiary does not receive the income generated by the marital bequest principal, she in effect receives at the date of death less than the value of the property in the estate, in much the same way as she receives less than the value of the property in the estate when principal is used to pay expenses. II Besides giving the word "material" the erroneous meaning of something in excess of "substantial," the plurality's opinion adopts a unique methodology for determining materiality. Consistent with its apparent view that the estate tax provisions prohibit examination of any events following the *134 date of death, the plurality concludes that whether a limitation is material, and the extent of any reduction in the marital deduction, are determined solely on the basis of the information available at the date of deatha position espoused by neither litigant, none of the amici, and none of the courts to have considered this issue since it arose some 35 years ago. The plurality appears to have been misled by its view that the estate tax demands symmetry: Since only anticipated income is included in the gross estate, only anticipated administration expenses can reduce the marital deduction. See ante, at 102, 106-109. The provisions of the estate tax clearly reject such a notion of symmetry and do not sharply discriminate between date-of-death and postmortem events insofar as the allowance of deductions for claims against and obligations of the estate are concerned. In this very case, for example, in calculating the taxable estate the executors deducted $506,989 of actual administration expenses pursuant to 26 U.S. C. 2053(a)(2). App. to Pet. for Cert. 3a. The regulations governing such deductions provide that "[t]he amounts deductible. as `administration expenses'. are limited to such expenses as are actually and necessarily, incurred in the administration of the decedent's estate," 26 CFR 20.2053-3(a) and expressly prohibit taking a deduction "upon the basis of a vague or uncertain estimate," 20.2053-1(3). Since such common administration expenses as litigation costs will be impossible to ascertain with any exactitude as of the date of death, the plurality's approach flatly contradicts the provisions of these regulations.[2] The marital deduction itself is calculated on the basis of actual, rather than anticipated, expenditures from the marital bequest. The regulations governing 26 U.S. C. 2056 *135 (4)(A), the provision requiring the marital deduction to be reduced to take account of the effect of estate and inheritance taxes, make it clear that the actual amounts of those taxes control. See 26 CFR 20.20564(c) (With respect to the charitable deduction,
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
|
See 26 CFR 20.20564(c) (With respect to the charitable deduction, the requirement that actual amounts be used is apparent on the face of the statute itself, see 26 U.S. C. 2055(c).) Moreover, the language of 2056(4)(A) is quite similar to the language of the regulation at issue here, 20.20564(a), suggesting that the latter, like the former, should be interpreted to require consideration of actual, rather than merely expected, administration expenses. Compare 26 U.S. C. 2056(4)(A) ("[T]here shall be taken into account the effect which the tax imposed by section 2001, or any estate [tax], has on the net value to the surviving spouse of such interest" ) with 26 CFR 20.20564(a) ("The marital deduction may be taken only with respect to the net value of any deductible interest which passed from the decedent to his surviving spouse. In determining the value of the interest in property passing to the spouse account must be taken of the effect of any material limitations upon [the spouse's] right to income" ). In short, the plurality's general theory concerning valuation is contradicted by provisions of both the Code and regulations. It is also plagued by a number of practical problems. Most prominently, the plurality's rule is simply unadministrable. It requires the Internal Revenue Service and courts to engage in a peculiar, nunc pro tunc, threestage investigation into what would have been believed on the date of death of the decedent. This highly speculative inquiry begins, I presume, with an examination of the various possible administration expenditures multiplied by the likelihood that they would actually come into being (for example, estimating the chances that a will contest would develop). Next, one must calculate the expected future income from the bequest. Finally, one must determine if, *136 in light of the expected income, the anticipated expenses are such that a willing buyer would deem them to be a "material [i. e., substantial] limitation" on the right to receive income. Just how a court, presiding over a tax controversy many years after the decedent's death, is supposed to blind itself to later developed facts, and gauge the expected administration expenses and anticipated income just as they would have been gauged on the date of death, is a mystery to me. In most cases, it is nearly impossible to estimate administration expenses as of the date of death; much less is it feasible to reconstruct such an estimation five or six years later. The plurality's test creates tremendous uncertainty and will undoubtedly produce extensive litigation. We should be very reluctant to attribute to the Code or the Secretary's
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
|
very reluctant to attribute to the Code or the Secretary's regulations the intention to require this sort of inherently difficult inquiry, especially when the key regulation is best read to require that account be taken of actual expenses. The plurality's test also leads to rather peculiar results. One example should suffice: Assume a decedent leaves his entire $30 million estate in trust to his wife and that as of the date of death a hypothetical buyer estimates that the estate will generate administration expenses on the order of $5 million because the decedent's estranged son has publicly stated that he is going to wage a fight over the will. Further, assume that the will provides that either income or principal may be used to satisfy the estate's expenses. Finally, assume that a week after the decedent's death, mother and son put aside their differences and that the money passes to the spouse almost immediately with virtually no administration expenses. Under the plurality's test, since "only anticipated administration expenses payable from income, not the actual ones, affect the date-of-death value of the marital or charitable bequests," ante, at 108, the marital deduction will be limited to approximately $25 million, and, despite generating almost no income and having very few administration *137 expenses, the estate will be required to pay an estate tax on some $5 million even though the entire estate passed to the spouse. The plurality's test creates taxable estates where none exist. The proper result under 2056(4)(B) and 20.20564(a) is that the marital deduction is $30 million and the estate pays no estate tax. I have one final concern with the plurality's approach: It effectively permits an estate to obtain a double deduction from tax for administration expenses, a tax windfall which Congress could never have intended. Title 26 U.S. C. 642(g) provides that administration expenses, which are allowed as a deduction in computing the taxable estate of a decedent, see 2053, may be deducted from income (provided they fall within an income tax deduction) if the estate files a statement with the Commissioner stating that such amounts have not been taken as deductions from the gross estate. Here, respondent elected to deduct some $1.5 million of its administration expenses on its fiduciary income tax returns and was prohibited from taking these expenses as a deduction from the gross estate. Notwithstanding 642(g), however, the plurality's holding effectively permits respondent to deduct the $1.5 million of administration expenses on the estate tax return under the guise of a marital or charitable deduction. Of course, the estate could have avoided the
|
Justice Scalia
| 1,997 | 9 |
dissenting
|
Commissioner v. Estate of Hubert
|
https://www.courtlistener.com/opinion/118094/commissioner-v-estate-of-hubert/
|
charitable deduction. Of course, the estate could have avoided the estate tax by electing to deduct its administration expenses on its estate tax return, but then it would have had no income tax deduction; Congress gave estates a choice, not a road map to a double deduction. I recognize that nothing in 642(g) compels the conclusion that the marital (or charitable) deduction must be reduced whenever an estate elects to deduct expenses from income. However, by enacting 642 to prohibit a double deduction, Congress seemingly anticipated that if an estate elected to deduct administration expenses against income, its potential estate tax liability would increase commensurately. The plurality's holding today defeats this expectation. *138 III The plurality today virtually ignores the controlling authority and instead decides this case based on a novel vision of the estate tax system. Because 26 CFR 20.20564(a) which is a reasonable interpretation of 26 U.S. C. 2056(4)(B), squarely controls this case and requires that the marital (and charitable) deductions be reduced whenever marital (or charitable) bequest income is used to pay administration expenses, I would reverse the judgment of the Eleventh Circuit. There is some dispute as to how exactly to calculate the reduction in the marital and charitable deductions. The dissenting judges in the Tax Court, on the one hand, contended that the marital and charitable deductions should be reduced by the date-of-death value of an annuity charged against the residuary interest that would be sufficient to pay the actual administration expenses charged to income. See -349 The Commissioner, on the other hand, contends that the marital and charitable deductions must be reduced on a dollarfor-dollar basis, reasoning that this is the same way that all claims and obligations of the estate are treated. Since this dispute was not adequately briefed by the parties, nor passed upon by the Eleventh Circuit or the majority of judges in the Tax Court, I would remand the case to allow the lower courts to consider this issue in the first instance.
|
Justice Burger
| 1,985 | 12 |
concurring
|
Brandon v. Holt
|
https://www.courtlistener.com/opinion/111304/brandon-v-holt/
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This case presents two issues: (1) was the Director of Police, as a matter of law, sued in his official capacity? (2) does a judgment against the Director of Police in his official capacity impose liability against the city? It does not make a fetish out of orderly procedure to say that if a claimant seeks damages from a municipality, this should be done by making it a named party defendant; that will assure the municipality has notice and an opportunity to respond. At the latest, a claimant should move at the close of the case to amend the pleadings to conform with the proof. *474 It is an odd business for this Court, the third and final tribunal, to treat the issue in a casual, offhand way; modern pleading is less rigid than in an earlier day, but it is not too much to ask that if a person or entity is to be subject to suit, the person or the entity should be named. I agree with JUSTICE REHNQUIST that it is a dubious business to encourage such shoddy pleading practices, but the courts have crossed that bridge. I join only the judgment.
|
Justice Marshall
| 1,991 | 15 |
second_dissenting
|
Renne v. Geary
|
https://www.courtlistener.com/opinion/112627/renne-v-geary/
|
Article II, 6(b) of the California Constitution provides that "[n]o political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office." In a form of action extremely familiar to the federal courts, see, e. g., ; ; respondents brought a pre-enforcement challenge to 6(b), seeking a declaration that 6(b) violates the First Amendment and an injunction against its application to candidate statements published in official "voter pamphlets." We granted certiorari in this case, to review the decision of the Ninth Circuit, sitting en banc, that 6(b) violates the First Amendment. The majority vacates the judgment below and remands the case with instructions to dismiss. It does so not because it disagrees with the merits of respondents' constitutional claim; indeed, the majority never reaches the merits. Rather, the majority finds a threshold defect in the "justiciability" of this case that did not occur to any of the courts below or to any party in more than three years of prior proceedings. Federal courts, of course, are free to find, on their own motion, defects in jurisdiction at any stage in a suit. But the majority's conclusion that respondents have failed to demonstrate a "live controversy ripe for resolution by the federal courts," ante, at 315, is simply not supported by the record of this case or by the teachings of our precedents. Because I cannot accept either the views expressed in, or the result reached by, the majority's opinion, and because I would affirm the decision of the Ninth Circuit on the merits, I dissent. *335 I I consider first the question of justiciability. Respondents are 10 registered California voters, including a chairman and certain individual members of the local Democratic and Republican Party central committees.[1] Respondents' complaint alleges that petitioner municipal officials relied upon 6(b) to adopt a policy of deleting "all references to [party] endorsement[s]" from candidate statements submitted for inclusion in official "voter pamphlets" and that petitioners have announced their intention to make such redactions in future elections. App. 5, ¶ 38. The existence of the redaction policy is expressly admitted by petitioners in their answer. See ¶ XIV. Respondents maintain that this policy frustrates the "desire [of respondent committee members] to publicize [party] endorsements" and the "desire [of all respondents] to read endorsements" in the voter pamphlets. The complaint prays for a declaration that 6(b) violates the First Amendment and for an injunction against petitioners' continued enforcement of 6(b) by means of the redaction policy. I would have thought it quite obvious that these allegations demonstrate a justiciable controversy. In cases in
|
Justice Marshall
| 1,991 | 15 |
second_dissenting
|
Renne v. Geary
|
https://www.courtlistener.com/opinion/112627/renne-v-geary/
|
that these allegations demonstrate a justiciable controversy. In cases in precisely the same posture as this one, we have repeatedly entertained pre-enforcement challenges to laws restricting election-related speech. See, e. g., ; v. San Francisco Democratic Central see also Indeed, standing and ripeness arguments nearly identical to those canvassed by the majority today were expressly considered and rejected by the Ninth *336 Circuit in see San Francisco County Democratic Central v. which no doubt explains why the lower courts and the parties did not even bother to return to these issues in this case. Essentially ignoring the wealth of relevant case law, the majority proceeds as if the justiciability questions presented by this casequestions of standing and ripenesswere novel and unresolved. On the issue of standing, the majority purports to find "serious questions" concerning respondents' entitlement to challenge 6(b). Ante, at 318. Since mere "questions" about standing cannot sustain the dismissal of a suit, one wonders why the majority offers dicta of this kind. As it turns out, the majority uses this opportunity to espouse a novel basis for denying a party standing; the proffered theory is both illogical and unsupported by any precedent. As for ripeness, which the majority finds to be the dispositive jurisdictional defect, today's decision erroneously concludes that there is no "live dispute involving the actual or threatened application of 6(b) to bar particular speech." Ante, at 0. I am persuaded by neither the majority's "doubt" whether respondents have standing, ante, at 319, nor the majority's certainty that this case is unripe. A In order to demonstrate standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." In my view, "careful examination of [the] complain[t]," makes it clear that these requirements are met in this case. All of the individual respondents are registered voters in California. See App. 2, ¶ 1. Moreover, all allege that petitioners' redaction policy has injured them in that capacity by restricting election-related speech that respondents wish to consume. See As the majority acknowledges, see ante, at 319, our cases recognize that "listeners" *337 suffer a cognizable First Amendment injury when the State restricts speech for which they were the intended audience. See, e. g., Virginia Pharmacy ; see also San Francisco County Democratic Central v. aff'd, Nor can there be any doubt that the injury that respondents allege as listeners of election speech is "fairly traceable" to petitioners' redaction policy. Finally, this injury would, in my view, be redressed by the relief requested by respondents, for an
|
Justice Marshall
| 1,991 | 15 |
second_dissenting
|
Renne v. Geary
|
https://www.courtlistener.com/opinion/112627/renne-v-geary/
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be redressed by the relief requested by respondents, for an injunction against the redaction policy would prevent petitioners from continuing to block respondents' access to committee endorsements in voter pamphlets. The majority's "doubt" about respondents' entitlement to proceed on a listener-standing theory[2] relates wholly to redressability. The majority notes that a provision in the California Elections Code bars inclusion of a candidate's party affiliation in the statement submitted for publication in a voter pamphlet. See Cal. Elec. Code Ann. 10012 The majority speculates that, if respondents succeed in invalidating 6(b), petitioners might henceforth rely on 10012 as a basis for continuing their policy of deleting endorsements. See ante, at 319. Articulating a novel theory of standing, the majority reasons that the registrar's possible reliance upon 10012 to implement the same policy currently justified by reference to 6(b) would defeat the redressability of respondents' listener injury. *338 In my view, this theory is not only foreign to our case law[3] but is also clearly wrong. If the existence of overlapping laws could defeat redressability, legislatures would simply pass "backup" laws for all potentially unconstitutional measures. Thereafter, whenever an aggrieved party brought suit challenging the State's infringement of his constitutional rights under color of one law, the State could advert to the existence of the previously unrelied-upon backup law as an alternative basis for continuing its unconstitutional policy, thereby defeating the aggrieved party's standing. I cannot believe that Article II contemplates such an absurd result. Obviously, if respondents succeed on the merits of their constitutional challenge to 6(b), the immediate effect will be to permit candidates to include endorsements in the voter pamphlet. This is so because no other law (and no other interpretation of a law that petitioners have formally announced) purports to bar inclusion of such endorsements. Perhaps, as the majority speculates, see ante, at 319, petitioners will subsequently attempt to reinstate their redaction policy under some legal authority other than 6(b). But whether or not they ultimately do so has no consequence here. Just as a plaintiff cannot satisfy the redressability component of standing by showing that there is only a possibility that a defendant will respond to a court judgment by ameliorating the plaintiff's injury, see so a defendant cannot defeat the plaintiff's standing to seek a favorable judgment simply by alleging a possibility that the defendant may *339 subsequently act to undermine that judgment's ameliorating effect. B Under our precedents, the question whether a pre-enforcement challenge to a law is ripe "is decided on a case-by-case basis, by considering [1] the likelihood that the complainant will disobey
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Justice Marshall
| 1,991 | 15 |
second_dissenting
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Renne v. Geary
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https://www.courtlistener.com/opinion/112627/renne-v-geary/
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by considering [1] the likelihood that the complainant will disobey the law, [2] the certainty that such disobedience will take a particular form, [3] any present injury occasioned by the threat of [enforcement], and [4] the likelihood that [enforcement efforts] will actually ensue." Regional Rail Reorganization Act 1, n. 29 Like the pre-enforcement challenges in ; v. San Francisco Democratic Central ; and this case easily satisfies these requirements. The record clearly demonstrates the likelihood of both future disobedience of 6(b) and future enforcement of that provision by way of petitioners' redaction policy. As even the majority acknowledges, see ante, at 1, some respondent central committee members have expressed an intention to continue endorsement of candidates for nonpartisan offices. Indeed, the chairman of one committee, in addition to identifying the specific candidates that the committee has endorsed in past elections, states in an affidavit that it is the committee's "plan and intention to endorse candidates for nonpartisan offices in as many future elections as possible." App. 15. Likewise, as the majority acknowledges, see ante, at 2, petitioners expressly admit in their answer to the complaint that they intend to enforce 6(b) by deleting all references to party endorsements from candidate statements submitted for inclusion in official voter pamphlets. See App. 9, ¶ XIV. Of course, petitioners will have occasion to enforce 6(b) in this manner only if candidates seek to include such endorsements in their statements. Respondents allege and petitioners concede, however, that candidates have *340 sought to advert to such endorsements in their statements in the past and that petitioners have always deleted them from the voter pamphlets. ; ¶ XIV. When combined with the clearly expressed intentions of the parties, these allegations of "past wrongs" furnish sufficient evidence of "a real and immediate threat of repeated injury." It is also clear that respondents have alleged sufficient "present injury occasioned by the threat of [future enforcement]." Regional Rail Reorganization Act at 1, n. 29. Obviously, the reason that parties bring pre-enforcement challenges to laws that restrict election-related speech is to avoid the risk that a court will be unable to dispose of a postenforcement challenge quickly enough for the challenging parties to participate in a scheduled election. Our mootness jurisprudence responds to this dilemma by applying the capable-of-repetition-yet-evading-review doctrine to preserve the justiciability of an election-law challenge even after the election at issue has taken place. See, e. g., ; First National Bank of 5 U.S. 765, ; ; But insofar as the purpose of entertaining a case in that mootness posture is not to remedy past wrongs but
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Justice Marshall
| 1,991 | 15 |
second_dissenting
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Renne v. Geary
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https://www.courtlistener.com/opinion/112627/renne-v-geary/
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that mootness posture is not to remedy past wrongs but rather to "simplif[y] future challenges [and] thus increas[e] the likelihood that timely filed cases can be adjudicated before an election is held," at it would be quite anomalous if ripeness doctrine were less solicitous of the interests of a party who brings a pre-enforcement challenge. For this reason, it is surely irrelevant that the record does not demonstrate an "imminent application of 6(b)." Ante, at 2. So long as the plaintiff credibly alleges that he plans to disobey an election law and that government officials plan to enforce it against him, he should not be forced to defer *341 initiation of suit until the election is so "imminent" that it may come and go before his challenge is adjudicated. See Regional Rail Reorganization Act at 1 ). Indeed, in we held a pre-enforcement challenge to be justiciable even though the case was filed in the District Court nearly two years before the next scheduled national election. See Similarly, nothing in v. San Francisco Democratic Central and suggests that elections were "imminent" when those cases were filed. Most of the majority's concerns about the ripeness of this dispute arise from the majority's uncertainty as to the "particular form" of future violations of 6(b). See Regional Rail Reorganization Act at 1, n. 29. The majority notes, for example, that "[r]espondents do not allege an intention to endorse any particular candidate." Ante, at 1. Similarly, the majority objects that "[w]e do not know the nature of the endorsement [that the parties will next make], how it would be publicized, or the precise language petitioners might delete from the voter pamphlet." Ante, at 2. In my view, these uncertainties do not detract in the slightest from the ripeness of this case. The form of future disobedience can only matter in ripeness analysis to the extent that it bears on the merits of a plaintiff's pre-enforcement challenge. The majority never bothers to explain how the identity of the endorsed candidates, the "nature" of the endorsement, the mode of publicity (outside of candidate statements submitted for inclusion in voter pamphlets), or the precise language that petitioners might delete from the pamphlets affects the merits of respondents' challenge. Indeed, it is quite apparent that none of these questions is relevant. *342 In v. San Francisco Democratic Central we struck down a similar California provision that barred party endorsements in primary elections for partisan offices. See Nothing in our analysis turned on the identity of the candidates to be endorsed, the nature or precise language of the endorsements,
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Justice Marshall
| 1,991 | 15 |
second_dissenting
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Renne v. Geary
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https://www.courtlistener.com/opinion/112627/renne-v-geary/
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be endorsed, the nature or precise language of the endorsements, or the mode of publicizing the endorsements. Similarly, here we can dispose of respondents' challenge to 6(b) knowing simply that party central committees will continue to make endorsements of candidates for nonpartisan offices and that petitioners will continue to redact those endorsements from the voter pamphlets.[4] II Because I conclude that the controversy before us is justiciable, I would reach the merits of respondents' challenge. In my view, it is clear that 6(b) violates the First Amendment. *3 A At the outset, it is necessary to be more precise about the nature of respondents' challenge. In effect, respondents' complaint states two possible First Amendment theories. The first is that 6(b), as that provision has been applied to delete endorsements from voter pamphlets, violates the First Amendment. See App. 4-5, ¶¶ 36-39(a). The second is that 6(b) on its face violates the First Amendment because it "purports to outlaw actions by county central committees. to endorse, support or oppose candidates for city or county offices." This second theory can be understood as an overbreadth challenge: that is, a claim that regardless of whether 6(b) violates the First Amendment in its peripheral effect of excluding references to party endorsements from candidates' statements, 6(b) is unconstitutional in its primary effect of barring parties and party committees from making endorsements. See Secretary of State of[5] *344 As the majority notes, it is this Court's "usual practice. [not] to proceed to an overbreadth issue before it is determined that the statute would be valid as applied." Board of Trustees, State Univ. of N. This is so because *345 "the overbreadth question is ordinarily more difficult to resolve than the as-applied, since it requires determination whether the statute's overreach is substantial `judged in relation to the statute's plainly legitimate sweep,' and therefore requires consideration of many more applications than those immediately before the court." quoting Nonetheless, the rule that a court should consider as-applied challenges before overbreadth challenges is not absolute. See, e. g., Board of Airport Comm'rs of Los ; Rather, the rule represents one prudential consideration among many in determining the order in which to evaluate particular constitutional challenges. In my opinion, competing prudential factors clearly support considering respondents' overbreadth challenge first in this case. Unlike the situation in Fox, the as-applied challenge here is actually more difficult to resolve than is the overbreadth challenge. Insofar as they attack petitioners' redaction policy as unconstitutional, respondents must be understood to argue that they have a right to receive particular messages by means of official voter
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Justice Marshall
| 1,991 | 15 |
second_dissenting
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Renne v. Geary
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https://www.courtlistener.com/opinion/112627/renne-v-geary/
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right to receive particular messages by means of official voter pamphlets or a right to communicate their own messages by that means. Either way, this argument would require us to determine the "public forum" status of the voter pamphlets, cf. Perry Education an issue on which the law is unsettled, see generally L. Tribe, American Constitutional Law 12-24, p. 987 (noting "blurriness of the categories within the public forum classification"). By contrast, respondents' overbreadth challenge is easily assessed. In the first place, the application of 6(b) to party speech that "endorse[s], support[s], or oppose[s] a[ny] candidate for nonpartisan office" clearly is "substantial" when compared with 6(b)'s only alleged "legitimate" application, namely, the redaction of voter *346 pamphlets. Moreover, the constitutional doctrine relevant to 6(b)'s restriction of party speech is well settled. See v. San Francisco Democratic Central Rather than undertaking to determine what sort of "public forum" voter pamphlets might constitutea finding that could have broad ramifications, see, e. g., 2 Cal. Rptr. 253 (suit challenging constitutionality of 3795 and 5025 of California Elections Code, authorizing deletions from arguments about ballot propositions in the voter pamphlet)a court should, if possible, resolve this constitutional challenge by well-settled doctrine. See, e. g., In addition, both the District Court and the Court of Appeals disposed of respondents' challenge on overbreadth grounds, and that is the only theory briefed by the parties in this Court. Because the as-applied component of respondents' challenge has not been fully aired in these proceedings, resolving the case on that basis presents a significant risk of error. For these reasons, I turn to respondents' overbreadth challenge, which I find to be dispositive of this case.[6] *347 B Conceived of as an overbreadth challenge, respondents' First Amendment attack upon 6(b) closely resembles the issue presented in v. San Francisco Democratic Central As I have noted, struck down on First Amendment grounds a California law that prohibited the party central committees from "`endors[ing], support[ing], or oppos[ing]'" any candidate in primary elections for partisan offices. We concluded in that this "ban directly affect[ed] speech which `is at the core of our electoral process and of the First Amendment freedoms.'" quoting We also determined that this prohibition was unsupported by any legitimate compelling state interest. The State defended the endorsement ban on the ground that it was necessary to prevent voter "confusion and undue [party] influence." See 9 U.S., at 228. Properly understood, this claim amounted to no more than the proposition that the State could protect voters from being exposed to information on which they might rationally rely, a "`highly paternalistic'" function
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Justice Marshall
| 1,991 | 15 |
second_dissenting
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Renne v. Geary
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https://www.courtlistener.com/opinion/112627/renne-v-geary/
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on which they might rationally rely, a "`highly paternalistic'" function to which the State could not legitimately lay claim. quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, ; see 9 U.S., at 228-229. In my view, this case is directly controlled by As in there can be no question here that the endorsements that 6(b) purports to make unlawful constitute core political speech. And, as in this prohibition is unsupported by any legitimate compelling state interest. Petitioners assert that 6(b) advances a compelling state interest because it assures that "local government and judges in California are controlled by the people [rather than] by those who run political parties." Brief for Petitioners 7. The only kind of "control" that 6(b) seeks to prohibit, however, is that which "those who run political parties" are able to exert over voters through issuing party endorsements. In effect, then, *3 petitioners are arguing that the State has an interest in protecting "the people" from their own susceptibility to being influenced by political speech. This is the very sort of paternalism that we deemed illegitimate in Drawing on our decision in petitioners try to repackage the State's concern to protect voters from themselves as an interest in avoiding "corruption" of the electoral process. The law that was at issue in Austin barred corporations from making political expenditures from their corporate treasuries in favor of, or in opposition to, political candidates. We upheld the constitutionality of that law, finding that a State could legitimately prohibit "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Petitioners argue that California similarly should be able to prohibit political parties from using their special place in the political process to exercise a disruptive effect upon the election of nonpartisan office holders. Petitioners' reliance on Austin is unavailing. The political activity that 6(b) limits in this case is not the expenditure of money to further a viewpoint but merely the announcement of that viewpoint in the form of an endorsement. It is difficult to imagine how a political party's announcement of its view about a candidate could exert an influence on voters that has "little or no correlation to the public's support for the [party's] political ideas." On the contrary, whatever influence a party wields in expressing its views results directly from the trust that it has acquired among voters. Thus, whereas the Austin Court worried that corporations might dominate elections with
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Justice Marshall
| 1,991 | 15 |
second_dissenting
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Renne v. Geary
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the Austin Court worried that corporations might dominate elections with capital they had only accumulated by dint of "`economically motivated decisions of investors and customers,'" the party endorsements in this case represent an expenditure of political capital accumulated *349 through past voter support. And, whereas the special benefits conferred by state law in Austin "enhance[d]" the corporations' "ability to attract capital," ib the benefits California confers upon partiese. g., permitting taxpayers to make voluntary contributions to parties on their tax returnsshould have little effect on the parties' acquisition of political capital. In sum, the prospect that voters might be persuaded by party endorsements is not a corruption of the democratic political process; it is the democratic political process. In the final analysis, 6(b) and the arguments that petitioners advance in support of it reflect an ambivalence about the democratic process itself. The possibility that judges and other elective nonpartisan office holders will fall under the influence of political parties is inherent in an electoral system in which voters look to others, including parties, for information relevant to exercise of the franchise. Of course, it is always an option for the State to end the influence of the parties by making these offices appointive rather than elective positions. But the greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that processvoters, candidates, and partiesthe First Amendment rights that attach to their roles. Because 6(b) clearly fails to meet this standard, and because I believe that the lower courts properly determined that they were in a position to reach this conclusion now, I would affirm the judgment of the Ninth Circuit. Consequently, I dissent.
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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Section 4 of the Clayton Act, as amended, 15 U.S. C. 15, authorizes any person injured by a violation of *204 the antitrust laws to sue for treble damages, costs, and an attorney's fee. We must decide who may sue under 4 when, in violation of the antitrust laws, suppliers overcharge a public utility for natural gas and the utility passes on the overcharge to its customers. Consistent with Hanover and Illinois we hold that only the utility has the cause of action because it alone has suffered injury within the meaning of 4. I The respondent, UtiliCorp United Inc., an investor-owned public utility operating in Kansas and western Missouri, purchased natural gas from a pipeline company for its own use and for resale to its commercial and residential customers. Together with a second utility and several other gas purchasers, the respondent sued the pipeline company and five gas production companies in the United States District Court for the District of Kansas. The utilities alleged that the defendants had conspired to inflate the price of their gas in violation of the antitrust laws. They sought treble damages, pursuant to 4 of the Clayton Act, for both the amount overcharged by the pipeline company and the decrease in sales to their customers caused by the overcharge. The petitioners, the States of Kansas and Missouri, initiated separate 4 actions in the District Court against the same defendants for the alleged antitrust violation. Acting as parens patriae, the petitioners asserted the claims of all natural persons residing within Kansas and Missouri who had purchased gas from any utility at inflated prices. They also *205 asserted claims as representatives of state agencies, municipalities, and other political subdivisions that had purchased gas from the defendants. The District Court consolidated all of the actions. The defendants, in their answer, asserted that the utilities lacked standing under 4. They alleged that, pursuant to state and municipal regulations and tariffs filed with state regulatory agencies, the utilities had passed through the entire wholesale cost of the natural gas to their customers. As a result, the defendants contended, the utility customers had paid 100 percent of the alleged overcharge, and the utilities had suffered no antitrust injury as required by 4. The utilities moved for partial summary judgment with respect to this defense, and the District Court granted their motion. The court ruled that our decisions in Hanover and Illinois controlled its interpretation of 4. It read these cases to hold that a direct purchaser from an antitrust violator suffers injury to the full extent of an illegal overcharge
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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suffers injury to the full extent of an illegal overcharge even if it passes on some or all of the overcharge to its customers. The District Court concluded that utilities, as direct purchasers, had suffered antitrust injury, but that their customers, as indirect purchasers, had not. In light of its ruling, the District Court chose to treat the partial summary judgment motion as a motion to dismiss the petitioners' parens patriae claims. It then granted this motion but allowed the petitioners to take an interlocutory appeal under 28 U.S. C. 1292(b). It certified the following question to the Court of Appeals: "In a private antitrust action under 15 U.S. C. 15 involving claims of price fixing against the producers of natural gas, is a State a proper plaintiff as parens patriae for its citizens who paid inflated prices for natural gas, when the lawsuit already includes as plaintiffs those public utilities who paid the inflated prices upon direct purchase from the producers and who subsequently passed on most or all of the price increase to the citizens *206 of the State?" In re Wyoming Tight Sands Antitrust Cases, The Court of Appeals answered the question in the negative. It agreed with the District Court that Hanover and Illinois required dismissal of the parens patriae claims. See In re Wyoming Tight Sands Antitrust Cases, We granted certiorari to resolve a conflict between this decision and Illinois ex rel. We now affirm. II Section 4 of the Clayton Act provides in full: "[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S. C. 15(a). As noted by the District Court and the Court of Appeals, we have applied this section in two cases involving allegations that a direct purchaser had passed on an overcharge to its customers. In Hanover Hanover alleged that United had monopolized the shoe manufacturing machinery industry in violation of 2 of the Sherman Act, as amended, 15 U.S. C. 2. It sought treble damages under 4 of the Clayton Act for overcharges paid in leasing certain machinery from United. United defended, in part, on the ground that Hanover had passed on the overcharge to its customers and, as a result, had suffered no injury.
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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its customers and, as a result, had suffered no injury. We rejected the defense for two reasons. First, noting that a wide range of considerations may influence a company's pricing decisions, we concluded that *207 establishing the amount of an overcharge shifted to indirect purchasers "would normally prove insurmountable." Second, we reasoned that a pass-on defense would reduce the effectiveness of 4 actions by diminishing the recovery available to any potential plaintiff. See In Illinois we applied these considerations to reach a similar result. The State of Illinois sued Illinois and other concrete block manufacturers for conspiring to raise the cost of concrete blocks in violation of 1 of the Sherman Act, as amended, 15 U.S. C. 1. We ruled that the State had suffered no injury within the meaning of 4 because Illinois had not sold any concrete blocks to it. The company, instead, had sold the blocks to masonry subcontractors, who in turn had sold them to the State's general contractors. We decided that, because Illinois could not use a pass-on defense in an action by direct purchasers, it would risk multiple liability to allow suits by indirect purchasers. See -731. We declined to overrule Hanover or to create exceptions for any particular industries. See -736, 744-745. Like the State of Illinois in Illinois the consumers in this case have the status of indirect purchasers. In the distribution chain, they are not the immediate buyers from the alleged antitrust violators. They bought their gas from the utilities, not from the suppliers said to have conspired to fix the price of the gas. Unless we create an exception to the direct purchaser rule established in Hanover and Illinois any antitrust claim against the defendants is not for them, but for the utilities to assert. The petitioners ask us to allow them to press the consumers' claims for three reasons. First, they assert that none of the rationales underlying Hanover or Illinois exist in cases involving regulated public utilities. Second, they argue that we should apply an exception, suggested in * Illinois for actions based upon cost-plus contracts. Third, they maintain that 4C of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S. C. 15c, authorizes them to assert claims on behalf of utility customers even if the customers could not assert any claims themselves. Affirming the Court of Appeals, we reject each of these contentions in turn. III The petitioners assert that we should allow indirect purchaser suits in cases involving regulated public utilities that pass on 100 percent of their costs to their customers. They maintain
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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100 percent of their costs to their customers. They maintain that our concerns in Hanover and Illinois about the difficulties of apportionment, the risk of multiple recovery, and the diminution of incentives for private antitrust enforcement would not exist in such cases. We disagree. Although the rationales of Hanover and Illinois may not apply with equal force in all instances, we find it inconsistent with precedent and imprudent in any event to create an exception for regulated public utilities. A The direct purchaser rule serves, in part, to eliminate the complications of apportioning overcharges between direct and indirect purchasers. See Hanover ; Illinois ; Blue Shield of The petitioners find the rule unnecessary, in this respect, when a utility passes on its costs to its customers pursuant to state regulations or tariffs filed with a utility commission. In such cases, they assert, the customers pay the entire overcharge, obviating litigation over its apportionment. They maintain that they can prove the exact injury to the residential customers whom they represent because the respondent made periodic public filings showing the volume and price of gas that it sold to these consumers. They ask us to allow them to sue for *209 the entire amount of the overcharge and to limit the respondent's recovery to damages for its lost business. The petitioners have oversimplified the apportionment problem in two respects. First, an overcharge may injure a utility, apart from the question of lost business, even if the utility raises its rates to offset its increased costs. As we explained in Hanover : "The mere fact that a price rise followed an unlawful cost increase does not show that the sufferer of the cost increase was undamaged. His customers may have been ripe for his price rise earlier; if a cost rise is merely the occasion for a price increase a businessman could have imposed absent the rise in his costs, the fact that he was earlier not enjoying the benefits of the higher price should not permit the supplier who charges an unlawful price to take those benefits from him without being liable for damages. This statement merely recognizes the usual principle that the possessor of a right can recover for its unlawful deprivation whether or not he was previously exercising it." n. 9. In other words, to show that a direct purchaser has borne no portion of an overcharge, the indirect purchaser would have to prove, among other things, that the direct purchaser could not have raised its rates prior to the overcharge. In Hanover however, we decided not to allow proof
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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overcharge. In Hanover however, we decided not to allow proof of what the direct purchaser might have done because of the "nearly insuperable difficulty" of the issue. The petitioners assume that the presence of state regulation would make the proof less difficult here. We disagree. The state regulation does not simplify the problem but instead imports an additional level of complexity. To decide whether a utility has borne an overcharge, a court would have to consider not only the extent to which market conditions would have allowed the utility to raise its rates prior to the overcharge, as in the case of an unregulated business, but also what the state regulators would have allowed. In particular, *210 to decide that an overcharge did not injure a utility, a court would have to determine that the State's regulatory schemes would have barred any rate increase except for the amount reflected by cost increases. Proof of this complex preliminary issue, one irrelevant to the liability of the defendant, would proceed on a case-by-case basis and would turn upon the intricacies of state law. From the certified question in this case, we do not know whether the respondent could have raised its prices prior to the overcharge. Its customers may have been willing to pay a greater price, and the Kansas and Missouri regulators may have allowed a rate increase based on factors other than strict costs. See Midwest Gas Users ; State ex rel. Associated Natural Gas To the extent that the respondent could have sought and gained permission to raise its rates in the absence of an overcharge, at least some portion of the overcharge is being borne by it; whether by overcharge or by increased rates, consumers would have been paying more for natural gas than they had been paying in the past. Because of this potential injury, the respondent must remain in the suit. If we were to add indirect purchasers to the action, we would have to devise an apportionment formula. This is the very complexity that Hanover and Illinois sought to avoid. Second, difficult questions of timing might necessitate apportioning overcharges if we allowed indirect suits by utility customers. Even if, at some point, a utility can pass on 100 percent of its costs to its customers, various factors may delay the passing-on process. Some utilities must seek approval from the governing regulators prior to raising their rates. Other utilities, pursuant to purchase gas adjustment clauses (PGA's) filed with state regulators, may adjust their rates to reflect changes in their wholesale costs according to prearranged formulas without
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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changes in their wholesale costs according to prearranged formulas without seeking regulatory approval in *211 each instance. Yet, even utilities that use PGA's often encounter some delay. See Brief for State of Illinois as Amicus Curiae 9, n. 11 (describing the various time lags under a typical PGA between the increase in a utility's wholesale costs and the rise in consumer rates). During any period in which a utility's costs rise before it may adjust its rates, the utility will bear the costs in the form of lower earnings. See S. Breyer, Regulation and its Reform 48-49 Even after the utility raises its rates, moreover, the pass-through process may take time to complete. During this time, the utility and its customers each would pay for some of the increased costs. In this case, we could not deprive the respondent of its 4 action without first determining that the passing-on process in fact had allowed it to shift the entire overcharge to its customers. The certified question, however, leaves unclear whether the respondent had passed on "most or all" of its costs at the time of the suit. In addition, even the means by which the passthrough occurred remain unsettled. The petitioners allege that, pursuant to formulas in PGA's filed with the Kansas Corporation Commission and the Missouri Public Service Commission, the respondent "automatically" adjusted some of its rates to reflect increases in the wholesale cost of gas. Brief for Petitioners 5, n. 5. The respondent, however, maintains that PGA's did not govern all of its sales. See Brief for Respondent 17. The difficulties posed by issues of this sort led us to adopt the direct purchaser rule, and we must decline to create an exception that would require their litigation. As we have stated before: "[T]he task of disentangling overlapping damages claims is not lightly to be imposed upon potential antitrust litigants, or upon the judicial system." 457 U. S., at In addition to these complications, the regulation of utilities itself may make an exception to Illinois unnecessary. Our decisions in Hanover and Illinois often deny relief to consumers who have paid inflated prices *212 because of their status as indirect purchasers. See 2 P. Areeda & D. Turner, Antitrust Law 337e, pp. 193-194 (1978); Harris & Sullivan, Passing on the Monopoly Overcharge: A Comprehensive Policy Analysis, Although one might criticize Illinois for this consequence in other circumstances, the criticism may have less validity in the context of public utilities. Both the Court of Appeals in this case and the Seventh Circuit in Illinois ex rel. have suggested that state
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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Seventh Circuit in Illinois ex rel. have suggested that state regulators would require the utilities to pass on at least some of the recovery obtained in a 4 suit. See Wyoming Tight Sands, 866 F. 2d, at 1291; Panhandle State regulators have followed this approach elsewhere. See, e. g., Louisiana Power & Light Co., Ex Parte, Nos. U-17906, U-12636, U-17649, La. PUC LEXIS 3, *31-*32 (requiring Louisiana Power & Light Co., which won a $190 million judgment against United Gas Pipe Line Co., to flow the proceeds back to ratepayers through reduced rates over a 5-year period). If Kansas and Missouri impose similar requirements, then even if the customers cannot sue the alleged antitrust violaters, they may receive some of the compensation obtained by the respondent. Creating an exception to allow apportionment in violation of Illinois would make little sense when, in light of all its difficulty, its practical significance is so diminished. B The Illinois rule also serves to eliminate multiple recoveries. See Illinois -731; The petitioners assert that no risk of multiple recovery would exist here, if we allowed them to sue, because the direct and indirect purchasers would be seeking different, not duplicative, damages; the petitioners would recover the amount of the overcharge and the utilities would recover damages for their lost sales. Leaving *213 aside the apportionment issue, we reject the argument in this case, just as we did in Illinois Bringing all classes of direct and indirect purchasers together in a single lawsuit may reduce the risk of multiple recovery, but the reduction comes at too great a cost. See Illinois This case already has become quite complicated. It involves numerous utilities and other companies operating in several States under federal, state, and municipal regulation and, in some instances, under no rate regulation at all. Even apart from gas sold to customers, the utilities seek damages for lost sales and for gas purchased for their own use. The petitioners, in addition to their parens patriae claims, are asserting direct claims on behalf of numerous state agencies. Other direct purchasers also seek several measures of damages. Allowing the petitioners to proceed on behalf of consumers would complicate the proceedings further. Even if they could represent consumers residing in Kansas and Missouri, they could not represent industrial and commercial purchasers or consumers from other States. See 15 U.S. C. 15c(a)(1) (extending parens patriae representation only to resident natural persons). These unrepresented consumers might seek intervention and further delay the prompt determination of the suit. The expansion of the case would risk the confusion, costs, and possibility of
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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the case would risk the confusion, costs, and possibility of error inherent in complex litigation. At the same time, however, it might serve little purpose because, as noted above, state regulatory law may provide appropriate relief to consumers even if they cannot sue under 4. As in Illinois we continue to believe that "even if ways could be found to bring all potential plaintiffs together in one huge action, the complexity thereby introduced into treble-damages proceedings argues strongly for retaining the Hanover rule." 431 U.S., *214 C We have maintained, throughout our cases, that our interpretation of 4 must promote the vigorous enforcement of the antitrust laws. See Hanover ; Illinois ; 457 U. S., at ; California v. ARC America If we were convinced that indirect suits would secure this goal better in cases involving utilities, the argument to interpret 4 to create the exception sought by the petitioners might be stronger. On balance, however, we do not believe that the petitioners can prevail in this critical part of the case. The petitioners assert that utilities, such as the respondent, lack the incentive to prosecute 4 cases for two reasons. First, they state that utilities, by law, may pass on their costs to customers. Second, they surmise that utilities might have to pass on damages recovered in a 4 action. In other words, according to the petitioners, utilities lose nothing if they do not sue and gain nothing if they do sue. In contrast, the petitioners maintain, the large aggregate claims of residential consumers will give state attorneys general ample motivation to sue in their capacity as parens patriae. The petitioners' argument does not persuade us that utilities will lack incentives to sue overcharging suppliers. Utilities may bring 4 actions in some instances for fear that regulators will not allow them to shift known and avoidable overcharges on to their customers. See Kan. Stat. Ann. 66-a (allowing the state commission to "review and evaluate the efficiency or prudence of any actions of any public utility or common carrier for the purpose of establishing fair and reasonable rates"); Mo. Rev. Stat. 393.150 (1986) to give regulators "considerable discretion" in setting gas rates). In addition, even if state law would require a utility to reimburse its customers for recovered overcharges, a utility may seek treble damages in a 4 action. *215 The petitioners have cited no authority indicating that a victorious utility would have to pay the entire exemplary portion of these damages to its customers. Utilities, moreover, have an established record of diligent antitrust enforcement, having brought highly successful 4
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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record of diligent antitrust enforcement, having brought highly successful 4 actions in many instances. The well-known group of actions from the 1960's involving overcharges for electrical generating equipment provides an excellent example. In these cases, which involved "a series of horizontal price-fixing conspiracies characterized as the most shocking in the history of the Sherman Act, plaintiff utilities recover[ed] in unprecedented sums" even though some of the utilities "passed on to their own customers whatever higher costs they incurred as a consequence of the alleged conspiracies." Pollock, Standing to Sue, Remoteness of Injury, and the Passing-On Doctrine, 32 A. B. A. Antitrust L. J. 5, 10-11 (1966). The courts in these suits, even before the Hanover and Illinois decisions, considered the pass-on issue and held that the causes of action were for the utilities to assert. See, e. g., Commonwealth Edison ; Ohio Valley Electric v. General Electric Co., Various factors may have prompted these and other utility actions. For example, in addition to the reasons stated above, the respondent asserts that, like any business, an investor-owned utility has an interest in protecting its market. But whatever the motivation for their 4 suits, this history makes us quite hesitant to take from the utilities the responsibility for enforcing the antitrust laws. Relying on indirect purchaser actions in utility cases might fail to promote antitrust enforcement for other reasons. Consumers may lack the expertise and experience necessary for detecting improper pricing by a utility's suppliers. See Landes & Posner, The Economics of Passing On: A Reply to Harris and Sullivan, Although state attorneys general have greater expertise, *216 they may hesitate to exercise the parens patriae device in cases involving smaller, more speculative harm to consumers. See Landes & Posner, Should Indirect Purchasers Have Standing to Sue Under the Antitrust Laws? An Economic Analysis of the Rule of Illinois See also Illinois And even when state attorneys general decide to bring parens patriae actions, they may sue only on behalf of resident natural persons. See 15 U.S. C. 15c(a)(1). All others, including nonresidents and small businesses, might fail to enforce their claims because of the insignificance of their individual recoveries. For these reasons, we remain unconvinced that the exception sought by the petitioners would promote antitrust enforcement better than the current Illinois rule. D The preceding conclusions bring us to a broader point. The rationales underlying Hanover and Illinois will not apply with equal force in all cases. We nonetheless believe that ample justification exists for our stated decision not to "carve out exceptions to the [direct purchaser] rule for particular types
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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out exceptions to the [direct purchaser] rule for particular types of markets." Illinois The possibility of allowing an exception, even in rather meritorious circumstances, would undermine the rule. As we have stated: "[T]he process of classifying various market situations according to the amount of pass-on likely to be involved and its susceptibility of proof in a judicial forum would entail the very problems that the Hanover rule was meant to avoid. The litigation over where the line should be drawn in a particular class of cases would inject the same `massive evidence and complicated theories' *217 into treble-damages proceedings, albeit at a somewhat higher level of generality." In sum, even assuming that any economic assumptions underlying the Illinois rule might be disproved in a specific case, we think it an unwarranted and counterproductive exercise to litigate a series of exceptions. Having stated the rule in Hanover and adhered to it in Illinois we stand by our interpretation of 4. IV The suggestion in Hanover and Illinois that a departure from the direct purchaser rule may be necessary when an indirect purchaser buys under a pre-existing cost-plus contract does not justify an exception in this case. In Hanover we stated: "We recognize that there might be situationsfor instance, when an overcharged buyer has a pre-existing `cost-plus' contract, thus making it easy to prove that he has not been damagedwhere the considerations requiring that the passing-on defense not be permitted in this case would not be present." 392 U.S., We observed further in Illinois : "In [a cost-plus contract] situation, the [direct] purchaser is insulated from any decrease in its sales as a result of attempting to pass on the overcharge, because its customer is committed to buying a fixed quantity regardless of price. The effect of the overcharge is essentially determined in advance, without reference to the interaction of supply and demand that complicates the determination in the general case." The petitioners argue that the regulations and tariffs requiring the respondent to pass on its costs to the consumers place this case within the cost-plus contract exception. We disagree. *218 The respondent did not sell the gas to its customers under a pre-existing cost-plus contract. Even if we were to create an exception for situations that merely resemble those governed by such a contract, we would not apply the exception here. Our statements above show that we might allow indirect purchasers to sue only when, by hypothesis, the direct purchaser will bear no portion of the overcharge and otherwise suffer no injury. That certainty does not exist here. The utility customers
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Justice Kennedy
| 1,990 | 4 |
majority
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Kansas v. UtiliCorp United Inc.
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https://www.courtlistener.com/opinion/112476/kansas-v-utilicorp-united-inc/
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injury. That certainty does not exist here. The utility customers made no commitment to purchase any particular quantity of gas, and the utility itself had no guarantee of any particular profit. Even though the respondent raised its prices to cover its costs, we cannot ascertain its precise injury because, as noted above, we do not know what might have happened in the absence of an overcharge. In addition, even if the utility customers had a highly inelastic demand for natural gas, see Panhandle 852 F. 2d, the need to inquire into the precise operation of market forces would negate the simplicity and certainty that could justify a cost-plus contract exception. See Illinois ; P. Areeda & H. Hovencamp, Antitrust Law 337.3c, pp. 3-324 Thus, although we do not alter our observations about the possibility of an exception for cost-plus contracts, we decline to create the general exception for utilities sought by the petitioners. V The petitioners, in their final argument, contend that 4C of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S. C. 15c, authorizes them to sue on behalf of consumers even though the consumers, as indirect purchasers, have no cause of action of their own. Section 4C(a)(1) provides in relevant part: "Any attorney general of a State may bring a civil action in the name of such state as parens patriae on behalf of natural persons residing in such State to secure monetary relief as provided in this section for injury sustained *219 by such natural persons to their property by reason of any violation of sections 1 to 7 of this title." 15 U.S. C. 15c(a)(1). Because the Act, in their view, has the clear purpose of protecting consumers, see Kintner, Griffin, & Goldston, The Hart-Scott-Rodino Antitrust Improvements Act of 1976: An Analysis, the petitioners contend that it must allow the States to sue on behalf of consumers notwithstanding their status as indirect purchasers. We have rejected this argument before. We stated in Illinois that 4C did not establish any new substantive liability. Instead, "[i]t simply created a new procedural deviceparens patriae actions by States on behalf of their citizensto enforce existing rights of recovery under 4 [of the Clayton Act]." n. 14. Section 4, as noted above, affords relief only to a person "injured in his business or property by reason of anything forbidden in the antitrust laws." 15 U.S. C. 15(a). State attorneys general may bring actions on behalf of consumers who have such an injury. See, e. g., But here the respondent is the injured party under the antitrust laws, and
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Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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The Murr family owns two adjacent lots along the Lower St. Croix River. Under a local regulation, those two prop erties may not be “sold or developed as separate lots” because neither contains a sufficiently large area of build- able land. Wis. Admin. Code 118.08(4)(a)(2) (2017). The Court today holds that the regulation does not effect a taking that requires just compensation. This bottom-line conclusion does not trouble me; the majority presents a fair case that the Murrs can still make good use of both lots, and that the ordinance is a commonplace tool to preserve scenic areas, such as the Lower St. Croix River, for the benefit of landowners and the public alike. Where the majority goes astray, however, is in conclud ing that the definition of the “private property” at issue in a case such as this turns on an elaborate test looking not only to state and local law, but also to (1) “the physical characteristics of the land,” (2) “the prospective value of the regulated land,” (3) the “reasonable expectations” of the owner, and (4) “background customs and the whole of our legal tradition.” Ante, at 11–12. Our decisions have, time and again, declared that the Takings Clause protects private property rights as state law creates and defines them. By securing such established property rights, the 2 MURR v. WISCONSIN ROBERTS, C. J., dissenting Takings Clause protects individuals from being forced to bear the full weight of actions that should be borne by the public at large. The majority’s new, malleable definition of “private property”—adopted solely “for purposes of th[e] takings inquiry,” ante, at 20—undermines that protection. I would stick with our traditional approach: State law defines the boundaries of distinct parcels of land, and those boundaries should determine the “private property” at issue in regulatory takings cases. Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account. Because the majority departs from these settled principles, I respectfully dissent. I A The Takings Clause places a condition on the govern ment’s power to interfere with property rights, instructing that “private property [shall not] be taken for public use, without just compensation.” Textually and logically, this Clause raises three basic questions that individuals, gov ernments, and judges must consider when anticipating or deciding whether the government will have to provide reimbursement for its actions. The first is what “pri- vate property” the government’s planned course of conduct will affect. The second, whether that property has been “taken” for “public use.” And
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Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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whether that property has been “taken” for “public use.” And if “private property” has been “taken,” the last item of business is to calculate the “just compensation” the owner is due. Step one—identifying the property interest at stake— requires looking outside the Constitution. The word “property” in the Takings Clause means “the group of rights inhering in [a] citizen’s relation to [a] thing, as the right to possess, use and dispose of it.” United States v. General Motors Corp., The Clause does not, however, provide the definition of those Cite as: 582 U. S. (2017) 3 ROBERTS, C. J., dissenting rights in any particular case. Instead, “property interests are created and their dimensions are defined by exist ing rules or understandings that stem from an independ ent source such as state law.” (alteration and internal quotation marks omitted). By protecting these established rights, the Takings Clause stands as a buffer between property owners and governments, which might naturally look to put private property to work for the public at large. When government action interferes with property rights, the next question becomes whether that interfer ence amounts to a “taking.” “The paradigmatic taking is a direct government appropriation or physical invasion of private property.” Lingle v. Chevron U. S. A. Inc., 544 U.S. 528, 537 (2005). These types of actions give rise to “per se taking[s]” because they are “perhaps the most serious form[s] of invasion of an owner’s property inter ests, depriving the owner of the rights to possess, use and dispose of the property.” Horne v. Department of Agricul- ture, 576 U. S. (2015) (slip op., at 7) (internal quotation marks omitted). But not all takings are so direct: Governments can infringe private property interests for public use not only through appropriations, but through regulations as well. If compensation were required for one but not the other, “the natural tendency of human nature” would be to ex tend regulations “until at last private property disap pears.” Pennsylvania Coal 415 (1922). Our regulatory takings decisions, then, have recognized that, “while property may be regulated to a certain extent, if regulation goes too far it will be recog nized as a taking.” This rule strikes a balance be tween property owners’ rights and the government’s au thority to advance the common good. Owners can rest assured that they will be compensated for particularly onerous regulatory actions, while governments maintain 4 MURR v. WISCONSIN ROBERTS, C. J., dissenting the freedom to adjust the benefits and burdens of property ownership without incurring crippling costs from each alteration. Depending, of course, on how far
|
Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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costs from each alteration. Depending, of course, on how far is “too far.” We have said often enough that the answer to this question gener ally resists per se rules and rigid formulas. There are, however, a few fixed principles: The inquiry “must be conducted with respect to specific property.” Keystone Bituminous Coal (1987) (internal quotation marks omitted). And if a “regu lation denies all economically beneficial or productive use of land,” the interference categorically amounts to a tak ing. v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). For the vast array of regulations that lack such an extreme effect, a flexible approach is more fitting. The factors to consider are wide ranging, and include the economic impact of the regulation, the owner’s investment-backed expectations, and the character of the government action. The ultimate question is whether the government’s imposition on a property has forced the owner “to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn Central Transp. (1978) (internal quotation marks omitted). Finally, if a taking has occurred, the remaining matter is tabulating the “just compensation” to which the property owner is entitled. “[J]ust compensation normally is to be measured by the market value of the property at the time of the taking.” Horne, 576 U. S., at (slip op., at 15) (internal quotation marks omitted). B Because a regulation amounts to a taking if it completely destroys a property’s productive use, there is an incen tive for owners to define the relevant “private property” narrowly. This incentive threatens the careful balance Cite as: 582 U. S. (2017) 5 ROBERTS, C. J., dissenting between property rights and government authority that our regulatory takings doctrine strikes: Put in terms of the familiar “bundle” analogy, each “strand” in the bundle of rights that comes along with owning real property is a distinct property interest. If owners could define the relevant “private property” at issue as the specific “strand” that the challenged regulation affects, they could convert nearly all regulations into per se takings. And so we do not allow it. In Penn Central Transporta- tion we held that property owners may not “establish a ‘taking’ simply by showing that they have been denied the ability to exploit a property inter est.” In that case, the owner of Grand Central Terminal in New York City argued that a re striction on the owner’s ability to add an office building atop the station amounted to a taking of its air rights. We rejected that narrow definition of the “property” at
|
Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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rights. We rejected that narrow definition of the “property” at issue, concluding that the correct unit of analysis was the own er’s “rights in the parcel as a whole.” at 130–131. “[W]here an owner possesses a full ‘bundle’ of property rights, the destruction of one strand of the bundle is not a taking, because the aggregate must be viewed in its en tirety.” ; see Preservation Council, The question presented in today’s case concerns the “parcel as a whole” language from Penn Central. This enigmatic phrase has created confusion about how to identify the relevant property in a regulatory takings case when the claimant owns more than one plot of land. Should the impact of the regulation be evaluated with respect to each individual plot, or with respect to adjacent plots grouped together as one unit? According to the majority, a court should answer this question by consider ing a number of facts about the land and the regulation at issue. The end result turns on whether those factors 6 MURR v. WISCONSIN ROBERTS, C. J., dissenting “would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” Ante, at 12. I think the answer is far more straightforward: State laws define the boundaries of distinct units of land, and those boundaries should, in all but the most exceptional circumstances, determine the parcel at issue. Even in regulatory takings cases, the first step of the Takings Clause analysis is still to identify the relevant “private property.” States create property rights with respect to particular “things.” And in the context of real property, those “things” are horizontally bounded plots of land. (“An interest in real prop erty is defined by the metes and bounds that describe its geographic dimensions”). States may define those plots differently—some using metes and bounds, others using government surveys, recorded plats, or subdivision maps. See 11 D. Thomas, Thompson on Real Property ; Powell on Real Property (M. Wolf ed. 2016). But the definition of property draws the basic line between, as P. G. Wodehouse would put it, meum and tuum. The question of who owns what is pretty important: The rules must provide a readily ascertainable definition of the land to which a particular bundle of rights attaches that does not vary depending upon the purpose at issue. See, e.g., (2016) (“[T]he lots in [a] plat shall be described by the name of the plat and the lot and block for all purposes, includ ing those of assessment, taxation, devise, descent and conveyance”). Following state property lines
|
Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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assessment, taxation, devise, descent and conveyance”). Following state property lines is also entirely consistent with Penn Central. Requiring consideration of the “parcel as a whole” is a response to the risk that owners will strategically pluck one strand from their bundle of property rights—such as the air rights at issue in Penn Central— and claim a complete taking based on that strand alone. Cite as: 582 U. S. (2017) 7 ROBERTS, C. J., dissenting That risk of strategic unbundling is not present when a legally distinct parcel is the basis of the regulatory takings claim. State law defines all of the interests that come along with owning a particular parcel, and both property owners and the government must take those rights as they find them. The majority envisions that relying on state law will create other opportunities for “gamesmanship” by land owners and States: The former, it contends, “might seek to alter [lot] lines in anticipation of regulation,” while the latter might pass a law that “consolidates property” to avoid a successful takings claim. Ante, at 11, 17. But such obvious attempts to alter the legal landscape in anticipation of a lawsuit are unlikely and not particularly difficult to detect and disarm. We rejected the strategic splitting of property rights in Penn Central, and courts could do the same if faced with an attempt to create a takings-specific definition of “private property.” Cf. Phil- (1998) (“[A] State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law”). Once the relevant property is identified, the real work begins. To decide whether the regulation at issue amounts to a “taking,” courts should focus on the effect of the regulation on the “private property” at issue. Adjacent land under common ownership may be relevant to that inquiry. The owner’s possession of such a nearby lot could, for instance, shed light on how the owner reasonably expected to use the parcel at issue before the regulation. If the court concludes that the government’s action amounts to a taking, principles of “just compensation” may also allow the owner to recover damages “with regard to a separate parcel” that is contiguous and used in conjunc tion with the parcel at issue. 4A L. Smith & M. Hansen, Nichols’ Law of Eminent Domain, ch. 14B, (rev. 8 MURR v. WISCONSIN ROBERTS, C. J., dissenting 3d ed. 2010). In sum, the “parcel as a whole” requirement prevents a property owner from identifying a single “strand” in his bundle of property rights and claiming that interest has been taken. Allowing that strategic approach
|
Justice Roberts
| 2,017 | 0 |
dissenting
|
Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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claiming that interest has been taken. Allowing that strategic approach to defining “private property” would undermine the balance struck by our regulatory takings cases. Instead, state law creates distinct parcels of land and defines the rights that come along with owning those parcels. Those established bun dles of rights should define the “private property” in regu latory takings cases. While ownership of contiguous prop erties may bear on whether a person’s plot has been “taken,” Penn Central provides no basis for disregarding state property lines when identifying the “parcel as a whole.” II The lesson that the majority draws from Penn Central is that defining “the proper parcel in regulatory takings cases cannot be solved by any simple test.” Ante, at 20. Following through on that stand against simplicity, the majority lists a complex set of factors theoretically de signed to reveal whether a hypothetical landowner might expect that his property “would be treated as one parcel, or, instead, as separate tracts.” Ante, at 11. Those factors, says the majority, show that Lots E and F of the Murrs’ property constitute a single parcel and that the local ordinance requiring the Murrs to develop and sell those lots as a pair does not constitute a taking. In deciding that Lots E and F are a single parcel, the majority focuses on the importance of the ordinance at issue and the extent to which the Murrs may have been especially surprised, or unduly harmed, by the application of that ordinance to their property. But these issues should be considered when deciding if a regulation consti tutes a “taking.” Cramming them into the definition of Cite as: 582 U. S. (2017) 9 ROBERTS, C. J., dissenting “private property” undermines the effectiveness of the Takings Clause as a check on the government’s power to shift the cost of public life onto private individuals. The problem begins when the majority loses track of the basic structure of claims under the Takings Clause. While it is true that we have referred to regulatory takings claims as involving “essentially ad hoc, factual inquiries,” we have conducted those wide-ranging investigations when assessing “the question of what constitutes a ‘tak- ing’ ” under Penn Central. (emphasis added); see (“[W]e have generally eschewed any set formula for de termining how far is too far” (emphasis added; internal quotation marks omitted)). And even then, we reach that “ad hoc” Penn Central framework only after determining that the regulation did not deny all productive use of the parcel. See Both of these inquiries presuppose that the relevant “private property” has already
|
Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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these inquiries presuppose that the relevant “private property” has already been identified. See (1981) (explaining that “[t]hese ‘ad hoc, factual inquiries’ must be conducted with respect to specific property”). There is a simple reason why the majority does not cite a single instance in which we have made that identification by relying on anything other than state property princi ples—we have never done so. In departing from state property principles, the majority authorizes governments to do precisely what we rejected in Penn Central: create a litigation-specific definition of “property” designed for a claim under the Takings Clause. Whenever possible, governments in regulatory takings cases will ask courts to aggregate legally distinct proper ties into one “parcel,” solely for purposes of resisting a particular claim. And under the majority’s test, identify ing the “parcel as a whole” in such cases will turn on the reasonableness of the regulation as applied to the claim 10 MURR v. WISCONSIN ROBERTS, C. J., dissenting ant. The result is that the government’s regulatory inter ests will come into play not once, but twice—first when identifying the relevant parcel, and again when determin ing whether the regulation has placed too great a public burden on that property. Regulatory takings, however—by their very nature—pit the common good against the interests of a few. There is an inherent imbalance in that clash of interests. The widespread benefits of a regulation will often appear far weightier than the isolated losses suffered by individuals. And looking at the bigger picture, the overall societal good of an economic system grounded on private property will appear abstract when cast against a concrete regulatory problem. In the face of this imbalance, the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government,” Monongahela Nav. (1893), by considering the effect of a regulation on specific property rights as they are established at state law. But the majority’s approach undermines that protection, defin ing property only after engaging in an ad hoc, case-specific consideration of individual and community interests. The result is that the government’s goals shape the playing field before the contest over whether the challenged regu lation goes “too far” even gets underway. Suppose, for example, that a person buys two distinct plots of land—known as Lots A and B—from two different owners. Lot A is landlocked, but the neighboring Lot B shares a border with a local beach. It soon comes to light, however, that the beach is a nesting habitat for a species of turtle. To protect this species, the state
|
Justice Roberts
| 2,017 | 0 |
dissenting
|
Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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a species of turtle. To protect this species, the state government passes a regulation preventing any development or recrea tion in areas abutting the beach—including Lot B. If that lot became the subject of a regulatory takings claim, the purchaser would have a strong case for a per se taking: Even accounting for the owner’s possession of the other Cite as: 582 U. S. (2017) 11 ROBERTS, C. J., dissenting property, Lot B had no remaining economic value or pro ductive use. But under the majority’s approach, the gov ernment can argue that—based on all the circumstances and the nature of the regulation—Lots A and B should be considered one “parcel.” If that argument succeeds, the owner’s per se takings claim is gone, and he is left to roll the dice under the Penn Central balancing framework, where the court will, for a second time, throw the reason- ableness of the government’s regulatory action into the balance. The majority assures that, under its test, “[d]efining the property should not necessarily preordain the outcome in every case.” Ante, at 10 (emphasis added). The under scored language cheapens the assurance. The framework laid out today provides little guidance for identifying whether “expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” Ante, at 12. Instead, the majority’s approach will lead to definitions of the “parcel” that have far more to do with the reasonableness of applying the challenged regulation to a particular landowner. The result is clear double counting to tip the scales in favor of the government: Reasonable government regulation should have been anticipated by the landowner, so the relevant parcel is defined consistent with that regulation. In deciding whether there is a taking under the second step of the analysis, the regulation will seem eminently reasonable given its impact on the pre-packaged parcel. Not, as the Court assures us, “necessarily” in “every” case, but surely in most. Moreover, given its focus on the particular challenged regulation, the majority’s approach must mean that two lots might be a single “parcel” for one takings claim, but separate “parcels” for another. See ante, at 13. This is just another opportunity to gerrymander the definition of 12 MURR v. WISCONSIN ROBERTS, C. J., dissenting “private property” to defeat a takings claim. The majority also emphasizes that courts trying to identify the relevant parcel “must strive” to ensure that “some people alone [do not] bear public burdens which, in all fairness and justice, should be borne by the public as a
|
Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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and justice, should be borne by the public as a whole.” Ante, at 20 (internal quotation marks omitted). But this refrain is the traditional touchstone for spotting a taking, not for defin ing private property. Put simply, today’s decision knocks the definition of “private property” loose from its foundation on stable state law rules and throws it into the maelstrom of multiple factors that come into play at the second step of the tak ings The result: The majority’s new framework compromises the Takings Clause as a barrier between individuals and the press of the public interest. III Staying with a state law approach to defining “private property” would make our job in this case fairly easy. The Murr siblings acquired Lot F in 1994 and Lot E a year later. Once the lots fell into common ownership, the chal lenged ordinance prevented them from being “sold or developed as separate lots” because neither contained a sufficiently large area of buildable land. Wis. Admin. Code 118.08(4)(a)(2). The Murrs argued that the ordinance amounted to a taking of Lot E, but the State of Wisconsin and St. Croix County proposed that both lots together should count as the relevant “parcel.” The trial court sided with the State and County, and the Wisconsin Court of Appeals affirmed. Rather than consid ering whether Lots E and F are separate parcels under Wisconsin law, however, the Court of Appeals adopted a takings-specific approach to defining the relevant parcel. See (unpublished opinion), App. to Pet. for Cert. A–9, ¶17 (framing the issue as “whether contiguous property is Cite as: 582 U. S. (2017) 13 ROBERTS, C. J., dissenting analytically divisible for purposes of a regulatory takings claim”). Relying on what it called a “well-established rule” for “regulatory takings cases,” the court explained “that contiguous property under common ownership is consid ered as a whole regardless of the number of parcels con tained therein.” at A–11, ¶20. And because Lots E and F were side by side and owned by the Murrs, the case was straightforward: The two lots were one “parcel” for the regulatory takings The court therefore eval uated the effect of the ordinance on the two lots considered together. As I see it, the Wisconsin Court of Appeals was wrong to apply a takings-specific definition of the property at issue. Instead, the court should have asked whether, under general state law principles, Lots E and F are legally distinct parcels of land. I would therefore vacate the judgment below and remand for the court to identify the relevant property using ordinary principles of
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Justice Roberts
| 2,017 | 0 |
dissenting
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Murr v. Wisconsin
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https://www.courtlistener.com/opinion/4403799/murr-v-wisconsin/
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court to identify the relevant property using ordinary principles of Wisconsin property law. After making that state law determination, the next step would be to determine whether the challenged ordi nance amounts to a “taking.” If Lot E is a legally distinct parcel under state law, the Court of Appeals would have to perform the takings analysis anew, but could still consider many of the issues the majority finds important. The majority, for instance, notes that under the ordinance the Murrs can use Lot E as “recreational space,” as the “loca tion of any improvements,” and as a valuable addition to Lot F. Ante, at 18. These facts could be relevant to whether the “regulation denies all economically beneficial or productive use” of Lot E. Similarly, the majority touts the benefits of the ordinance and observes that the Murrs had little use for Lot E inde pendent of Lot F and could have predicted that Lot E would be regulated. Ante, at 18. These facts speak to “the economic impact of the regulation,” interference with 14 MURR v. WISCONSIN ROBERTS, C. J., dissenting “investment-backed expectations,” and the “character of the governmental action”—all things we traditionally consider in the Penn Central I would be careful, however, to confine these considera tions to the question whether the regulation constitutes a taking. As Alexander Hamilton explained, “the security of Property” is one of the “great object[s] of government.” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1911). The Takings Clause was adopted to ensure such security by protecting property rights as they exist under state law. Deciding whether a regulation has gone so far as to constitute a “taking” of one of those prop erty rights is, properly enough, a fact-intensive task that relies “as much on the exercise of judgment as on the application of logic.” MacDonald, Sommer & Frates v. Yolo County, (alterations and internal quotation marks omitted). But basing the defini tion of “property” on a judgment call, too, allows the gov ernment’s interests to warp the private rights that the Takings Clause is supposed to secure. I respectfully dissent. Cite as: 582 U. S. (2017) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 15–214 JOSEPH P. MURR, ET AL., PETITIONERS v. WISCONSIN, ET AL.
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Justice Breyer
| 2,001 | 2 |
majority
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Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says: "An alien ordered removed [1] who is inadmissible [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision" (a)(6) (1994 ed., Supp. V). In these cases, we must decide whether this postremoval-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. See infra, at 693-694. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit "reasonable time" limitation, the application of which is subject to federal-court review. *683 I A The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings. While removal proceedings are in progress, most aliens may be released on bond or paroled. as added and amended, -585, (a)(2), (c) (1994 ed., Supp. V). After entry of a final removal order and during the 90-day removal period, however, aliens must be held in custody. 1231(a)(2). Subsequently, as the post-removal-period statute provides, the Government "may" continue to detain an alien who still remains here or release that alien under supervision. 1231(a)(6). Related Immigration and Naturalization Service (INS) regulations add that the INS District Director will initially review the alien's records to decide whether further detention or release under supervision is warranted after the 90-day removal period expires. 8 CFR 241.4(c)(1), (h), (k)(1)(i) (2001). If the decision is to detain, then an INS panel will review the matter further, at the expiration of a 3-month period or soon thereafter. 241.4(k)(2)(ii). And the panel will decide,
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Justice Breyer
| 2,001 | 2 |
majority
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Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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period or soon thereafter. 241.4(k)(2)(ii). And the panel will decide, on the basis of records and a possible personal interview, between still further detention or release under supervision. 241.4(i). In making this decision, the panel will consider, for example, the alien's disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and favorable factors such as family ties. 241.4(f). To authorize release, the panel must find that the alien is not likely to be violent, to pose a threat to the community, to flee if released, or to violate the conditions of release. 241.4(e). And the alien must demonstrate "to the satisfaction of the Attorney General" that he will pose no danger or risk of flight. *684 241.4(d)(1). If the panel decides against release, it must review the matter again within a year, and can review it earlier if conditions change. 241.4(k)(2)(iii), (v). B 1 We consider two separate instances of detention. The first concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since. Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years' imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. See 8 U. S. C. 1251(a)(2) (1988 ed., Supp. V) (delineating crimes that make alien deportable). In 1994, Germany told the INS that it would not accept Zadvydas because he was not a German citizen. Shortly thereafter, Lithuania refused to accept Zadvydas because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the Dominican Republic (Zadvydas' wife's country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas' effort to obtain Lithuanian citizenship based on his parents' citizenship; Zadvydas' reapplication is apparently still pending. The INS kept Zadvydas in custody after expiration of the removal period. In September 19, Zadvydas filed a petition for a writ of habeas corpus under 28 U. S. C. 2241 challenging *685 his continued detention. In October 1997, a Federal District Court granted that writ and ordered him released under supervision. (ED La.). In its view, the Government would never succeed in its efforts
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
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https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his permanent confinement, contrary to the Constitution. The Fifth Circuit reversed this decision. It concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not "impossible," good-faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review. The Fifth Circuit stayed its mandate pending potential review in this Court. 2 The second case is that of Kim Ho Ma. Ma was born in Cambodia in 19. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 19, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months' imprisonment. He served two years, after which he was released into INS custody. In light of his conviction of an "aggravated felony," Ma was ordered removed. See 8 U. S. C. 1101(a)(43)(F) 1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of aggravated felonies are deportable). The 90-day removal period expired in early but the INS continued to keep Ma in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was "unable to conclude that *686 Mr. Ma would remain nonviolent and not violate the conditions of release." App. to Pet. for Cert. in No. 00-38, p. 87a. In Ma filed a petition for a writ of habeas corpus under 28 U. S. C. 2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Ma's and about 100 similar cases together, issued a joint order holding that the Constitution forbids postremoval-period detention unless there is "a realistic chance that [the] alien will be deported" (thereby permitting classification of the detention as "in aid of deportation"). Binh The District Court then held an evidentiary hearing, decided that there was no "realistic chance" that Cambodia (which has no repatriation treaty with the United States) would accept Ma, and ordered Ma released. App. to Pet. for Cert. in No. 00-38, at 60a61a. The Ninth Circuit affirmed Ma's release. Kim Ho It concluded, based in part on constitutional concerns, that the statute did not authorize detention for more than a "reasonable time" beyond the 90-day period authorized for removal. And, given the lack of a repatriation agreement with Cambodia, that time
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
the lack of a repatriation agreement with Cambodia, that time had expired upon passage of the 90 days. 3 Zadvydas asked us to review the decision of the Fifth Circuit authorizing his continued detention. The Government asked us to review the decision of the Ninth Circuit forbidding Ma's continued detention. We granted writs in both cases, agreeing to consider both statutory and related constitutional questions. See also Duy Dac We consolidated the two cases for argument; and we now decide them together. *687 II We note at the outset that the primary federal habeas corpus statute, 28 U. S. C. 2241, confers jurisdiction upon the federal courts to hear these cases. See 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held "in custody in violation of the Constitution or laws of the United States"). Before 12, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings. See Beginning in 12, an alternative method for review of deportation orders, namely, actions brought in federal district court under the Administrative Procedure Act (APA), became available. See And in 1 Congress replaced district court APA review with initial deportation order review in courts of appeals. See Act of Sept. 26, 1, 5, (formerly codified at 8 U. S. C. 1105a(a)) (repealed 1996). The 1 Act specified that federal habeas courts were also available to hear statutory and constitutional challenges to deportation (and exclusion) orders. See 8 U. S. C. 1105a(a)(10), (b) (repealed 1996). These statutory changes left habeas untouched as the basic method for obtaining review of continued custody after a deportation order had become final. See Cheng Fan (holding that 1105a(a) applied only to challenges to determinations made during deportation proceedings and motions to reopen those proceedings). More recently, Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here. One provision, (h) (1994 ed., Supp. V), simply forbids courts to construe that section "to create any procedural right or benefit that is legally enforceable"; *688 it does not deprive an alien of the right to rely on 28 U. S. C. 2241 to challenge detention that is without statutory authority. Another provision, 8 U. S. C. 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that "no court shall have jurisdiction to review" decisions "specified to be in the discretion of the Attorney General." The aliens here, however, do not seek review of the Attorney General's exercise of discretion; rather, they challenge
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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of the Attorney General's exercise of discretion; rather, they challenge the extent of the Attorney General's authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion. See also, e. g., 1226(e) (applicable to certain detentionrelated decisions in period preceding entry of final removal order); 1231(a)(4)(D) (applicable to assertion of causes or claims under 1231(a)(4), which is not at issue here); 1252(a)(1), (a)(2)(C) (applicable to judicial review of "final order[s] of removal"); 1252(g) (applicable to decisions "to commence proceedings, adjudicate cases, or execute removal orders"). We conclude that 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention. And we turn to the merits of the aliens' claims. III The post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien "who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal." (a)(6) (1994 ed., Supp. V); see also 8 CFR 241.4(a) (2001). It says that an alien who falls into one of these categories *689 "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." (a)(6) (1994 ed., Supp. V). The Government argues that the statute means what it literally says. It sets no "limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained." Brief for Petitioners in No. 00-38, p. 22. Hence, "whether to continue to detain such an alien and, if so, in what circumstances and for how long" is up to the Attorney General, not up to the courts. "[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." ; see also United ; United ; cf. We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. See United (construing a grant of authority to the Attorney General to ask aliens whatever questions he "deem[s] fit and proper" as limited to questions "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue"). For similar
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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for departure of aliens whose deportation is overdue"). For similar reasons, we read an implicit limitation into the statute before us. In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removalperiod detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention. *690 A A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to "depriv[e]" any "person of liberty without due process of law." Freedom from imprisonmentfrom government custody, detention, or other forms of physical restraintlies at the heart of the liberty that Clause protects. See And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United or, in certain special and "narrow" nonpunitive "circumstances," at where a special justification, such as harm-threatening mental illness, outweighs the "individual's constitutionally protected interest in avoiding physical restraint." The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect. There is no sufficiently strong special justification here for indefinite civil detentionat least as administered under this statute. The statute, says the Government, has two regulatory goals: "ensuring the appearance of aliens at future immigration proceedings" and "[p]reventing danger to the community." Brief for Respondents in No. 99-91, p. 24. But by definition the first justificationpreventing flightis weak or nonexistent where removal seems a remote possibility at best. As this Court said in where detention's goal is no longer practically attainable, detention no longer "bear[s] [a] reasonable relation to the purpose for which the individual [was] committed." The second justificationprotecting the communitydoes not necessarily diminish in force over time. But we have *691 upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections. Compare and with In cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. See The civil confinement here at issue is not limited, but potentially permanent. Cf. ; The provision authorizing detention does not apply narrowly to "a small segment of particularly dangerous individuals," say, suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations. See (a)(6) (1994 ed., Supp. V) (referencing 1227(a)(1)(C)); cf. 358 (only individuals with "past sexually violent behavior and
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
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358 (only individuals with "past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future" may be detained). And, once the flight risk justification evaporates, the only special circumstance *692 present is the alien's removable status itself, which bears no relation to a detainee's dangerousness. Cf. ; Moreover, the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (in the Government's view) significant later judicial review. Compare 8 CFR 241.4(d)(1) (2001) with This Court has suggested, however, that the Constitution may well preclude granting "an administrative body the unreviewable authority to make determinations implicating fundamental rights." Superintendent, Mass. Correctional Institution at ; see also ("[U]nder certain circumstances, the constitutional requirement of due process is a requirement of judicial process"). The Constitution demands greater procedural protection even for property. See South ; The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious. The Government argues that, from a constitutional perspective, alien status itself can justify indefinite detention, and points to as support. That case involved a once lawfully admitted alien who left the United States, returned after a trip abroad, was refused admission, and was left on Ellis Island, indefinitely detained there because the Government could not find another country to accept him. The Court held that 's detention did not violate the Constitution. *693 Although like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As the Court emphasized, the alien's extended departure from the United States required him to seek entry into this country once again. His presence on Ellis Island did not count as entry into the United States. Hence, he was "treated," for constitutional purposes, "as if stopped at the border." And that made all the difference. The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See ; Leng May It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United ; 4 But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See ; ; Kwong Hai ; Yick 118
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